ROBERT HERALDEZ V. BAYVIEW LOAN SERVICING, LLC, No. 17-55174 (9th Cir. 2018)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 16 2018 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ROBERT HERALDEZ; NANCY HERALDEZ, No. U.S. COURT OF APPEALS 17-55174 D.C. No. 5:16-cv-01978-R-DTB Plaintiffs-Appellants, MEMORANDUM* v. BAYVIEW LOAN SERVICING, LLC, a Delaware Limited Liability Company; et al., Defendants-Appellees. Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding Submitted April 11, 2018** Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges. Robert and Nancy Heraldez appeal from the district court’s judgment dismissing their action alleging Fair Debt Collection Practices Act (“FDCPA”) and state law claims. We have jurisdiction under 28 U.S.C. § 1291. We review de * 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). novo a dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We affirm. The district court properly dismissed plaintiffs’ FDCPA, California Civil Code § 2923.55 and breach of covenant of good faith and fair dealing claims because plaintiffs failed to allege facts sufficient to state a plausible claim for relief. See 15 U.S.C. § 1692g; Cal. Civ. Code § 2923.55 (repealed Jan. 1, 2018); Carma Developers (Cal.), Inc. v. Marathon Dev. Cal., Inc., 826 P.2d 710, 726 (Cal. 1992) (discussing nature and elements of claim for breach of covenant of good faith and fair dealing); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” (citation and internal quotation marks omitted)). The district court properly dismissed plaintiffs’ negligence claim because it was barred by the applicable two-year statute of limitations. See Cal. Civ. Proc. Code § 339. The district court did not abuse its discretion by denying plaintiffs leave to file an amended complaint because amendment would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that dismissal without leave to amend is proper 2 17-55174 when amendment would be futile). AFFIRMED. 3 17-55174

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