Fernando Lopez v. Wells Fargo Bank, N.A. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO D. LOPEZ, No. 17-56339
Plaintiff-Appellant, D.C. No. 3:16-cv-00811-AJB-DHB
v.
MEMORANDUM*
WELLS FARGO BANK, N.A.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Fernando D. Lopez appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims related to his home
mortgage loan. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
a district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6).
*
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).
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040-41 (9th Cir.
2011). We affirm.
The district court properly dismissed Lopez’s claims under California’s
Unfair Competition Law (“UCL”) and for “lack of standing to foreclose” because
Lopez failed to allege facts sufficient to show that he had standing to bring these
claims. See In re Turner, 859 F.3d 1145, 1150-51 (9th Cir. 2017) (borrowers who
were in default lacked standing to bring a UCL claim); Saterbak v. JPMorgan
Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 795 (Ct. App. 2016) (borrowers lacked
standing to bring a preemptive suit challenging the authority to foreclose because
such suits “would result in the impermissible interjection of the courts” into
California’s nonjudicial foreclosure regime) (citation and internal quotation marks
omitted)).
The district court properly dismissed Lopez’s fraudulent concealment and
inducement claims because Lopez failed to allege facts with the requisite
specificity. See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124-25 (9th Cir. 2009)
(discussing Fed. R. Civ. P. 9(b)’s specificity requirement); Tarmann v. State Farm
Mut. Auto Ins. Co., 2 Cal. Rptr. 2d 861, 862-63 (Ct. App. 1991) (discussing
specificity requirements for pleading fraud against a corporation under California
law).
The district court properly dismissed Lopez’s intentional infliction of
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emotional distress, Fair Housing Act (“FHA”), and Equal Credit Opportunity Act
(“ECOA”) claims as barred by the applicable statutes of limitations. See 15 U.S.C.
§ 1691e(f) (five-year statute of limitations for ECOA claim); 42 U.S.C.
§ 3613(a)(1)(A) (two-year statute of limitations for FHA claims); Pugliese v.
Superior Court, 53 Cal. Rptr. 3d 681, 684 (Ct. App. 2007) (two-year statute of
limitations for intentional infliction of emotional distress claims). We reject as
unsupported by the record Lopez’s contentions regarding tolling of the statutes of
limitations.
The district court properly dismissed Lopez’s slander of title claim because
the publication and delivery of the foreclosure documents were privileged and
Lopez failed to allege facts sufficient to show malice. See Kachlon v. Markowitz,
85 Cal. Rptr. 3d 532, 545, 547 (Ct. App. 2008) (explaining that “the statutorily
required mailing, publication, and delivery of notices in nonjudicial foreclosure,
and the performance of statutory nonjudicial foreclosure procedures” are privileged
communications under California law unless a plaintiff can demonstrate malice).
Because all of Lopez’s claims were properly dismissed, the district court
properly dismissed Lopez’s request for declaratory relief because Lopez had no
claim upon which to request relief or remedies. Stock W., Inc. v. Confederated
Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989) (“To obtain
declaratory relief in federal court, there must be an independent basis for
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jurisdiction.”); Roberts v. L.A. Cnty. Bar Ass’n, 129 Cal. Rptr. 2d 546, 555 (Ct.
App. 2003) (declaratory relief is a remedy, not a cause of action).
The district court did not abuse its discretion by granting defendants’ request
for judicial notice because the documents in question were matters of public
record. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (setting
forth standard of review and stating that a court may take judicial notice of matters
of public record).
Because Lopez does not address in his opening brief the district court’s
reasons for dismissing his quiet title claim or his claims under the Truth in Lending
Act, California’s Homeowner Bill of Rights, the Rosenthal Fair Debt Collection
Practices Act, and the Real Estate Settlement Procedures Act, Lopez has waived
any challenge to those claims. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
1999) (“[O]n appeal, arguments not raised by a party in its opening brief are
deemed waived.”); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We
review only issues which are argued specifically and distinctly in a party’s opening
brief.”). Lopez has waived any challenge to the district court’s denial of leave to
amend his operative complaint for the same reason.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We sua sponte grant Lopez leave to file his untimely reply brief. The Clerk
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shall file the reply brief submitted at Docket Entry No. 27.
AFFIRMED.
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