                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 3 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RICHARD J. TRITZ; IRENE C. TRITZ,               No. 16-56240

                Plaintiffs-Appellants,          D.C. No. 8:14-cv-01653-AG-JCG

 v.
                                                MEMORANDUM*
UNITED STATES OF AMERICA; DOES,
1 through 10, inclusive,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                          Submitted September 26, 2017**

Before:      SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

      Richard J. Tritz and Irene C. Tritz (“taxpayers”) appeal pro se from the

district court’s summary judgment in their tax refund action. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Buffalow v. United States, 109 F.3d

570, 572 (9th Cir. 1997). We affirm.


      *
             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 district court properly granted summary judgment because taxpayers

failed to raise a genuine dispute of material fact as to whether they were entitled to

a refund, as the settlement payment was not made on account of “physical injuries

or physical sickness” and was therefore not excludable from taxpayers’ gross

income. 26 U.S.C. § 104(a)(2), (a) (exempting settlement payment based on

physical injuries or physical sickness from taxation, but not treating emotional

distress as a physical injury or physical sickness); Rivera v. Baker West, Inc., 430

F.3d 1253, 1256-57 (9th Cir. 2005) (setting forth framework for determining when

settlement proceeds qualify for a § 104(a)(2) exclusion and explaining that, in

analyzing a settlement agreement, the court first looks to the express language of

the agreement).

      The district court’s failure to rule on taxpayers’ motion to compel further

discovery is not grounds for reversal because taxpayers failed to show how

additional discovery would have precluded summary judgment. See Margolis v.

Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (standard of review).

      We reject as meritless taxpayers’ contentions that the settlement agreement

should be voided, and that their due process rights were violated.

      AFFIRMED.




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