FILED
NOT FOR PUBLICATION NOV 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NASSIM BAYAT, an individual residing No. 12-56388
in the State of California; et al.,
D.C. No. 2:10-cv-07317-JFW-JC
Plaintiffs - Appellants,
v. MEMORANDUM*
LYNN DALE BOGART, an individual
residing in the State of California, et al.,
Defandants,
and
CB RICHARD ELLIS, INC., a Delaware
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted November 5, 2013
Pasadena, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiffs are investors, and their decedents, who allegedly were duped into
purchasing worthless bonds from Defendant Stefan Misiraca. The district court
granted summary judgment to Defendant CB Richard Ellis ("CBRE") and denied
Plaintiffs’ motion under Federal Rule of Civil Procedure 60(b) to set aside the
judgment. Reviewing for abuse of discretion the court’s denial of the Rule 60(b)
motion, Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000), we
affirm.
We need not decide whether the district court abused its discretion, because
any error was harmless. See Fed. R. Civ. P. 61 ("At every stage of the proceeding,
the court must disregard all errors and defects that do not affect any party’s
substantial rights."). Plaintiffs’ sole request was to have time to depose Misiraca
before responding to CBRE’s motion for summary judgment. Plaintiffs now have
deposed Misiraca, but they have not identified any triable issue of fact created by
the deposition. On this record, there is insufficient evidence that Misiraca’s
alleged fraud was within the scope of his employment with CBRE to withstand
summary judgment.
AFFIRMED.
2