FILED
NOT FOR PUBLICATION OCT 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
GULF INSURANCE COMPANY, No. 09-16456
Plaintiff - Appellee, D.C. No. 2:08-cv-00209-LKK-
JFM
v.
FIRST BANK, MEMORANDUM *
Defendant - Appellant,
v.
BALDWIN RANCH LIMITED
PARTNERSHIP,
Third-party-defendant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted October 7, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: RYMER and N.R. SMITH, Circuit Judges, and LEIGHTON, District
Judge.**
First Banµ appeals the summary judgment in favor of Gulf Insurance
Company on Gulf's claims for breach of contract and conversion. The district
court awarded Gulf ü2.17 million. We have jurisdiction pursuant to 28 U.S.C.
y 1291, and affirm.
First Banµ argues that even if it breached the set-aside agreement with Gulf,
Gulf was not damaged because of disbursements to Baldwin Ranch that First Banµ
and others made. See Bramalea Cal., Inc. v. Reliable Interiors, Inc., 119 Cal. App.
4th 468, 473 (2004) ('A breach of contract is not actionable without damages.').
However, we agree with the district court that the agreement on its face guaranteed
funding for the construction improvements bonded by Gulf. The contract was
irrevocable, meaning that First Banµ had no ability to pass on its obligation to
other lenders. Both what others did, and what Gulf would have done had it µnown
about First Banµ's actions, are immaterial. Accordingly, Gulf was damaged; it did
not receive the benefit of its bargain. See Martin v. U-Haul Co. of Fresno, 204
Cal.App.3d 396, 409 (1988) ('Damages are awarded in an action for breach of
contract to give the injured party the benefit of his bargain and insofar as possible
to place him in the same position he would have been in had the promisor
**
The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.
performed the contract.'). No triable issue exists on this score. In short, the set-
aside amount was irrevocable, it was not disbursed to Gulf, and loss of the
guarantee was the damage that Gulf suffered.1
AFFIRMED.
1
Given this disposition, it is unnecessary for us to reach the conversion
claim.
FILED
Gulf Insurance Co. v. First Banµ, No. 09-16456 OCT 18 2010
MOLLY C. DWYER, CLERK
N.R. Smith, Circuit Judge, concurring: U.S . CO UR T OF AP PE A LS
I join the majority in affirming the district court's grant of summary
judgment. However, I affirm its decision on the conversion claim.
Gulf succeeded in proving each element of conversion because there are no
disputed issues of fact that: 1) the set aside letter and Baldwin's subsequent failure
to complete the bonded improvements gave Gulf the right to possession of the
remaining ü2,177,620.31 that First Banµ held for Gulf's benefit; 2) First Banµ
wrongfully refused to disburse the funds to Gulf; and 3) Gulf was damaged by
First Banµ's actions. See McKell v. Washington Mutual, Inc., 142 Cal. App. 4th
1457, 1491 (2006).
On appeal, First Banµ argued that money cannot be the subject of a
conversion claim. Money can be the subject of a conversion action, if it is a
specific, identifiable sum held or received for the benefit of another, even though
not segregated. See PCO v. Christensen, Miller, Finµ, Jacobs, Glaser, Weil &
Shapiro, LLP, 150 Cal. App.4th 384, 395-96 (2007), e.g. Fischer v. Machado, 50
Cal. App. 4th 1069, 1073 (1996) (money received for sale of farm products and
deposited in a general account was recoverable in conversion action). Here, the
money was an identifiable sum held for Gulf's benefit. Under California law, the
money was subject to conversion.