                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 25 2013

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

FARAH SAYARI, an individual,                     No. 12-55101

              Plaintiff - Appellant,             D.C. No. 2:10-cv-09404-SVW-
                                                 JCG
  v.

METROPOLITAN LIFE INSURANCE                      MEMORANDUM*
COMPANY, a New York corporation
qualified to do business in California,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                           Submitted October 10, 2013**
                               Pasadena, California

Before: PAEZ and HURWITZ, Circuit Judges, and ERICKSON, Chief District
Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for the District of North Dakota, sitting by designation.
      Farah Sayari (“Sayari”) appeals the district court’s order granting summary

judgment to Metropolitan Life Insurance Company (“MetLife”). We have

jurisdiction under 28 U.S.C. § 1291, and we reverse.

      Under California law, the statute of limitations begins when an insured

incurs a loss, but it is equitably tolled from the date the insured gives timely notice

of the claim until the date the insurance company “formally denies the claim in

writing.” Prudential-LMI Com. Ins. v. Superior Court, 798 P.2d 1230, 1232 (Cal.

1990). California’s appellate courts have construed “formal denial” to require

“unequivocal denial” in writing. Migliore v. Mid-Century Ins. Co., 97 Cal. App.

4th 592, 604 (2002); Aliberti v. Allstate Ins. Co., 74 Cal. App. 4th 138, 146-47

(1999).

      MetLife argues that its May 15, 2006 letter (“May 15 letter”) to Sayari was

an unequivocal denial of her claim. The first part of the operative sentence at the

end of the May 15 letter—“we must conclude that the death of our insured has not

been established and we can give your claim no further consideration . . .” —seems

to communicate finality. This sentence, however, ends with an important

qualifier—“. . . without conclusive evidence of death”—which suggests that

MetLife’s conclusion is conditional. Webster’s Third New International


                                           2
Dictionary defines “unequivocal,” in part, as “expressing finality: carrying no

implication of later change or revision.” The operative sentence in the May 15

letter, taken as a whole, carries the reasonable implication of later change or

revision pending submission of conclusive evidence of death.

      The May 15 letter also lacks several attributes that would characterize an

unequivocal denial. For instance, California insurance regulations require that the

denial of a claim include

      written notification . . . that, if the claimant believes all or part of the claim
      has been wrongfully denied or rejected, he or she may have the matter
      reviewed by the California Department of Insurance, and shall include the
      address and telephone number of the unit of the Department which reviews
      claims practices.

Cal. Code Regs. tit. 10, § 2695.7(b)(3); see also 1231 Euclid Homeowners Ass'n v.

State Farm Fire & Cas. Co., 135 Cal. App. 4th 1008, 1015 n.11 (2006) (providing

example of a letter fulfilling insurance company’s obligation under §

2695.7(b)(3)). Unlike the denial letter in Migliore, the May 15 letter does not

include this language. See 97 Cal. App. 4th at 599. Further, it is notable that the

May 15 letter is not on MetLife letterhead and comes from a consultant, Juan

Conde, not a MetLife employee or decision maker.




                                           3
      Accordingly, we reverse the district court’s grant of summary judgment

because there is a triable issue of material fact as to whether MetLife’s May 15

letter to Sayari constituted an unequivocal denial.1

      REVERSED.




      1
        Because we conclude that there is a material triable issue of fact that
requires reversal, we need not address Sayari’s other arguments raised on appeal.

                                          4
