                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 22 2010

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




                             FOR THE NINTH CIRCUIT

ELWYN PATOC, ERIC PATOC, ELVY                     No. 08-17002
PATOC, EDWARD PATOC,
                                                  D.C. No. 08-CV-01893-RMW
                Plaintiffs-Appellants,
                                                  MEMORANDUM *
                 v.

LEXINGTON INSURANCE COMPANY,

                 Defendant-Appellee.



                      Appeal from the United States District Court
                        for the Northern District of California
                      Ronald M. Whyte, District Judge, Presiding

                       Argued and Submitted November 4, 2009
                              San Francisco, California

Before: NOONAN and W. FLETCHER, Circuit Judges, and DUFFY,** District Judge.

      Appellants Elwyn Patoc, Eric Patoc, Elvy Patoc, and Edward Patoc

(“Appellants” or the “Patocs”) appeal the district court’s judgment granting Lexington



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

       **   The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

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Insurance Company’s (“Lexington”) motion to dismiss without leave to amend

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This appeal arises

out of a wrongful death claim by Appellants against Lexington’s insured for the loss

of their mother, which resulted in a settlement for $1,000,000.00. In the instant case,

Appellants alleged claims for breach of contract and bad faith against Lexington,

among other insurance carriers, for their refusal to defend and indemnify the insured

in the wrongful death lawsuit. The district court dismissed Plaintiffs’ complaint with

respect to all claims and all defendants. The Patocs appealed the dismissal only as to

Lexington. We affirm.

      We review an order granting a motion to dismiss for failure to state a claim

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo, accepting

all allegations of material fact in the complaint as true and construing the facts in the

light most favorable to the non-moving party. Madison v. Graham, 316 F.3d 867, 869

(9th Cir. 2002).

      When alleging the terms of the Lexington automobile policy in their complaint,

the Patocs stated that Lexington’s

             automobile liability coverage had no “per accident” limits.
             Moreover, this automobile liability coverage did not
             contain any “per person” limits limiting the maximum
             liability for all damages for bodily injury sustained by any
             one person in any one automobile accident.               The


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               automobile liability coverage part also had no aggregate
               limit of liability for automobile liability.

Based on this language, the Patocs argued to the district court that their wrongful

death claim was covered under Lexington’s policy and that it was a breach of contract

and a breach of contract in bad faith for Lexington to deny coverage.

         On appeal, the Patocs argue for the first time that since Lexington’s policy had

no “per accident” limits, and since their “per person” limits did not aggregate all

damages on account of any one bodily injury to a single “per person” limit, then even

though Lexington paid its policy limits on Patoc’s personal injury claim, a second “per

person” limit is available for the Patocs’ non-derivative wrongful death claim. This

argument was not discernible from the allegations raised in Appellants’ complaint and

was not made at all in their opposition to the defendants’ Rule 12(b)(6) motion in the

district court. Consequently, we decline Appellants’ invitation to consider it anew.

See A-1 Ambulance Serv., Inc., v. County of Monterey, 90 F.3d 333, 338–39 (9th Cir.

1996).

         To the extent that they are properly raised, Appellants’ other arguments lack

merit, and we reject them without further discussion. We also deny Appellants’

request for judicial notice of two General Orders of the Public Utilities Commission

of the State of California, General Order 100-M and General Order 101-E. See Ctr.



                                             3
for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910, 919 n.3

(9th Cir. 2006) (expressing reluctance to grant judicial notice of “documents [that]

were not before the district court and their significance, if any, is not factored into the

record on appeal”).

AFFIRMED.




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