JERRY JAMGOTCHIAN, Individually and on Behalf of all Others Similarly Situated v. Scientific Games Corporation, a Delaware Corporation;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Stephen M. McNamee, Senior District Court Judge for**
the District of Arizona, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY JAMGOTCHIAN, Individually
and on Behalf of all Others Similarly
Situated,
Plaintiff - Appellant,
v.
SCIENTIFIC GAMES CORPORATION,
a Delaware Corporation; et al.,
Defendants - Appellees.
No. 08-56896
D.C. No. 2:08-cv-05121-GHK-
CW
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted March 5, 2010
Pasadena, California
Before: RYMER and WARDLAW, Circuit Judges, and MCNAMEE, District**
Judge.
FILED
MAR 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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 (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

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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 (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. The
California Supreme Court denied the petition to review Kelly. Kelly, 72 Cal. App.
4th 462, 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.

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