                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 28 2014

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

EDNA BENIS; PAMELA MAREK                         No. 12-55839
SITES, FKA Pamela Marek Sykes; TODD
MAREK,                                           D.C. No. 2:11-cv-00402-ODW-
                                                 VBK
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

SALLIE MAE, INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Otis D. Wright, II, District Judge, Presiding

                     Argued and Submitted February 3, 2014
                              Pasadena, California

Before: SCHROEDER and CLIFTON, Circuit Judges, and TUNHEIM, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
      Edna Benis, Pamela Marek Sites, and Todd Marek appeal the district court’s

judgment dismissing their claims against Defendant Sallie Mae. Plaintiffs invoked

the district court’s diversity jurisdiction. We have jurisdiction under 28 U.S.C.

§ 1291.

      In the events leading to this appeal, the district court granted Defendant’s

motion to dismiss all of Plaintiffs’ claims except for Claim J, a forgery claim of

Plaintiff Sites. Plaintiffs apparently mistakenly believed, however, that the

dismissal had included Claim J. Even though, in denying reconsideration, the

district court explained that Claim J had been carved out of Defendant’s motion

and thus was not included in the order granting the motion, Plaintiffs nevertheless

remained under the misapprehension that the claim had been dismissed. They then

filed an ex parte application to vacate a scheduling conference based on their

mistaken belief that the entire case had been disposed of. The district court granted

the application in an order stating that the case was dismissed.

      We reject Defendant’s position that Plaintiffs abandoned Claim J by a

voluntary dismissal. The Plaintiffs did not move for voluntary dismissal, but the

district court nonetheless dismissed Claim J in its April 25, 2012 order when it

stated “[t]he case is dismissed.” See Knevelbaard Diaries v. Kraft Foods, Inc., 232

F.3d 979, 983 (9th Cir. 2000) (“[I]f it appears that the district court intended the


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dismissal to dispose of the action, it may be considered final and appealable.”

(internal quotation marks omitted)). The dismissal resulted in an order that was

appealable to challenge what Plaintiffs believed to have been the earlier wrongful

dismissal of that claim. See Gorlick Distrib. Ctrs., LLC v. Car Sound Exhaust Sys.,

Inc., 723 F.3d 1019, 1021 n.2 (9th Cir. 2013) (per curiam) (citing James v. Price

Stern Sloan, Inc., 283 F.3d 1064, 1070 (9th Cir. 2002)). Because Claim J was

never dismissed on substantive grounds but only by mistake, Claim J must be

reinstated.

      Plaintiffs also appeal the district court’s dismissal of the fraud claims that

were the actual targets of Defendant’s motion. These claims allege that Defendant

failed to disclose the full effect of the capitalization of unpaid interest at the time

the payments became due. A reading of the promissory note reflects, however, that

the nature of the capitalization was adequately explained. There was no fraud or

violation of any applicable statute. Plaintiffs’ claim that Defendant improperly

sought collection for loans in breach of a settlement agreement is barred by the

economic loss rule, and no relevant exception applies. See Robinson Helicopter

Co., Inc. v. Dana Corp., 34 Cal. 4th 979 (2004). The claims other than Claim J

were properly dismissed.




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      The judgment with respect to Claim J is vacated and the case is remanded

for the reinstatement of Claim J. The dismissal of the remainder of the claims is

affirmed.

      AFFIRMED in part; VACATED and REMANDED in part. Costs are

awarded to Defendant.




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