FILED
NOT FOR PUBLICATION JAN 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLSTATE INSURANCE COMPANY, No. 12-55570
Plaintiff - Appellant, D.C. No. 2:11-CV-06704-DDP-
VBK
v.
DINO BAGLIONI, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted December 4, 2013**
Pasadena, California
Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.
Allstate Insurance Company appeals the district court’s dismissal of its
lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court did not err in applying the prerequisites from Blue Ridge
Insurance Co. v. Jacobsen, 22 P.3d 313 (Cal. 2001), to dismiss Allstate’s First
Amended Complaint seeking reimbursement from Baglioni. The third Blue Ridge
prerequisite required Allstate to offer Baglioni the opportunity to assume his own
defense before it accepted settlement without his consent, and Allstate concedes
that it did not do so. Blue Ridge, 22 P.3d at 320–21. We are bound by Blue Ridge,
and Allstate cannot state a claim for reimbursement against Baglioni without
alleging compliance with each of Blue Ridge’s prerequisites. See Carvalho v.
Equifax Info. Servs., LLC, 629 F.3d 876, 889 (9th Cir. 2010), as amended (“Our
duty as a federal court in this case is to ascertain and apply the existing California
law. We are bound by pronouncements of the California Supreme Court on
applicable state law . . .”) (citations and internal quotation marks omitted).
Furthermore, even if Allstate sought a remand to amend its complaint, any
amendment would be futile because Allstate concedes that it did not satisfy the
third prerequisite of Blue Ridge. See Steckman v. Hart Brewing, Inc., 143 F.3d
1293, 1296 (9th Cir. 1998).
Allstate also moves to strike portions of Baglioni’s Supplemental Excerpts
of Record and related alternative argument that dismissal was proper because
Allstate cannot prove essential elements of its claim. Because Blue Ridge controls
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the outcome of this case, we need not and do not reach Baglioni’s alternative
argument, and Allstate’s motion is accordingly denied as moot. See Foster v.
Carson, 347 F.3d 742, 745 (9th Cir. 2003).
AFFIRMED.
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