                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 BRIDGET GORDON,                                   No. 12-55114
              Plaintiff-Appellant,
                                                     D.C. No.
                     v.                           2:11-cv-00913-
                                                      R-JCG
 DELOITTE & TOUCHE, LLP GROUP
 LONG TERM DISABILITY PLAN,
              Defendant-Appellee.                    OPINION


        Appeal from the United States District Court
           for the Central District of California
         Manuel L. Real, District Judge, Presiding

                   Argued and Submitted
           October 10, 2013—Pasadena, California

                       Filed April 11, 2014

 Before: Stephen Reinhardt and Morgan Christen, Circuit
     Judges, and John W. Sedwick, District Judge.*

                  Opinion by Judge Sedwick;
                  Dissent by Judge Reinhardt




  *
    The Honorable John W. Sedwick, Senior United States District Judge
for the District of Alaska, sitting by designation.
2               GORDON V. DELOITTE & TOUCHE

                           SUMMARY**


        Employee Retirement Income Security Act

    Affirming the district court’s summary judgment, the
panel held that an ERISA action was barred by California’s
four-year statute of limitation governing actions involving
written contracts.

    The panel held that under federal law, the plaintiff’s claim
accrued no later than the date her administrative appeal right
expired, and the ERISA plan insurer’s reconsideration of her
claim did not revive the statute of limitation. The panel held
that the ERISA plan was not estopped from asserting a statute
of limitation defense based on the insurer’s representation
that the plaintiff could bring an ERISA action. Turning to
California law for guidance, the panel held that the plan did
not waive its statute of limitation defense based on the
insurer’s representation.

    Dissenting, Judge Reinhardt wrote that the plan waived its
right to invoke the statute of limitation by inviting the
plaintiff to reopen her case, submit new documents, and
appeal if dissatisfied.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             GORDON V. DELOITTE & TOUCHE                     3

                         COUNSEL

Robert J. Rosati (argued), ERISA Law Group LLP, Fresno,
California, for Plaintiff-Appellant.

Ian Seth Linker (argued), Metropolitan Life Insurance
Company, New York, New York; Robert Kevin Renner,
Barger & Wolen, LLP, Irvine, California, for Defendant-
Appellee.


                         OPINION

SEDWICK, District Judge:

    Plaintiff-Appellant Bridget Gordon (“Gordon”) appeals
the district court’s summary judgment in favor of Defendant-
Appellee Deloitte & Touche, LLP Group Long Term
Disability Plan ( the “Plan”), which is insured by
Metropolitan Life Insurance Company (“MetLife”), based on
her failure to file the action within the applicable limitation
period. The Plan is subject to the Employee Retirement
Income Security Act of 1974, 29 U.S.C. §§ 1001–1461
(“ERISA”). We have jurisdiction over the appeal pursuant to
28 U.S.C. § 1291.

                    I. BACKGROUND

    Deloitte & Touche USA LLP (“Deloitte”) offers
employees long-term disability insurance through the Plan.
The Plan’s claims administrator, MetLife, has broad
discretionary authority to make eligibility determinations.
Under the Plan, an employee is entitled to long-term
disability benefits if she is otherwise qualified and meets the
4            GORDON V. DELOITTE & TOUCHE

Plan’s definition of “disabled.” Benefit payments for
disabilities due to mental illness are limited to twenty-four
months under the Plan.

     Gordon worked for Deloitte until October of 2000.
Around that time, Gordon learned that she was HIV positive
and claimed she could no longer work due to depression.
MetLife determined that she was eligible for disability
benefits under the Plan and began paying benefits effective
March 3, 2001. MetLife paid benefits through December of
2002, but gave notice that it had terminated further payments
in a January 2, 2003 letter. The letter recounted that
Gordon’s treating physician had advised on December 19,
2002 that Gordon had not been seen in over three months and
had failed to appear for her last scheduled appointment. The
letter also indicated that Gordon had not responded to calls
from MetLife personnel. The letter then explained that the
benefits were terminated because Gordon had failed to
furnish continuing proof of disability as required by the Plan.
The letter gave Gordon 180 days from receipt of the letter in
which to send a written appeal to MetLife.

