Jose Solano v. Affinia Default Services, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2019
• Docket: 18-56128
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE R. SOLANO, No. 18-56128

Plaintiff-Appellant, D.C. No. 2:18-cv-01116-R-JEM

v. MEMORANDUM* AFFINIA DEFAULT SERVICES, LLC; et al.,

Defendants-Appellees.

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

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Jose R. Solano appeals pro se from the district court’s judgment dismissing

his action alleging federal and state law claims relating to foreclosure proceedings.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district

court’s dismissal under Federal Rules of Civil Procedure 9(b) and 12(b)(6). Vess v.

* 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). Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). We affirm.

The district court properly dismissed Solano’s Racketeer Influenced and

Corrupt Organizations Act (“RICO”) and fraud claims because Solano failed to

allege facts sufficient to satisfy the heightened pleading standard set forth in

Federal Rule of Civil Procedure 9(b). See Kearns v. Ford Motor Co., 567 F.3d

1120, 1124-25 (9th Cir. 2009) (discussing heightened pleading standard under

Rule 9(b), which applies to state law claims alleging fraudulent conduct);

Odom v. Microsoft Corp., 486 F.3d 541, 547-48, 553-54 (9th Cir. 2007) (en banc)

(setting forth elements of RICO claim and noting that RICO fraud allegations are

subject to heightened pleading standard under Rule 9(b)).

The district court properly dismissed Solano’s Real Estate Settlement

Procedures Act (“RESPA”) claim because Solano failed to allege facts sufficient to

show that he suffered actual damages from an alleged RESPA violation. See 12

U.S.C. § 2605(f)(1) (limiting recovery to actual damages where there is no pattern

or practice of noncompliance with the requirements of § 2605).

The district court properly dismissed Solano’s cancellation of instruments

claim because Solano failed to allege facts sufficient to show that the instruments

at issue were either void or voidable. See Thompson v. Ioane, 218 Cal. Rptr. 3d

501, 512 (Ct. App. 2017) (elements of a cancellation of instruments claim under

California law).

2 18-56128 Because all of Solano’s claims were properly dismissed, the district court

properly denied Solano’s requests for declaratory and injunctive relief because

Solano had no claim upon which to request relief or remedies. See Mt. Graham

Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992) (when underlying

claims have been decided, the reversal of a denial of preliminary injunctive relief

would have no practical consequences, and the issue is therefore moot); Stock W.,

Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th

Cir. 1989) (in order “[t]o obtain declaratory relief in federal court, there must be an

independent basis for jurisdiction”).

The district court did not abuse its discretion by dismissing Solano’s

complaint without leave to amend because amendment would be futile. See

Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth

standard of review and explaining that “[a] district court acts within its discretion

to deny leave to amend when amendment would be futile”).

Contrary to Solano’s contention that defendants violated Local Rule 7-3,

defendants did not violate the local rule because they were exempt from complying

with it. See C.D. Cal. R. 7-3 (rule does not apply to cases exempted under Local

Rule 16-12), C.D. Cal. R. 16-12(c) (exempted cases include “[a]ny case in which

the plaintiff is appearing pro se”).

We do not consider matters not specifically and distinctly raised and argued

3 18-56128 in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We reject as unsupported by the record Solano’s contentions that the district

court engaged in any judicial misconduct or failed to evaluate properly Solano’s

claims.

AFFIRMED.

4 18-56128