Zamani v. Carnes , 491 F.3d 990 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL A. ZAMANI, an 
individual; NANCY MILLER-
WALLACE, formerly Nancy
Zamani, an individual,
No. 04-17571
Plaintiffs-Appellees,
v.  D.C. No.
CV-03-00852-RMW
H. GENE CARNES; PHILLIP CARNES;
OPINION
JENNIFER CARNES; KATHRYN
SCHALLER; KEVIN SCHALLER,
individuals,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
January 10, 2007—San Francisco, California
Filed June 4, 2007
Before: Procter Hug, Jr. and William A. Fletcher,
Circuit Judges, and H. Russel Holland*, District Judge.
Opinion by Judge Holland
*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
6689
ZAMANI v. CARNES 6693
COUNSEL
James R. Hales, Rowe & Hales, Minden, Nevada, for the
appellants.
Michael A. Zamani, pro se, San Jose, California, argued on
his own behalf. Timothy E. Herr, Herr & Zapala, San Jose,
California, was on the brief for the appellees.
OPINION
HOLLAND, District Judge:
Appellants H. Gene Carnes, Phillip Carnes, Jennifer Car-
nes, Kathryn Schaller, and Kevin Schaller (“the Carneses”)
appeal the district court’s denial of their motion to strike and/
or dismiss and their motion for reconsideration. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
In January 2000, the Carneses, who were residents of
Nevada, commenced a declaratory judgment action against
appellees, California residents Michael A. Zamani and Nancy
Miller-Wallace, who was then married to Mr. Zamani and
known as Nancy Zamani (“the Zamanis”). The Carneses pre-
vailed in that action and a judgment for attorney fees and
costs was entered against the Zamanis, which the Carneses
filed with the Santa Clara County Recorder’s Office. The
Zamanis appealed but did not file a supersedeas bond,
although there were some negotiations between the parties as
to the proper amount of such a bond. While the declaratory
6694 ZAMANI v. CARNES
judgment action was still on appeal, the Carneses began to
execute on the assets of the Zamanis. In December 2002, the
Zamanis requested that the Carneses provide them with the
correct amount still owing on the judgment so that they could
close a third-party escrow. The Carneses advised the Zamanis
that they would provide a recordable satisfaction of judgment
if the Zamanis paid $99,123, which the Carneses claimed to
be the balance due on the judgment, and deposited $56,359 in
the district court’s registry. This additional money was for
attorney fees and costs in the event the Carneses prevailed on
appeal. Later, the Carneses also requested that the Zamanis
issue a general release of all claims as a condition of delivery
of an acknowledgment of satisfaction of judgment. On Janu-
ary 23, 2003, the Zamanis wired $91,613.38 to the Carneses’
attorney and demanded that the Carneses provide an acknowl-
edgment of satisfaction of judgment, according to the proce-
dures set forth in California Code of Civil Procedure section
724. On February 10, 2003, the Carneses filed a document
with the district court titled “Full Satisfaction of Judgment.”
This document provided:
Payment in full . . . under the final judgment entered
on March 5, 2001, is hereby acknowledged, and sat-
isfaction full and complete and acquittance in full,
including interest, is hereby given, except as to costs
and expenses on appeal, and such additional sums, if
any, including attorney’s fees on appeal, that may be
awarded to [the Carneses].
On February 26, 2003, the Zamanis filed suit against the
Carneses. In their first two causes of action, the Zamanis
alleged that the Carneses violated California Code of Civil
Procedure sections 724.050 and 724.070 because the satisfac-
tion of judgment that the Carneses filed did not comply with
statutory requirements, and they had imposed unlawful condi-
tions on delivery of the acknowledgment of satisfaction. In
their third cause of action, the Zamanis alleged that they had
overpaid the judgment by $1,832.19. The Zamanis sought
ZAMANI v. CARNES 6695
general, economic, and exemplary damages in excess of
$700,000.
The Carneses moved to strike the Zamanis’ first two causes
of action pursuant to California’s anti-SLAPP (“Strategic
Lawsuit Against Public Participation”) statute, Cal. Civ. Proc.
