Morgan Chikosi v. Wells Fargo Home Mortgage , 611 F. App'x 429 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MORGAN CHIKOSI, No. 13-56031
Plaintiff - Appellant, D.C. No. 5:11-cv-00964-JGB-
DTB
v.
MICHAEL T. GALLAGHER; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Morgan Chikosi appeals pro se from the district court’s judgment in his
action alleging federal and state law claims arising out of Chikosi’s purchase of
property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1060 (9th Cir.
*
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).
2011) (summary judgment); Cholla v. Ready Mix, Inc. v. Civish, 382 F.3d 969, 973
(9th Cir. 2004) (dismissal on basis of statute of limitations). We affirm.
The district court properly granted summary judgment for Gallagher on
Chikosi’s claim relating to the “incomplete purchase agreement” because Chikosi
failed to raise a genuine dispute of material fact as to whether Gallagher was a
party to the purchase agreement between the Chikosis and Gallagher Management
Company (“GMC”), as Gallagher signed the agreement as president of GMC. See
Firestone v. Wahl, 284 P.2d 499, 501 (Cal. Ct. App. 1955) (explaining when agent
will be held liable for signing an agreement).
The district court properly granted summary judgment for Gallagher on
Chikosi’s breach of oral contract claim because Chikosi failed to raise a genuine
dispute of material fact as to whether Gallagher agreed to give Chikosi a car in
connection with closing escrow. See Stockton Mortg. Inc. v. Tope, 183 Cal. Rptr.
3d 186, 200 (Ct. App. 2014) (setting forth elements of claim for breach of an oral
contract); see also Cafasso, U.S. ex rel., 637 F.3d at 1061 (“To survive summary
judgment, a plaintiff must set forth non-speculative evidence of specific facts . . .”).
The district court properly dismissed Chikosi’s claims based on fraud,
forgery, and statutory violations against Wells Fargo Home Mortgage, Crooks, and
Wansten (collectively, “Lenders”) as barred by the statute of limitations because
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Chikosi filed his action more than three years after the events giving rise to it. See
Cal. Civ. Proc. Code § 338(a), (d) (prescribing a three year statute of limitations for
actions asserting liability created by statute and for relief on the ground of fraud);
Hatch v. Collins, 275 Cal. Rptr. 476, 479 (Ct. App. 1990) (explaining that “[t]he
applicable statute of limitations is determined by the substance or gravamen of the
action” and that § 338(d) applies “if fraud or mistake is the basis of the legal injury
. . . regardless of whether the complaint . . . pleads a cause of action in tort or
contract” (citations and internal quotation marks omitted)).
The district court did not abuse its discretion in dismissing Chikosi’s action
against the Lenders after Chikosi failed to file a timely Second Amended
Complaint regarding his claims that had been dismissed with leave to amend. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 989-90 (9th Cir. 1999) (discussing factors
for determining whether a district court abused its discretion in dismissing an
action under Fed. R. Civ. P. 41(b) for failure to comply with a court order requiring
submission of an amended pleading).
The district court did not abuse its discretion by denying Chikosi’s motion
for reconsideration regarding the Lenders’ motion to dismiss because Chikosi
failed to establish grounds for such relief. See C.D. Cal. R. 7-18 (setting forth
grounds for reconsideration under local rules); Hinton v. Pac. Enters., 5 F.3d 391,
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395 (9th Cir. 1993) (setting forth standard of review for compliance with local
rules).
The district court did not abuse its discretion in denying Chikosi’s request to
add GMC as a defendant after the scheduling order deadline. See Johnson v.
Mammoth Recreations, Inc., 975 F.2d 604, 607-09 (9th Cir. 1992) (setting forth
standard of review and explaining circumstances where a party may join additional
defendants following a cut-off date).
We reject Chikosi’s contentions concerning mediation and that the district
court failed to address his a claim under California Civil Code § 1102.3, which
Chikosi never brought against Gallagher.
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).
The Lenders’ request for judicial notice, filed on April 17, 2014, and
Chikosi’s request for judicial notice, filed on May 5, 2014, are denied as
unnecessary.
AFFIRMED.
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