NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEITH WARKENTIN, ) No. 15-16182 

)

Plaintiff-Appellant, ) D.C. No. 1:10-cv-00221-SAB

)

v. ) MEMORANDUM*

)

FEDERATED LIFE INSURANCE )

COMPANY, a Minnesota )

corporation registered to do business )

in California, )

)

Defendant-Appellee, )

 )

Appeal from the United States District Court

for the Eastern District of California

Stanley Albert Boone, Magistrate Judge, Presiding

Submitted April 17, 2017**

San Francisco, California

Before: FERNANDEZ and MURGUIA, Circuit Judges, and CURIEL,*** District

Judge.

FILED

MAY 08 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

*This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3. 

**The panel unanimously finds this case suitable for decision without oral

argument. Fed. R. App. P. 34(a)(2).

***The Honorable Gonzalo P. Curiel, United States District Judge for the

Southern District of California, sitting by designation.
Keith Warkentin appeals the district court’s grant of summary judgment in

favor of Federated Life Insurance Company, on the counterclaims for rescission

and declaratory judgment that Federated pled against Warkentin after he filed an

action against Federated when it refused to make further payments under a

disability income policy that it had issued to him. We affirm.

Federated sought rescission and declaratory relief on the basis that

Warkentin had made a fraudulent misrepresentation when he applied for a

disability income policy. At the threshold, Warkentin asserts that Federated

waived its right to rescind because it did not assert the right in a timely fashion.1

We disagree. Assuming that Warkentin’s assertion was itself properly raised at the

district court, a dubious proposition,2 the record fully supported the district court’s

1Our consideration of this and the other issues we address is, as the parties

agreed, essentially based upon the record and the motion papers filed before the

district court at the time set for hearing the summary judgment motion in March

2012, including Warkentin’s late-filed opposition to the summary judgment

motion. The district court did, however, also consider Federated’s reply in support

of the motion and some additional briefing on the law. Incidentally, the district

court did not abuse its discretion when it determined that Warkentin’s opposition

had been untimely filed and that the untimeliness was not due to excusable neglect. 

See Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1258, 1261 (9th Cir. 2010). 

In any event, the district court did consider the opposition.

2He did not raise it in his responsive pleading. See Fed. R. Civ. P. 8(c)(1);

see also Wood v. Milyard, 566 U.S. 463, __, 132 S. Ct. 1826, 1832, 182 L. Ed. 2d

733 (2012).

2
determination that Federated had insufficient knowledge to seek rescission before

the action was filed, and similarly supported the determination that Warkentin’s

misrepresentations had, themselves, successfully deprived Federated of that

knowledge.

3

On the merits, our review of the record as a whole4 satisfies us that

Warkentin did make material false representations regarding his health and did so

“willfully . . . with knowledge of [their] falsity.”5

 Federated did have the right to

rescind in case of fraud, and properly exercised that right here. See United Fid.

Life Ins. Co. v. Emert, 49 Cal. App. 4th 941, 946, 57 Cal. Rptr. 2d 14, 18 (1996);

see also Cal. Ins. Code § 359. The district court did not err in deciding that there

3

See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004); see

also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed.

2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 2510, 91 L. Ed. 2d 202 (1986). 

4

See Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1185 (9th Cir.

2016).

5

See Cummings v. Fire Ins. Exch., 202 Cal. App. 3d 1407, 1418, 249 Cal.

Rptr. 568, 574 (1988); see also Telford v. N.Y. Life Ins. Co., 9 Cal. 2d 103, 106–07,

69 P.2d 835, 837–38 (1937) (per curiam); Lunardi v. Great-W. Life Assurance Co.,

37 Cal. App. 4th 807, 820, 44 Cal. Rptr. 2d 56, 62 (1995). Among other things,

while Warkentin indicated that he had not seen a chiropractor during the previous

five years, he had, in fact, seen one on forty occasions for lower back problems.

3
was no material dispute of fact on that issue.

6

AFFIRMED.

6Warkentin asserts that even if the policy was properly rescinded, his other

causes of action survive. However, he overlooks the fact that rescission means that

the policy was void ab initio. See Imperial Cas. & Indem. Co. v. Sogomonian, 198

Cal. App. 3d 169, 184, 243 Cal. Rptr. 639, 646–47 (1988). Therefore, essentially

“all rights of the insured . . . [were] extinguished.” Id. at 184, 243 Cal. Rptr. at

647. Because all of his claims hinged on the existence of a policy, they were

extinguished along with it.

4