Agnes Suever v. Kathleen Connell , 484 F. App'x 187 ( 2012 )

FILED
NOT FOR PUBLICATION JUN 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGNES SUEVER, deceased; MADONNA No. 10-17127
SUEVER; STEVE TUCKER;
ALEXANDER VONDJIDIS; RICHARD D.C. No. 5:03-cv-00156-RS
W. SEITZINGER; JO-ANN
SEITZINGER, individually and as trustees
for the Seitzinger Family Trust; MEMORANDUM*
JOHNSTONE WHITLEY; TONY LEE;
LYNN KEITH, on behalf of themselves as
individuals and as taxpayers on behalf of
other persons similarly situated,
Plaintiffs - Appellants,
v.
KATHLEEN CONNELL, in her individual
and official capacity as former State
Controller of the State of California;
RICHARD CHIVARO, in his individual
and official capacity; GEORGE DELEON,
in his individual and official capacity;
STEVE WESTLY, in his individual and
official capacity as Controller of the State
of California, and his custodial capacity as
administrator for the Unclaimed Property
Fund; JOHN CHIANG,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted June 12, 2012**
San Francisco, California
Before: D.W. NELSON, RAWLINSON, and IKUTA, Circuit Judges.
Agnes Suever et al. appeal the district court’s denial of a continuance
pursuant to Federal Rule of Civil Procedure 56(f),1 and the grant of summary
judgment to the California State Controller for Appellants’ claims under § 1983.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.2
The district court did not abuse its discretion in denying Appellants’ requests
for a continuance. Appellants failed to identify specific new information that
would arise from further discovery and which would preclude summary judgment.
See Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006);
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Now Rule 56(d) of the Federal Rules of Civil Procedure.
2
Appellees filed an unopposed motion for judicial notice on July 22, 2011.
We grant the motion because the referenced documents arise from proceedings that
directly relate to this appeal. See U.S. ex rel. Robinson Rancheria Citizens Council
v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). However, our notice of these
documents, standing alone, is not determinative of any of the issues on appeal.
2
Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir.
1990).
The district court properly granted summary judgment to the Controller.
First, Appellants’ claims regarding mail notice simply amount to the contention
that the notice procedure in the current version of California’s Unclaimed Property
Law (“UPL”), Cal. Civ. Proc. Code §§ 1300, et seq., is constitutionally infirm.
These claims are foreclosed, however, by Taylor v. Westly (Taylor III), 525 F.3d
1288, 1289 (9th Cir. 2008) (per curiam).
Second, Appellants’ claim regarding the use of auditors fails to raise a
triable issue. Appellants fail to raise any genuine factual dispute that is material to
whether the Controller violated federal law by retaining auditors. Nor can
Appellants identify what part of the Constitution is offended by the auditors’
involvement. On this basis, no fair-minded jury could conclude that the
Controller’s use of auditors deprived Appellants of rights secured by the
Constitution or Federal laws for purposes of § 1983. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986).
Third, Appellants’ claim that the Controller disobeys the UPL is barred by
the Eleventh Amendment because it is premised solely on compliance with state
law. Suever v. Connell (Suever I), 439 F.3d 1142, 1148 (9th Cir. 2006).
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Fourth, Appellants’ claims for retroactive interest and restitution are
foreclosed by Suever v. Connell (Suever II), 579 F.3d 1047, 1059–60 (9th Cir.
2009).
Fifth, Plaintiff Valdes fails to adduce sufficient evidence to raise a triable
issue whether the Controller wrongfully holds his property. He contends that the
1967 merger agreement is “the only thing” that would support his claim, yet even
the agreement makes clear that the shares of Whittaker stock provided for
indemnity belonged to Columbia Yacht, not Valdes.
Sixth, Plaintiffs Keith and Whitley fail to raise a triable issue that the
Controller holds Whitley’s property. The record shows that the Controller already
paid Keith’s great-grandfather and grandfather their share of a liquidated trust that
once held reversionary rights to land. Keith fails to set forth “specific facts”
showing that her ancestors were entitled to more than they received from the
Controller. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.
2007).
AFFIRMED.
4