Marlys Appleton v. Sharyl Bohart

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 18-35339
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARLYS M. APPLETON, AKA Marlys No. 18-35339 Elavsky Appleton, D.C. No. 2:17-cv-00327-TOR Plaintiff-Appellant,

v. MEMORANDUM*

SHARYL A. BOHART; SANDRA L. HOHN,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, Chief Judge, Presiding

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

Marlys M. Appleton AKA Marlys Elavsky Appleton appeals pro se from the

district court’s judgment dismissing her diversity action alleging various state law

claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

* 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). Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003)

(dismissal under Federal Rule of Civil Procedure 12(b)(1)); Lukovsky v. City &

County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (dismissal based on

the applicable statute of limitations). We affirm.

The district court properly dismissed for lack of standing Appleton’s fraud,

unjust enrichment, and “constructive trust” claims because Appleton failed to

allege facts sufficient to show that she had a legally protected interest in the

property at issue. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)

(setting forth requirements for Article III standing).

The district court properly dismissed as time-barred Appleton’s undue

influence claim because Appleton failed to file her action within the applicable

three-year statute of limitations. See Wash. Rev. Code § 4.16.080(4) (three-year

limitations period for a fraud action begins to accrue upon “discovery by the

aggrieved party of the facts constituting the fraud”); Adventist Adoption & Family

Servs. v. Perry (In Interest of Perry), 641 P.2d 178, 180 (Wash. Ct. App. 1982)

(undue influence is a species of fraud); see also Strong v. Clark, 352 P.2d 183, 184

(Wash. 1960) (“Actual knowledge of the fraud will be inferred if the aggrieved

party, by the exercise of due diligence, could have discovered it. . . . When the

2 18-35339 facts upon which the fraud is predicated are contained in a written instrument

which is placed on the public record, there is constructive notice of its contents,

and the statute of limitations begins to run at the date of the recording of the

instrument.” (citations omitted)).

We reject as meritless Appleton’s contentions that the district court erred by

considering opposing counsel’s declaration and exhibits, refusing to accept her

allegations as true, and applying Washington law.

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

in the opening brief, 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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