Emperador v. Prudential Property & Casualty Insurance

MEMORANDUM * After Prudential took the procedural steps set forth in section 1691 of the California Civil Code to rescind Emperador’s homeowner’s insurance policy, Emperador had a choice of bringing a breach of contract claim or seeking relief based on rescission under section 1692 of the California Civil Code. See Akin v. Certain Underwriters at Lloyd’s London, 140 Cal.App.4th 291, 296 , 44 Cal.Rptr.3d 284 (Cal.Ct.App.2006). Her election to bring a breach of contract claim was not barred by Prudential’s attempted rescission. See Perini Corp. v. Orion Ins. Co., 331 F.Supp. 453, 457 (E.D.Cal.1971). Nor was Emperador’s contract claim barred by the statute of limitation. See Cal.Civ.Proc.Code § 340.9 (West 2006); see also Campanelli v. Allstate Life Ins. Co., 322 F.3d 1086, 1096 (9th Cir.2003). Therefore, the district court erred in determining that Emperador’s action was time barred. Because we reverse and remand for further proceedings, we do not reach Emperador’s remaining arguments. REVERSED and REMANDED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.