    On January 9, 2003, Gordon appealed the termination.
After reviewing the medical information submitted in support
of her continuing claim for disability benefits, MetLife denied
her claim in a letter dated March 17, 2003. The letter
reviewed the supporting information at length before
concluding that Gordon did not meet the definition of
disabled under the Plan, because the documentation did not
substantiate the proposition that she was unable to perform
the essential duties of her job. The letter informed Gordon
that she had 180 days to appeal the decision.
             GORDON V. DELOITTE & TOUCHE                    5

     On October 15, 2003, Gordon appealed, arguing that she
was disabled due to severe and debilitating depression. In a
November 4, 2003 letter, following MetLife’s review of the
information submitted and a review by an independent
physician consultant, MetLife informed Gordon that
additional benefits had been approved for the limited period
of January 1, 2003 through March 2, 2003, because she was
disabled during that period by her major depression. The
letter explained that under the Plan Gordon’s benefits were
limited to twenty-four months because her disability stemmed
from a mental illness, and noted her twenty-four months
ended on March 2, 2003. Once again Gordon was advised
that she could appeal the decision within 180 days.

    Gordon failed to appeal. Indeed, she took no action for
more than four years. On November 26, 2007, she called
MetLife to ask whether her claim could be reopened, and
MetLife informed her that her appeal deadline had passed.
Gordon took no further action for an additional year and a
half.

    In April of 2009, MetLife received a letter from
California’s Department of Insurance indicating that Gordon
had filed a complaint on April 12, 2009. It asked MetLife to
reevaluate the issues raised by Gordon in her complaint.
MetLife informed Gordon that it would reopen her claim for
further review and allowed Gordon to submit any additional
information that she wanted MetLife to consider.

    On December 8, 2009, after reviewing Gordon’s file and
the additional information available, MetLife informed
Gordon in writing that it was upholding its original decision
to terminate her benefits based on the Plan’s 24-month
limitation for disabilities resulting from mental illness. The
6            GORDON V. DELOITTE & TOUCHE

letter set forth MetLife’s analysis of the medical information
and explained why MetLife had decided to maintain its
original decision. The letter advised Gordon of her appeal
rights, saying that she could appeal the decision within 180
days and that any appeal would be concluded within 45 days
unless otherwise notified in writing. Of significance at this
point, the letter also stated that if the administrative appeal
were to be denied, Gordon would have the right to bring a
civil action under § 502(a) of ERISA. Gordon timely
appealed with a 74-page appeal letter and more than 480
pages of exhibits. MetLife wrote to Gordon’s counsel on July
6, 2010, advising that it was continuing to review the file.
However, on January 31, 2011, before MetLife’s review was
completed, Gordon filed a complaint pursuant to § 502(a) of
ERISA in the district court.

    The district court granted the Plan’s motion for summary
judgment. It concluded that Gordon’s ERISA action was
barred by the applicable four-year statute of limitation, as
well as by the three-year contractual limitation period
contained in the Plan itself. The trial court rejected Gordon’s
arguments that the reopening of her file in 2009 reset the
statute of limitation and that the Plan waived its limitation
defense or was estopped from asserting it. The district court
entered judgment in favor of the Plan. This appeal followed.

                     II. DISCUSSION

   The standard of review applicable here is well known.
We examine orders granting summary judgment de novo,
viewing the evidence in the light most favorable to the non-
moving party to determine whether any genuine issue of
material fact remains. Coszalter v. City of Salem, 320 F.3d
968, 973 (9th Cir. 2003).
             GORDON V. DELOITTE & TOUCHE                     7

A. Statute of limitation

    There is no federal statute of limitation applicable to
lawsuits seeking benefits under ERISA. Wetzel v. Lou Ehlers
Cadillac Grp. Long Term Disability Ins. Program, 222 F.3d
643, 646 (9th Cir. 2000). We therefore “look to the most
analogous state statute” in the state where the claim for
benefits arose. Id. Here, the state is California, and the most
analogous statute is its four-year statute of limitation
governing actions involving written contracts. Id. at 648.
The district court concluded that Gordon’s cause of action
accrued on November 4, 2003, and thus that the four-year
statute of limitation barred her suit.

    While the statute of limitation is borrowed from state law,
accrual of an ERISA cause of action is determined by federal
law. Id. at 649. Under federal law, “an ERISA cause of
action accrues either at the time benefits are actually denied
or when the insured has reason to know that the claim has
been denied.” Id. (internal citation omitted). A claimant has
reason to know that the claim has been denied where there
has been “a clear and continuing repudiation of a claimant’s
rights under a plan such that the claimant could not have
reasonably believed but that his benefits had been finally
denied.” Chuck v. Hewlett Packard Co., 455 F.3d 1026, 1031
(9th Cir. 2006) (internal quotation marks and citation
omitted).