Code § 425.16, or in the alternative, to dismiss the first two
causes of action pursuant to Federal Rule of Civil Procedure
12(b)(6). The Carneses contended that the Zamanis’ first two
causes of action should be stricken or dismissed because Fed-
eral Rule of Civil Procedure 60(b)(5), not state law, applies to
satisfaction of federal judgments. The Carneses further con-
tended that even if state law applied, sections 724.050 and
724.070 would not apply because those provisions only apply
to judgments issued by state courts. The Carneses also moved
to dismiss the third cause of action pursuant to Rule 12(b)(1)
of the Federal Rules of Civil Procedure on the ground that if
the first two causes of action were stricken or dismissed, the
amount in controversy as to the third claim would be insuffi-
cient to preserve diversity jurisdiction.
The district court denied the Carneses’ motion to strike,
concluding that California state law applies to satisfaction of
judgments via Federal Rule of Civil Procedure 69(a). The dis-
trict court rejected the Carneses’ argument that Rule 60(b)(5)
applies instead. Because the district court denied the motion
to strike, it concluded that the Carneses’ alternative Rule
12(b)(6) motion also failed. The district court also denied the
Carneses’ Rule 12(b)(1) motion because it denied the motion
to strike and/or dismiss. In denying the Carneses’ motion to
strike and/or dismiss, the district court did not address an
additional argument the Carneses had raised in their reply
brief: namely that the Zamanis’ claims were barred by the liti-
gation privilege. The Carneses moved for reconsideration on
this issue, but the district court denied the motion for recon-
sideration because the Carneses failed to raise their litigation
privilege argument in their opening brief. This appeal fol-
lowed.
6696 ZAMANI v. CARNES
II.
“Although a district court’s denial of a motion under Fed-
eral Rule of Civil Procedure 12(b)(6) is not ordinarily appeal-
able,” Hydrick v. Hunter, 466 F.3d 676, 686 (9th Cir. 2006),
the denial of an anti-SLAPP motion is immediately appeal-
able pursuant to the collateral order doctrine. Batzel v. Smith,
333 F.3d 1018, 1024 (9th Cir. 2003). The denial of a motion
for reconsideration is immediately appealable if the underly-
ing order is immediately appealable. See Branson v. City of
Los Angeles, 912 F.2d 334, 336 (9th Cir. 1990). Because the
district court’s order denying the motion to strike, or in the
alternative, to dismiss, is immediately appealable, so is the
district court’s order denying the motion for reconsideration.
We review the district court’s denial of the anti-SLAPP
motion and the motion to dismiss de novo. Vess v. Ciba-Geigy
Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We also
review de novo the question of when state law applies to pro-
ceedings in federal court. McCalla v. Royal MacCabees Life
Ins. Co., 369 F.3d 1128, 1129 (9th Cir. 2004). Denial of a
motion for reconsideration is reviewed for an abuse of discre-
tion. Sissoko v. Rocha, 440 F.3d 1145, 1154 (9th Cir. 2006).
III.
[1] We consider first the district court’s denial of the anti-
SLAPP motion. California’s “anti-SLAPP statute was enacted
to allow early dismissal of meritless first amendment cases
aimed at chilling expression through costly, time-consuming
litigation.” Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832,
839 (9th Cir. 2001). “A court considering a motion to strike
under the anti-SLAPP statute must engage in a two-part inqui-
ry.” Vess, 317 F.3d at 1110. “First, a defendant ‘must make
an initial prima facie showing that the plaintiff’s suit arises
from an act in furtherance of the defendant’s rights of petition
or free speech.’ ” Id. (quoting Globetrotter Software, Inc. v.
Elan Computer Group, Inc., 63 F. Supp. 2d 1127, 1129 (N.D.
ZAMANI v. CARNES 6697
Cal. 1999)). “Second, once the defendant has made a prima
facie showing, ‘the burden shifts to the plaintiff to demon-
strate a probability of prevailing on the challenged claims.’ ”
Id.
No one disputes that the Carneses have made their prima
facie showing. The dispute here focuses on the second part of
the test: whether the Zamanis have demonstrated a likelihood
of success on their state statutory claims, which are based on
sections 724.050 and 724.070 of the California Code of Civil
Procedure. Section 724 is part of California’s Enforcement of
Judgments Law (“EJL”). Section 724.050 provides that once
a judgment has been satisfied, the judgment debtor may
demand in writing that the judgment creditor “[f]ile an
acknowledgment of satisfaction of judgment with the court,”
and/or “[e]xecute, acknowledge, and deliver an acknowledg-
ment of satisfaction of judgment to the person who made the
demand.” If the judgment creditor fails to comply within 15
days of the demand, he is liable “for all damages sustained by
reason of such failure” and a statutory penalty of $100. Cal.
