Bernice Roberta Kaufman; Sanford Paul Kaufman, Plaintiffs-appellants, v. Mutual Life Insurance Company of New York; Robertfrankwick, Defendants-appellees, 108 F.3d 1385 (9th Cir. 1997)

MEMORANDUM^** 

Bernice and Sanford Kaufman appeal the district court's grant of summary judgment in favor of Mutual Life Insurance Company of New York on their breach of contract claim on statute of limitations grounds, as well as the district court's denial of their cross motion for partial summary judgment.¹  We review de novo, Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1994), apply California substantive law, State Farm Mut. Auto. Ins. Co. v. Khoe, 884 F.2d 401, 405 (9th Cir. 1989), and affirm.

California applies a four year statute of limitations to breach of contract claims. Cal.Code Civ.Proc. § 337. A cause of action for breach of contract generally accrues at the time of breach. Whorton v. Dillingham, 202 Cal. App. 3d 447, 456 (1988). The Kaufmans' breach of contract claim is that Mutual breached its contractual obligation under the group policy to provide them with a conversion policy containing more favorable terms. The district court held that if any such breach occurred, it occurred when Mutual issued the allegedly deficient conversion policy in 1988, approximately six years before the Kaufmans filed their complaint on August 9, 1994.

We agree that the breach, if it occurred at all, occurred in 1988. If Mutual was obligated by contract to issue the Kaufmans a conversion policy containing certain terms, it breached when it issued them a policy containing terms other than those required, and the Kaufmans acquired a cause of action for coercive relief at that time. Mutual's issuance of the allegedly deficient conversion policy was not, as the Kaufmans contend, a mere anticipatory repudiation of a future performance obligation.

The judgment of the district court is AFFIRMED.