United States v. Elwyn Dubey , 473 F. App'x 691 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-16838
Plaintiff - Appellee, D.C. No. 2:07-cv-02372-JAM-
KJM
v.
ELWYN S. DUBEY and JEANNINE M. MEMORANDUM *
DUBEY,
Defendants - Appellants,
and
VAL G. BENTLEY, Trustee for Garden
Valley Investments; et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
*
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).
Elwyn S. and Jeannine M. Dubey (the “Dubeys”) appeal pro se from the
district court’s summary judgment in the government’s action to foreclose on four
parcels of property in California to satisfy tax and judgment liens for unpaid
federal taxes. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th Cir. 2002) (en banc),
and we affirm.
The district court properly granted summary judgment because the Dubeys
failed to raise a genuine dispute of material fact as to whether their transfer of four
properties to a purported trust after their tax liabilities arose was not a fraudulent
conveyance under California law. See Cal. Civ. Code § 3439.05 (transfer is
fraudulent as to a creditor whose claim arose beforehand if there was no reasonably
equivalent value for transfer, and the debtor was insolvent or became insolvent
after the transfer).
The district court did not abuse its discretion in denying the Dubeys’ motion
to dismiss the action for failure to join as necessary parties the trustee of the
Dubeys’ purported trust and the Dubeys’ children as beneficiaries of the trust.
First, the Dubeys lacked standing to challenge whether the trustee was properly
served. See United States v. Viltrakis, 108 F.3d 1159, 1161 (9th Cir. 1997)
(“person served with process is the proper party to allege error”). Second, the
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Dubeys’ children were not indispensable parties under California trust law. See
Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v. California, 547
F.3d 962, 969 (9th Cir. 2008) (joinder determinations are reviewed for an abuse of
discretion); Estate of Kessler, 196 P.2d 559, 561 (Cal. 1948) (trustee is authorized
to be sued without joining the beneficiaries of the trust in suits affecting the trust
itself).
The district court did not abuse its discretion in striking the Dubeys’
“Record of Errors,” filed after summary judgment, because it was procedurally
improper and their arguments were considered in rulings on other motions. See
Fed. R. Civ. P. 52(a) (allowing challenge to findings of fact only after a bench
trial); Hambleton Bros. Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1224
n.4 (9th Cir. 2005) (discussing standard of review for motion to strike ruling).
The Dubeys’ remaining contentions are unpersuasive.
AFFIRMED.
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