FILED
NOT FOR PUBLICATION MAR 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEVER-LEIGH B. PENNEY, No. 13-55449
Plaintiff - Appellant, D.C. No. 2:11-cv-05567-ODW-
MAN
v.
NDEX WEST LLC; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Bever-Leigh B. Penney appeals pro se from the district court’s summary
judgment in her action alleging federal and state law claims relating to the
foreclosure of her property. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. SEC v. Nite, 207 F.3d 1134, 1135 (9th Cir. 2000). We affirm.
*
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).
The district court properly granted summary judgment for Wells Fargo
Bank, N.A. (“Wells Fargo”) because Penney failed to raise a genuine dispute of
material fact as to whether she was damaged by reliance on a false promise that
Wells Fargo would not foreclose on the property during the evaluation of her
Home Affordable Mortgage Program application. See Lazar v. Superior Court, 12
Cal.4th 631, 638 (1996) (setting forth the elements of a fraudulent
misrepresentation claim); Rossberg v. Bank of America, N.A., 162 Cal. Rptr. 3d
525, 539 (Ct. App. 2013) (setting forth the elements of a promissory fraud claim);
US Ecology, Inc. v. State, 28 Cal. Rptr. 3d 894, 904-05 (2005) (setting forth the
elements of a promissory estoppel claim).
The district court did not err in failing to sua sponte recuse itself because
Penney did not demonstrate extrajudicial bias or prejudice. See 28 U.S.C. § 455;
see also Noli v. CIR, 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made
to the judge . . . a party will bear a greater burden on appeal in demonstrating that
the judge . . . [erred] in failing to grant recusal under section 455.” (citation and
internal quotation marks omitted)).
Contrary to Penney’s contention, the district court had subject matter
jurisdiction over this action under 28 U.S.C. § 1331, and it was not required to
remand this action to California state court.
2 13-55449
We reject Penney’s contention that the district court erred in failing to order
an accounting.
We do not address matters not specifically and distinctly raised and argued
in the opening brief or raised for the first time on appeal. See Padgett v. Wright,
587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 13-55449