Khoury v. Allstate Insurance

99 F. App'x 145

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 3, 2004
• Docket: No. 02-57214
• Status: Published

Opinion

MEMORANDUM

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Mikhael and Pierrette Khoury appeal dismissal of their action against Allstate Insurance Company and the district court’s denial of leave to amend.

We understand the difficulty that has been wrought by the voluntary dismissal with prejudice of the Khourys’ 1997 actions before an agreement to arbitrate was finalized.¹ Unfortunately, however, the dismissal with prejudice of the 1997 actions precludes the present action because each involves damage on account of the 1994 Northridge earthquake and a 1995 aftershock. Int’l Union of Operating Eng’rs-Employers Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir.1998); People v. Barragan, 32 Cal.4th 236, 253, 9 Cal. Rptr.3d 76, 83 P.3d 480 (2004). This is true even though the earthquake and aftershock arose in different policy years and are separate seismic events. Cal.Civ.Proc. Code § 340.9 has no effect here because § 340.9(d)(1) exempts from revival “[a]ny claim that has been litigated to finality in any court of competent jurisdiction prior to the effective date of this section.” The dismissal with prejudice pursuant to Rule 41(a)(l)(ii) of the Federal Rules of Civil Procedure is a final judgment on the merits. Therefore, the district court correctly concluded that the present action is barred by res judicata. Finally, denying leave to amend was well within the court’s discretion. Accordingly, we affirm.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Mikhael Khoury & Pierrette Khoury v. Allstate Ins. Co., Case No. CV97-6377-SVW in the Central District of California; Mikhael Khoury & Pierrette Khoury v. Allstate Ins. Co., Case No. CV97-6468-SVW in the Central District of California. Stipulations of Dismissal with Prejudice were filed in each case June 9, 1998.