Marie Sales, individually and on behalf of the Estate of Paul J. Quintanar v. City of Tustin;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIE SALES, individually and on behalf
of the Estate of Paul J. Quintanar,
Plaintiff-Appellant,
v.
CITY OF TUSTIN; et al.,
Defendants-Appellees.
No. 17-55479
D.C. No.
8:12-cv-01834-CJC-MLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted October 10, 2018**
Pasadena, California
Before: HURWITZ and OWENS, Circuit Judges, and PRESNELL,*** District
Judge.
Marie Sales appeals from the district court’s denial of her motion to vacate
* 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).
*** The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
FILED
OCT 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the judgment under Federal Rule of Civil Procedure 60(b)(6). Sales brought state
law wrongful death and 42 U.S.C. § 1983 claims against the City of Tustin, Chief
of Police Scott Jordan, and three individual officers. As the parties are familiar
with the facts, we do not recount them here. We review a district court’s denial of
a Rule 60(b) motion for abuse of discretion. See Latshaw v. Trainer Wortham &
Co., 452 F.3d 1097, 1100 (9th Cir. 2006). We affirm.
Sales argues that the judgment should be vacated because (1) the district
court improperly declined to exercise supplemental jurisdiction over her state law
wrongful death claim after the dismissal of her federal claims; and (2) newly
discovered evidence warrants reopening her previously dismissed § 1983 claims
against the City of Tustin and Chief Jordan.
Sales did not appeal the underlying judgment within the thirty days required
by Federal Rule of Appellate Procedure 4(a)(1)(A). Nor did she toll the time to
appeal the underlying judgment by properly filing her Rule 60(b) motion within
twenty-eight days. See Fed. R. App. P. 4(a)(4)(A)(vi). We thus lack jurisdiction to
review the underlying judgment, see Lal v. California, 610 F.3d 518, 523-24 (9th
Cir. 2010), and our review is restricted to the denial of Sales’ motion to vacate.
“A party seeking to re-open a case under Rule 60(b)(6) ‘must demonstrate
both injury and circumstances beyond his control that prevented him from
proceeding with the prosecution or defense of the action in a proper fashion.’”

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Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007) (citation omitted). “Rule
60(b)(6)’s catch-all provision . . . ‘is to be utilized only where extraordinary
circumstances prevented a party from taking timely action to prevent or correct an
erroneous judgment.’” Fantasyland Video, Inc. v. Cty. of San Diego, 505 F.3d
996, 1005 (9th Cir. 2007) (citation omitted).
Here, Sales offers no explanation of any circumstances preventing her from
taking timely corrective action earlier in the litigation. Nothing in the record
contradicts the conclusion that Sales had numerous opportunities to both seek to
reinstate her dismissed § 1983 claims against the City of Tustin and Chief Jordan
and advocate for retention of supplemental jurisdiction over her wrongful death
claim. See United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049
(9th Cir. 1993) (“[R]elief may not be had” under Rule 60(b)(6) “where ‘the party
seeking reconsideration has ignored normal legal recourses.’” (citation omitted)).
Because she has not “demonstrate[d] . . . circumstances beyond [her] control that
prevented [her] from proceeding with the prosecution . . . of the action in a proper
fashion,” Sales has failed to meet her burden to show that she is entitled to Rule
60(b)(6) relief. Delay, 475 F.3d at 1044. The district court thus did not abuse its
discretion in denying Sales’ motion to vacate.
AFFIRMED.1
1 Sales’ opposed motions to take judicial notice (Dkt. Nos. 28, 32) are denied.

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