Winding v. Ndex West, LLC, 102313 FED9, 11-16506

Docket Nº:11-16506
Party Name:JACOB WINDING, dba Top to Bottom Cleaning Service, Plaintiff - Appellant, v. NDEX WEST, LLC, as Trustee; et al., Defendants-Appellees.
Judge Panel:Before: FISHER, GOULD, and BYBEE, Circuit Judges.
Case Date:October 23, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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JACOB WINDING, dba Top to Bottom Cleaning Service, Plaintiff - Appellant,

v.

NDEX WEST, LLC, as Trustee; et al., Defendants-Appellees.

No. 11-16506

United States Court of Appeals, Ninth Circuit

October 23, 2013

NOT FOR PUBLICATION

Submitted October 15, 2013 [**]

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding D.C. No. 1:10-cv-02026-AWI-DLB

Before: FISHER, GOULD, and BYBEE, Circuit Judges.

MEMORANDUM [*]

Jacob Winding, dba Top to Bottom Cleaning Service, appeals pro se from the district court's judgment dismissing his action alleging fraud and other claims arising from foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm.

The district court properly dismissed Winding's claim for declaratory relief because Winding failed to allege facts showing that he held a lien in a senior position of priority to defendants' lien. See Cal. Civ. Code § 1214 (the date of recording determines priority of liens in California); see also O'Meara v. DeLamater, 126 P.2d 671, 672 (Cal.Ct.App. 1942) ("[A]ssignment back to the maker of the note and mortgage merge[s] the equitable title with the legal title and extinguishe[s] the mortgage.").

The district court properly dismissed Winding's claims for fraud and cancellation of instruments because Winding failed to allege facts showing that defendants misrepresented the priority of their lien. See Lazar v. Superior Court, 909 P.2d 981, 984 (Cal. 1996) (elements of fraud under California law).

The district court did not abuse its discretion in granting Wells Fargo's request for judicial notice because the court properly examined the requested documents and determined that their accuracy could not reasonably be questioned. See Fed. R. Evid. 201; Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458 (9th Cir. 1995) (standard of review).

The district court did not abuse its discretion in granting Wells Fargo's motion to strike Winding's claim for punitive damages because Winding did not allege facts demonstrating malice, oppression, or fraud. See Cal. Civ. Code § 3294 (requirements for punitive damages under California law); Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000) (standard of review).

The district court did...

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