Dino Adam v. Wells Fargo Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 13, 2020
• Docket: 18-55597
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHANDRA ADAM; et al., No. 18-55597

Plaintiffs-Appellants, D.C. No. 8:16-cv-01630-JLS-JCG

v. MEMORANDUM* WELLS FARGO BANK, N.A.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Trina Adam, Chandra Adam, Dino Adam, and Luke Adam appeal pro se

from the district court’s judgment dismissing their diversity action alleging state

law claims arising from foreclosure proceedings. We have jurisdiction under 28

U.S.C. § 1291. We review de novo the district court’s dismissal under Federal

* 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). Rule of Civil Procedure 12(b)(6). Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093

(9th Cir. 2017). We may affirm on any ground supported by the record. Gordon v.

Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009). We affirm.

The district court properly denied plaintiffs’ motion to remand the action to

state court because the requirements for diversity jurisdiction were met. See 28

U.S.C. § 1332(a); Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 347

(1977) (“In actions seeking declaratory or injunctive relief, it is well established

that the amount in controversy is measured by the value of the object of the

litigation.”); Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009)

(standard of review).

Dismissal of plaintiffs’ claims under California Civil Code sections 2923.6

and 2923.7 was proper because plaintiffs failed to allege facts sufficient to state a

plausible claim. See Cal. Civ. Code § 2923.7(e) (discussing the nature of “single

point of contact”); § 2924.12 (where the trustee’s deed upon sale has not been

recorded, the only remedy is an action for injunctive relief to enjoin a material

violation of § 2923.6 or § 2923.7), § 2924g(c)(2) (requiring a new notice of sale

when sale proceedings are postponed for a period or periods totaling more than 365

days).

Dismissal of plaintiffs’ negligence claim in the first amended complaint was

proper because plaintiffs failed to allege facts sufficient to show that defendants

2 18-55597 breached any duty of care owed to them. See Lueras v. BAC Home Loans

Servicing, LP, 163 Cal. Rptr. 3d 804, 816 (Ct. App. 2013) (elements of a

negligence claim under California law); 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 plaintiffs’ breach of contract claim in

the second amended complaint because plaintiffs failed to allege facts sufficient to

state a plausible claim. See CDF Firefighters v. Maldonado, 70 Cal. Rptr. 3d 667,

679 (Ct. App. 2008) (elements of a breach of contract claim under California law).

The district court did not abuse its discretion by denying leave to amend

because amendment would have been futile. See Leadsinger, Inc. v. BMG Music

Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (setting forth standard of review and

explaining that the court need not grant leave to amend if amendment would be

futile).

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).

Plaintiffs’ request for judicial notice (Docket Entry No. 43) is denied.

AFFIRMED.

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