The trial court properly dismissed the insured’s complaint against two higher level excess insurers on the ground that the complaint didn’t and couldn’t allege exhaustion of the primary and first level excess insurance. Since the higher level excess insurer’s duty to indemnify didn’t kick in until exhaustion of the primary and first level excess insurance was exhausted, the insured couldn’t state breach of contract or implied covenant claims. The decision contains good, lengthy discussions of why it was proper to dismiss the declaratory relief claim in these circumstances and why the insured didn’t meet its burden of showing any abuse of discretion in denying leave to amend.