                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 11 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ROBERT CRITCHLOW,                                No. 13-15572

              Plaintiff - Appellant,             D.C. No. 3:12-cv-01198-LB

 v.
                                                 MEMORANDUM*
KATE E. CRITCHLOW and BARBARA
L. WANER,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Laurel D. Beeler, Magistrate Judge, Presiding

                             Submitted June 9, 2015**
                             San Francisco, California

Before: SCHROEDER, D.W. NELSON, and IKUTA, Circuit Judges.




        *
             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).
      Robert Critchlow appeals the district court’s dismissal of his complaint

against his stepmother, Kate Critchlow, and her attorney, John Waner,1 for breach

of fiduciary duty, fraud, and conversion. He also appeals the district court’s denial

of his motion to amend the judgment. We have jurisdiction under 28 U.S.C.

§ 1291. The judicially created probate exception to federal court jurisdiction does

not apply to these claims, because they do not “involve the administration of an

estate, the probate of a will, or any other purely probate matter.” Marshall v.

Marshall, 547 U.S. 293, 312 (2006) (internal quotation mark omitted).

      The district court did not err in taking judicial notice of Robert Critchlow’s

Safe Harbor Petition and attached exhibits filed in the Sonoma County Superior

Court. See Fed. R. Evid. 201(b). The district court did not improperly consider the

statements in those documents for “the truth of the facts recited therein.” Lee v.

City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001) (internal quotation

marks omitted). Accordingly, the court’s decision to take judicial notice of these

documents did not convert Robert Critchlow’s motion to dismiss into a motion for

summary judgment. See Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005,




      1
        John Waner died during the pendency of this appeal. We granted Robert
Critchlow’s motion to substitute John Waner’s wife, Barbara A. Waner, as
defendant. Dkt. Entry 20 filed Nov. 12, 2013.
                                          2
1016 n.9 (9th Cir. 2012). The district court did not otherwise consider matters

beyond the pleadings.

      The district court did not err in concluding that Robert Critchlow’s claim

against Kate Critchlow for breach of fiduciary duty was subject to a three-year

statute of limitations under California Probate Code § 16460. See Noggle v. Bank

of Am., 70 Cal. App. 4th 853, 859 (1999). Because the Second Amended

Complaint alleged breach of fiduciary duty under provisions of the California

Probate Code, and Robert Critchlow’s claims are based on alleged violations of his

rights as a beneficiary under the Critchlow Family Trust, the district court properly

characterized the claims as claims against a trustee by a beneficiary. It is

undisputed that Robert Critchlow’s fraud and conversion claims against Kate

Critchlow and John Waner are also subject to a three-year statute of limitations.

See California Code of Civil Procedure § 338(c) and (d).2

      The district court did not err in concluding that the three-year statute of

limitations on each of Robert Critchlow’s claims began to run in November 2008.

Robert Critchlow’s Safe Harbor Petition includes statements to the effect that Kate



      2
       Because Robert Critchlow did not raise a claim against John Waner for
breach of fiduciary duty in his Second Amended Complaint, this claim is waived
on appeal. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (en
banc).
                                          3
Critchlow failed to file an original, signed copy of Warren Critchlow’s will for

improper purposes, and that she may have committed fraud on the court and

violated her fiduciary duties as trustee. Such statements establish that in

November 2008, Robert Critchlow had a “suspicion of wrongdoing” on the part of

Kate Critchlow and was aware of his injury and its “negligent cause.” Jolly v. Eli

Lilly & Co., 44 Cal. 3d 1103, 1109, 1111 (1988); see also Fox v. Ethicon Endo-

Surgery, Inc., 35 Cal. 4th 797, 807 (2005) (explaining California’s “discovery

rule”). Under these circumstances, Robert Critchlow’s breach of fiduciary duty

claim also began to accrue in November 2008, even though Kate Critchlow had not

repudiated the trust. See Strasberg v. Odyssey Grp., Inc., 51 Cal. App. 4th 906,

918 (1996). Because each of Robert Critchlow’s claims was subject to a three-year

statute of limitations that began to run in November 2008, and he filed his

complaint in March 2012, the district court did not err in dismissing his claims as

untimely.

      The district court did not abuse its discretion in denying Robert Critchlow’s

motion to amend its judgment pursuant to Rule 52 of the Federal Rules of Civil

Procedure. The district court correctly held that Rule 52 does not apply in this

context, because it permits a court to amend its findings in bench trials. Further, to

the extent that the motion is construed as a motion for reconsideration under Rule


                                          4
59 of the Federal Rules of Civil Procedure, the district court did not abuse its

discretion in rejecting it because Robert Critchlow alleged no new facts in support

of his request to amend his complaint, the court had not clearly erred in its

analysis, and the court had correctly applied the standards of Federal Rule of Civil

Procedure 12(b)(6).3 See SEC v. Platforms Wireless Int’l Corp., 617 F.3d 1072,

1100 (9th Cir. 2010).

      AFFIRMED.




      3
       We deny Kate Critchlow and John Waner’s motion for sanctions against
Robert Critchlow. Dkt. Entry 30 filed Dec. 11, 2013; Dkt. Entry 31 filed Dec. 17,
2013.
                                          5
