NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD J. TRITZ; IRENE C. TRITZ, No. 16-56240
Plaintiffs-Appellants, D.C. No. 8:14-cv-01653-AG-JCG
v.
MEMORANDUM*
UNITED STATES OF AMERICA; DOES,
1 through 10, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Richard J. Tritz and Irene C. Tritz (“taxpayers”) appeal pro se from the
district court’s summary judgment in their tax refund action. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Buffalow v. United States, 109 F.3d
570, 572 (9th Cir. 1997). We affirm.
*
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).
The district court properly granted summary judgment because taxpayers
failed to raise a genuine dispute of material fact as to whether they were entitled to
a refund, as the settlement payment was not made on account of “physical injuries
or physical sickness” and was therefore not excludable from taxpayers’ gross
income. 26 U.S.C. § 104(a)(2), (a) (exempting settlement payment based on
physical injuries or physical sickness from taxation, but not treating emotional
distress as a physical injury or physical sickness); Rivera v. Baker West, Inc., 430
F.3d 1253, 1256-57 (9th Cir. 2005) (setting forth framework for determining when
settlement proceeds qualify for a § 104(a)(2) exclusion and explaining that, in
analyzing a settlement agreement, the court first looks to the express language of
the agreement).
The district court’s failure to rule on taxpayers’ motion to compel further
discovery is not grounds for reversal because taxpayers failed to show how
additional discovery would have precluded summary judgment. See Margolis v.
Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (standard of review).
We reject as meritless taxpayers’ contentions that the settlement agreement
should be voided, and that their due process rights were violated.
AFFIRMED.
2 16-56240