Timothy John Cullen, Plaintiff-appellant, v. Thompson & Colgate, a California Partnership, Includingprofessional Law Corporation; John A. Boyd, Individually Andas a General Partner of Thompson Colgate; Provident Savingsbank, Defendants-appellees, 145 F.3d 1337 (9th Cir. 1998)

MEMORANDUM^* 

Timothy John Cullen appeals the district court's Rule 12(b) (6) dismissal of his action under state law and the Rackeeter Influenced And Corrupt Organizations Act, 18 U.S.C. § 1961 (RICO). Cullen alleged that defendant Thompson & Colgate engaged in a pattern of mail fraud in which it sought wrongfully to exact attorney's fees from Cullen.

We have jurisdiction of the appeal. The appellee's threshold argument of privilege is without merit. However, the plaintiff failed to show that there was any fraudulent scheme to support the mail fraud predicate acts for a RICO action. By virtue of the indemnity agreement in which Provident agreed to withhold payment of loan funds to Sandpiper, Provident was potentially liable for substantial attorney's fees in connection with defense of the stop notice and mechanic's lien litigation. See Cal.Civ.Code § 3176. Provident therefore reasonably withdrew its tender of defense to Cullen in order to hire its own attorneys in defense of the stop notice action.

In the absence of any viable federal claim, the state law claims were also properly dismissed.

AFFIRMED.