Jose Solano v. Affinia Default Services, LLC ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE R. SOLANO, No. 18-56128
Plaintiff-Appellant, D.C. No. 2:18-cv-01116-R-JEM
v.
MEMORANDUM*
AFFINIA DEFAULT SERVICES, LLC; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Jose R. Solano appeals pro se from the district court’s judgment dismissing
his action alleging federal and state law claims relating to foreclosure proceedings.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district
court’s dismissal under Federal Rules of Civil Procedure 9(b) and 12(b)(6). Vess v.
*
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).
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We affirm.
The district court properly dismissed Solano’s Racketeer Influenced and
Corrupt Organizations Act (“RICO”) and fraud claims because Solano failed to
allege facts sufficient to satisfy the heightened pleading standard set forth in
Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d
1120, 1124-25 (9th Cir. 2009) (discussing heightened pleading standard under
Rule 9(b), which applies to state law claims alleging fraudulent conduct);
Odom v. Microsoft Corp., 486 F.3d 541, 547-48, 553-54 (9th Cir. 2007) (en banc)
(setting forth elements of RICO claim and noting that RICO fraud allegations are
subject to heightened pleading standard under Rule 9(b)).
The district court properly dismissed Solano’s Real Estate Settlement
Procedures Act (“RESPA”) claim because Solano failed to allege facts sufficient to
show that he suffered actual damages from an alleged RESPA violation. See 12
U.S.C. § 2605(f)(1) (limiting recovery to actual damages where there is no pattern
or practice of noncompliance with the requirements of § 2605).
The district court properly dismissed Solano’s cancellation of instruments
claim because Solano failed to allege facts sufficient to show that the instruments
at issue were either void or voidable. See Thompson v. Ioane, 218 Cal. Rptr. 3d
501, 512 (Ct. App. 2017) (elements of a cancellation of instruments claim under
California law).
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Because all of Solano’s claims were properly dismissed, the district court
properly denied Solano’s requests for declaratory and injunctive relief because
Solano had no claim upon which to request relief or remedies. See Mt. Graham
Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992) (when underlying
claims have been decided, the reversal of a denial of preliminary injunctive relief
would have no practical consequences, and the issue is therefore moot); Stock W.,
Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th
Cir. 1989) (in order “[t]o obtain declaratory relief in federal court, there must be an
independent basis for jurisdiction”).
The district court did not abuse its discretion by dismissing Solano’s
complaint without leave to amend because amendment would be futile. See
Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth
standard of review and explaining that “[a] district court acts within its discretion
to deny leave to amend when amendment would be futile”).
Contrary to Solano’s contention that defendants violated Local Rule 7-3,
defendants did not violate the local rule because they were exempt from complying
with it. See C.D. Cal. R. 7-3 (rule does not apply to cases exempted under Local
Rule 16-12), C.D. Cal. R. 16-12(c) (exempted cases include “[a]ny case in which
the plaintiff is appearing pro se”).
We do not consider matters not specifically and distinctly raised and argued
3 18-56128
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We reject as unsupported by the record Solano’s contentions that the district
court engaged in any judicial misconduct or failed to evaluate properly Solano’s
claims.
AFFIRMED.
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