Barry Atkins v. Calypso Systems, Inc.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARRY M. ATKINS, No. 17-15125
Plaintiff-Appellant, D.C. No. 2:14-cv-02706-NVW
v.
MEMORANDUM*
CALYPSO SYSTEMS, INC., a California
corporation; EDEN KIM,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Barry M. Atkins appeals pro se from the district court’s summary judgment
in his diversity action alleging state law claims in connection with a dispute over a
debt-to-stock conversion. We have jurisdiction under 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo, Lukovsky v. City of San Francisco, 535 F.3d 1044, 1047 (9th Cir.
2008), and we affirm.
The district court properly granted summary judgment on Atkins’ contract
claims because they are barred by the applicable statute of limitations under
California law. See Cal. Civ. Proc. Code § 337(1) (four-year statute of limitations
for any action upon a contract); Krieger v. Nick Alexander Imports, Inc., 285 Cal.
Rptr. 717 (Ct. App. 1991) (section 337(1) applies to claims of breach of covenant
of good faith and fair dealing). The district court properly concluded that Atkins
was not entitled to equitable estoppel. See Kennedy v. Allied Mut. Ins. Co., 952
F.2d 262, 266 (9th Cir. 1991) (a party cannot create an dispute of fact with an
affidavit contradicting his prior deposition testimony); Vu v. Prudential Prop. &
Cas. Ins. Co., 33 P.3d 487 (Cal. 2001) (equitable estoppel under California law
requires reliance be reasonable).
The district court properly granted summary judgment on Atkins’ tort claims
because they are barred by the applicable statutes of limitations under Arizona law.
See Hullett v. Cousin, 63 P.3d 1029, 1034 (Ariz. 2003) (two-year statute of
limitations for negligent misrepresentation); Walker v. Walker, 500 P.2d 898, 899-
900 (Ariz. Ct. App. 1972) (two-year statute of limitations for conversion); San
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Manuel Copper Corp. v. Redmond, 445 P.2d 162, 166 (Ariz. Ct. App. 1968) (four-
year statute of limitations for unjust enrichment).
The district court did not abuse its discretion by awarding attorney’s fees
pursuant to its inherent powers. See Chambers v. NASCO, Inc., 501 U.S. 32, 45-
46, 50 (1991) (stating standard of review and explaining that a court may assess
attorney’s fees when a fraud has been practiced upon it).
Appellees’ request for attorney’s fees on appeal, set forth in their answering
brief, is denied without prejudice to filing a motion in accordance with the Federal
Rules of Appellate Procedure and Ninth Circuit Rule 39-1.6.
AFFIRMED.
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