FILED
NOT FOR PUBLICATION OCT 8 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANITA PATTERSON, No. 11-56092
Plaintiff - Appellant, D.C. No. 2:11-cv-02935-R-MAN
v.
MEMORANDUM*
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
(MERS) As Nominee for Pacific Mutual
Funding Inc dba Pacific Residential
financing as beneficiary; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted September 23, 2014**
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
Danita Patterson appeals pro se from the district court’s order dismissing
her foreclosure action. We have jurisdiction under 28 U.S.C. § 1291. We review
*
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).
de novo. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th
Cir. 2011). We affirm in part, vacate in part, and remand.
The district court properly dismissed as time-barred Patterson’s claims for
intentional misrepresentation and fraudulent concealment because Patterson failed
to file her action within three years, or establish a basis for tolling due to delayed
discovery. See Cal. Civ. Proc. Code § 338(d) (limitations period for fraud claims);
Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920 (Cal. 2005) (discovery rule
only delays accrual of a claim until the plaintiff has, or should have, inquiry notice
of the claim on the basis of a reasonable investigation).
The district court properly dismissed Patterson’s claim for breach of the
implied covenant of good faith and fair dealing because Patterson failed to allege
sufficient facts showing that defendants interfered with her right to receive the
benefits of the loan transaction at issue. See Racine & Laramie, Ltd. v. Cal. Dep’t
of Parks & Recreation, 14 Cal. Rptr. 2d 335, 339 (Ct. App. 1992) (elements of a
claim for breach of the covenant of good faith and fair dealing).
The district court did not abuse its discretion in dismissing the above-
mentioned claims without leave to amend because amendment would have been
futile. See Mirmehdi v. United States, 689 F.3d 975, 985 (9th Cir. 2012) (a party is
not entitled to amend the complaint if amendment would be futile).
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However, in light of our recent analogous decision in Compton v.
Countrywide Financial Corp., __ F.3d __, No. 11-17158, 2014 U.S. App. Lexis
14977 (9th Cir. Aug. 4, 2014), it appears that the district court prematurely
dismissed Patterson’s claim under the California Unfair Business Practices Act,
Cal. Bus. & Prof. Code § 17200, because Patterson adequately alleged a plausible
claim that defendants engaged in unfair, deceptive, and fraudulent business
practices during her loan modification process. See id. at *12-17 (whether
borrower states an unfair competition claim against a lender under the Hawaii
Unfair Practices Act does not depend on the lender breaching a duty of care to the
borrower, but on the adequacy of the allegation that the lender used unfair or
deceptive acts in its relationship with the borrower); see also People ex rel. Harris
v. PAC Anchor Transp., Inc., 329 P.3d 180, 188 (Cal. 2014) (§ 17200’s “scope is
broad,” its coverage is “sweeping,” and it “defines unfair competition to mean and
include any unlawful, unfair or fraudulent business act or practice and unfair,
deceptive, untrue or misleading advertising” (internal quotation marks and
citations omitted)). Accordingly, we remand to allow Patterson to pursue her
§ 17200 claim.
We do not address Patterson’s request, raised for the first time on appeal, for
leave to add new claims. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.
3 11-56092
2009) (per curiam).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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