Marti MacKey v. Jpmorgan Chase Bank, N.A. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTI MACKEY, No. 19-56135
Plaintiff-Appellant, D.C. No. 2:18-cv-09048-PSG-FFM
v.
MEMORANDUM*
JPMORGAN CHASE BANK, N.A., for
itself and as acquirer of certain assets and
liabilities of Washington Mutual Bank from
the Federal Deposit Insurance Corporation
as receiver for Washington Mutual Bank; et
al.,
Defendants-Appellees,
and
UNITED GENERAL TITLE INSURANCE
COMPANY; NATIONAL TITLE
CLEARING,
Defendants.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted December 2, 2020**
*
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
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Marti Mackey appeals pro se from the district court’s judgment dismissing
her action alleging federal and state law claims arising out of the foreclosure
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim. Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We affirm.
The district court properly dismissed Mackey’s restitution, conversion, and
money had and received claims because Mackey failed to allege facts sufficient to
show that defendants unjustly retained a benefit that they were not entitled to. See
Welco Elecs., Inc. v. Mora, 166 Cal. Rptr. 3d 877, 881 (Ct. App. 2014) (elements
of conversion under California law); Guittierrez v. Girardi, 125 Cal. Rptr. 3d 210,
219 (Ct. App. 2011) (elements of a money had and received claim under California
law); First Nationwide Sav. v. Perry, 15 Cal. Rptr. 2d 173, 176 (Ct. App. 1992)
(“An individual is required to make restitution if he or she is unjustly enriched at
the expense of another.”); see also Ashcroft v. Iqbal, 556 U.S. 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)).
The district court properly dismissed Mackey’s claim under the California
without oral argument. See Fed. R. App. P. 34(a)(2).
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Unfair Competition Law (“UCL”) because Mackey failed to allege facts sufficient
to show that defendants engaged in conduct prohibited by the statute. See
Daugherty v. Am. Honda Motor Co., Inc., 51 Cal. Rptr. 3d 118, 128 (Ct. App.
2006) (elements of UCL claim); see also Iqbal, 556 U.S. at 678.
The district court properly dismissed Mackey’s slander of title claim because
Mackey failed to allege facts sufficient to show that defendants published a false
statement disparaging title to the property. See Truck Ins. Exch. v. Bennett, 61 Cal.
Rptr. 2d 497, 497 (Ct. App. 1997) (elements of slander of title claim under
California law); see also Iqbal, 556 U.S. at 678.
The district court properly dismissed Mackey’s cancellation of instruments
claim because Mackey failed to allege facts sufficient to show that Chase did not
hold an interest in the loan. See Cal. Civ. Code § 3412 (defining cancellation of
instruments claim); Saterbak v. JPMorgan Chase Bank, N.A., 199 Cal. Rptr. 3d
790, 798 (Ct. App. 2016) (to state a claim under § 3412, plaintiff must allege that
the title document “was void or voidable against her”); see also Iqbal, 556 U.S. at
678.
The district court did not abuse its discretion in denying Mackey leave to
amend because further amendment would have been futile. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
standard of review and stating that leave to amend may be denied where
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amendment would be futile).
The district court did not abuse its discretion in granting defendants’ request
for judicial notice because the documents in question were matters of public
record. See Fed. R. Evid. 201(b)(2); Lee v. City of Los Angeles, 250 F.3d 668, 689
(9th Cir. 2001) (standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending requests are denied.
AFFIRMED.
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