Olson Ex Rel. Edmund C. Olson Trust No.2 v. Han Kamakani Phua ( 2014 )

FILED
NOT FOR PUBLICATION AUG 01 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDMUND C. OLSON, as Trustee of the No. 12-15251
Edmund C. Olson Trust No.2, U/A Dated
August 21, 1985, D.C. No. 1:10-cv-00691-ACK-
RLP
Plaintiff - Appellee,
v. MEMORANDUM*
HAN KAMAKANI PHUA; ABEL
SIMEONA LUI,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Abel Simeona Lui appeals pro se from the district court’s summary
judgment in favor of plaintiff, Edmund C. Olson, as trustee of the Edmund 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).
Olson Trust No. 2, in the Trust’s diversity action seeking declaratory and
injunctive relief in connection with defendants’ non-consensual liens on real
property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Doe
v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009), and we affirm.
We reject Lui’s argument that the district court violated his procedural due
process rights by deciding the Trust’s noticed motion for summary judgment
without first issuing a formal scheduling order, where Lui opposed the motion and
appeared at the hearing. See Guenther v. Comm’r, 889 F.2d 882, 884 (9th Cir.
1989) (order) (“Notice and an opportunity to be heard are the hallmarks of
procedural due process.”).
We do not consider arguments raised for the first time on appeal, including
Lui’s arguments concerning res judicata or collateral estoppel and alleged perjury
or fraud. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per
curiam).
We lack jurisdiction to consider the district court’s order granting the Trust’s
motion for reconsideration because Lui failed to file an amended or separate notice
of appeal. See Whitaker v. Garcetti, 486 F.3d 572, 585 (9th Cir. 2007).
We do not have jurisdiction over the portion of the judgment as to Han
Kamakani Phua because Phua did not sign the Notice of Appeal. See Fed. R. App.
2 12-15251
P. 3(c)(2); Fed. R. App. P. 4(a); United States v. Sadler, 480 F.3d 932, 937 (9th
Cir. 2007) (Rule 4(a) is both mandatory and jurisdictional); C.E. Pope Equity Trust
v. United States, 818 F.2d 696, 697 (9th Cir. 1987) (a nonattorney does not have
authority to appear as an attorney for others).
AFFIRMED.
3 12-15251