Keicy Chung v. Vistana Vacation Ownership Inc

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2018
• Docket: 17-56691
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KEICY CHUNG, No. 17-56691

Plaintiff-Appellant, D.C. No. 2:17-cv-04803-RGK-JC

v. MEMORANDUM* VISTANA VACATION OWNERSHIP, INC.; STARWOOD HOTELS AND RESORTS WORLDWIDE, LLC, FKA Starwood Hotels and Resorts Worldwide, Inc.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted April 11, 2018**

Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.

Keicy Chung appeals pro se from the district court’s judgment dismissing

his diversity action alleging state law claims related to his purchase of a timeshare

* 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). property in Hawaii. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v. Pliler,

627 F.3d 338, 341 (9th Cir. 2010). We affirm.

The district court properly dismissed Chung’s claim under California’s

Vacation Ownership and Time-Share Act of 2004 (“VOTSA”) because the parties’

agreement expressly provides for Hawaii law to govern legal disputes regarding

the sale, Hawaii has a substantial relationship to the transaction, and there is no

showing that Hawaii law is contrary to a fundamental policy of California. See

Nedlloyd Lines B.V. v. Superior Court, 834 P.2d 1148, 1151-52 (Cal. 1992)

(setting forth California’s choice-of-law framework where the parties have

contractually agreed upon a governing law).

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

VOTSA claim without providing an opportunity to amend because amendment of

this claim would have been futile. See Cervantes v. Countrywide Home Loans,

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

stating that leave to amend may be denied where amendment would be futile).

The district court properly dismissed Chung’s fraud claim because Chung

failed to satisfy the heightened pleading standard set forth in Federal Rule of Civil

2 17-56691 Procedure 9(b). See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th

Cir. 2003) (“Averments of fraud must be accompanied by ‘the who, what, when,

where, and how’ of the misconduct charged.” (citation omitted)). Because Chung

has made no attempt to clarify how he would overcome these deficiencies in his

complaint, we conclude that the district court properly determined that leave to

amend would be futile. See Kendall v. Visa USA, Inc., 518 F.3d 1042, 1052 (9th

Cir. 2008) (amendment is futile where a plaintiff “fail[s] to state what additional

facts [he] would plead if given leave to amend, or what additional discovery [he]

would conduct to discover such facts”).

AFFIRMED.

3 17-56691