Pamela Rae v. Bank of America

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2018
• Docket: 17-55283
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS PAMELA RAE, No. 17-55283

Plaintiff-Appellant, D.C. No. 2:16-cv-08932-PA-SS v.

BANK OF AMERICA, N.A.; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted June 6, 2018** Pasadena, California

Before: WARDLAW and CHRISTEN, Circuit Judges, and MOLLOY,*** District Judge.

* 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). *** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. Pamela Rae (“Rae”) appeals the district court’s order granting judgment on

the pleadings in favor of Bank of America, N.A., Ocwen Loan Servicing, LLC,

MTC Financial, Inc., and Does 1 through 20. See Fed. R. Civ. P. 12(c). We have

jurisdiction under 28 U.S.C. § 1291, and review the district court’s order de novo.

Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). We affirm.

1. Rae’s tort law claims are time-barred pursuant to California’s two-year

statute of limitations for negligence and intentional infliction of emotional distress,

and three-year limitations period for intentional misrepresentation. See Cal. Civ.

Proc. Code §§ 335.1, 338(d). Rae’s claims began accruing on August 22, 2012,

when Bank of America recorded a notice of default on her property. See Vaca v.

Wachovia Mortg. Corp., 129 Cal. Rptr. 3d 354, 360 (Ct. App. 2011) (providing

that the clock “starts running when the plaintiff first learns of actionable injury”).

Rae became aware of the claim at the latest on January 23, 2013, when filed a state

court action against Bank of America alleging tort claims arising from the

recording of the notice of default. Rae did not file a complaint in the instant action

until June 2, 2016, over three years later.

2. Rae alleges that Bank of America’s notice of default and notice of

trustee’s sale violate California Civil Code § 2924.17. But Rae fails to state a

plausible claim for relief. Bank of America’s notice of default is not subject to

2 § 2924.17. The notice was recorded the year before the Homeowner’s Bill of

Rights took effect, and it does not apply retroactively. See Lucioni v. Bank of Am.,

N.A., 207 Cal. Rptr. 3d 418, 422 (Ct. App. 2016). Bank of America’s notice of

trustee’s sale expired by operation of law one year after it was recorded on March

18, 2015. See Cal. Civ. Code § 2924g(c)(1)–(2). No foreclosure sale took place

within that year, and there is no pending foreclosure sale on Rae’s property. Thus,

any prospect of relief from alleged deficiencies in the notice of trustee’s sale is

moot. See Cal. Civ. Code § 2924.12(a).

3. Absent a viable state law claim, Bank of America is not derivatively

liable under California Business and Professions Code § 17200. See Aleksick v. 7-

Eleven, Inc., 140 Cal. Rptr. 3d 796, 801 (Ct. App. 2012).

4. The district court did not abuse its discretion when it denied Rae’s

request for leave to amend her complaint, since leave to amend would be futile.

See AE ex. rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012).

AFFIRMED.