                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 02 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRENDA G. MARTIN, individually and               No.   16-15690
on behalf of all others similarly situated;
JOSEPH R. GIORDANO, individually and             D.C. No. 3:16-cv-00484-RS
on behalf of all other similarly situated,

              Plaintiffs-Appellants,             MEMORANDUM*

 v.

METROPOLITAN LIFE INSURANCE
COMPANY, a New York corporation,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                      Argued and Submitted October 16, 2017
                            San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and MOLLOY,** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
      Brenda Martin appeals the district court’s dismissal of her complaint against

Metropolitan Life Insurance Company (MetLife) for failure to state a claim

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We have

jurisdiction under 28 U.S.C. § 1291.

      The district court granted MetLife’s motion to dismiss based on its rulings

that: (1) MetLife was exempt from the requirement that “interest shall not be

compounded . . . unless an agreement to that effect is clearly expressed in writing

and signed by the party to be charged therewith,” Cal. Civ. Code § 1916-2 (the

disclosure requirement); and, in the alternative, (2) MetLife complied with the

disclosure requirement. Because California law in this area was unsettled, we

certified two questions respecting these issues to the California Supreme Court, see

Wishnev v. Nw. Mut. Life Ins. Co., 880 F.3d 493, 495 (9th Cir. 2018), which

subsequently answered the first of our two questions, see Wishnev v. Nw. Mut. Life

Ins. Co., No. S246541, 2019 WL 5996921 (Cal. Nov. 14, 2019).

      Under the California Supreme Court’s ruling, lenders that are exempt from

restrictions on interest rates under Article XV, section 1 of the California

Constitution, see Cal. Const. art XV, § 1, are exempt from the disclosure

requirement in section 1916-2 of the California Civil Code, Wishnev, 2019 WL

5996921, at *11. On appeal, the parties assume that MetLife was an exempt lender


                                           2
under section 1100.1 of the California Insurance Code at the relevant time. See id.

at *5, 11 n.17. Therefore, under the California Supreme Court’s ruling, and

assuming that MetLife was an exempt lender at the relevant time,1 MetLife is

exempt from the disclosure requirement and Martin’s Complaint fails to state a

claim.

         AFFIRMED.




         1
        Because the parties “assumed that [MetLife] was an exempt lender at all
relevant times” and did not address the question “whether a lender’s designation as
exempt under article XV applies retroactively to a loan that may predate the
designation,” Wishnev, 2019 WL 5996921, at *11 n.17, we do not consider this
issue.
                                         3
