Kenneth Guice v. James Emerson

FILED
NOT FOR PUBLICATION DEC 21 2016

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH W. GUICE, No. 14-16004

Plaintiff-Appellant, D.C. No. 4:13-cv-02250-SBA

v.
MEMORANDUM*
JAMES L. EMERSON, a natural person;
et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding

Submitted December 14, 2016 **

Before: WALLACE, LEAVY, and FISHER, Circuit Judges.

Kenneth W. Guice appeals the district court’s summary judgment in his

diversity action alleging fraud related to a real estate transaction. We have

jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion

*
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).
evidentiary rulings made in the context of summary judgment. Fonseca v. Sysco

Food Serv., Inc., 374 F.3d 840, 845 (9th Cir. 2004). We affirm.

The district court did not abuse its discretion in deciding defendants’ motion

for summary judgment without holding a hearing because Guice was provided a

sufficient opportunity to oppose defendants’ motion and to raise any evidentiary

objections in his opposition brief. See Fed. R. Civ. P. 78(b).

We do not consider Guice’s contentions that the district court erred in

relying on both the affidavit filed in support of defendants’ motion for summary

judgment and the attached exhibits because Guice waived these evidentiary

arguments by raising them for the first time on appeal. See Padgett v. Wright, 587

F.3d 983, 985 n.2 (9th Cir. 2009) (we will not consider issues raised for the first

time on appeal except to prevent manifest injustice); see also Davis v. HSBC Bank

Nev., N.A., 691 F.3d 1152, 1161 (9th Cir. 2012) (failure to object to authenticity of

document before district court waives issue on appeal); Pfingston v. Ronan Eng’g

Co., 284 F.3d 999, 1003-04 (9th Cir. 2002) (to preserve hearsay objection a party

“must either move to strike the affidavit or otherwise lodge an objection with the

district court”).

Therefore, we affirm the judgment.

AFFIRMED.

2 14-16004