White v. Anywhere Real Estate Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2025
• Docket: 23-4378
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NICHOLAS PHIPPS WHITE, a California No. 23-4378 Resident, D.C. No. 2:22-cv-04557-GW-SK Plaintiff - Appellant,

v. MEMORANDUM*

ANYWHERE REAL ESTATE INC., parent company of West Coast Escrow Company a domestic corporation; BANK OF AMERICA CORPORATION; FIDELITY NATIONAL FINANCIAL, INC.; MORGAN STANLEY SMITH BARNEY LLC; MERRILL LYNCH, named as Merrill Lynch, Pierce, Fenner and Smith Incorporated; DOES, 1-10 Inclusive,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Submitted March 26, 2025** Pasadena, California

* 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). Before: NGUYEN and MENDOZA, Circuit Judges, and KERNODLE, District Judge.***

Plaintiff-Appellant Nicholas Phipps White sued various real estate and

financial institutions (“Defendants-Appellees”) alleging that the United States

issued him a check for $27.8 billion, the family of former attorney Thomas Girardi

unlawfully deposited the funds into fraudulent accounts, and Defendants-Appellees

used the money to fund a “stock-buy plan” and purchase various real properties,

including “Spelling Manor” for $120 million. The district court described the

allegations as “fantastical” and dismissed the complaint for failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction under 28

U.S.C. § 1291 and review de novo. Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir.

2007). We affirm.

1. White’s claim under the Racketeer Influenced and Corrupt

Organizations Act (“RICO”) is meritless. To state a civil RICO claim, White must

allege facts showing: “(1) conduct (2) of an enterprise (3) through a pattern (4) of

racketeering activity (known as predicate acts) (5) causing injury to plaintiff’s

business or property.” Just Film, Inc. v. Buono, 847 F.3d 1108, 1116 (9th Cir. 2017)

(citation omitted). As the district court noted, White relies on conclusory statements

*** The Honorable Jeremy D. Kernodle, United States District Judge for the Eastern District of Texas, sitting by designation.

2 and vague, outlandish allegations before concluding that “the actions of [Appellees]

. . . constitute[] a federal crime under 18 U.S.C. 1341, [] mail fraud.” Although mail

fraud may be a predicate act under RICO, White fails to allege the “who, what, when,

where, and how of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d

1120, 1124 (9th Cir. 2009) (quoting Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097,

1106 (9th Cir. 2003)). His rambling allegations, moreover, fail to identify a “pattern

of racketeering activity,” which requires at least two predicate acts that are “related”

and “amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell

Tel. Co., 492 U.S. 229, 239 (1989).

2. White’s conversion claim also fails. “Conversion is the wrongful

exercise of dominion over the property of another.” Mindys Cosmetics, Inc. v.

Dakar, 611 F.3d 590, 601 (9th Cir. 2010) (quoting Oakdale Vill. Grp. v. Fong, 50

Cal. App. 4th 539, 543 (1996)). “The elements of a conversion claim are (1) the

plaintiff ’s ownership or right to possession of the property at the time of the

conversion; (2) the defendant’s conversion by a wrongful act or disposition of

property rights; and (3) damages.” Id.; see also G&G Prods. LLC v. Rusic, 902 F.3d

940, 951 (9th Cir. 2018). White’s complaint asserts only that Appellee Fidelity

issued title insurance for certain property sales and that Appellee Anywhere Real

Estate was involved in the close of escrow. The complaint nowhere alleges that

Fidelity or Anywhere Real Estate converted or exercised control over White’s

3 money or property. As for Appellee Bank of America, a bank may not be sued for

conversion of funds deposited with the bank. Crocker-Citizens Nat’l Bank v.

Control Metals Corp., 566 F.2d 631, 637–38 (9th Cir. 1977), abrogated on other

grounds by Hollinger v. Titan Cap. Corp., 914 F.2d 1564 (9th Cir. 1990).

3. White’s complaint also fails to state a claim under California’s Unfair

Competition Law (“UCL”). The UCL prohibits “any unlawful, unfair or fraudulent

business act or practice.” CAL. BUS. & PROF. CODE § 17200. Although White’s

theory is unclear, the claim fails under any available theory. To the extent White is

asserting that Appellees committed an “unlawful” act based on the predicate acts of

his other causes of actions, the claim fails along with the other causes of action. To

the extent White is asserting that Appellees committed an “unfair” business act or

practice, the claim fails because he has not identified any such act or practice.

Merely concluding, without pointing to any specific facts, that the actions of

Appellees constituted unfair practices does not state a UCL claim. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”).

4. White’s petition for “declaratory and injunctive relief and constructive

trust” is not an independent cause of action. See Audette v. Int’l Longshoremen’s &

Warehousemen’s Union, 195 F.3d 1107, 1111 n.2 (9th Cir. 1999) (a cause of action

for “declaratory judgment” “merely seeks relief rather than stating a claim”); Lund

4 v. Albrecht, 936 F.2d 459, 464 (9th Cir. 1991) (“[A] constructive trust is a remedial

device, not a substantive claim on which to base recovery.”). And because White

fails to state a viable cause of action, these requests for relief likewise fail. See

McNeil v. Verisign, Inc., 127 F. App’x 913, 914 (9th Cir. 2005).

5. To the extent White is attempting to appeal the dismissal of Fidelity for

lack of personal jurisdiction, the argument is waived. A brief reference to the issue

at the conclusion of his brief does not suffice. See Christian Legal Soc. Chapter of

Univ. of Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010) (finding waiver where

appellant made only “bare assertion[s] . . . with no supporting argument”).

AFFIRMED.