                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 15 2016
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


    FALLBROOK HOSPITAL                           No.    14-56177
    CORPORATION, DBA Fallbrook Hospital,
                                                 D.C. No. 3:13-cv-01233-GPC-JLB
            Plaintiff-Appellant,

      v.                                         MEMORANDUM*

    CALIFORNIA NURSES
    ASSOCIATION/NATIONAL NURSES
    ORGANIZING COMMITTEE
    (CNA/NNOC) AFL-CIO,

            Defendant-Appellee.

                   Appeal from the United States District Court
                     for the Southern District of California
                   Gonzalo P. Curiel, District Judge, Presiding

                             Submitted June 9, 2016**
                               Pasadena, California

Before: GOULD and HURWITZ, Circuit Judges and RESTANI,*** Judge.


*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
       The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
      The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
      Fallbrook Hospital Corporation (“Fallbrook”) appeals the district court’s

dismissal of its Third Amended Complaint (“TAC”) against the California Nurses

Association/National Nurses Organizing Committee (“CNA”). The TAC alleged

that CNA breached an implied agreement to arbitrate all disputes with Fallbrook and

to bargain in good faith. We have jurisdiction under 28 U.S.C. § 1291 and we

affirm the district court judgment.

      1.       Fallbrook’s allegations in support of its contention that the parties

entered into an implied agreement to arbitrate all disputes are either conclusory,

implausible, or inconsistent with an implied arbitration agreement.          See Lance

Camper Mfg. Corp. v. Republic Indem. Co., 51 Cal. Rptr. 2d 622, 628 (Cal. Ct. App.

1996) (“[I]t is well settled that an action based on an implied-in-fact or quasi-contract

cannot lie where there exists between the parties a valid express contract covering

the same subject matter.”).

      2.       The arbitration claim also fails because it is premised on the contention

that CNA breached an alleged implied contract for mandatory, binding arbitration

by successfully pursuing a claim against Fallbrook before the National Labor

Relations Board (“NLRB”). See Fallbrook Hosp. Corp. v. NLRB, 785 F.3d 729,

732 (D.C. Cir. 2015) (upholding relief to CNA for Fallbrook’s refusal to bargain in

good faith).     Under the National Labor Relations Act (“NLRA”), 29 U.S.C.

§§ 158(a), 160, CNA had the right to seek relief from the NLRB. See Nash v. Fla.


                                            2
Indus. Comm’n, 389 U.S. 235, 238 & n.3 (1967). Any waiver of a right granted by

the NLRA must be “clear and unmistakable.” Metro. Edison Co. v. NLRB, 460 U.S.

693, 708 (1983); see also Local Joint Exec. Bd. of Las Vegas v. NLRB, 540 F.3d

1072, 1079 & n.10 (9th Cir. 2008) (“[T]he Board requires the matter at issue to have

been fully discussed and consciously explored during negotiations and the union to

have consciously yielded or clearly and mistakably waived its interest in the

matter.”) (internal quotation marks omitted). 1 The TAC does not allege such a

waiver.

      3.    Fallbrook’s opening brief does not address its claim that CNA breached

an agreement to negotiate in good faith. That argument is therefore waived. Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      AFFIRMED.




1
   We assume for purposes of this disposition that the right to pursue a claim
before the NLRB is waivable. But see Hosp. of Barstow, Inc. v. Cal. Nurses
Ass’n, No. 13-cv-1063, 2013 WL 6095559, *6-8 (C.D. Cal. Nov. 18, 2013).

                                         3
