                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 01 2011

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



J. MICHAEL SCHAEFER,                             No. 08-56448

               Plaintiff - counter-defendant -   D.C. No. 3:06-cv-00821-JLS-BLM
               Appellant,

  v.                                             MEMORANDUM *

ROBBINS & KEEHN, APC,

               Defendant - counter-claimant -
               Appellee,

    and

L. SCOTT KEEHN,

               Defendant - Appellee.



                     Appeal from the United States District Court
                        for the Southern District of California
                    Janis L. Sammartino, District Judge, Presiding

                            Submitted October 25, 2011 **




          *
             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).
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).


                                          2                                    08-56448
      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.




                                         3                                    08-56448
