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 2021-11

Robert Valente v. Bank of America, Na ( 2021 )


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  •                            NOT FOR PUBLICATION                            FILED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