S. Emanuel Lin v. Chicago Title Insurance Compan , 501 F. App'x 655 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
S. EMANUEL LIN, No. 11-55737
Plaintiff - Appellant, D.C. No. 2:09-cv-07993-VBF-
DTB
v.
CHICAGO TITLE INSURANCE MEMORANDUM *
COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
S. Emanuel Lin appeals pro se from the district court’s judgment in his
diversity action alleging claims based on defendant’s failure to discover and
disclose an easement on Lin’s property when issuing him title insurance. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Torres v. City of Los
Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008) (judgment as a matter of law);
Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th
Cir. 2008) (judgment on the pleadings); Kahle v. Gonzales, 487 F.3d 697, 699 (9th
Cir. 2007) (dismissal under Fed. R. Civ. P. 12). We affirm.
The district court properly dismissed Lin’s negligence claims because
California law precludes negligence claims based on a title insurer’s failure to
disclose an encumbrance. See Southland Title Corp. v. Superior Court, 282 Cal.
Rptr. 425, 429 (Ct. App. 1991) (explaining the limited grounds for a negligence
claim against a title insurer and that “[a] title insurance policy is ‘. . . a contract to
indemnify against loss caused by defects in the title or encumbrances on the title.
It is not a representation that the title is in any particular condition.’” (citation
omitted)).
The district court properly dismissed Lin’s fraud claim because Lin did not
sufficiently plead misrepresentation. See Fed. R. Civ. P. 9(b) (“[A] party must
state with particularity the circumstances constituting fraud . . . .”); Lazar v.
Superior Court, 909 P.2d 981, 984 (Cal. 1996) (stating elements of fraud).
The district court properly granted judgment on the pleadings on Lin’s
California Insurance Code claims because neither section relied upon contains a
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private right of action. See Cal. Ins. Code § 395; Moradi-Shalal v. Fireman’s
Fund Ins. Cos., 758 P.2d 58, 61-62, 69 (Cal. 1988) (California Insurance Code
section 790.03(h) has no private right of action).
Lastly, the district court properly granted judgment as a matter of law on
Lin’s bad faith claim because Lin did not present sufficient evidence of
unreasonable delay in payment or of damages. See Chateau Chamberay
Homeowners Ass’n v. Assoc. Int’l Ins. Co., 108 Cal. Rptr. 2d 776, 784 (Ct. App.
2001) (test for bad faith is whether alleged delay in paying policy benefits was
unreasonable and delay based on a legitimate dispute is not bad faith); see also Cal.
Civ. Code § 3294(a) (requiring clear and convincing evidence of fraud for
exemplary damages in action for breach of an obligation); Maxwell v. Fire Ins.
Exch., 70 Cal. Rptr. 2d 866, 868-69 (Ct. App. 1998) (“[T]he award of damages in
bad faith cases for personal injury, including emotional distress, is incidental to the
award of economic damages.”).
Lin’s contentions concerning fraud upon the court and the district court’s
exclusion of evidence are rejected.
AFFIRMED.
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