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 2018-06

Diane Weinsheimer v. Mers ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        JUN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIANE WEINSHEIMER, an individual,               No. 16-56725
Plaintiff-Appellant,            D.C. No. 8:16-cv-00991-DOC-KES
v.
MEMORANDUM*
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted June 12, 2018**
Before:      RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Diane Weinsheimer appeals from the district court’s judgment dismissing
her action alleging federal and state law claims arising from non-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), and we
*
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).
may affirm on any ground supported by the record. Thompson v. Paul,
    547 F.3d 1055
    , 1058-59 (9th Cir. 2008). We affirm.
Dismissal of Weinsheimer’s claims under
    Cal. Civ. Code §§ 2934
    (a) and
2824.17 was proper because these claims challenge defendants’ authority to
foreclose prior to foreclosure. See Saterbak v. JPMorgan Chase Bank, N.A.,
    199 Cal. Rptr. 3d 790
    , 795-96 (Ct. App. 2016) (preemptive challenges to foreclosure
are not allowed under California law).
The district court properly dismissed Weinsheimer’s claim under
    Cal. Bus. & Prof. Code § 17200
    , et seq., because Weinsheimer failed to allege facts
sufficient to show that defendants engaged in unfair or unlawful business practices.
See McDonald v. Coldwell Banker,
    543 F.3d 498
    , 506 (9th Cir. 2008) (“An unfair
business practice is one that either offends an established public policy or is
immoral, unethical, oppressive, unscrupulous or substantially injurious to
consumers.” (citations and internal quotation marks omitted)); Aleksick v. 7-
Eleven, Inc.,
    140 Cal. Rptr. 3d 796
    , 801 (Ct. App. 2012) (an unfair competition law
cause of action under the “unlawful” prong fails if a statutory predicate is not
stated).
The district court did not abuse its discretion by denying Weinsheimer leave
to amend because amendment would be futile. See Chappel v. Lab. Corp.,
    232 F.3d 719
    , 725-26 (9th Cir. 2000) (setting forth standard of review and explaining
2                                       16-56725
that “[a] district court acts within its discretion to deny leave to amend when
amendment would be futile . . . .”); see also Chodos v. West Publ’g Co.,
    292 F.3d 992
    , 1003 (9th Cir. 2002) (a district court’s discretion to deny leave to amend is
particularly broad when it has afforded plaintiff one or more opportunities to
amend).
We do not consider allegations or arguments raised for the first time on
appeal. See Padgett v. Wright,
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
AFFIRMED.
3                                       16-56725