Jose J. Gonsalez v. Employment Development Department;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE J. GONSALEZ,
Plaintiff-Appellant,
v.
EMPLOYMENT DEVELOPMENT
DEPARTMENT; et al.,
Defendants-Appellees.
No. 20-55255
D.C. No. 2:18-cv-08607-AB-ADS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Jose J. Gonsalez appeals pro se from the district court’s post-judgment
orders in his action alleging federal claims arising out of a state audit and tax
assessment. We have jurisdiction under 28 U.S.C. § 1291. We review for an
abuse of discretion. Sch. Dist. No. 1J Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d
* 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).
FILED
FEB 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-55255
1255, 1262 (9th Cir. 1993). We affirm.
The district court did not abuse its discretion in denying Gonsalez’s Fed. R.
Civ. P. 60(b)(3) motions because Gonsalez failed to demonstrate any basis for
relief. See Casey v. Albertson’s Inc., 362 F.3d 1254, 1257, 1260 (9th Cir. 2004) (to
prevail under Rule 60(b)(3), the “moving party must prove by clear and convincing
evidence” that judgment was obtained through fraud, misrepresentation, or other
misconduct that was not “discoverable by due diligence before or during the
proceedings” (citation and internal quotation marks omitted)).
We do not consider Gonsalez’s contentions regarding the underlying
judgment because Gonsalez failed to file a timely notice of appeal as to that
judgment. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal must be filed within 30
days of judgment); Swimmer v. IRS, 811 F.2d 1343, 1344-45 (9th Cir. 1987)
(second motion for reconsideration does not toll time to appeal underlying
judgment), abrogated on other grounds by Briones v. Riviera Hotel & Casino, 116
F.3d 379 (9th Cir. 1997).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, including the district court’s denial of Gonsalez’s motion to
stay, 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.

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