NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMSCO PROPERTIES, LLC; et al., No. 13-15336
Plaintiffs - Appellants, D.C. No. 2:09-cv-03086-GEB-EFB
v.
MEMORANDUM*
LORAL LANGEMEIER and LIVE OUT
LOUD, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Submitted March 10, 2015**
San Francisco California
Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.
Tamsco Properties, LLC; JKR Laser Investment, LLC; Surfer Beach, LLC;
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
and To Be Determined, LLC1 appeal from the district court’s orders compelling
arbitration and denying a motion for reconsideration.
Individuals affiliated with Appellants attended conferences held by
Appellees Loral Langemeier and Live Out Loud, Inc. (“LOL”). All conference
attendees, including the individuals affiliated with Appellants, were required to
sign an agreement that contained an arbitration clause.
Appellants allege that, in reliance on information presented at the
conferences, they made investments that resulted in financial losses. Appellants
brought suit against Langemeier and LOL alleging fraud, violation of section 3372
of the California Civil Code, breach of fiduciary duty, violation of federal and state
securities laws, and violation of California’s Unfair Competition Law.
We review de novo district court decisions about the arbitrability of claims.
Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1126 (9th Cir. 2013). We review a
district court’s denial of a motion for reconsideration for abuse of discretion.
Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 954 (9th Cir. 2013). Applying these
1
To Be Determined, LLC is the name that appears in the complaint, but
documents presented to the district court indicate that the correct name is Be
Determined, LLC.
2
standards, we affirm.
Appellants argue that the district court erred by compelling them to arbitrate
their claims against Langemeier and LOL. In general, only a party to an arbitration
agreement can be compelled to arbitrate. See Kramer, 705 F.3d at 1126. We have,
however, recognized various exceptions to this rule grounded in state contract
principles. See Comer v. Micor, Inc., 436 F.3d 1098, 1101 (9th Cir. 2006)
(“Among these principles are 1) incorporation by reference; 2) assumption;
3) agency; 4) veil-piercing/alter ego; and 5) estoppel.” (internal quotation marks
omitted)). Under California law, when a nonsignatory and one of the parties to an
arbitration agreement have an agency relationship, the arbitration agreement may
be enforced against the nonsignatory. See Nguyen v. Tran, 68 Cal. Rptr. 3d 906,
909 (Ct. App. 2007); Berman v. Dean Witter & Co., Inc., 119 Cal. Rptr. 130, 133
(Ct. App. 1975).
In their responses to the requests for admission, Appellants admitted that the
affiliated individuals who attended the conferences did so on their behalf. Because
of these binding admissions, the individuals who attended must be treated as
having done so as Appellants’ agents. See Thomas v. Westlake, 139 Cal. Rptr. 3d
114, 120-21 (Ct. App. 2012). The district court was therefore correct in
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compelling Appellants to arbitrate their claims.
Appellants also argue that the district court erred by characterizing their
motion alleging fraud on the court as a motion for reconsideration. If the motion is
construed as a motion for reconsideration, it was properly denied for failure to
introduce any new evidence, show that the district court committed clear error, or
identify an intervening change in controlling law. See Smith, 727 F.3d at 955. The
motion was also properly denied if it is construed as a motion alleging fraud on the
court, because Appellants’ unsubstantiated suspicions do not constitute clear and
convincing evidence of fraud. See United States v. Estate of Stonehill, 660 F.3d
415, 443-44 (9th Cir. 2011).
AFFIRMED.
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