                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 23 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JERRY JAMGOTCHIAN, Individually                  No. 08-56896
and on Behalf of all Others Similarly
Situated,                                        D.C. No. 2:08-cv-05121-GHK-
                                                 CW
             Plaintiff - Appellant,

  v.                                             MEMORANDUM *

SCIENTIFIC GAMES CORPORATION,
a Delaware Corporation; et al.,

             Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                       Argued and Submitted March 5, 2010
                              Pasadena, California

Before: RYMER and WARDLAW, Circuit Judges, and MCNAMEE, ** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Stephen M. McNamee, Senior District Court Judge for
the District of Arizona, sitting by designation.
       Jerry Jamgotchian appeals the district court’s grant of Scientific Games

Corporation’s (“Scientific Games”) Rule 12(b)(6) motion to dismiss Jamgotchian’s

complaint. We have jurisdiction pursuant to 28 U.S.C. § 1332(d)(2), and we

affirm.

       The district court correctly concluded that Jamgotchian’s claims are barred

by California’s public policy against judicial resolution of civil claims arising out

of gambling contracts or transactions. See Kelly v. First Astri Corp., 72 Cal. App.

4th 462, 490 (1999). Jamgotchian used Scientific Games’ machines to place pari-

mutuel horse racing bets that were to be randomized by Scientific Games’

software, but were not, due to a defect in the software. Jamgotchian desires to

undo these betting transactions and recover losses stemming from payments for

tickets that were supposed to be randomized. Although he argues that his suit is

not one to recover gambling losses, we agree with the district court that “a suit to

be placed in the ex ante position after losing a bet is” just that, and is barred by

Kelly, which held that “California’s public policy against judicial resolution of

civil claims arising out of gambling contracts or transactions absent a statutory

right to bring such claims, applies to all forms of gambling, whether legal or

illegal.” Id.

       We must apply the Kelly decision absent “convincing evidence that the state

supreme court would decide differently.” Vestar Dev. II, LLC v. Gen. Dynamics
Corp., 249 F.3d 958, 960 (9th Cir. 2001) (internal quotation marks omitted).

Jamgotchian points only to the California Court of Appeal’s observation—in

dicta—in NevCal Enterprises, Inc. v. Cal-Neva Lodge, Inc. that California “ha[s]

reversed th[e public] policy with respect to such gambling done upon the licensed

premises of a racing association and through pari-mutuel machines.” 194 Cal.

App. 2d 177, 180-81 (1961). Kelly was decided after NevCal, however, and

expressly rejected the argument that California has reversed its public policy

against judicial resolution of civil claims arising out of gambling contracts or

transactions as to any form of gambling. 72 Cal. App. 4th at 472, 476-90. The

California Supreme Court denied the petition to review Kelly. Kelly, 72 Cal. App.

4th 462, review denied, No. S080081 (Cal. Sept. 1, 1999). Thus, Jamgotchian fails

to present convincing evidence that the California Supreme Court would overrule

the California Court of Appeal’s decision in Kelly.

      AFFIRMED.
