                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                            OCT 04 2013

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

EMILY DIAZ, on behalf of herself and all         No. 11-57239
others similarly situated,
                                                 D.C. No. 3:09-cv-00775-H-WMC
              Plaintiff - Appellant,

       v.                                        MEMORANDUM*

FIRST AMERICAN HOME BUYERS
PROTECTION CORPORATION, a
California corporation,

              Defendant - Appellee.

                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                        Argued and Submitted May 6, 2013
                              Pasadena, California

Before: PREGERSON and FISHER, Circuit Judges, and GWIN, District Judge.**

      Emily Diaz appeals the final orders of the district court dismissing her state

law claims for concealment and unfair competition under Federal Rule of Civil


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
        The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
Procedure 12(b)(6), dismissing her fraud, breach of contract and breach of the

implied covenant of good faith and fair dealing under Rule 12(b)(1) and denying

her motion to correct or modify the record under Federal Rule of Appellate

Procedure 10(e). For the reasons stated here, we vacate dismissal of Diaz’s

concealment and unfair competition claims and lack jurisdiction to review the

order denying Diaz’s motion to correct or modify the record.1

      1. Diaz has adequately alleged a cause of action for concealment. Although

First American relies on United Guaranty Mortgage Indemnity Co. v. Countrywide

Financial Corp., 660 F. Supp. 2d 1163, 1186-87 (C.D. Cal. 2009), to argue that

California Insurance Code § 332 does not impose a duty to disclose, California law

is to the contrary. See Pastoria v. Nationwide Ins., 6 Cal. Rptr. 3d 148, 150, 152,

155 (Ct. App. 2003). California law also recognizes an insurer’s “special

relationship” with an insured, under which an insurer has the duty reasonably to

inform an insured of her rights under an insurance policy. See Vu v. Prudential

Prop. & Cas. Ins. Co., 33 P.3d 487, 491-92 (Cal. 2001); Davis v. Blue Cross of N.

Cal., 600 P.2d 1060, 1065 (Cal. 1979).




      1
       We address the parties’ remaining contentions in a concurrently filed
opinion.

                                          2
      We are not persuaded that Diaz was on notice of First American’s allegedly

concealed practices by virtue of online consumer complaints. Diaz did not allege

that she was aware of the online complaints at the time that she acquired her First

American policy. The fact that the complaints were in the public domain did not

place her on constructive notice. See Vega v. Jones, Day, Reavis & Pogue, 17 Cal.

Rptr. 3d 26, 35 (Ct. App. 2004) (“[T]he contention that publicly available

information cannot form the basis for a concealment claim is mistaken. The mere

fact that information exists somewhere in the public domain is by no means

conclusive.”); 5 B.E. Witkin, Summary of California Law, Torts § 813, p. 1175

(10th ed. 2005) (“The mere existence of an opportunity to investigate, or of sources

of information, will not preclude the plaintiff from relying on the

representations.”). Furthermore, even if Diaz had constructive knowledge of the

online complaints, she would have been justified in treating them as the opinions

of unhappy customers rather than assuming them to be true.

      Diaz also pled concealment with sufficient particularity to satisfy Fed. R.

Civ. P. 9(b). The first amended complaint alleged that First American denied the

sewage backup claim on a pretextual ground and that Diaz was required to hire her

own plumber to fix the problem. It alleged that First American sent an

incompetent plumber to fix the leaking water heater who was unable to do so and


                                          3
tried to get Diaz to agree to replace the water heater. So Diaz was required to hire

her own plumber, who fixed the problem without replacing the water heater.

These allegations are linked to the complaint’s concealment allegations, which

include the allegation that First Amendment denies claims for pretextual reasons

and uses substandard contractors. The complaint, moreover, alleged that Diaz

would not have entered into a home warranty contract with First American if she

had been aware of the facts that First American allegedly failed to disclose. These

allegations assert causation with sufficient particularity.

      2. In light of Zhang v. Superior Court, 304 P.3d 163 (Cal. 2013), Diaz

adequately alleged violations of California’s Unfair Competition Law, Cal. Bus. &

Prof. Code § 17200, because her claims are premised on fraud, breach of contract

and breach of the implied covenant of good faith and fair dealing, even if First

American’s alleged conduct also may have violated the Unfair Insurance Practices

Act. See Zhang, 304 P.3d at 177 (“[W]hen insurers engage in conduct that violates

both the UIPA and obligations imposed by other statutes or the common law, a

UCL action may lie.”). Zhang expressly disapproves of Textron Financial Corp. v.

National Union Fire Insurance Co., 13 Cal. Rptr. 3d 586 (Ct. App. 2004), upon

which First American relies. See Zhang, 304 P.3d at 176.




                                           4
      The district court’s dismissal of Diaz’s unfair competition claim may not be

affirmed on the alternative grounds urged by First American. First, as we have

already explained in connection with Diaz’s claim for concealment, she has alleged

reliance with adequate particularity. Furthermore, even if Diaz had not pled fraud

with sufficient particularity, her unfair competition claims are also predicated on

breach of contract and breach of the implied covenant of good faith and fair

dealing. Second, we reject First American’s contention that Diaz has no claim for

restitution because her home warranty premiums were paid by the seller. The

complaint does not disclose who paid the premiums. Furthermore, even if they

were paid by the seller, this would not necessarily preclude Diaz from relief.

Regardless of who paid the premiums, there is no question that Diaz was the

beneficiary of the home warranty plan and that Diaz – at least in some sense – paid

for the plan by delivering the purchase price of the building to the seller.

California courts do not categorically bar the recovery of restitution by a plaintiff

who paid a third party rather than paying the defendant directly. See Troyk v.

Farmers Grp., Inc., 90 Cal. Rptr. 3d 589, 616-18 (Ct. App. 2009); Shersher v.

Superior Court, 65 Cal. Rptr. 3d 634, 636 (Ct. App. 2007).

      3. Because Diaz did not file a timely notice of appeal challenging the

district court’s order denying her Fed. R. App. P. 10(e) motion to correct or modify


                                           5
the record, we lack jurisdiction to address it. See Cruz v. Int’l Collection Corp.,

673 F.3d 991, 1001 (9th Cir. 2012) (“If there has been no timely notice of appeal

from an order, a circuit court of appeal has no jurisdiction to review that order.”).

Diaz points out that she filed a motion to file a replacement brief within 30 days of

the district court’s Rule 10(e) order, and she argues that this motion should be

construed as a notice of appeal under Intel Corp. v. Terabyte International, Inc., 6

F.3d 614, 618 (9th Cir. 1993). Unlike the opening brief in Intel Corp., however,

Diaz’s motion to file a replacement brief did not satisfy the requirements of Fed. R.

App. P. 3.

      Each party shall bear its own costs of appeal.

      VACATED AND REMANDED.




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