Sitrick v. Wachovia Securities Financial Network, Inc.

240 F. App'x 238

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 6, 2007
• Docket: No. 05-56475
• Status: Published

Opinion

MEMORANDUM

**

Michael Sitrick as trustee of the Michael and Nancy Sitrick Trust (“Sitrick”) appeals from the order and final judgment dismissing his statutory and common law fraud and misrepresentation claims. Si-trick complains that he purchased Junior “Class E” Tranche notes from the defendants based upon disclosures they made. He alleges that the disclosures omitted two important warnings. In dismissing this action with prejudice the District Court concluded that there were no disputed issues of material fact and that defendants were entitled to judgment as a matter of law. Specifically the District Court held that 1) the omitted information was immaterial; 2) Sitrick did not reasonably rely on any oral or other representations made to him; and 3) Sitrick’s claims were barred by the applicable statute of limitations. Because materiality is a necessary element of each of the causes of action raised by Sitrick, he must establish that the alleged omissions are material in order to succeed on each of his claims. See Cal. Corp.Code §§ 25400, 25401, 25500, 25501; Century Sur. Co. v. Crosby Ins., Inc., 124 Cal.App.4th 116, 129, 21 Cal.Rptr.3d 115 (Cal. Ct.App.2004). We conclude that the court did not err in finding that the alleged omissions were immaterial as a matter of law because a reasonable investor would not find that their exclusion altered the “total mix” of information available. Basic Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988); see also TSC Industries, Inc. v. Northway Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976); In re Convergent Technologies Securities Litig., 948 F.2d 507, 516 (9th Cir.1991).¹

Because we conclude that the court did not err in finding that the alleged omissions were immaterial, we need not reach the court’s alternate bases for dismissal. We likewise reject Sitrick’s argument that the district court should have granted him leave to amend. See Vasquez v. Los Angeles County, 487 F.3d 1246, 1258 (9th Cir.2007)

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . In determining materiality California follows federal law. McCormick v. The Fund American Companies, Inc., 26 F.3d 869, 884-5 (9th cir.1994) see Ins. Underwriters Clearing House Inc. v. Natomas Co., 184 Cal.App.3d 1520, 1526, 228 Cal.Rptr. 449 (1986)(defming materiality in conformity with federal law).