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).

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

JACOB WINDING, dba Top to Bottom

Cleaning Service,

 Plaintiff - Appellant,

 v.

NDEX WEST, LLC, as Trustee; et al.,

 Defendants - Appellees.

No. 11-16506

D.C. No. 1:10-cv-02026-AWIDLB

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Submitted October 15, 2013** 

Before: FISHER, GOULD, and BYBEE, Circuit Judges.

Jacob Winding, dba Top to Bottom Cleaning Service, appeals pro se from

the district court’s judgment dismissing his action alleging fraud and other claims

arising from foreclosure proceedings. We have jurisdiction under 28 U.S.C.

FILED

OCT 23 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 11-16506

§ 1291. We review de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.

2005). We affirm. 

The district court properly dismissed Winding’s claim for declaratory relief

because Winding failed to allege facts showing that he held a lien in a senior

position of priority to defendants’ lien. See Cal. Civ. Code § 1214 (the date of

recording determines priority of liens in California); see also O’Meara v.

DeLamater, 126 P.2d 671, 672 (Cal. Ct. App. 1942) (“[A]ssignment back to the

maker of the note and mortgage merge[s] the equitable title with the legal title and

extinguishe[s] the mortgage.”). 

The district court properly dismissed Winding’s claims for fraud and

cancellation of instruments because Winding failed to allege facts showing that

defendants misrepresented the priority of their lien. See Lazar v. Superior Court,

909 P.2d 981, 984 (Cal. 1996) (elements of fraud under California law). 

The district court did not abuse its discretion in granting Wells Fargo’s

request for judicial notice because the court properly examined the requested

documents and determined that their accuracy could not reasonably be questioned. 

See Fed. R. Evid. 201; Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458 (9th Cir.

1995) (standard of review).
3 11-16506

The district court did not abuse its discretion in granting Wells Fargo’s

motion to strike Winding’s claim for punitive damages because Winding did not

allege facts demonstrating malice, oppression, or fraud. See Cal. Civ. Code § 3294

(requirements for punitive damages under California law); Nurse v. United States,

226 F.3d 996, 1000 (9th Cir. 2000) (standard of review). 

The district court did not abuse its discretion in awarding attorney’s fees for

Wells Fargo’s successful motion to expunge the notice of lis pendens. See Cal.

Civ. Proc. Code § 405.38 (directing the award of attorney’s fees to a prevailing

party on a motion concerning expungement unless the party opposing the motion

acted with substantial justification or other circumstances make the award unjust);

Hemmings v. Tidyman’s, Inc., 285 F.3d 1174, 1200 (9th Cir. 2002) (standard of

review). 

We lack jurisdiction to review the post-judgment award of attorney’s fees

filed on November 1, 2011. See Culinary & Serv. Emps. Union, AFL-CIO Local

555 v. Haw. Emp. Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982)

(“Where no notice of appeal from a post-judgment order awarding attorneys’ fees

is filed, the court of appeals lacks jurisdiction to review the order.”). 
4 11-16506

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

Winding’s contention that he was denied effective assistance of counsel is

unpersuasive. See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985) (per

curiam) (“Generally, a plaintiff in a civil case has no right to effective assistance of

counsel.”). 

Winding’s motion for leave to file an oversized reply brief is granted, and

we instruct the Clerk to file the reply brief submitted on September 4, 2012. 

AFFIRMED.