                                                                               FILED
                            NOT FOR PUBLICATION                                 JUL 21 2015

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RANGER PIPELINES,                                No. 13-16080
INCORPORATED, a California
corporation,                                     D.C. No. 4:12-cv-05387-PJH

              Plaintiff - Appellant,
                                                 MEMORANDUM*
 v.

LEXINGTON INSURANCE COMPANY,
a Delaware corporation,

              Defendant - Appellee.


                  Appeal from the United States District Court
                       for the Northern District of California
                Phyllis J. Hamilton, Chief District Judge, Presiding

                        Argued and Submitted July 8, 2015
                            San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.

      Ranger Pipelines, Inc. appeals from an order of the district court dismissing

its complaint for failure to state a claim for relief. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court correctly concluded that the First Amended Complaint’s

(FAC) allegations established that the suit was time barred. See Sams v. Yahoo!

Inc., 713 F.3d 1175, 1179 (9th Cir. 2013). Ranger Pipelines does not dispute that

the insurance policy at issue contained a suit limitation provision requiring an

insured to bring suit within one year of discovering the loss.1 Ranger Pipelines

also does not dispute that the FAC’s allegations established that it failed to comply

with this requirement.

      Ranger Pipelines argues, however, that the FAC adequately alleged that the

limitation period was equitably tolled. We reject this argument. Under California

law, the one-year limitation period is tolled “from the time an insured gives notice

of the damage to his insurer, pursuant to applicable policy notice provisions, until

coverage is denied.” Prudential-LMI Commercial Ins. Co. v. Superior Court, 51

Cal. 3d 674, 693 (1990). The FAC contained a conclusory allegation that the

Regents of the University of California (Regents) made a claim “on behalf of itself

and its additional insureds, including [Ranger Pipelines] . . . .” However, the FAC

did not allege that this claim mentioned Ranger Pipelines by name, nor did it allege

any affirmative steps taken by Ranger Pipelines to request that the Regents assert a



      1
      The FAC incorporated the policy by reference. See Davis v. HSBC Bank
Nevada, N.A., 691 F.3d 1152, 1159-1160 (9th Cir. 2012).

                                          2
claim on its behalf. In addition, the FAC specifically alleged that Ranger Pipelines

did not receive a copy of the claim. Taking these allegations as true, there was

insufficient factual material in the FAC to make out a plausible claim that Ranger

Pipelines notified its insurer of the damage within the limitation period. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).2 Moreover, even if the FAC had

adequately alleged that the Regents made a claim on Ranger Pipelines’s behalf, it

did not allege when that claim was denied. The FAC’s allegations therefore did

not establish how long the limitation period was tolled, if at all.

      We also reject Ranger Pipelines’s argument that the FAC adequately alleged

equitable estoppel.3 First, the FAC did not adequately allege equitable estoppel

based on Lexington’s affirmative conduct. See Spray, Gould & Bowers v.

Associated Int’l Ins. Co., 71 Cal. App. 4th 1260, 1267-68 (1999). The allegations

in the FAC regarding Lexington’s representations are largely general and

conclusory. Without knowing what Lexington told Ranger Pipelines, it is



      2
        We assume, but do not decide, that the pleading standard articulated in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 561-63 (2007), and Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), applies to a plaintiff’s claim for equitable tolling.
      3
        The parties disagree regarding whether Rule 9(b)’s heightened pleading
standard or the less stringent standard of Rule 8(a) applies to the Ranger
Pipelines’s equitable estoppel claim. We need not resolve this issue because the
FAC fails to adequately plead equitable estoppel under either pleading standard.

                                           3
impossible to assess whether Lexington intended that Ranger Pipelines rely on the

representations and delay filing a claim. See id. (requiring a plaintiff to prove that

the party to be estopped “intend[ed] that his conduct . . . be acted upon, or . . . so

act[ed] that the party . . . had the right to believe it was so intended.”). Nor is it

possible to assess whether the representations were such that Ranger Pipelines had

a right to believe that Lexington intended to induce Ranger Pipelines’s reliance.

See id.

      Second, although “[a]n estoppel may arise from silence where there is a duty

to speak,” the FAC does not contain allegations establishing that Lexington had an

affirmative duty to inform Ranger Pipelines of the appropriate time limits. See id.

Ranger Pipelines argues that California’s Fair Claims Settlement Practices

Regulations, California Code of Regulations Title 10 § 2695.4(a), imposed such a

duty. However, § 2695.4(a) only applies to “a first party claimant or beneficiary,”

and the FAC’s allegations, taken as true, did not establish that Ranger Pipelines

was a “first party claimant” or “beneficiary” as those terms are defined in the

regulations. See Cal. Code Regs. tit. 10, § 2695.2(a), (f).

      AFFIRMED.




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