Jose Gonsalez v. Employment Development Dept.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 23, 2021
• Docket: 20-55255
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE J. GONSALEZ, No. 20-55255

Plaintiff-Appellant, D.C. No. 2:18-cv-08607-AB-ADS

v. MEMORANDUM* EMPLOYMENT DEVELOPMENT DEPARTMENT; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding

Submitted February 17, 2021**

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.

Jose J. Gonsalez appeals pro se from the district court’s post-judgment

orders in his action alleging federal claims arising out of a state audit and tax

assessment. We have jurisdiction under 28 U.S.C. § 1291. We review for an

abuse of discretion. Sch. Dist. No. 1J Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d

* 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). 1255, 1262 (9th Cir. 1993). We affirm.

The district court did not abuse its discretion in denying Gonsalez’s Fed. R.

Civ. P. 60(b)(3) motions because Gonsalez failed to demonstrate any basis for

relief. See Casey v. Albertson’s Inc., 362 F.3d 1254, 1257, 1260 (9th Cir. 2004) (to

prevail under Rule 60(b)(3), the “moving party must prove by clear and convincing

evidence” that judgment was obtained through fraud, misrepresentation, or other

misconduct that was not “discoverable by due diligence before or during the

proceedings” (citation and internal quotation marks omitted)).

We do not consider Gonsalez’s contentions regarding the underlying

judgment because Gonsalez failed to file a timely notice of appeal as to that

judgment. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal must be filed within 30

days of judgment); Swimmer v. IRS, 811 F.2d 1343, 1344-45 (9th Cir. 1987)

(second motion for reconsideration does not toll time to appeal underlying

judgment), abrogated on other grounds by Briones v. Riviera Hotel & Casino, 116

F.3d 379 (9th Cir. 1997).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, including the district court’s denial of Gonsalez’s motion to

stay, or arguments and allegations raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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