                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 8 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


DANITA PATTERSON,                                No. 11-56092

               Plaintiff - Appellant,            D.C. No. 2:11-cv-02935-R-MAN

  v.
                                                 MEMORANDUM*
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
(MERS) As Nominee for Pacific Mutual
Funding Inc dba Pacific Residential
financing as beneficiary; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                           Submitted September 23, 2014**

Before:        W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

       Danita Patterson appeals pro se from the district court’s order dismissing

her foreclosure action. We have jurisdiction under 28 U.S.C. § 1291. We review

          *
             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).
de novo. Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th

Cir. 2011). We affirm in part, vacate in part, and remand.

      The district court properly dismissed as time-barred Patterson’s claims for

intentional misrepresentation and fraudulent concealment because Patterson failed

to file her action within three years, or establish a basis for tolling due to delayed

discovery. See Cal. Civ. Proc. Code § 338(d) (limitations period for fraud claims);

Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920 (Cal. 2005) (discovery rule

only delays accrual of a claim until the plaintiff has, or should have, inquiry notice

of the claim on the basis of a reasonable investigation).

      The district court properly dismissed Patterson’s claim for breach of the

implied covenant of good faith and fair dealing because Patterson failed to allege

sufficient facts showing that defendants interfered with her right to receive the

benefits of the loan transaction at issue. See Racine & Laramie, Ltd. v. Cal. Dep’t

of Parks & Recreation, 14 Cal. Rptr. 2d 335, 339 (Ct. App. 1992) (elements of a

claim for breach of the covenant of good faith and fair dealing).

      The district court did not abuse its discretion in dismissing the above-

mentioned claims without leave to amend because amendment would have been

futile. See Mirmehdi v. United States, 689 F.3d 975, 985 (9th Cir. 2012) (a party is

not entitled to amend the complaint if amendment would be futile).


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      However, in light of our recent analogous decision in Compton v.

Countrywide Financial Corp., __ F.3d __, No. 11-17158, 2014 U.S. App. Lexis

14977 (9th Cir. Aug. 4, 2014), it appears that the district court prematurely

dismissed Patterson’s claim under the California Unfair Business Practices Act,

Cal. Bus. & Prof. Code § 17200, because Patterson adequately alleged a plausible

claim that defendants engaged in unfair, deceptive, and fraudulent business

practices during her loan modification process. See id. at *12-17 (whether

borrower states an unfair competition claim against a lender under the Hawaii

Unfair Practices Act does not depend on the lender breaching a duty of care to the

borrower, but on the adequacy of the allegation that the lender used unfair or

deceptive acts in its relationship with the borrower); see also People ex rel. Harris

v. PAC Anchor Transp., Inc., 329 P.3d 180, 188 (Cal. 2014) (§ 17200’s “scope is

broad,” its coverage is “sweeping,” and it “defines unfair competition to mean and

include any unlawful, unfair or fraudulent business act or practice and unfair,

deceptive, untrue or misleading advertising” (internal quotation marks and

citations omitted)). Accordingly, we remand to allow Patterson to pursue her

§ 17200 claim.

      We do not address Patterson’s request, raised for the first time on appeal, for

leave to add new claims. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.


                                          3                                       11-56092
2009) (per curiam).

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




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