NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL J. SLATER, 

Plaintiff-Appellant, 

and 

CLIFFORD BORO; et al., 

Plaintiffs

 v. 

LAURA MORTON, ET AL., 

Defendants-Appellee.

No. 18-56601

D.C. No. 3:17-cv-01795-CAB

(MSB)

MEMORANDUM*

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.

FILED

MAR 9 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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’ 
3 

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—
4 

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 
5 

substantial prejudice to the complaining litigant” (internal quotation marks 

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

AFFIRMED.