NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 6 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLASSWERKS LA, INC., No. 21-55303

Plaintiff-Appellant, D.C. No. 2:20-cv-10428-VAP-PD v.

LIBERTY INSURANCE CORPORATION; MEMORANDUM*

LIBERTY MUTUAL INSURANCE

COMPANY,

Defendants-Appellees.

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. 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

2 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.

3