Robert Valente v. Bank of America, Na

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 17, 2021
• Docket: 20-16604
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 17 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT VALENTE, No. 20-16604

Plaintiff-Appellant, D.C. No. 3:20-cv-01172-MMC

v. MEMORANDUM* BANK OF AMERICA, NA; KELLER WILLIAMS REALTY, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding

Submitted November 8, 2021**

Before: CANBY, TASHIMA, and MILLER, Circuit Judges.

Robert Valente appeals pro se from the district court’s judgment dismissing

his diversity action alleging state law claims related to the purchase of a property

and subsequent foreclosure proceedings. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal on the basis of the statute of limitations.

* 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). Ellis v. City of San Diego, 176 F.3d 1183, 1188 (9th Cir. 1999). We affirm.

The district court properly dismissed Valente’s action as time-barred

because Valente failed to file his action within the statutes of limitations. See Cal.

Civ. Proc. Code § 335.1 (two-year statute of limitations for claim for injury to an

individual caused by the wrongful act or neglect of another); id. § 337(a), (c) (four-

year statute of limitations for claim based on any contract, obligation or liability

founded upon an instrument in writing, or based on the rescission of a contract in

writing); id. § 338(d) (three-year statute of limitations for fraud claim); id. § 339(1)

(two-year statute of limitations for professional negligence claim); Aryeh v. Canon

Bus. Sols., Inc., 292 P.3d 871, 879-80 (Cal. 2013) (setting forth continuing-wrong

accrual principles); see also Deutsch v. Turner Corp., 324 F.3d 692, 716-17 (9th

Cir. 2003) (under California’s governmental-interest approach to choice-of-law

rules, a California district court generally applies California’s statute of

limitations).

The district court did not abuse its discretion by denying Valente leave to

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of

review and explaining that a district court may dismiss without leave to amend

when amendment would be futile).

The district court did not abuse its discretion by denying Valente’s motion to

2 20-16604 alter or amend the judgment under Federal Rule of Civil Procedure 59(e) because

Valente failed to demonstrate any basis for relief. See Sch. Dist. No. 1J,

Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993)

(setting forth standard of review and grounds for relief under Rule 59(e)).

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).

Valente’s motion for leave to file an untimely reply brief is granted. The

Clerk will file the reply brief received on March 22, 2021 (Docket Entry No. 20).

AFFIRMED.

3 20-16604