    Gordon’s claim was denied in the November 4, 2003
MetLife letter which advised Gordon that no disability
benefits would be available to her after March 2, 2003, and
that she would receive one final payment covering the period
of January 2, 2003 through March 2, 2003. The letter
explicitly stated that the last payment was made in a full and
8            GORDON V. DELOITTE & TOUCHE

final settlement of her claim for disability benefits under the
Plan. Gordon argues that the November 4, 2003 letter did not
constitute a final denial because the letter also informed her
of her appeal rights, suggesting that she had further
administrative remedies and that the matter was therefore not
final. Assuming arguendo that the November 4 letter was not
a final denial, because Gordon still had an administrative
appeal option, the letter also stated that the right to appeal
would expire 180 days from November 4, 2003, which meant
on or about May 4, 2004.

    We conclude that Gordon’s right to file an ERISA action
accrued no later than May 4, 2004. Gordon did not file the
pending complaint until January 31, 2011. The district court
correctly concluded that Gordon’s ERISA action was barred
by the four-year statute of limitation. That being so, it is
unnecessary to consider whether her complaint is also time
barred under the shorter three-year limitation period set out
in the Plan.

B. Revival of the limitations period

    Gordon argues that we should apply California law
regarding acknowledgment of debts to conclude that
MetLife’s reconsideration of her claim in 2009 revived the
statute of limitation.       Under California law, “[t]he
acknowledgment of a debt already barred by the statute [of
limitation] gives rise to a new contract and a new cause of
action dating from the acknowledgment.” Eilke v. Rice, 286
P.2d 349, 352 (Cal. 1955) (en banc). However, just as the
accrual of an ERISA cause of action is determined by federal
law, whether it can accrue a second time by virtue of a
revived statute of limitation should also be determined by
federal law.
              GORDON V. DELOITTE & TOUCHE                    9

    Under Ninth Circuit law, MetLife’s reopening of
Gordon’s claim file in 2009 does not in and of itself revive
the statute of limitations. In Martin v. Construction
Laborer’s Pension Trust, 947 F.2d 1381 (9th Cir. 1991), the
plaintiff sought benefits from an employee pension plan
established pursuant to the Labor Management Relations Act
and later amended to comply with ERISA. We concluded
that the action was time-barred and rejected plaintiff’s
argument that the statute of limitation never commenced
because the pension plan agreed to reopen his claim five
years after the denial. Id. at 1384–86. The court noted that
the plan’s initial denial was unequivocal and final, the
administrative remedies were exhausted, and plaintiff did
nothing further for five years. Id. at 1386. It held that there
was no basis for the conclusion that the case was kept open
for five years or that the reopening of the claim commenced
a new statute of limitation. Id.

    We believe the policy behind the holding in Martin is
obvious, salutary and important. Reviving a limitation period
when an insurance company reconsiders a claim after the
limitation period has run would discourage reconsideration by
insurers even when reconsideration might be warranted. We
hold that the statute of limitation was not revived.

C. Estoppel

    Gordon contends that the Plan should be estopped from
asserting a statute of limitation defense based on MetLife’s
representation that she could bring an ERISA action. In
certain circumstances, we have recognized the applicability
of estoppel in ERISA cases to prevent an insurance company
from relying on a statute of limitation or contractual
limitation period as a defense. “‘As a general rule, a
10            GORDON V. DELOITTE & TOUCHE

defendant will be estopped from setting up a statute-of-
limitations defense when its own prior representations or
conduct have caused the plaintiff to run afoul of the statute
and it is equitable to hold the defendant responsible for that
result.’” LaMantia v. Voluntary Plan Adm’rs, Inc., 401 F.3d
1114, 1119 (9th Cir. 2005) (quoting Allen v. A.H. Robins Co.,
Inc., 752 F.2d 1365, 1371–72 (9th Cir. 1985)).

    Here, nothing suggests that Gordon missed the statute of
limitation deadline because she detrimentally relied on any
representation by MetLife. It is true that MetLife represented
in its December 8, 2009 letter that Gordon could bring an
ERISA action, but by then the statute had already run, and so
Gordon could not have relied on that statement to her
detriment.

D. Waiver

    Gordon also contends that the Plan waived its statute of
limitation defense based on MetLife’s representation in the
December 2009 letter. Waiver is often described as the
intentional relinquishment of a known right. Intel Corp. v.
Hartford Accident & Indem. Co., 952 F.2d 1551, 1559 (9th
Cir. 1991). Our cases have not yet addressed whether waiver
principles apply to prevent an insurance company from
raising a limitation defense in the ERISA context. In
circumstances where the federal common law is not
developed, courts may turn to state common law for guidance
and apply state law to the extent that it is consistent with the
policies expressed in ERISA. Padfield v. AIG Life Ins. Co.,
290 F.3d 1121, 1125 (9th Cir. 2002).

