NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HERALDEZ; NANCY No. 17-55174
HERALDEZ,
D.C. No. 5:16-cv-01978-R-DTB
Plaintiffs-Appellants,
v. MEMORANDUM*
BAYVIEW LOAN SERVICING, LLC, a
Delaware Limited Liability Company; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted April 11, 2018**
Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.
Robert and Nancy Heraldez appeal from the district court’s judgment
dismissing their action alleging Fair Debt Collection Practices Act (“FDCPA”) and
state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
*
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).
novo a dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim. Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We
affirm.
The district court properly dismissed plaintiffs’ FDCPA, California Civil
Code § 2923.55 and breach of covenant of good faith and fair dealing claims
because plaintiffs failed to allege facts sufficient to state a plausible claim for
relief. See 15 U.S.C. § 1692g; Cal. Civ. Code § 2923.55 (repealed Jan. 1, 2018);
Carma Developers (Cal.), Inc. v. Marathon Dev. Cal., Inc., 826 P.2d 710, 726
(Cal. 1992) (discussing nature and elements of claim for breach of covenant of
good faith and fair dealing); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid
dismissal, “a complaint must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face” (citation and internal quotation
marks omitted)).
The district court properly dismissed plaintiffs’ negligence claim because it
was barred by the applicable two-year statute of limitations. See Cal. Civ. Proc.
Code § 339.
The district court did not abuse its discretion by denying plaintiffs leave to
file an amended complaint because amendment would be futile. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
standard of review and explaining that dismissal without leave to amend is proper
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when amendment would be futile).
AFFIRMED.
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