Nathan Colodney v. County of Riverside

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NATHAN J. COLODNEY, No. 13-56591
Plaintiff - Appellant, D.C. No. 5:13-cv-00427-VAP-SP
v.
MEMORANDUM*
COUNTY OF RIVERSIDE,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted May 24, 2016**
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Nathan J. Colodney appeals pro se from the district court’s judgment
dismissing his diversity action arising from the termination of his employment.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and we may
*
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).
affirm on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055,
1058-59 (9th Cir. 2008). We affirm.
The district court properly dismissed Colodney’s breach of contract claim
because the terms of his employment were governed by statute. See Nunez v. City
of Los Angeles, 147 F.3d 867, 872 (9th Cir. 1998) (in California, the terms and
conditions of public employment are fixed by statute, even if a contract is
involved); Hill v. City of Long Beach, 40 Cal. Rptr. 2d 125, 128 (Ct. App. 1995)
(public employees are not entitled to contract remedies, but instead, are limited to
those provided by statute or ordinance).
Dismissal of Colodney’s promissory estoppel claim was proper because
Colodney failed to allege facts sufficient to state a plausible claim for relief. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face” (citation and internal quotation marks omitted)); Jones v.
Wachovia Bank, 179 Cal. Rptr. 3d 21, 28 (Ct. App. 2014) (elements of a
promissory estoppel claim).
The district court properly dismissed Colodney’s “Unauthorized Action -
Ultra Vires” claim because Colodney failed to present a timely claim under the
Government Claims Act. See Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470,
2 13-56591
1477 (9th Cir. 1995) (“The [Act] requires, as a condition precedent to suit against a
public entity, the timely presentation of a written claim[.]”); DiCampli-Mintz v.
County of Santa Clara, 289 P.3d 884, 887 (Cal. 2012) (personal injury claims must
be presented within six months of accrual).
We reject Colodney’s contention that the district court erred by treating his
contract claims as tort claims.
The district court did not abuse its discretion by declining to take sua sponte
judicial notice of the official position classification because the classification and
the statements within it were not properly subject to judicial notice. See Fed. R.
Evid. 201(b); see also Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.
2001) (standard of review).
The district court did not abuse its discretion by declining to find a violation
of Local Rule 7-3 because the record indicates that seven days before the County
of Riverside filed its motion to dismiss, its counsel both mailed and e-mailed
Colodney in an attempt to meet and confer. See C.D. Cal. R. 7-3 (counsel
contemplating the filing of any motion must contact the opposing side at least
seven days prior to filing the motion); Bias v. Moynihan, 508 F.3d 1212, 1223 (9th
Cir. 2007) (setting forth standard of review and noting the “[b]road deference . . .
given to a district court’s interpretation of its local rules”).
3 13-56591
The district court did not abuse its discretion by denying Colodney leave to
amend because amendment would be futile. See Chappel v. Lab. Corp. of Am.,
232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and
explaining that “[a] district court acts within its discretion to deny leave to amend
when amendment would be futile”).
We reject as unsupported by the record Colodney’s contentions regarding
conversion of the motion to dismiss to a motion for summary judgment and alleged
judicial bias.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions and requests are denied.
AFFIRMED.
4 13-56591