Summary
affirming dismissal with prejudice of plaintiffs' claims for breach of contract, unjust enrichment, negligent misrepresentation, fraud, and negligence in gambling dispute pursuant to Kelly
Summary of this case from Brill v. PostleOpinion
No. 08-56896.
Argued and Submitted March 5, 2010.
Filed March 23, 2010.
Kirk B. Hulett, Hulett Harper Stewart LLP, San Diego, CA, Francine Terhune Radford, Robert Allan Goodin, Esquire, Goodin MacBride Squeri Day Lamprey LLP, San Francisco, CA, for Plaintiff-Appellant.
Theodore J. Boutrous, Jr., Esquire, Christopher Chorba, Theane Evangelis Kapur, Gibson Dunn Crutcher, LLP, Los Angeles, CA, for Defendants-Appellees.
Appeal from the United States District Court for the Central District of California, George H. King, District Judge, Presiding. D.C. No. 2:08-cv-05121-GHK-CW.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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, 84 Cal.Rptr.2d 810 (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, 14 Cal.Rptr. 805 (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, 84 Cal.Rptr.2d 810. The California Supreme Court denied the petition to review Kelly. Kelly, 72 Cal.App.4th 462, 84 Cal.Rptr.2d 810, 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.