                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              SEP 14 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


JOVITA G. MARQUEZ,                               No.   17-15747

              Plaintiff-Appellant,               D.C. No. 3:16-cv-03012-EMC

 v.
                                                 MEMORANDUM*
SELECT PORTFOLIO SERVICING,
INC.; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward M. Chen, District Judge, Presiding

                         Submitted September 10, 2018**
                            San Francisco, California

Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.

      1. The district court did not err in dismissing Jovita G. Marquez’s first,

second, third, fifth, and sixth claims. Each of those claims is premised on alleged

fraud with respect to the origination and assignments of the loan and deed of trust,

      *
             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).
                                                                            Page 2 of 3
and each falls outside the applicable three-year statute of limitations for fraud

claims. See Cal. Civ. Proc. Code § 338(d). Marquez’s arguments on appeal for

tolling the statute of limitations are unavailing. She contends that she did not have

a “complete” cause of action until she was injured by the foreclosure sale in 2016,

but that injury was the result of her failure to repay the loan, not the alleged fraud.

She also argues that defendants’ concealment of the loan’s funding arrangement

justifies delayed accrual of her claim. To succeed on that argument, she would

have to allege that she could not have discovered through diligent investigation the

facts underlying the alleged fraud until three years before she brought her action.

See Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920–21 (Cal. 2005). The

operative complaint contains no such allegations.

      2. The district court properly dismissed Marquez’s one remaining

claim—for breach of contract—for failure to state a claim. Under California law,

“performance by the plaintiff or excuse for nonperformance” is a necessary

element for a breach of contract claim. First Commercial Mortg. Co. v. Reece, 108

Cal. Rptr. 2d 23, 33 (Ct. App. 2001). Marquez cannot satisfy this element because

she nowhere alleges that she made the payments required of her under the deed of

trust. Defendants’ alleged failure to comply with certain notice requirements in the
                                                                          Page 3 of 3
notice of default cannot excuse Marquez’s failure leading up to that point to make

payments on the loan, despite receiving the benefit of the loan agreement.

      3. Marquez argues that the district court erred in taking judicial notice of

various documents setting forth the record chain of title for the property. But the

only documents necessary to the court’s decision—the deed of trust and the two

assignments—were also attached to the complaint. The order dismissing the

complaint thus properly relied on the allegations in the complaint and the

documents attached to it. See United States v. Ritchie, 342 F.3d 903, 907–08 (9th

Cir. 2003).

      4. Finally, Marquez argues that defendants violated her due process rights

under the Fourteenth Amendment. This claim was not raised in the district court

and is therefore forfeited. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.

2009). Even if it had been raised in the district court, the claim would fail because

“California’s nonjudicial foreclosure procedure does not constitute state action and

is therefore immune from the procedural due process requirements of the federal

Constitution.” Garfinkle v. Superior Court, 578 P.2d 925, 933 (Cal. 1978) (in

bank); see also Apao v. Bank of New York, 324 F.3d 1091, 1094–95 (9th Cir.

2003).

      AFFIRMED.