   Turning to California law for guidance, we look to how
waivers of limitation periods are dealt with in the insurance
              GORDON V. DELOITTE & TOUCHE                     11

context. Under California law, an insurance company cannot
waive the statute of limitations after the limitations period has
run. Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1163 (9th Cir.
1995). In Aceves, the plaintiffs’ claim was time-barred under
their policy, but the plaintiffs argued that the insurance
company waived its limitations defense because it
investigated the claim and confirmed coverage without
mentioning the time bar. The court, applying California law,
stated that the insurance company could not have waived the
one-year statute of limitations: “The California Supreme
Court has observed that if an insurer extends the expiration
date of a one-year suit provision for a claim that the insured
filed and it began investigating ‘after the limitations has run,
[the extension] cannot, as a matter of law, amount to a
waiver.’” 68 F.3d at 1163 (quoting Prudential-LMI Ins. Co.
v. Superior Court, 798 P.2d 1230, 1240 n.5 (Cal. 1990)).

     Even if waiver were possible after the limitation period
has run, the availability of waiver in the insurance context is
limited under California law. Typically, waiver analysis
looks only at the acts of the waiving party to see if there was
an intentional relinquishment of a known right, whereas
estoppel looks at the actions of the other party as well to see
if that party detrimentally relied on those acts. Intel, 952 F.2d
at 1559. However, in the insurance context, “the distinction
between waiver and estoppel has been blurred.” Id. “In cases
where waiver has been found, there is generally some element
of misconduct by the insurer or detrimental reliance by the
insured.” Id. We find that it is consistent with ERISA to
require an element of detrimental reliance or some
misconduct on the part of the insurance plan before finding
that it has affirmatively waived a limitation defense.
12           GORDON V. DELOITTE & TOUCHE

    In Thomason v. Aetna Life Insurance Co., 9 F.3d 645 (7th
Cir. 1993), the Seventh Circuit declined to apply waiver
principles in an ERISA case to hold an insurer to its
misleading representations of continued coverage. The court
recognized that waiver is not typically applied without a
showing of reasonable reliance on the part of the non-waiving
party or a showing that there was an exchange of
consideration for the alleged waiver. Therefore, it concluded
that it would not provide a “something-for-nothing kind of
waiver” in an ERISA action, whereby the insurance company
would “be held to the terms of its misleading representations
for no reason other than that it made them.” Id. at 648–49.

    Here, Gordon asks the court to hold the Plan to its
representation regarding her right to sue in the December
2009 letter “for no reason other than that it made [it].” We
agree with the Seventh Circuit that waiver requires something
more. As discussed above, there has been no detrimental
reliance by Gordon on the December 8, 2009 letter’s
representation. Nor was any consideration provided to
MetLife for a waiver of its defense. Gordon argues that
consideration came in the form of relief from the demand by
the California Department of Insurance to reopen Gordon’s
case. At most the Department of Insurance only asked
MetLife to administratively reopen the file. It did not
ask—much less require, assuming the unlikely proposition
that it had such power—that MetLife waive its limitation
defense. Furthermore, there is no showing that MetLife acted
unfairly or to its own advantage, something which might
compel the court to apply an equitable waiver to prevent the
Plan from asserting a limitation defense.

   Gordon argues that the Plan acted to its own advantage
because it failed to raise the limitations defense when it
              GORDON V. DELOITTE & TOUCHE                    13

denied her claim after the reopening of her file in 2009, citing
Mitchell v. CB Richard Ellis Long Term Disability Plan, 611
F.3d 1192 (9th Cir. 2010) and Harlick v. Blue Shield of
California, 686 F.3d 699 (9th Cir. 2012). In Mitchell, we
recognized that the insurer was required to provide the reason
for denying a claim and reference the provision in the policy
that forms the basis for the denial. 611 F.3d at 1199 n.2,
1200. The insurer was therefore unable to argue that the
policy did not provide coverage based upon a different
provision which was not cited in its denial letter to the
claimant. Harlick involved a similar situation, where the
insurance company tried to deny coverage during litigation
based on a provision that it never cited when initially denying
coverage during the administrative process. 686 F.3d at 719.

    Such a situation is not present here. The statute of
limitation was never the basis for MetLife’s denial of
Gordon’s claim. The basis was the Plan’s provision that
limits benefits for disabilities stemming from mental health
conditions, and that basis was clearly communicated to
Gordon. While the doctrine of waiver may be applied to
prevent “insurers from denying claims for one reason, then
coming forward with several other reasons after the insured
defeats the first” and to provide “insurers with an incentive to
investigate claims diligently,” such an incentive is not needed
when it comes to statutes of limitation defenses. Aceves, 68
F.3d at 1163–64.