Civ. Proc. Code § 724.050(c), (e). Section 724.060 sets forth
specific requirements for the form and content of an acknowl-
edgment of satisfaction of judgment. Section 724.070(a) pro-
vides that if the judgment creditor imposes unlawful
conditions on the delivery of an acknowledgment of satisfac-
tion of judgment, “the judgment creditor is liable to the judg-
ment debtor for all damages sustained by reason of such
action or two hundred fifty dollars ($250), whichever is the
greater amount.”
[2] “ ‘[F]ederal courts sitting in diversity jurisdiction apply
state substantive law and federal procedural law.’ ” Freund v.
Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003) (quot-
ing Gasperini v. Ctr. for Humanities, Inc. 518 U.S. 415, 427
(1996)). The sections of the EJL at issue here, while providing
procedures for an acknowledgment of satisfaction of judg-
ment, also provide for money damages for failure to comply
with the statutory procedures. Thus, they fall “ ‘within the
6698 ZAMANI v. CARNES
uncertain area between substance and procedure’ ” because
they are “ ‘rationally capable of classification as either.’ ”
Kohlrautz v. Oilmen Participation Corp., 441 F.3d 827, 831
(9th Cir. 2006) (quoting Hanna v. Plumer, 380 U.S. 460, 472
(1965)). When faced with a state law that may be classified
as either substantive or procedural, the court must determine
whether “there is an applicable federal rule of civil proce-
dure.” Id. If there is an applicable federal rule, “and if that
rule is valid under the Rules Enabling Act, 28 U.S.C. § 2072,
that rule should be applied.” Id.
[3] The Carneses contend that Rule 60(b)(5) applies to the
satisfaction of judgments and acknowledgment thereof. Rule
60(b)(5) provides that relief “from a final judgment, order, or
proceeding” may be had if “the judgment has been satisfied,
released, or discharged . . . .” The Carneses insist that Rule
60(b)(5), if read with Rule 83(b),1 covers all issues relating to
the satisfaction of judgments and gives the district court com-
plete discretion in such matters. We are not convinced that
Rule 60(b)(5) can be construed that broadly, even if we were
to rely on Rule 83(b) to fill the gaps.
[4] The “satisfied, released, or discharged” clause of Rule
60(b)(5) is generally invoked when a party seeks entry of sat-
isfaction of judgment because no acknowledgment of satisfac-
tion has been delivered due to an ongoing dispute over the
judgment amount. See, e.g., Redfield v. Ins. Co. of N. Am.,
940 F.2d 542, 544 (9th Cir. 1991); Conte v. Gen. Housewares
Corp., 215 F.3d 628, 639-40 (6th Cir. 2000); Newhouse v.
McCormick & Co., 157 F.3d 582, 584 (8th Cir. 1998); Baum-
lin & Ernst, Ltd. v. Gemini, Ltd., 637 F.2d 238, 241 n.5 (4th
Cir. 1980). Applying Rule 60(b)(5) in such situations com-
ports with the plain language of the rule. Here, the Zamanis
did not file suit in order to seek entry of satisfaction of judg-
ment. The claim was not that the Carneses had failed to
1
Rule 83(b) of the Federal Rules of Civil Procedure allows a judge to
regulate the practice in his court when there is no other controlling law.
ZAMANI v. CARNES 6699
deliver an acknowledgment of satisfaction. Rather, the claim
was that the Carneses had violated the Zamanis’ rights under
California law by delivering a nonconforming acknowledg-
ment of satisfaction. Rule 60(b)(5) does not apply to such a
situation.
[5] The district court concluded that the applicable federal
rule was Rule 69(a), which provides, in pertinent part:
The procedure on execution, in proceedings supple-
mentary to and in aid of a judgment, and in proceed-
ings on and in aid of execution shall be in
accordance with the practice and procedure of the
state in which the district court is held, existing at
the time the remedy is sought, except that any statute
of the United States governs to the extent that it is
applicable.
