                             NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                        MAR 9 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

MICHAEL J. SLATER,                              No.    18-56601

                Plaintiff-Appellant,            D.C. No. 3:17-cv-01795-CAB
                                                (MSB)
and

CLIFFORD BORO; et al.,                          MEMORANDUM*

                Plaintiffs
 v.

LAURA MORTON, ET AL.,

                Defendants-Appellee.

                   Appeal from the United States District Court
                      for the Southern District of California
                  Cathy A. Bencivengo, District Judge, Presiding

                             Submitted March 4, 2020**
                               Pasadena, California

Before: KLEINFELD and NGUYEN, Circuit Judges, and PAULEY,*** District
Judge.

      *
             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 William H. Pauley III, United States District Judge for
the Southern District of New York, sitting by designation.
      Michael J. Slater appeals the district court’s orders: (1) granting summary

judgment for Laura Morton and Laura Morton Management, Inc. (together,

“Morton”); (2) denying Slater’s motion for leave to amend the complaint; and (3)

staying discovery. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

      1.     We review de novo the district court’s grant of summary judgment and

dismissal of this action for mootness. Bayer v. Neiman Marcus Grp., Inc., 861 F.3d

853, 861 (9th Cir. 2017).

      Slater appeals the district court’s grant of summary judgment dismissing: (1)

a claim for declaratory judgment that he has a valid and enforceable agreement with

Morton, and (2) a $20,000 claim for money had and received that Slater never

tendered. Neither claim is justiciable.

      First, the declaratory judgment claim is moot because Morton voluntarily

dismissed her counterclaims for breach of contract with prejudice and executed a

broad covenant not to sue Slater. A declaratory judgment would be akin to an

advisory opinion because no substantial controversy exists between the parties. See

Golden v. Zwickler, 394 U.S. 103, 108 (1969); see also Already, LLC v. Nike, Inc.,

568 U.S. 85, 91 (2013) (“No matter how vehemently the parties continue to dispute

the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the

dispute is no longer embedded in any actual controversy about the plaintiffs’

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particular legal rights.” (internal quotation marks omitted)).

      Second, Slater cannot state a claim for money had and received. “A cause of

action for money had and received is stated if it is alleged the defendant is indebted

to the plaintiff in a certain sum for money had and received by the defendant for the

use of the plaintiff.” Farmers Ins. Exch. v. Zerin, 61 Cal. Rptr. 2d 707, 715 (Cal. Ct.

App. 1997) (internal quotation marks omitted).          The district court properly

concluded that Slater lacked standing to assert this claim because he never alleged

that Morton was indebted to him and he did not seek the return of any money.

Accordingly, we find the district court did not err in granting summary judgment on

both claims.

      2.       “The trial court’s denial of leave to amend a complaint is reviewed for

an abuse of discretion.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th

Cir. 2011). Slater’s request for leave to amend was untimely under the magistrate

judge’s case management order. Thus, Slater was only allowed to modify this

schedule for “good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4);

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992).

      We see no reason to upset the district court’s findings. If Slater provided

payments to Morton, he could have amended the complaint prior to the deadline to

reflect his involvement. Or if, as Slater argues, he only subsequently learned that

Boro and Watt made payments to Morton through their associated entities—


                                           3
Catalyze Venture Partners LLC and the Team Group LLC—Slater could have

moved to amend the complaint to add himself (or his company, Entry Ventures, Inc.)

as the payor. As noted by the district court, Slater’s proposed amendments would

obscure the source of the payments instead of bolstering his argument for standing.

      Moreover, the district court found that granting the request to amend the

complaint would have materially prejudiced Boro, Watt, and Morton who had

already settled their claims. While a finding of prejudice is not required under Rule

16(b), it supplies an additional reason for denying the motion. See Johnson, 975

F.2d at 609. Therefore, the district court did not abuse its discretion in denying

Slater’s motion for leave to amend the complaint.

      3.     The district court’s rulings on discovery are reviewed for abuse of

discretion. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). The district

court did not abuse its discretion in staying discovery during the pendency of the

summary judgment motion and in rejecting Slater’s request for further discovery.

As the district court noted, the discovery Slater sought would not have aided his

opposition to summary judgment. See id. (finding that the district court did not abuse

its discretion by staying discovery when that discovery could not have affected

summary judgment); see also Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)

(noting that the district court’s “decision to deny discovery will not be disturbed

except upon the clearest showing that denial of discovery results in actual and


                                          4
substantial prejudice to the complaining litigant” (internal quotation marks

omitted)). Accordingly, we affirm the district court’s rulings.

      AFFIRMED.




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