                           NOT FOR PUBLICATION                           FILED
                                                                         MAR 14 2018
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 STEVEN WON,                                     No.    16-17292

              Plaintiff-Appellant,               D.C. No. 3:16-cv-01337-JD

  v.
                                                 MEMORANDUM*
 FEDERAL NATIONAL MORTGAGE
 ASSOCIATION,

              Defendant-Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                    James Donato, District Judge, Presiding

                     Argued and Submitted December 7, 2017
                            San Francisco, California




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
   Before: SCHROEDER and FRIEDLAND **, Circuit Judges, and ELLIS, ***
                           District Judge.

      Plaintiff-Appellant Steven Won (“Won”) appeals from the district court’s

order dismissing his First Amended Complaint (“FAC”) with prejudice. Our

appellate jurisdiction rests on 28 U.S.C. § 1291, and we AFFIRM. “We review de

novo the district court’s decision to grant a motion to dismiss a claim under Rule

12(b)(6).” Eichenberger v. ESPN, Inc., 876 F.3d 979, 982 (9th Cir. 2017) (citation

omitted). Plaintiff’s “claim must be plausible on its face” to survive a motion to

dismiss. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). We will uphold

the dismissal if either “a cognizable legal theory is absent or if the facts alleged fail

to suffice under a cognizable claim.” Id. (citation and emphasis omitted).

      1. The district court correctly dismissed Won’s quiet title claim. To

sufficiently plead a quiet title claim in California, plaintiffs must allege that they

have satisfied their obligations under the Deed of Trust. Won has not alleged that

he paid the underlying debt arising from his initial 2001 loan, which is fatal to his




      **
             This case was submitted to a panel that included Judge Kozinski, who
recently retired. Following Judge Kozinski’s retirement, Judge Friedland was
drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Friedland
has read the briefs, reviewed the record, and listened to oral argument.
      ***
            The Honorable Sara Lee Ellis, United States District Judge for the
Northern District of Illinois, sitting by designation.
California quiet title claim. See Shimpones v. Stickney, 219 Cal. 637, 649 (1934)

(“It is settled in California that a mortgagor cannot quiet his title against the

mortgagee without paying the debt secured.”); Miller v. Provost, 26 Cal. App. 4th

1703, 1707 (1994) (“a mortgagor of real property cannot, without paying his debt,

quiet his title against the mortgagee”); Aguilar v. Bocci, 39 Cal. App. 3d 475, 477–

78 (1974) (“The cloud upon [the mortgagor’s] title persists until the debt is paid.

He is entitled to remain in possession, but cannot clear his title without satisfying

his debt.”) (internal citation omitted).

      2. Won’s claim under California Civil Code § 1798.93 was properly

dismissed as time-barred. A claim under California Civil Code § 1798.93 must be

brought “within four years of the date the person who alleges that he or she is a

victim of identity theft knew or, in the exercise of reasonable diligence, should

have known of the existence of facts which would give rise to the bringing of the

action . . . .” Cal. Civ. Code § 1798.96. Won alleges he was aware of the inflated

balance as early as 2008. The exercise of reasonable diligence in 2008 would have

led Won to discover that something was awry and he was apparently the victim of

identity theft. But even assuming it was reasonable for Won to accept the bank’s

response to his 2008 inquiry, Won was certainly put on notice of the alleged fraud

when he received the notice of trustee’s sale in 2010. At that point, it was

abundantly clear that he could not rely on any assurances he received in 2008.
Accordingly, any potential claim Won may have had expired at the latest in 2014,

and the dismissal was therefore proper.

      3. Won’s claim for willful negligence was also correctly dismissed. Willful

negligence “occurs when a person with no intent to cause harm intentionally

performs an act so unreasonable and dangerous that he knows, or should know, it

is highly probable that harm will result.” Donnelly v. S. Pac. Co., 18 Cal. 2d 863,

869 (1941); see also Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1017

(1993) (Kennard, J., concurring in part and dissenting in part) (same). Won has

not shown that Fannie Mae’s conduct, which included the institution of an

unlawful detainer action, was unreasonable or dangerous. “It is simply not

tortious” for a financial institution to conduct routine financing activities. Cf.

Sierra-Bay Fed. Land Bank Ass’n v. Superior Court, 227 Cal. App. 3d 318, 334

(1991). Fannie Mae even voluntarily dismissed the unlawful detainer action in

order to allow it time to investigate Won’s fraud claims; after finding them to be

meritless, Fannie Mae notified Won it would not rescind the allegedly fraudulent

documents. Under the circumstances of this case, Fannie Mae’s alleged conduct

was not “so unreasonable and dangerous” that they knew or should have known it

would cause harm. Donnelly, 18 Cal. 2d at 869.

      AFFIRMED.
