Tigranuhi Saylor v. Bank of America, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2018
• Docket: 18-55694
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TIGRANUHI SAYLOR, No. 18-55694

Plaintiff-Appellant, D.C. No. 2:17-cv-08984-FMO-PJW

v. MEMORANDUM* BANK OF AMERICA, N.A.,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted November 27, 2018**

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

Tigranuhi Saylor appeals pro se from the district court’s judgment

dismissing her diversity action arising from a foreclosure sale and payments she

made on a refinance loan secured by a deed of trust on her property. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal on the basis

* 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). of res judicata. Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d

1022, 1025 (9th Cir. 2005). We affirm.

The district court properly dismissed Saylor’s action as barred by the

doctrine of res judicata because her claims were raised, or could have been raised,

in a prior action that involved the same primary rights and parties, and resulted in a

final judgment on the merits. See Adam Bros. Farming, Inc. v. County of Santa

Barbara, 604 F.3d 1142, 1148-49 (9th Cir. 2010) (elements of res judicata under

California law); Fed’n of Hillside & Canyon Ass’ns v. City of Los Angeles, 24 Cal.

Rptr. 3d 543, 557 (Ct. App. 2004) (“Res judicata bars the litigation not only of

issues that were actually litigated but also issues that could have been litigated.”).

The district court did not abuse its discretion by denying Saylor 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 stating that leave to amend may be denied where amendment would be

futile).

The district court did not abuse its discretion by considering defendant’s

allegedly late-filed motion to dismiss or by construing Saylor’s motion for relief

from the scheduling conference as a sur-reply to the motion to dismiss. See

Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (“The district

court is given broad discretion in supervising the pretrial phase of litigation . . . .”).

2 18-55694 The district court did not abuse its discretion by not holding a hearing on the

parties’ motions. See Fed. R. Civ. P. 78(b) (“By rule or order, the court may

provide for submitting and determining motions on briefs, without oral hearings.”).

We reject as without merit Saylor’s contentions concerning defense

counsel’s alleged violations of her due process and free speech rights.

We do not consider matters raised for the first time on appeal. See Padgett

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

Saylor’s request for judicial notice (Docket Entry No. 8) is denied as

unnecessary.

Saylor’s motion for reconsideration and for clarification (Docket Entry No.

18) is denied.

AFFIRMED.

3 18-55694