Shawn Gordon v. U.S. Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2018
• Docket: 17-56475
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SHAWN GORDON, No. 17-56475

Plaintiff-Appellant, D.C. No. 2:15-cv-05537-DMG- PLA v.

U.S. BANK, N.A.; DOES, 1-10, inclusive, MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Shawn Gordon appeals from the district court’s summary judgment and

dismissal order in his diversity action alleging state law claims arising from a home

mortgage loan. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). We affirm.

* 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 district court properly granted summary judgment on Gordon’s claims

under the version of the California Homeowner Bill of Rights effective before

2018, because Gordon does not dispute that he defaulted under the original loan

agreement and defaulted again under a “first lien loan modification,” and,

therefore, did not have a statutory right to appeal subsequent loan modification

application denials. Cal. Civ. Code § 2923.6(c)(3) (repealed Jan. 1, 2018)

(authorizing a lender to pursue foreclosure against a defaulted borrower if “[t]he

borrower accepts a written first lien loan modification, but defaults on, or

otherwise breaches the borrower’s obligations under, the first lien loan

modification”); cf. Valbuena v. Ocwen Loan Servicing, LLC, 188 Cal. Rptr. 3d

668, 671 (Ct. App. 2015) (discussing scope of the statutory protections of the pre-

2018 version of the California Homeowner Bill of Rights).

The district court properly granted summary judgment on Gordon’s claims

under California’s Unfair Competition Law (“UCL”) because Gordon failed to

raise a genuine dispute of material fact as to whether he suffered an economic

injury caused by U.S. Bank’s conduct, rather than his default. See Cal. Bus. &

Prof. Code § 17204 (standing under the UCL requires plaintiff’s injury to occur “as

a result of” defendant’s misconduct); Kwikset Corp. v. Superior Court, 246 P.3d

2 17-56475 877, 885-88 (Cal. 2011) (to bring a claim under the UCL, a plaintiff must have

economic injury caused by the defendant’s unfair business practice); see also

Turner v. Wells Fargo Bank NA ( In re Turner), 859 F.3d 1145, 1150-51 (9th

Cir. 2017) (borrowers who were in default lacked standing to bring a UCL claim).

The district court properly dismissed Gordon’s wrongful foreclosure and

breach of the covenant of good faith and fair dealing claims because Gordon did

not allege facts sufficient to state any plausible claim. See Hebbe v. Pliler, 627

F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed

liberally, a plaintiff must present factual allegations sufficient to state a plausible

claim for relief); see also In re Mortg. Elec. Registration Sys., Inc., 754 F.3d at

772, 784-85 (9th Cir. 2014) (elements of a wrongful foreclosure claim); Durell v.

Sharp Healthcare, 108 Cal. Rptr. 3d 682, 698-99 (Ct. App. 2010) (requirements

for a breach of the implied covenant of good faith and fair dealing claim).

The district court did not abuse its discretion by taking judicial notice of

certain public records without converting U.S. Bank’s Fed. R. Civ. P. 12(b)(6)

motion to dismiss into a motion for summary judgment. See Lee v. City of Los

Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (setting forth standard of review for

decision to take judicial notice, and describing material that a district court may

3 17-56475 consider when ruling on a Rule 12(b)(6) motion).

AFFIRMED.

4 17-56475