MISHIYEV v. ALPHABET INC (2021)

MEMORANDUM **

Erik Mishiyev appeals pro se from the district court's judgment dismissing his diversity action alleging state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Parents for Privacy v. Barr, 949 F.3d 1210, 1221 (9th Cir. 2020). We affirm.

The district court properly dismissed Mishiyev's action because Mishiyev failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed liberally, a plaintiff must present factual allegations sufficient to state a plausible claim for relief); Ixchel Pharma, LLC v. Biogen, Inc., 266 Cal.Rptr.3d 665, 470 P.3d 571, 575-76 (2020) (elements of tortious interference with contractual relations and tortious interference with prospective economic advantage claims); Oasis W. Realty, LLC v. Goldman, 51 Cal.4th 811, 124 Cal.Rptr.3d 256, 250 P.3d 1115, 1121 (2011) (elements of a breach of contract claim); Mintz v. Blue Cross of Cal., 172 Cal.App.4th 1594, 92 Cal. Rptr. 3d. 422, 434 (2009) (elements of a negligence claim); Venhaus v. Shultz, 155 Cal.App.4th 1072, 66 Cal. Rptr. 3d 432, 435-46 (2007) (elements of a negligent interference with prospective economic advantage claim); see also Erlich v. Menezes, 21 Cal.4th 543, 87 Cal.Rptr.2d 886, 981 P.2d 978, 982 (1999) (“[C]onduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.”).

We reject as without merit Mishiyev's contentions regarding prejudice or impropriety on the part of the district court, or ineffective assistance of counsel.

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).

Mishiyev's motions to supplement the record on appeal (Docket Entry Nos. 16, 18, 34) are denied.

AFFIRMED.