J. Michael Schaefer v. Robbins & Keehn, Apc

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. MICHAEL SCHAEFER,
Plaintiff - counter-defendant -
Appellant,
v.
ROBBINS & KEEHN, APC,
Defendant - counter-claimant -
Appellee,
and
L. SCOTT KEEHN,
Defendant - Appellee.
No. 08-56448
D.C. No. 3:06-cv-00821-JLS-BLM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted October 25, 2011**
FILED
NOV 01 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-56448 2
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
In this diversity action, J. Michael Schaefer appeals pro se from the district
court’s summary judgment for Robbins & Keehn, APC, on his fraud claim, and on
Robbins & Keehn’s counterclaim for unpaid legal fees. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo, Morrison v. Hall, 261 F.3d 896, 900
(9th Cir. 2001), and we affirm.
The district court properly granted summary judgment on Schaefer’s fraud
claim because Schaefer failed to create a genuine dispute of material fact as to the
elements of fraudulent concealment. See Williamson v. Gen. Dynamics Corp., 208
F.3d 1144, 1156 n.3 (9th Cir. 2000) (setting forth requirements for fraudulent
concealment under California law).
The district court properly granted summary judgment to Robbins & Keehn
on its account stated claim because Robbins & Keehn showed that there was no
genuine dispute of material fact as to any element of this claim, and Schaefer failed
to create a triable dispute as to any defense to the claim. See Nilsson, Robbins,
Dalgarn, Berliner, Carson & Wurst v. La. Hydrolec, 854 F.2d 1538, 1542-43 (9th
Cir. 1988) (per curiam) (discussing account stated claim under California law);
Armendariz v. Found. Health Psychcare Servs., Inc., 6 P.3d 669, 689 (Cal. 2000)
(addressing principles of unconscionability).

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08-56448 3
The district court did not abuse its discretion by denying Schaefer’s ex parte
application to continue the discovery deadline. See Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1087-88 (9th Cir. 2002) (setting forth standard of review and good
cause requirement).
Schaefer’s remaining contentions are unpersuasive.
Schaefer’s “Request for Clarification,” entered on October 17, 2011, is
denied as moot.
AFFIRMED.

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