                                                                               FILED
                            NOT FOR PUBLICATION                                MAR 03 2016

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



                             FOR THE NINTH CIRCUIT


BEVER-LEIGH B. PENNEY,                           No. 13-55449

               Plaintiff - Appellant,            D.C. No. 2:11-cv-05567-ODW-
                                                 MAN
 v.

NDEX WEST LLC; et al.,                           MEMORANDUM*

               Defendants - Appellees.


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

                            Submitted February 24, 2016**

Before:        LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.

      Bever-Leigh B. Penney appeals pro se from the district court’s summary

judgment in her action alleging federal and state law claims relating to the

foreclosure of her property. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. SEC v. Nite, 207 F.3d 1134, 1135 (9th Cir. 2000). We affirm.

          *
             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).
      The district court properly granted summary judgment for Wells Fargo

Bank, N.A. (“Wells Fargo”) because Penney failed to raise a genuine dispute of

material fact as to whether she was damaged by reliance on a false promise that

Wells Fargo would not foreclose on the property during the evaluation of her

Home Affordable Mortgage Program application. See Lazar v. Superior Court, 12

Cal.4th 631, 638 (1996) (setting forth the elements of a fraudulent

misrepresentation claim); Rossberg v. Bank of America, N.A., 162 Cal. Rptr. 3d

525, 539 (Ct. App. 2013) (setting forth the elements of a promissory fraud claim);

US Ecology, Inc. v. State, 28 Cal. Rptr. 3d 894, 904-05 (2005) (setting forth the

elements of a promissory estoppel claim).

      The district court did not err in failing to sua sponte recuse itself because

Penney did not demonstrate extrajudicial bias or prejudice. See 28 U.S.C. § 455;

see also Noli v. CIR, 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made

to the judge . . . a party will bear a greater burden on appeal in demonstrating that

the judge . . . [erred] in failing to grant recusal under section 455.” (citation and

internal quotation marks omitted)).

      Contrary to Penney’s contention, the district court had subject matter

jurisdiction over this action under 28 U.S.C. § 1331, and it was not required to

remand this action to California state court.


                                            2                                     13-55449
      We reject Penney’s contention that the district court erred in failing to order

an accounting.

      We do not address matters not specifically and distinctly raised and argued

in the opening brief or raised for the first time on appeal. See Padgett v. Wright,

587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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