Fernando Lopez v. Wells Fargo Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 20, 2018
• Docket: 17-56339
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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

2 17-56339 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

3 17-56339 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

4 17-56339 shall file the reply brief submitted at Docket Entry No. 27.

AFFIRMED.

5 17-56339