Mayer Schmukler, an individual, on behalf of himself, the general public v. FARMERS GROUP, INC., a Nevada Corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAYER SCHMUKLER, an individual, on
behalf of himself, the general public and
all others similarly situated,
Plaintiff - Appellant,
v.
FARMERS GROUP, INC., a Nevada
Corporation,
Defendant,
and
FARMERS INSURANCE EXCHANGE, a
California reciprocal insurer and exchange
of the Farmers Insurance Group of
Companies; MID-CENTURY
INSURANCE COMPANY, a California
Corporation,
Defendants - Appellees.
No. 12-55654
D.C. No. 2:11-cv-09617-SVW-
PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
FILED
JAN 24 2014
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.

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Argued and Submitted January 10, 2014
Pasadena, California
Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.
1. The district court did not err in granting the defendants’ motion to compel
appraisal. The policy requires appraisal if the insurer and insured “fail to agree on
the actual cash value, amount of loss or damage or the cost of repair or
replacement.” At bottom, Schmukler’s objection to the vendor discount is a
dispute about the “reasonable cost of repair or replacement.” Schmukler contends
that Farmers’ repair estimate isn’t reasonable because of its vendor discount;
Farmers contends that it is. The policy is clear that these kinds of disagreements
are to be settled by appraisal. See Cmty. Assisting Recovery, Inc. v. Aegis Sec. Ins.
Co., 112 Cal. Rptr. 2d 304, 309 (Ct. App. 2001).
We agree with the district court that the dispute in this case is
distinguishable from challenges to an insurer’s depreciation methodology, which
may proceed in court without an appraisal. See, e.g., Alexander v. Farmers Ins.
Co., 162 Cal. Rptr. 3d 455, 465–66 (Ct. App. 2013); Doan v. State Farm Gen. Ins.
Co., 125 Cal. Rptr. 3d 793, 801–03 (Ct. App. 2011); Kirkwood v. Cal. State Auto.
Ass’n Inter-Ins. Bur., 122 Cal. Rptr. 3d 480, 488–89 (Ct. App. 2011). Unlike the
depreciation cases, Schmukler’s grievance does not center on the interpretation of

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the policy or of a statute. Both the policy and California law are silent as to vendor
discounts, leaving nothing for a court to decide other than the reasonable cost of
repairing Schmukler’s property. That is precisely the kind of dispute that the
policy commits to appraisal.
2. The district court did not abuse its discretion in declining to entertain a
declaratory judgment action. A declaratory judgment in this case would only
determine the reasonable replacement cost of Schmukler’s property, and would not
resolve any issue of legal uncertainty. See McGraw-Edison Co. v. Preformed Line
Prods. Co., 362 F.2d 339, 342 (9th Cir. 1966).
AFFIRMED.

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