Fed. R. Civ. P. 69(a). We have not previously held that Rule
69(a) applies to proceedings involving the acknowledgment
of satisfaction of judgment. We have held that other provi-
sions of the EJL apply, by virtue of Rule 69(a), to federal
court judgments. See, e.g., Hilao v. Estate of Marcos, 95 F.3d
848, 853-54 (9th Cir. 1996) (holding that provisions of EJL
applied to the notice of levy on a deposit account). Because
Rule 69(a) applies to “proceedings supplementary to and in
aid of a judgment,” the rule is broad enough to encompass a
proceeding involving the acknowledgment of satisfaction of
judgment. See Wolfe-Lillie v. Sonquist, 699 F.2d 864, 873 (7th
Cir. 1983) (Rule 69(a) requires application of state law to sat-
isfaction of judgment issue).
[6] Thus, Rule 69(a) should be applied to the satisfaction
of judgments and acknowledgment thereof as long as it is
valid under the Rules Enabling Act. Rule 69(a) incorporates
state law so it cannot possibly “abridge, enlarge or modify
any substantive right” that may exist under section 724 of the
California Code of Civil Procedure. 28 U.S.C. § 2072(b).
6700 ZAMANI v. CARNES
Because Rule 69(a) is valid under the Rules Enabling Act, we
conclude that it applies to satisfaction of judgments and
acknowledgment thereof.
[7] Rule 69(a) incorporates state law, thereby making the
Zamanis’ first two causes of action cognizable claims. For the
reasons set forth in the opinion in the related case, Carnes v.
Zamani, Case No. 05-15084, which is filed concurrently with
the filing of this opinion, we reject the Carneses’ argument
that, by its own terms, section 724 cannot apply to this case
because the EJL is limited to judgments of the State of Cali-
fornia.
[8] The foregoing establishes a legal foundation for the
Zamanis’ first two causes of action. On the facts of this case,
we agree with the district court that the Zamanis demonstrated
a reasonable probability of success on the merits of their first
two causes of action. The Carneses do not argue otherwise.
The anti-SLAPP motion to strike was properly denied.
IV.
[9] As to the Rule 12(b)(6) motion to dismiss, the district
court did not err in denying that motion, although the result
on this motion does not necessarily follow from the anti-
SLAPP motion, as the district court concluded. The relevant
inquiry for a Rule 12(b)(6) motion is not whether the plaintiff
has demonstrated a likelihood of success on the merits. A
Rule 12(b)(6) “[d]ismissal is proper only where there is no
cognizable legal theory or an absence of sufficient facts
alleged to support a cognizable legal theory.” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). Because the
Zamanis’ first two causes of action are based on cognizable
legal theories which are supported by sufficient facts, the Rule
12(b)(6) motion was properly denied.2
2
Because the Zamanis’ first two causes of action remain viable, the
amount in controversy is satisfied, and the district court properly denied
the Rule 12(b)(1) motion.
ZAMANI v. CARNES 6701
V.
[10] Lastly, we consider the district court’s denial of the
Carneses’ motion for reconsideration. Because the motion
was filed within ten days of the district court’s order on the
motion to strike and/or dismiss, we treat it as a Rule 59(e)
motion. Circuit City Stores, Inc. v. Mantor, 417 F.3d 1060,
1064 (9th Cir. 2005). A Rule 59(e) motion is properly granted
“ ‘if the district court (1) is presented with newly discovered
evidence, (2) committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change in
controlling law.’ ” Sissoko, 440 F.3d at 1153-54 (quoting
Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir.
2003)). The Carneses, in essence, argue that the district court
abused its discretion in denying the motion for reconsidera-
tion because it was clear error for the district court to not con-
sider their litigation privilege argument. The district court did
not commit clear error in failing to consider the litigation
privilege argument because the Carneses did not raise this
argument until their reply brief. The district court need not
consider arguments raised for the first time in a reply brief.
See Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003).
The district court thus did not abuse its discretion in denying
the Carneses’ Rule 59(e) motion.
VI.
Based on the foregoing, the district court’s denial of the
Carneses’ motion to strike and/or dismiss and the Carneses’
motion for reconsideration is AFFIRMED.