                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 12 2009

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ATLANTA CANCER CARE, P.C.,                       No. 08-55817

              Plaintiff - Appellant,             D.C. No. 2:08-cv-00616-R-JTL

  v.
                                                 MEMORANDUM *
AMGEN, INC.,

              Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted October 6, 2009
                               Pasadena, California

Before: KLEINFELD and TALLMAN, Circuit Judges, and TRAGER,** District
Judge.

       Atlanta Cancer Care appeals the district court’s order dismissing its case

with prejudice for failure to state a claim. We have jurisdiction pursuant to 28

U.S.C. § 1291. We reverse and remand.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
      When interpreting a contract, the “whole of a contract is to be taken

together, so as to give effect to every part, if reasonably practicable, each clause

helping to interpret the other.” Cal. Civ. Code § 1641. The Rebate Agreements

attached to Atlanta Cancer Care’s complaint refer to and incorporate the “Group

Purchasing Agreement,” which is said to contain certain definitions as well as the

“complete and actual terms and conditions” regarding the calculation of rebates

under the parties’ agreements. This Group Purchasing Agreement was not attached

to Atlanta Cancer Care’s complaint and it was not provided by Amgen when

moving to dismiss this case. Without the Group Purchasing Agreement, the

contract attached to the complaint is incomplete, thus prohibiting a reasoned and

informed interpretation of their bargain.



      Additionally, in opposition to Amgen’s motion to dismiss, Atlanta Cancer

argued that the contract at issue was ambiguous. The district court disagreed,

finding the terms of the contract clear. Under California law, “courts may not

dismiss on the pleadings when one party claims that extrinsic evidence renders the

contract ambiguous.” A. Kemp Fisheries, Inc. v. Castle & Cooke, Inc., 852 F.2d

493, 496 n.2 (9th Cir.1988). “Indeed, it is reversible error for a trial court to refuse


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to consider such extrinsic evidence on the basis of the trial court's own conclusion

that the language of the contract appears to be clear and unambiguous on its face.”

Wolf v. Superior Court, 8 Cal. Rptr. 3d 649, 655 (Cal. Ct. App. 2004). Atlanta

Cancer must be allowed the opportunity to present extrinsic evidence in support of

its argument that the contract is ambiguous.



       On remand, the court must consider the entire contract, including the

provisions of the Group Purchasing Agreement. The district court is directed to

allow such discovery, summary judgment practice, and trial as may be necessary to

elucidate what all the contract terms are, what they mean if there is ambiguity, and

whether they were breached.



      REVERSED and REMANDED.




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