NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WAYNE BARBER; GEORGE WHITE, No. 16-56282
Plaintiffs-Appellants, D.C. No. 5:16-cv-00695-R-AGR
v.
MEMORANDUM*
U.S. BANK, successor trustee to Bank of
America, NA, successor in interest to
LaSalle Bank NA, as trustee on behalf of the
Holders of the WAMU Mortgage Pass-
Through Certificates, Series 2007-OA1; 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 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Wayne Barber and George White appeal from the district court’s judgment
dismissing their action alleging federal and state law claims arising from non-
*
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).
judicial foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s dismissal under Fed. R. Civ. P. 12(b)(6).
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1032, 1040 (9th Cir. 2011).
We may affirm on any ground supported by the record. Vestar Dev. II, LLC v.
Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001). We affirm.
The district court properly dismissed plaintiffs’ wrongful foreclosure and
Cal. Civ. Code § 2924(a)(6) claims because they are pre-foreclosure challenges.
See Saterbak v. JPMorgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 795-96 (Cal.
Ct. App. 2016) (noting that preemptive challenges to foreclosure are not allowed
under California law, and Yvanova v. New Century Mortgage Corp., 365 P.3d 845
(Cal. 2016) is expressly limited to the post-foreclosure context), review denied July
13, 2016.
Dismissal of plaintiffs’ breach of implied covenant of good faith and fair
dealing claim was proper because the covenant only protects express covenants or
promises of the contract. See Foley v. Interactive Data Corp., 765 P.2d 373, 394
(Cal. 1988) (“The covenant of good faith is read into contracts in order to protect
the express covenants or promises of the contract, not to protect some general
public policy interest . . .”).
The district court did not abuse its discretion in denying leave to amend
because amendment would have been futile. See Cervantes, 656 F.3d at 1041
2 16-56282
(setting forth standard of review and noting that a court may dismiss without leave
to amend where amendment would be futile).
We reject as without merit plaintiffs’ contentions regarding the district
court’s grant of defendants’ request for judicial notice and its consideration of the
judicially noticed documents.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 16-56282