Martha Panaszewicz v. Gmac Mortgage , 697 F. App'x 523 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTHA S. PANASZEWICZ, No. 13-16942
Plaintiff-Appellant, D.C. No. 3:13-cv-01162-MEJ
v.
MEMORANDUM*
GMAC MORTGAGE, LLC;
RESIDENTIAL FUNDING COMPANY,
LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding
Submitted September 11, 2017**
San Francisco, California
Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,***
District Judge.
Martha Panaszewicz appeals the Rule 12(b)(6) dismissal of her diversity
*
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 Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
action against GMAC Mortgage, LLC and Residential Funding Company, LLC.
Based on a promissory estoppel theory, Panaszewicz seeks to annul the trustee’s
sale of her home and impose a constructive trust on the residence. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and review de novo the district court’s
Rule 12(b)(6) dismissal. Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007).
We affirm.
Panaszewicz’s First Amended Complaint does not state a claim for
promissory estoppel under California law. See Sateriale v. R.J. Reynolds Tobacco
Co., 697 F.3d 777, 792 (9th Cir. 2012) (citing U.S. Ecology, Inc. v. California, 28
Cal. Rptr. 3d 894, 905 (Cal. Ct. App. 2005)). Panaszewicz failed to allege (1) that
Appellees or their agents made any clear and unambiguous promises to postpone
the foreclosure sale, and (2) any facts showing that she changed her legal position
in reliance on those statements. Id. The district court therefore properly dismissed
her complaint.
Because Panaszewicz did not make a prima facie case for promissory
estoppel, the district court did not err in concluding that a constructive trust could
not be imposed on the property. There are no alleged facts demonstrating that
Appellees gained the property by misconduct, and Panaszewicz has not tendered or
offered to tender the amount owed on the defaulted mortgage loan. See Lona v.
Citibank, N.A., 134 Cal. Rptr. 3d 622, 633, 640 (Cal. Ct. App. 2011). Thus, the
2
district court was not required to exercise its equitable powers. See id. at 640.
Finally, there was no abuse of discretion in denying Panaszewicz leave to
amend, as her complaint cannot be cured by further amendment. See Telesaurus
VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010).
AFFIRMED.
3