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 2018-12

Robert Hall v. Bank of New York Mellon ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        DEC 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT E. HALL; JANET W. HALL,                  No.    18-15801
Plaintiffs-Appellants,          D.C. No. 2:16-cv-02828-KJM-DB
v.
MEMORANDUM*
BANK OF NEW YORK MELLON, FKA
Bank of New York, as Trustee for CWalt,
Inc., alternative loan trust 2006-7CB,
mortgage pass-through certificates, series
2006-7CB; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted December 17, 2018**
Before:      WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Robert E. Hall and Janet W. Hall appeal pro se from the district court’s
judgment dismissing their diversity action alleging state law claims relating to
*
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).
foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal under Federal Rule of Civil 12(b)(6). Kwan v.
SanMedica Int’l,
    854 F.3d 1088
    , 1093 (9th Cir. 2017). We may affirm on any
basis supported by the record. Johnson v. Riverside Healthcare Sys., LP,
    534 F.3d 1116
    , 1121 (9th Cir. 2008). We affirm.
The district court properly dismissed the Halls’ claims for cancellation of
instruments, wrongful foreclosure, “statutorily defective foreclosure,” negligent
misrepresentation, and unfair competition because the Halls failed to allege facts
sufficient to state plausible claims for relief. See Cal. Civ. Code § 1095
(requirements for execution of instruments transferring an estate in real property by
attorney in fact); Cal. Bus. & Prof. Code § 17200 (prohibiting “any unlawful,
unfair or fraudulent business acts”); In re Mortg. Elec. Registration Sys., Inc.,
    754 F.3d 772
    , 784 (9th Cir. 2014) (elements of wrongful foreclosure claim under
California law); Thompson v. Ioane,
    218 Cal. Rptr. 3d 501
    , 512 (Ct. App. 2017)
(elements of cancellation of instruments claim under California law); Saterbak v.
JPMorgan Chase Bank, N.A.,
    199 Cal. Rptr. 3d 790
    , 795-796 (Ct. App. 2016)
(allegedly untimely assignment of a loan into a securitized trust was merely
voidable rather than void, and therefore borrower lacked standing to challenge its
validity); Fox v. Pollack,
    226 Cal. Rptr. 532 
    (Ct. App. 1986) (elements of negligent
misrepresentation claim under California law); see also Ashcroft v. Iqbal,
    556 U.S. 2 
                                       18-15801
662, 678 (2009) (to avoid dismissal, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face”
(citation and internal quotation marks omitted)).
Dismissal of the Halls’ fraud claim was proper because the Halls failed to
satisfy the heightened pleading standard set forth in Fed. R. Civ. P. 9(b). See
Kearns v. Ford Motor Co.,
    567 F.3d 1120
    , 1124-25 (9th Cir. 2009) (holding that
circumstances constituting fraud must be stated with particularity); Wilhelm v.
Pray, Price, Williams & Russell,
    231 Cal. Rptr. 355
    , 357-358 (Ct. App. 1986)
(setting forth elements of fraud claim under California law).
Because all of the Halls’ claims were properly dismissed, the district court
properly dismissed the Halls’ request for declaratory relief. See 28 U.S.C.
§ 2201(a) (basis for declaratory relief in federal courts); 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 denying the Halls further
leave to amend because amendment would be futile. See Chodos v. West Publ’g
Co.,
    292 F.3d 992
    , 1003 (9th Cir. 2002) (setting forth standard of review and
noting that a district court’s discretion is particularly broad when it has already
granted leave to amend).
3                                         18-15801
We do not consider matters raised for the first time on appeal, or matters not
specifically and distinctly raised and argued in the opening brief. See Padgett v.
Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
The Halls’ request for sanctions, set forth in the opening brief, is denied.
AFFIRMED.
4                                    18-15801