Alfred Lam, on behalf of themself v. City and County of San Francisco;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED LAM, on behalf of themself and
of Asian Pacific American employees and
representative of the class of the same or
similarly situated CCSF employees and
PAULA LEIATO, on behalf of themselves
and of Asian Pacific American employees
and representative of the class of the same or
similarly situated CCSF employees,
Plaintiffs-Appellants,
v.
CITY AND COUNTY OF SAN
FRANCISCO; et al.,
Defendants-Appellees.
No. 16-15596
16-16559
D.C. No. 4:10-cv-04641-PJH
ALFRED LAM; PAULA LEIATO,
Plaintiffs-Appellants,
v.
CITY AND COUNTY OF SAN
FRANCISCO; et al.,
Defendants-Appellees.
No. 17-15208
D.C. No. 4:08-cv-04702-PJH
MEMORANDUM*
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-15596
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Submitted March 14, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
In these appeals, Alfred Lam and Paula Leiato appeal pro se from the district
court’s summary judgment in their action alleging employment discrimination;
from the district court’s award of costs to the defendants; and from the district
court’s denial of their motion to reconsider a prior summary judgment. We affirm
in part and dismiss in part.
In Appeal No. 16-15596, Lam and Leaito appeal from the district court’s
summary judgment. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo, Vasquez v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2003), and
we affirm.
The district court properly granted summary judgment on Lam’s and
Leiato’s discrimination claims because Lam and Leiato failed to raise a genuine
dispute of material fact as to whether defendants took adverse action against
plaintiffs, and whether defendants had legitimate, non-discriminatory motives for
** Lam and Leiato’s request for oral argument is denied, because the
panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).

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3 16-15596
their actions. Id. at 640-42 (providing framework for analyzing discrimination
claims). Lam and Leiato’s contentions that the district court ignored relevant
evidence or was biased against them are unsupported by the record. See, e.g.,
Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1474 (9th Cir. 1992)
(district court’s failure to refer to declaration and exhibits in summary judgment
order was harmless where plaintiff failed to argue how consideration of declaration
would have changed result reached by district court).
The district court properly concluded that Lam and Leiato, as pro se
litigants, lacked the authority to represent a class. See C.E. Pope Equity Trust v.
United States, 818 F.2d 696, 697 (9th Cir. 1987) (“Although a non-attorney may
appear in propria persona in his own behalf, that privilege is personal to him . . . .
He has no authority to appear as an attorney for others than himself.”). To the
extent Lam and Leiato contend that reversal is required due to alleged ineffective
assistance of counsel, this contention is without merit. See, e.g., Nicholson v.
Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985) (plaintiff is a civil case has no right to
effective assistance of counsel). We reject Lam and Leiato’s remaining arguments
as unsupported by the record.
The district court did not abuse its discretion in awarding costs to defendants
because Lam and Leiato failed to establish why the defendants were not entitled to
costs. See Save Our Valley v. Sound Transit, 335 F.3d 932, 944-45 n.12 (stating

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4 16-15596
standard of review and burden of proof).
In Appeal No. 16-16559, Lam and Leiato appeal the district court’s order
denying their second motion to reconsider the district court’s costs award. We
dismiss this appeal because it was not timely filed. See Fed. R. App. Proc.
4(a)(1)(A), 26(a)(1); United States v. Sadler, 480 F.3d 932, 937 (9th Cir. 2007)
(untimely civil appeals must be dismissed for lack of jurisdiction).
In Appeal No. 17-15208, Lam and Leiato appeal the district court’s order
denying their motion for relief under Federal Rules of Civil Procedure 59(b), (e),
60(b), and 60(d)(3) as “untimely and meritless”. We have jurisdiction under 28
U.S.C. § 1291. We review for an abuse of discretion. School Dist. No. 1J,
Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993) (Rule
59(e) and Rule 60(b)). We affirm.
The district court correctly exercised its discretion in denying Lam and
Leiato’s motion. The district court properly determined that all of the twenty-two
alleged questionable grounds for relief were untimely because their motion was
filed more than four years after the entry of judgment.
APPEAL NOS. 16-15596 and 17-15208 AFFIRMED.
APPEAL NO. 16-16559 DISMISSED.

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