145 F.3d 1337
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Timothy John CULLEN, Plaintiff-Appellant,v.THOMPSON & COLGATE, a California Partnership, includingProfessional Law Corporation; John A. Boyd, Individually andas a General Partner of Thompson Colgate; Provident SavingsBank, Defendants-Appellees.
No. 97-55179.DC No. CV-96-05914-JSL.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 9, 1998.Decided May 26, 1998.

Appeal from the United States District Court for the Central District of California J. Spencer Letts, District Judge, Presiding.
Before SCHROEDER, PREGERSON, and HAWKINS**, Circuit Judges.


1
MEMORANDUM*


2
Timothy John Cullen appeals the district court's Rule 12(b)(6) dismissal of his action under state law and the Rackeeter Influenced And Corrupt Organizations Act, 18 U.S.C. § 1961 (RICO).  Cullen alleged that defendant Thompson & Colgate engaged in a pattern of mail fraud in which it sought wrongfully to exact attorney's fees from Cullen.


3
We have jurisdiction of the appeal.  The appellee's threshold argument of privilege is without merit.  However, the plaintiff failed to show that there was any fraudulent scheme to support the mail fraud predicate acts for a RICO action.  By virtue of the indemnity agreement in which Provident agreed to withhold payment of loan funds to Sandpiper, Provident was potentially liable for substantial attorney's fees in connection with defense of the stop notice and mechanic's lien litigation.  See Cal.Civ.Code § 3176.  Provident therefore reasonably withdrew its tender of defense to Cullen in order to hire its own attorneys in defense of the stop notice action.


4
In the absence of any viable federal claim, the state law claims were also properly dismissed.


5
AFFIRMED.



**
 Judge Hawkins has read the briefs and listened to a tape recording of the argument


*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


