NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAWN GORDON, No. 17-56475
Plaintiff-Appellant, D.C. No. 2:15-cv-05537-DMG-
PLA
v.
U.S. BANK, N.A.; DOES, 1-10, inclusive, MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Shawn Gordon appeals from the district court’s summary judgment and
dismissal order in his diversity action alleging state law claims arising from a home
mortgage loan. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009). We affirm.
*
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).
The district court properly granted summary judgment on Gordon’s claims
under the version of the California Homeowner Bill of Rights effective before
2018, because Gordon does not dispute that he defaulted under the original loan
agreement and defaulted again under a “first lien loan modification,” and,
therefore, did not have a statutory right to appeal subsequent loan modification
application denials. Cal. Civ. Code § 2923.6(c)(3) (repealed Jan. 1, 2018)
(authorizing a lender to pursue foreclosure against a defaulted borrower if “[t]he
borrower accepts a written first lien loan modification, but defaults on, or
otherwise breaches the borrower’s obligations under, the first lien loan
modification”); cf. Valbuena v. Ocwen Loan Servicing, LLC, 188 Cal. Rptr. 3d
668, 671 (Ct. App. 2015) (discussing scope of the statutory protections of the pre-
2018 version of the California Homeowner Bill of Rights).
The district court properly granted summary judgment on Gordon’s claims
under California’s Unfair Competition Law (“UCL”) because Gordon failed to
raise a genuine dispute of material fact as to whether he suffered an economic
injury caused by U.S. Bank’s conduct, rather than his default. See Cal. Bus. &
Prof. Code § 17204 (standing under the UCL requires plaintiff’s injury to occur “as
a result of” defendant’s misconduct); Kwikset Corp. v. Superior Court, 246 P.3d
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877, 885-88 (Cal. 2011) (to bring a claim under the UCL, a plaintiff must have
economic injury caused by the defendant’s unfair business practice); see also
Turner v. Wells Fargo Bank NA ( In re Turner), 859 F.3d 1145, 1150-51 (9th
Cir. 2017) (borrowers who were in default lacked standing to bring a UCL claim).
The district court properly dismissed Gordon’s wrongful foreclosure and
breach of the covenant of good faith and fair dealing claims because Gordon did
not allege facts sufficient to state any plausible claim. See Hebbe v. Pliler, 627
F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed
liberally, a plaintiff must present factual allegations sufficient to state a plausible
claim for relief); see also In re Mortg. Elec. Registration Sys., Inc., 754 F.3d at
772, 784-85 (9th Cir. 2014) (elements of a wrongful foreclosure claim); Durell v.
Sharp Healthcare, 108 Cal. Rptr. 3d 682, 698-99 (Ct. App. 2010) (requirements
for a breach of the implied covenant of good faith and fair dealing claim).
The district court did not abuse its discretion by taking judicial notice of
certain public records without converting U.S. Bank’s Fed. R. Civ. P. 12(b)(6)
motion to dismiss into a motion for summary judgment. See Lee v. City of Los
Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (setting forth standard of review for
decision to take judicial notice, and describing material that a district court may
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consider when ruling on a Rule 12(b)(6) motion).
AFFIRMED.
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