Jung Cho v. Select Portfolio Serv., Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2020
• Docket: 18-16719
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUNG HYUN CHO; et al., No. 18-16719

Plaintiffs-Appellants, D.C. No. 2:17-cv-01073-CKD

v. MEMORANDUM* SELECT PORTFOLIO SERVICING, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Carolyn K. Delaney, Magistrate Judge, Presiding**

Submitted April 7, 2020***

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

Jung Hyun Cho, Kyu Hwang Cho, Eun Sook Cho, and Eui Hyun Cho appeal

pro se from the district court’s judgment dismissing their action alleging federal

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). *** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). and state law claims arising out of completed foreclosure proceedings. 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). Cervantes v.

Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). 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 dismissed Jung Hyun Cho’s False Claims Act

(“FCA”) claim because Cho did not bring this action on behalf of the United States

government. See 31 U.S.C. § 3730(b) (a private citizen can bring an action under

the FCA, but only “in the name of the Government”); Cafasso, U.S. ex rel. v. Gen.

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055-56 (9th Cir. 2011) (elements of a

FCA claim and explaining the nature of a “reverse false claim”).

The district court properly dismissed Jung Hyun Cho’s Racketeer Influenced

and Corrupt Organizations Act (“RICO”) claim because Cho failed to allege facts

sufficient to show a pattern of racketeering activity required to state a claim for

violations of, or conspiracy to violate, RICO. See Sanford v. MemberWorks, Inc.,

625 F.3d 550, 557, 559 (9th Cir. 2010) (listing elements of a RICO claim under 18

U.S.C. § 1962(c) and explaining that to plead a RICO conspiracy claim under

§ 1962(d), the plaintiff must first adequately plead a substantive violation of

RICO).

2 18-16719 Dismissal of Jung Hyun Cho’s Home Affordable Modification Program

(“HAMP”) claim was proper on the ground of issue preclusion because this issue

was already litigated and resolved in a prior state court action. See Cook v.

Harding, 879 F.3d 1035, 104-42 (9th Cir. 2018) (elements of issue preclusion

under California law).

The district court properly dismissed plaintiffs’ claims under the Fair

Housing Act (“FHA”) because plaintiffs failed to allege facts sufficient to state a

plausible claim for relief. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.

2010) (although pro se pleadings are construed liberally, plaintiff must present

factual allegations sufficient to state a plausible claim for relief); Harris v. Itzhaki,

183 F.3d 1043, 1051 (9th Cir. 1999) (elements of a FHA claim).

The district court properly dismissed Jung Hyun Cho’s state law fraud claim

arising from the denial of his loan modification application because Cho failed to

allege facts sufficient to state a plausible claim for relief. See Lazar v. Superior

Court, 909 P.2d 981, 984-85, 988 (Cal. 1996) (setting forth elements of promissory

fraud and explaining that one of the essential elements of the claim is detrimental

reliance on a false representation); see also Hebbe, 627 F.3d at 341-42.

The district court properly dismissed all claims other than the FHA claim

brought by plaintiffs Kyu Hwang Cho, Eun Sook Cho, and Eui Hyun Cho for lack

of standing because they were not signatories to the loans at issue. See Lopez v.

3 18-16719 Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (elements of Article III standing);

Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d 817, 824 (9th Cir.

2002) (dismissal with prejudice on standing was appropriate because appellant

“could not have possibly amended his complaint to allege an [Article III] injury in

fact”).

The district court properly dismissed any claims against Solano County for

lack of jurisdiction under the Tax Injunction Act. See 28 U.S.C. § 1341 (“The

district courts shall not enjoin, suspend or restrain the assessment, levy or

collection of any tax under State law where a plain, speedy and efficient remedy

may be had in the courts of such State.”).

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 futility is a basis for denying leave to amend).

We reject as meritless plaintiffs’ contentions that the district court exhibited

hostility towards them and did not consider their motions to amend.

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 motions and requests are denied.

4 18-16719 This case has been administratively closed as to appellee WMC Mortgage

LLC. See Docket Entry No. 81. We therefore do not reach plaintiffs’ contentions

regarding dismissal of their claims against WMC Mortgage LLC.

AFFIRMED.

5 18-16719