                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 13 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MARTHA S. PANASZEWICZ,                          No.    13-16942

                Plaintiff-Appellant,            D.C. No. 3:13-cv-01162-MEJ

 v.
                                                MEMORANDUM*
GMAC MORTGAGE, LLC;
RESIDENTIAL FUNDING COMPANY,
LLC,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Northern District of California
                  Maria-Elena James, Magistrate Judge, Presiding

                          Submitted September 11, 2017**
                             San Francisco, California

Before: SCHROEDER and TALLMAN, Circuit Judges, and WHALEY,***
District Judge.

      Martha Panaszewicz appeals the Rule 12(b)(6) dismissal of her diversity


      *
             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).
      ***
             The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
action against GMAC Mortgage, LLC and Residential Funding Company, LLC.

Based on a promissory estoppel theory, Panaszewicz seeks to annul the trustee’s

sale of her home and impose a constructive trust on the residence. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and review de novo the district court’s

Rule 12(b)(6) dismissal. Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007).

We affirm.

      Panaszewicz’s First Amended Complaint does not state a claim for

promissory estoppel under California law. See Sateriale v. R.J. Reynolds Tobacco

Co., 697 F.3d 777, 792 (9th Cir. 2012) (citing U.S. Ecology, Inc. v. California, 28

Cal. Rptr. 3d 894, 905 (Cal. Ct. App. 2005)). Panaszewicz failed to allege (1) that

Appellees or their agents made any clear and unambiguous promises to postpone

the foreclosure sale, and (2) any facts showing that she changed her legal position

in reliance on those statements. Id. The district court therefore properly dismissed

her complaint.

      Because Panaszewicz did not make a prima facie case for promissory

estoppel, the district court did not err in concluding that a constructive trust could

not be imposed on the property. There are no alleged facts demonstrating that

Appellees gained the property by misconduct, and Panaszewicz has not tendered or

offered to tender the amount owed on the defaulted mortgage loan. See Lona v.

Citibank, N.A., 134 Cal. Rptr. 3d 622, 633, 640 (Cal. Ct. App. 2011). Thus, the


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district court was not required to exercise its equitable powers. See id. at 640.

      Finally, there was no abuse of discretion in denying Panaszewicz leave to

amend, as her complaint cannot be cured by further amendment. See Telesaurus

VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010).

      AFFIRMED.




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