FILED
NOT FOR PUBLICATION MAY 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALLEN L. WISDOM, No. 11-55258
Plaintiff - Appellant, D.C. No. 5:07-cv-00170-DSF-SS
v.
MEMORANDUM *
DANIEL E. KATZ, an individual; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Allen L. Wisdom appeals pro se from the district court’s judgment in his
diversity action dismissing with prejudice his claims against Shoshone Service
Corporation (“Shoshone”), Alec Harshey, Richard T. Gilbert, and the Estate of
*
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).
Kathryne Anne Gilbert, and granting Wisdom’s motion for voluntary dismissal as
to Daniel E. Katz and Reid & Hellyer (“the Katz defendants”). Construing the
voluntary dismissal to be with prejudice, we have jurisdiction under 28 U.S.C.
§ 1291. Concha v. London, 62 F.3d 1493, 1506-09 (9th Cir. 1995). We review de
novo a district court’s dismissal for failure to state a claim, and may affirm on any
ground supported by the record. Serrano v. Francis, 345 F.3d 1071, 1076-77 &
n.5 (9th Cir. 2003). We affirm in part and dismiss in part.
The district court properly dismissed Wisdom’s claim for breach of fiduciary
duty against Shoshone because Wisdom failed to allege facts demonstrating that
Shoshone owed and breached any fiduciary duty to him. See Hatch v. Collins, 275
Cal. Rptr. 476, 480 (Ct. App. 1990) (trustee under a deed of trust serves as an agent
for both the trustor and the beneficiary and does not stand in a fiduciary
relationship to either); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007) (claim must be “plausible on its face”).
The district court properly dismissed Wisdom’s claim for breach of contract
against Shoshone because Wisdom failed to allege facts demonstrating that
Shoshone entered into, and breached the terms of, a contract with him. See Hatch,
275 Cal. Rptr. at 480 (a complaint that does not identify how trustee became a
party to the contract or what contract covenant was breached does not state a viable
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claim for breach against trustee); see also Twombly, 550 U.S. at 570.
The district court properly dismissed Wisdom’s claims that Shoshone
conspired against him in violation of federal and state law because conclusory
allegations of conspiracies are insufficient to support such claims. See Woodrum v.
Woodward County, Okla., 866 F.2d 1121, 1126 (9th Cir. 1989) (42 U.S.C. § 1983
conspiracy); Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988)
(42 U.S.C. §§ 1985 and 1986 conspiracy); Kidron v. Movie Acquisition Corp., 47
Cal. Rptr. 2d 752, 757-58 (Ct. App. 1995) (civil conspiracy under California law).
The district court properly dismissed Wisdom’s fraud claims against
Shoshone because Wisdom failed to make allegations with the specificity required
by Fed. R. Civ. P. 9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124-25
(9th Cir. 2009) (discussing Rule 9(b)’s specificity requirement); see also Lazar v.
Superior Court, 909 P.2d 981, 984 (Cal. 1996) (elements of fraud under California
law).
Dismissal of Wisdom’s claims against Shoshone alleging violations of the
Unruh Civil Rights Act and the Americans with Disabilities Act (“ADA”) was
proper because Wisdom failed to allege facts demonstrating that Shoshone
excluded him from participation in court proceedings in the Gilberts’ state court
action. See Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th
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Cir. 1997) (elements of claim under Title II of ADA); see also Cal. Civ. Code
§§ 51, 52 (codifying Unruh Civil Rights Act).
The district court did not abuse its discretion in denying Wisdom’s motion
for a default judgment against the Katz defendants. See Eitel v. McCool, 782 F.2d
1470, 1471-72 (9th Cir. 1986) (reviewing for an abuse of discretion and noting that
default judgments are ordinarily disfavored).
Contrary to Wisdom’s contentions, the district court did not abuse its
discretion in its application of its local rules to Wisdom’s motion to compel the
Katz defendants to produce discovery. See Prof’l Programs Grp. v. Dep’t of
Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994) (standard of review).
Wisdom’s contentions concerning the district court’s rulings on defendants’
motions to dismiss his prior versions of the complaint, his motion under Fed. R.
Civ. P. 7.1, the district court’s consideration of judicial rulings in the Gilberts’ state
court action, and the applicability of Twombly to his action, are unpersuasive.
We dismiss as moot Wisdom’s appeal as to defendants Alec Harshey and the
Gilberts, in light of a bankruptcy court order approving a compromise and
settlement as to these defendants in Wisdom’s separate bankruptcy proceedings.
See Dilley v. Gunn, 64 F.3d 1365, 1370 (9th Cir. 1995) (parties’ settlement of
claims pending appeal of the judgment renders appeal moot).
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Wisdom’s motion to file a supplemental reply brief, filed on January 17,
2012, is granted.
AFFIRMED in part and DISMISSED in part.
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