Angela UKIRU, Plaintiff-Appellant, v. FEDERAL HOME LOAN MORTGAGE CORPORATION, et al., Defendants-Appellees, 602 F. App'x 395

MEMORANDUM Angela Ukiru appeals the district court’s order dismissing her claims relating to the foreclosure of her property for failure to state a claim. We review de novo, AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir.2012), and affirm.

The district court properly dismissed plaintiffs equitable claims for relief — including her claims to set aside the trustee’s sale, to cancel the trustee’s deed, to quiet title, and for wrongful foreclosure— due to plaintiffs failure to allege credible tender. “A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.” Karlsen v. Am. Sav. & Loan Ass’n, 15 Cal.App.3d 112, 92 Cal.Rptr. 851, 854 (1971). Despite plaintiffs contention, no exception to the tender rule applies here. See Lona v.

Citibank, N.A., 202 Cal.App.4th 89, 134 Cal.Rptr.3d 622, 640-41 (2011). Thus, the challenged foreclosure sale, presumptively valid based on recitals within the deed of trust, was subject to the equitable requirement of tender. See Ram v. OneWest Bank, FSB, 234 Cal.App.4th 1, 183 Cal.Rptr.3d 638, 650 (2015). The conclusory and unsupported allegation within plaintiffs amended complaint asserting that she was “ready and willing” to cure default was insufficient to satisfy this requirement or otherwise demonstrate the financial wherewithal to redeem her property. Clegg v.

Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994) (“[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.”). Plaintiffs failure to allege credible tender is equally fatal to her Unfair Competition Law Claim (“UCL”) and fraud claims. The UCL broadly prohibits “any unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof.Code § 17200. To establish standing under the UCL’s fraud prong, a plaintiff must demonstrate actual reliance on the alleged misrepresentations.

Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877, 888 (2011). Plaintiffs claims for fraud and negligent misrepresentation required a similar showing. Conroy v. Regents of Univ. of Cal., 45 Cal.4th 1244, 91 Cal.Rptr.3d 532, 203 P.3d 1127, 1136 (2009).

Thus, without adequately pleading tender, plaintiff failed to show the requisite causal connection between the alleged misrepresentations and her failure to take positive steps to avoid foreclosure; that is, by failing to allege credible tender, plaintiffs amended complaint failed to demonstrate it was defendants’ conduct, rather than her own inability to cure, that resulted in the loss of her home.

The district court did not err in dismissing non-appearing defendants Titanium Solutions and Cal-Western Reconveyance Corporation as they were in a similar position to that of moving defendants and therefore were properly dismissed based on the facts and law presented. See Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742-43 (9th Cir.2008). Finally, the district court did not abuse its discretion in denying plaintiff leave to file a second amended complaint.

Because the district court provided plaintiff several opportunities to cure highlighted deficiencies, both through initial amendment and oral argument below, the district court properly concluded any additional amendment would prove futile. See Hernandez, 666 F.3d at 636. Accordingly, the district court’s dismissal of the amended complaint is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . The incorrect spelling "Angeal” is used in the case caption throughout.

The Clerk shall amend the caption to reflect the correct spelling of appellant's name. . Moreover, plaintiff's amended complaint and argument below failed to overcome an admission,in her original complaint suggesting she lacked adequate financial resources to cure default. See Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 859-60 (9th Cir.1995). . This requirement applies "equally to the ‘unlawful’ prong of the UCL, when ... the predicate unlawful conduct is misrepresentation.” Hale v. Sharp Healthcare, 183 Cal.App.4th 1373, 108 Cal.Rptr.3d 669, 679 (2010).