                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 04 2013

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



                            FOR THE NINTH CIRCUIT


In re: PROGRESSIVE CHOICE                        No. 12-73128
INSURANCE COMPANY,
                                                 D.C. No. 3:11-cv-00466-BEN-
                                                 NLS
PROGRESSIVE CHOICE INSURANCE
COMPANY,
                                                 MEMORANDUM*
              Petitioner,

  v.

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
CALIFORNIA, SAN DIEGO,

              Respondent,

CHRISTINA ELIZABETH PALMER
GERACI,

              Real Party in Interest.


                   Appeal from the United States District Court
                     for the Southern District of California
                   Roger T. Benitez, District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                              Submitted February 7, 2013**

                                   Pasadena, California

Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.

         Petitioner Progressive Choice Insurance Co. (“Progressive”) petitions for

mandamus to vacate the district court’s order requiring Progressive to produce

emails it claims are protected by attorney-client privilege. The magistrate judge

held that Progressive waived its attorney-client privilege under California law

based on its prior disclosures. The district court adopted the magistrate judge’s

order.

         This court considers five factors in granting mandamus:

         (1) whether the petitioner has no other adequate means, such as a direct
         appeal, to obtain the desired relief; (2) whether the petitioner will be
         damaged or prejudiced in any way not correctable on appeal; (3) whether
         the district court’s order is clearly erroneous as a matter of law; (4) whether
         the district court’s order is an oft repeated error or manifests a persistent
         disregard of the federal rules; and (5) whether the district court’s order
         raises new and important problems or issues of first impression.

Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010) (citing Bauman v.

U.S. Dist. Court, 557 F.2d 650, 654-55 (9th Cir. 1977)). “[T]he absence of the

third factor, clear error, is dispositive.” Id. (quoting Burlington N. & Santa Fe Ry.



          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                             2
v. U.S. Dist. Court, 408 F.3d 1142, 1146 (9th Cir. 2005)) (internal quotation marks

omitted).

      The district did not clearly err in determining that Progressive waived its

privilege under California law. Because the district court’s interpretation finds

support under current California case law, mandamus is inappropriate. Progressive

cannot establish the necessary third factor, and so we deny the petition.

      Progressive’s motion for judicial notice is denied.

      DENIED.




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