S. EMANUEL LIN V. CHICAGO TITLE INSURANCE COMPAN, No. 11-55737 (9th Cir. 2012)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 21 2012 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT S. EMANUEL LIN, No. 11-55737 Plaintiff -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-VBFDTB v. CHICAGO TITLE INSURANCE COMPANY, MEMORANDUM * 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 2 11-55737 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. 3 11-55737

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