Fairillia Turner v. the Bank of New York Mellon

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 2021
• Docket: 19-16915
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FAIRILLIA TURNER, No. 19-16915

Plaintiff-Appellant, D.C. No. 5:19-cv-00993-LHK

v. MEMORANDUM* THE BANK OF NEW YORK MELLON, FKA Bank of New York, As Trustee For The Certificateholders of CWALT, Inc., Alternative Loan Trust 2007-AL1, Mortgage Pass-Through Certificates, Series 2007-AL1,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.

Fairillia Turner appeals pro se from the district court’s judgment dismissing

her action alleging federal and state law claims arising from foreclosure-related

* 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). proceedings concerning a loan secured by a deed of trust on her property. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal based on res judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th

Cir. 2002). We affirm.

The district court properly dismissed Turner’s action as barred by res

judicata because Turner’s claims were raised, or could have been raised, in

Turner’s prior state court action, which involved parties in privity, and resulted in a

final judgment on the merits. See Adam Bros. Farming, Inc. v. County of Santa

Barbara, 604 F.3d 1142, 1148-49 (9th Cir. 2010) (elements of res judicata under

California law); Fed’n of Hillside & Canyon Ass’ns v. City of Los Angeles, 126

Cal. App. 4th 1180, 1202 (2004) (“Res judicata bars the litigation not only of

issues that were actually litigated but also issues that could have been litigated.”).

The district court properly denied Turner’s motion to remand her action to

state court because the district court had subject matter jurisdiction under 28

U.S.C. § 1331 and the action was properly removed under 28 U.S.C. § 1441. See

D-Beam Ltd. P’ship v. Roller Derby Skates, Inc., 366 F.3d 972, 974 n.2 (9th Cir

2004) (denial of a motion to remand a removed case is reviewed de novo).

The district court did not abuse its discretion in denying Turner leave to

amend because amendment would have been futile. See Cervantes v. Countrywide

Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of

2 19-16915 review and stating that leave to amend may be denied where amendment would be

futile).

We reject as meritless Turner’s contention that the district court failed to

liberally construe her complaint.

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).

AFFIRMED.

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