Jacob Winding v. Ndex West, LLC , 543 F. App'x 683 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JACOB WINDING, dba Top to Bottom No. 11-16506
Cleaning Service,
D.C. No. 1:10-cv-02026-AWI-
Plaintiff - Appellant, DLB
v.
MEMORANDUM *
NDEX WEST, LLC, as Trustee; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted October 15, 2013 **
Before: FISHER, GOULD, and BYBEE, Circuit Judges.
Jacob Winding, dba Top to Bottom Cleaning Service, appeals pro se from
the district court’s judgment dismissing his action alleging fraud and other claims
arising from foreclosure proceedings. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.
2005). We affirm.
The district court properly dismissed Winding’s claim for declaratory relief
because Winding failed to allege facts showing that he held a lien in a senior
position of priority to defendants’ lien. See Cal. Civ. Code § 1214 (the date of
recording determines priority of liens in California); see also O’Meara v.
DeLamater, 126 P.2d 671, 672 (Cal. Ct. App. 1942) (“[A]ssignment back to the
maker of the note and mortgage merge[s] the equitable title with the legal title and
extinguishe[s] the mortgage.”).
The district court properly dismissed Winding’s claims for fraud and
cancellation of instruments because Winding failed to allege facts showing that
defendants misrepresented the priority of their lien. See Lazar v. Superior Court,
909 P.2d 981, 984 (Cal. 1996) (elements of fraud under California law).
The district court did not abuse its discretion in granting Wells Fargo’s
request for judicial notice because the court properly examined the requested
documents and determined that their accuracy could not reasonably be questioned.
See Fed. R. Evid. 201; Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458 (9th Cir.
1995) (standard of review).
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The district court did not abuse its discretion in granting Wells Fargo’s
motion to strike Winding’s claim for punitive damages because Winding did not
allege facts demonstrating malice, oppression, or fraud. See Cal. Civ. Code § 3294(requirements for punitive damages under California law); Nurse v. United States,
226 F.3d 996, 1000 (9th Cir. 2000) (standard of review).
The district court did not abuse its discretion in awarding attorney’s fees for
Wells Fargo’s successful motion to expunge the notice of lis pendens. See Cal.
Civ. Proc. Code § 405.38 (directing the award of attorney’s fees to a prevailing
party on a motion concerning expungement unless the party opposing the motion
acted with substantial justification or other circumstances make the award unjust);
Hemmings v. Tidyman’s, Inc., 285 F.3d 1174, 1200 (9th Cir. 2002) (standard of
review).
We lack jurisdiction to review the post-judgment award of attorney’s fees
filed on November 1, 2011. See Culinary & Serv. Emps. Union, AFL-CIO Local
555 v. Haw. Emp. Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982)
(“Where no notice of appeal from a post-judgment order awarding attorneys’ fees
is filed, the court of appeals lacks jurisdiction to review the order.”).
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We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Winding’s contention that he was denied effective assistance of counsel is
unpersuasive. See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985) (per
curiam) (“Generally, a plaintiff in a civil case has no right to effective assistance of
counsel.”).
Winding’s motion for leave to file an oversized reply brief is granted, and
we instruct the Clerk to file the reply brief submitted on September 4, 2012.
AFFIRMED.
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