                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 21 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



S. EMANUEL LIN,                                  No. 11-55737

               Plaintiff - Appellant,            D.C. No. 2:09-cv-07993-VBF-
                                                 DTB
  v.

CHICAGO TITLE INSURANCE                          MEMORANDUM *
COMPANY,

               Defendant - Appellee.



                   Appeal from the United States District Court
                        for the Central District of California
                  Valerie Baker Fairbank, District Judge, Presiding

                           Submitted December 19, 2012 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       S. Emanuel Lin appeals pro se from the district court’s judgment in his

diversity action alleging claims based on defendant’s failure to discover and

disclose an easement on Lin’s property when issuing him title insurance. We have


          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Torres v. City of Los

Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008) (judgment as a matter of law);

Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586, 591 (9th

Cir. 2008) (judgment on the pleadings); Kahle v. Gonzales, 487 F.3d 697, 699 (9th

Cir. 2007) (dismissal under Fed. R. Civ. P. 12). We affirm.

       The district court properly dismissed Lin’s negligence claims because

California law precludes negligence claims based on a title insurer’s failure to

disclose an encumbrance. See Southland Title Corp. v. Superior Court, 282 Cal.

Rptr. 425, 429 (Ct. App. 1991) (explaining the limited grounds for a negligence

claim against a title insurer and that “[a] title insurance policy is ‘. . . a contract to

indemnify against loss caused by defects in the title or encumbrances on the title.

It is not a representation that the title is in any particular condition.’” (citation

omitted)).

       The district court properly dismissed Lin’s fraud claim because Lin did not

sufficiently plead misrepresentation. See Fed. R. Civ. P. 9(b) (“[A] party must

state with particularity the circumstances constituting fraud . . . .”); Lazar v.

Superior Court, 909 P.2d 981, 984 (Cal. 1996) (stating elements of fraud).

       The district court properly granted judgment on the pleadings on Lin’s

California Insurance Code claims because neither section relied upon contains a


                                             2                                       11-55737
private right of action. See Cal. Ins. Code § 395; Moradi-Shalal v. Fireman’s

Fund Ins. Cos., 758 P.2d 58, 61-62, 69 (Cal. 1988) (California Insurance Code

section 790.03(h) has no private right of action).

      Lastly, the district court properly granted judgment as a matter of law on

Lin’s bad faith claim because Lin did not present sufficient evidence of

unreasonable delay in payment or of damages. See Chateau Chamberay

Homeowners Ass’n v. Assoc. Int’l Ins. Co., 108 Cal. Rptr. 2d 776, 784 (Ct. App.

2001) (test for bad faith is whether alleged delay in paying policy benefits was

unreasonable and delay based on a legitimate dispute is not bad faith); see also Cal.

Civ. Code § 3294(a) (requiring clear and convincing evidence of fraud for

exemplary damages in action for breach of an obligation); Maxwell v. Fire Ins.

Exch., 70 Cal. Rptr. 2d 866, 868-69 (Ct. App. 1998) (“[T]he award of damages in

bad faith cases for personal injury, including emotional distress, is incidental to the

award of economic damages.”).

      Lin’s contentions concerning fraud upon the court and the district court’s

exclusion of evidence are rejected.

      AFFIRMED.




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