                                                                           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                            NOT FOR PUBLICATION                             JAN 02 2014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


                                           2
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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