FILED
NOT FOR PUBLICATION MAR 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERI H. NGUYEN, No. 11-17869
Plaintiff - Appellant, D.C. No. 5:11-cv-03318-LHK
v.
MEMORANDUM*
BANK OF AMERICA, NA;
JPMORGAN CHASE BANK NA,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding
Submitted February 14, 2014**
San Francisco, California
Before: KOZINSKI, Chief Judge, O’SCANNLAIN and MURGUIA, Circuit
Judges.
1. Three of Nguyen’s claims—for cancellation of deed instrument, slander
of title and wrongful foreclosure—are premised on her allegation that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
assignment of interest and servicing rights to Bank of America was somehow void
or improper, and that therefore the bank has no legitimate claim of title. But these
allegations are contradicted by other sections of the complaint, as well as the
exhibits Nguyen attached to it. These documents show that Bank of America
acquired title either when it merged with LaSalle Bank or when Chase assigned all
beneficial interest in Nguyen’s mortgage to Bank of America. By either means,
Bank of America acquired valid title, and its efforts to foreclose therefore aren’t
void, false or otherwise improper.
Nguyen argues that, regardless of what facts her exhibits show, her
allegation that Bank of America didn’t have title should suffice to survive a motion
to dismiss. But when an exhibit to a complaint is inconsistent with the complaint’s
allegations, the exhibit controls. See, e.g., N. Ind. Gun & Outdoor Shows, Inc. v.
City of South Bend, 163 F.3d 449, 454 (7th Cir. 1998).
2. Nguyen’s claim that Chase “faked” its loan modification efforts in
violation of California Civil Code section 2923.5 is similarly contradicted
elsewhere in the complaint. The thrust of this claim is that “Chase had no
beneficial interest in Plaintiff’s [Deed of Trust]” when it entered into these
negotiations. But for this theory of liability to lie, the modification efforts must’ve
page 3
occurred after March 2009, when Chase transferred its beneficial interest in the
deed. Yet nowhere in the complaint does Nguyen allege that Chase sought loan
modification after March 2009; indeed, she suggests that these talks occurred in
December 2008, at which point Chase had the requisite interest to meet section
2923.5's requirements.
3. Nguyen’s quasi-contract claim fails because she doesn’t plausibly allege
the existence of a quasi-contract, nor that Chase wrongfully profited when it sought
to collect a debt it had good reason to believe it was entitled to. This claim is
supported only by the conclusory allegation that “[i]t would be inequitable for
Chase to retain the payments it received from Plaintiff,” which isn’t enough to
survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
4. Nguyen makes no effort to refute the district court’s conclusion that her
claim of unfair business practices, see Cal. Civ. Code § 17200 et seq., is barred by
the four-year statute of limitations. The only argument in her opening brief—that
she “pleaded specific facts in support of this claim”—is unresponsive to the district
court’s finding that this claim wasn’t timely brought and therefore insufficient to
disturb its ruling.
page 4
5. Nguyen’s claim for “Injunction Relief” was properly dismissed, as a
generalized request for such a remedy isn’t a claim under California law. See, e.g.,
Marlin v. AIMCO Venezia, LLC, 154 Cal. App. 4th 154, 162 (2007).
6. Given these weak claims and Nguyen’s litigation history—having, for
example, filed multiple suits in state court only to dismiss them before they could
be ruled on—it was well within the district court’s discretion to deny her leave to
amend her complaint. See Fed. R. Civ. P. 15(a)(2).
Moreover, since Nguyen’s opening brief makes no mention of the district
court’s order to show cause, we find any challenge she may have to this part of the
district court’s ruling to be waived. See, e.g., Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999).
AFFIRMED.