Moss Caballero v. Bank of America , 468 F. App'x 709 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MOSS C. CABALLERO, suing No. 10-17818
individually, on behalf of the general
public and on behalf of all others similarly D.C. No. 5:10-cv-02973-LHK
situated,
Plaintiff - Appellant, MEMORANDUM*
v.
BANK OF AMERICA, a National
Association; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding
Argued and Submitted February 13, 2012
San Francisco, California
Before: GRABER, BERZON, and TALLMAN, Circuit Judges.
Plaintiff Moss Caballero appeals from the district court’s dismissal on the
pleadings of this diversity action against Defendants Bank of America, Federal
National Mortgage Association, NDex West, LLC, and Does 1-100. Reviewing de
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
novo the interpretation of state law, Lahoti v. Vericheck, Inc., 636 F.3d 501, 505
(9th Cir. 2011), we affirm.
The district court correctly held that California Civil Code section 2932.5
does not apply to deeds of trust. After the district court issued its decision, the
California Court of Appeal reached the same conclusion in a thorough and well-
reasoned decision, and the California Supreme Court denied review. Calvo v.
HSBC Bank USA, N.A., 130 Cal. Rptr. 3d 815 (Ct. App. 2011), rev. denied (Cal.
S. Ct. Jan. 4, 2012). For the reasons stated in Calvo and the many district-court
decisions that have reached the same conclusion, e.g., Roque v. Suntrust Mortg.,
Inc., No. 09-00040, 2010 WL 546896 (N.D. Cal. 2010) (order), we find no
"convincing evidence" that the California Supreme Court would hold that
California Civil Code section 2932.5 applies to deeds of trust. See Hayes v.
County of San Diego, 658 F.3d 867, 870 (9th Cir. 2011) (order) ("In deciding an
issue of state law, when there is relevant precedent from the state’s intermediate
appellate court, the federal court must follow the state intermediate appellate court
decision unless the federal court finds convincing evidence that the state’s supreme
court likely would not follow it." (internal quotation marks omitted)).
AFFIRMED.
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