   AFFIRMED.
14              GORDON V. DELOITTE & TOUCHE

REINHARDT, Circuit Judge, dissenting:

    I cannot agree with the majority that Deloitte is entitled to
invoke the statute of limitations to bar Gordon’s civil action
after telling her at the behest of the California Department of
Insurance that it was “reopening [her] claim for further
review,” inviting her once again to undertake its burdensome
review process, and then denying her claim in a letter stating
that “you may appeal this decision [to MetLife] . . . [and in]
the event your appeal is denied in whole or in part, you will
have the right to bring a civil action under [ERISA].”
(emphasis added). In my view, if the Supreme Court of
California were presented with the question, it would likely
conclude that by its actions Deloitte waived its limitations
defense.1 As that court has observed, “[we] have applied
doctrines of waiver and estoppel to allow [insurance suits]
filed after the limitations period expired to proceed.”
Prudential-LMI Com. Ins. v. Superior Court, 798 P.2d 1230,
1240 (1990) (emphasis added).2




 1
    As the majority acknowledges, “[i]n circumstances where the federal
common law is not developed, courts may turn to state common law for
guidance and apply state law to the extent that it is consistent with the
policies expressed in ERISA.” Op. at 10. Here, that rule directs our
attention to California waiver and estoppel law.
  2
    A waiver occurs “whenever an insurer intentionally relinquishes its
right to rely on the limitations period.” Prudential-LMI, 798 P.2d at 1240.
“An estoppel arises as a result of some conduct by the defendant, relied on
by the plaintiff, which induces the belated filing of the action.” Id. at
689–90 (quotation marks and citations omitted).
               GORDON V. DELOITTE & TOUCHE                           15

    Here, we need look no further than waiver.3 The doctrine
of waiver is grounded in equity. In the insurance context,
California courts have repeatedly emphasized that equity may
impose new legal obligations on an insurer after that insurer
reopens a previously denied claim. For example, they have
held that once an insurer decides to reopen such a claim
pursuant to California Code of Civil Procedure § 340.9, the
doctrine of equitable tolling may once again apply. See
Ashou v. Liberty Mut. Fire Ins. Co., 138 Cal. App. 4th 748,
762–63 (Cal. App. 2006) (holding that, under Code of Civil
Procedure Section 340.9, equitable tolling should “apply—in
the context of a previously denied claim—when the insurer
has agreed to reopen and reinvestigate the claim”). The
majority is correct when it reports that courts have not found
waiver where, after the limitations period expired, an insurer
confirmed coverage without informing the insured of the
existence of the limitations bar. See, e.g., Aceves v. Allstate
Ins. Co., 68 F.3d 1160, 1163 (9th Cir. 1995) (holding that the
insurer could maintain a statute of limitations defense to a
claim even after initially confirming coverage and failing to
state that the claim might be time-barred).

    The majority goes too far, however, in asserting that
“[u]nder California law, an insurance company cannot waive
the statute of limitations after the limitations period has run.”
Op. at 11. The cases upon which it relies deal with particular
sets of circumstances not applicable here. Although the
California Supreme Court has not confronted a case like the
one before us, it is likely that it would find a difference,
properly recognized in equity, between failing to inform an
insured about a potential limitations bar while initially

  3
    For that reason, I do not address the question whether Gordon should
also prevail on the ground of estoppel.
16              GORDON V. DELOITTE & TOUCHE

confirming coverage and actively inviting the insured to
reopen her case, submit new documents, and appeal if
dissatisfied—especially when the insurer falsely advises the
insured that she continues to have the legal right to sue her
insurer under ERISA at the end of the process. Unlike the
cases cited by the majority, this case involves the sort of
intentional, affirmative false representations by an insurer
that gives rise to equitable relief such as waiver or estoppel.
Certainly it cannot be said that Deloitte risked “surprise[]
through the revival of claims that have been allowed to
slumber” when it voluntarily reopened Gordon’s case at the
behest of the California Department of Insurance and then
falsely told her that if she were ultimately dissatisfied she
would have the legal right to sue to enforce her rights under
ERISA.4      Prudential-LMI, 798 P.2d at 1236 (1990)
(describing the purpose of the statute of limitations).

    Accordingly, I conclude that Deloitte waived its
limitations defense and I therefore respectfully dissent.




     4
      To the extent the majority is correct to hold that there are no
“something-for-nothing” waivers under ERISA, that rule does not control
this case, as Deloitte received the benefits of complying with the request
by the California Department of Insurance that it reopen Gordon’s case.
