Glasswerks La, Inc. v. Liberty Insurance Corporation; Liberty Mutual Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLASSWERKS LA, INC.,
Plaintiff-Appellant,
v.
LIBERTY INSURANCE CORPORATION;
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendants-Appellees.
No. 21-55303
D.C. No.
2:20-cv-10428-VAP-PD
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
Argued and Submitted April 12, 2022
Pasadena, California
Before: PAEZ and BADE, Circuit Judges, and CARDONE,** District Judge.
Glasswerks LA, Inc., appeals the district court’s dismissal of its amended
complaint without leave to amend. For the reasons below, we affirm.
1. We affirm the district court’s dismissal of Glasswerks’ breach of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
MAY 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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contract claim because the amended complaint does not allege that any “suit” was
ever filed, and thus Liberty did not breach the contract by failing to defend against
the third parties’ claims. None of Glasswerks’ cited cases support its argument
that the requirement of a suit was a condition precedent that was—or could have
been—excused. Similarly, Glasswerks cites no caselaw supporting its equitable or
idle act arguments. Glasswerks’ anticipatory repudiation argument carries more
weight. But because Glasswerks did not raise this argument before the district
court, the argument is waived. See Baccei v. United States, 632 F.3d 1140, 1149
(9th Cir. 2011).
2. We affirm the district court’s dismissal of Glasswerks’ claim for
breach of the implied covenant of good faith and fair dealing. In California,
“[w]here benefits are withheld for proper cause, there is no breach of the implied
covenant” of good faith and fair dealing. Love v. Fire Ins. Exch., 71 Cal. Rptr.
246, 255 (Cal. 1990). Because Glasswerks has not successfully pleaded a claim
for breach of contract, as summarized above, it cannot sustain a claim for breach of
the implied covenant of good faith and fair dealing.
3. We affirm the district court’s dismissal of Glasswerks’ claim for
declaratory relief. In California, “a request for declaratory relief will not create a
cause of action that otherwise does not exist.” City of Cotati v. Cashman, 52 P.3d
695, 702 (Cal. 2002) (internal quotation marks omitted). Because Glasswerks has

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no live claims, Glasswerks cannot sustain a claim for declaratory relief.
4. We affirm the district court’s denial of leave to amend. We review a
district court’s denial of leave to amend for abuse of discretion. Walker v. Beard,
789 F.3d 1125, 1131 (9th Cir. 2015). Glasswerks requested leave to amend to put
forth its anticipatory repudiation theory, but at oral argument counsel was unable to
articulate how this theory might be formulated or what new facts might be alleged
in support of it. Glasswerks did not oppose the portions of the defendants’ motions
before the district court that sought dismissal without leave to amend. And
Glasswerks did not mention anticipatory repudiation in any of its filings before the
district court. Thus, we cannot say that the district court abused its discretion in
denying relief that Glasswerks’ counsel utterly failed to seek before that court.1
See Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir. 1990).
AFFIRMED.
1 Because we affirm the district court’s dismissal of all claims without leave to
amend against all defendants, we need not reach the question of whether the
district court properly dismissed Liberty Mutual Insurance Company, the parent
company defendant.

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