APPLETON AKA v. BOHART (2019)

MEMORANDUM **

Marlys M. Appleton AKA Marlys Elavsky Appleton appeals pro se from the district court’s judgment dismissing her diversity action alleging various state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (dismissal under Federal Rule of Civil Procedure 12(b)(1) ); Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (dismissal based on the applicable statute of limitations). We affirm.

The district court properly dismissed for lack of standing Appleton’s fraud, unjust enrichment, and “constructive trust” claims because Appleton failed to allege facts sufficient to show that she had a legally protected interest in the property at issue. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (setting forth requirements for Article III standing).

The district court properly dismissed as time-barred Appleton’s undue influence claim because Appleton failed to file her action within the applicable three-year statute of limitations. See Wash. Rev. Code §  4.16.080(4) (three-year limitations period for a fraud action begins to accrue upon “discovery by the aggrieved party of the facts constituting the fraud”); Adventist Adoption & Family Servs. v. Perry ( In Interest of Perry), 31 Wash.App. 268, 641 P.2d 178, 180 (1982) (undue influence is a species of fraud); see also Strong v. Clark, 56 Wash.2d 230, 352 P.2d 183, 184 (1960) (“Actual knowledge of the fraud will be inferred if the aggrieved party, by the exercise of due diligence, could have discovered it․ When the facts upon which the fraud is predicated are contained in a written instrument which is placed on the public record, there is constructive notice of its contents, and the statute of limitations begins to run at the date of the recording of the instrument.” (citations omitted) ).

We reject as meritless Appleton’s contentions that the district court erred by considering opposing counsel’s declaration and exhibits, refusing to accept her allegations as true, and applying Washington law.

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.