FILED

NOT FOR PUBLICATION OCT 18 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

GULF INSURANCE COMPANY, No. 09-16456

Plaintiff - Appellee, D.C. No. 2:08-cv-00209-LKK-

JFM

v.

FIRST BANK, MEMORANDUM *

Defendant - Appellant,

v.

BALDWIN RANCH LIMITED

PARTNERSHIP,

Third-party-defendant.

Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted October 7, 2010 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: RYMER and N.R. SMITH, Circuit Judges, and LEIGHTON, District Judge.**

First Banµ appeals the summary judgment in favor of Gulf Insurance

Company on Gulf's claims for breach of contract and conversion. The district

court awarded Gulf ü2.17 million. We have jurisdiction pursuant to 28 U.S.C.

y 1291, and affirm.

First Banµ argues that even if it breached the set-aside agreement with Gulf,

Gulf was not damaged because of disbursements to Baldwin Ranch that First Banµ

and others made. See Bramalea Cal., Inc. v. Reliable Interiors, Inc., 119 Cal. App.

4th 468, 473 (2004) ('A breach of contract is not actionable without damages.').

However, we agree with the district court that the agreement on its face guaranteed

funding for the construction improvements bonded by Gulf. The contract was

irrevocable, meaning that First Banµ had no ability to pass on its obligation to

other lenders. Both what others did, and what Gulf would have done had it µnown

about First Banµ's actions, are immaterial. Accordingly, Gulf was damaged; it did

not receive the benefit of its bargain. See Martin v. U-Haul Co. of Fresno, 204

Cal.App.3d 396, 409 (1988) ('Damages are awarded in an action for breach of

contract to give the injured party the benefit of his bargain and insofar as possible

to place him in the same position he would have been in had the promisor

** The Honorable Ronald B. Leighton, United States District Judge for the Western District of Washington, sitting by designation. performed the contract.'). No triable issue exists on this score. In short, the set-

aside amount was irrevocable, it was not disbursed to Gulf, and loss of the

guarantee was the damage that Gulf suffered.1

AFFIRMED.

1 Given this disposition, it is unnecessary for us to reach the conversion claim.

FILED

Gulf Insurance Co. v. First Banµ, No. 09-16456 OCT 18 2010

MOLLY C. DWYER, CLERK

N.R. Smith, Circuit Judge, concurring: U.S . CO UR T OF AP PE A LS

I join the majority in affirming the district court's grant of summary

judgment. However, I affirm its decision on the conversion claim.

Gulf succeeded in proving each element of conversion because there are no

disputed issues of fact that: 1) the set aside letter and Baldwin's subsequent failure

to complete the bonded improvements gave Gulf the right to possession of the

remaining ü2,177,620.31 that First Banµ held for Gulf's benefit; 2) First Banµ

wrongfully refused to disburse the funds to Gulf; and 3) Gulf was damaged by

First Banµ's actions. See McKell v. Washington Mutual, Inc., 142 Cal. App. 4th

1457, 1491 (2006).

On appeal, First Banµ argued that money cannot be the subject of a

conversion claim. Money can be the subject of a conversion action, if it is a

specific, identifiable sum held or received for the benefit of another, even though

not segregated. See PCO v. Christensen, Miller, Finµ, Jacobs, Glaser, Weil &

Shapiro, LLP, 150 Cal. App.4th 384, 395-96 (2007), e.g. Fischer v. Machado, 50

Cal. App. 4th 1069, 1073 (1996) (money received for sale of farm products and

deposited in a general account was recoverable in conversion action). Here, the

money was an identifiable sum held for Gulf's benefit. Under California law, the

money was subject to conversion.