5 6 Rejeanne Bernier; Hans S. Croteau v. Travelers Property Casualty Insurance Company, a Connecticut corporation

NOT FOR PUBLICATION 1
2
UNITED STATES COURT OF APPEALS 3
4
FOR THE NINTH CIRCUIT 5
6
REJEANNE BERNIER; HANS S.
CROTEAU,
Plaintiffs-Appellants,
v.
TRAVELERS PROPERTY CASUALTY
INSURANCE COMPANY, a Connecticut
corporation; DOES, 1-20, inclusive,
Defendants-Appellees.
No. 18-55146
D.C. No. 3:17-cv-01028-MMA-
BLM
MEMORANDUM*
7
Appeal from the United States District Court 8
for the Southern District of California 9
Michael M. Anello, District Judge, Presiding 10
11
Submitted August 15, 2018**
12
13
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges. 14
15
Rejeanne M. Bernier and Hans S. Croteau appeal pro se from the district 16
court’s order dismissing their diversity action for failure to post a bond and the 17
district court’s order declaring plaintiffs vexatious litigants. We have jurisdiction 18
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-55146
under 28 U.S.C. § 1291. We review for an abuse of discretion. Molski v. 1
Evergreen Dynasty Corp., 500 F.3d 1047, 1056-57 (9th Cir. 2007) (pre-filing order 2
entered against a vexatious litigant); Yourish v. California Amplifier, 191 F.3d 983, 3
989 (9th Cir. 1999) (dismissal for failure to comply with court order). We affirm. 4
The district court did not abuse its discretion by declaring plaintiffs 5
vexatious litigants and imposing a pre-filing order against them because it gave 6
plaintiffs notice and an opportunity to be heard, developed an adequate record for 7
review, made findings regarding their frivolous litigation history, and narrowly 8
tailored the restrictions in the pre-filing order. See Molski, 500 F.3d at 1056-61 9
(discussing factors to consider before imposing pre-filing restrictions). 10
The district court properly dismissed plaintiffs’ failure-to-defend claims 11
because no duty to defend plaintiffs in a third party lawsuit arose under the terms 12
of the insurance policy. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 13
2001) (standard of review of dismissal under Fed. R. Civ. P. 12(b)(6)); Waller v. 14
Truck Ins. Exch., Inc., 900 P.2d 619, 627 (Cal. 1995) (explaining that “an insurer 15
has a duty to defend an insured if it becomes aware of, or if the third party lawsuit 16
pleads, facts giving rise to the potential for coverage under the insuring 17
agreement,” but that “where there is no possibility of coverage, there is no duty to 18
defend” (citations omitted)). 19
The district court did not abuse its discretion by denying plaintiffs leave to 20

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3 18-55146
amend the failure-to-defend claims because amendment would have been futile. 1
See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2
2011) (setting forth standard of review and stating that leave to amend may be 3
denied where amendment would be futile). 4
AFFIRMED. 5

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