                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 12 2015

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



                            FOR THE NINTH CIRCUIT


ANGELA UKIRU,                                    No. 13-55722

              Plaintiff - Appellant,             D.C. No. 2:12-cv-01667-VAP

 v.
                                                 MEMORANDUM*
FEDERAL HOME LOAN MORTGAGE
CORPORATION, et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                             Submitted May 7, 2015**
                               Pasadena, California

Before: BEA and FRIEDLAND, Circuit Judges and RICE,*** District Judge.



        *
             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 Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.

                                          1
      Angela Ukiru1 appeals the district court’s order dismissing her claims

relating to the foreclosure of her property for failure to state a claim. We review de

novo, AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012),

and affirm.

      The district court properly dismissed plaintiff’s equitable claims for

relief—including her claims to set aside the trustee’s sale, to cancel the trustee’s

deed, to quiet title, and for wrongful foreclosure—due to plaintiff’s failure to

allege credible tender. “A valid and viable tender of payment of the indebtedness

owing is essential to an action to cancel a voidable sale under a deed of trust.”

Karlsen v. Am. Sav. & Loan Ass’n, 92 Cal. Rptr. 851, 854 (Ct. App. 1971).

Despite plaintiff’s contention, no exception to the tender rule applies here. See

Lona v. Citibank, N.A., 134 Cal. Rptr. 3d 622, 640-41 (Ct. App. 2011). Thus, the

challenged foreclosure sale, presumptively valid based on recitals within the deed

of trust, was subject to the equitable requirement of tender. See Ram v. OneWest

Bank, FSB, 183 Cal. Rptr. 3d 638, 650 (Ct. App. 2015). The conclusory and

unsupported allegation within plaintiff’s amended complaint asserting that she was

“ready and willing” to cure default was insufficient to satisfy this requirement or



      1
        The incorrect spelling “Angeal” is used in the case caption throughout. The
Clerk shall amend the caption to reflect the correct spelling of appellant’s name.

                                           2
otherwise demonstrate the financial wherewithal to redeem her property.2 Clegg v.

Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994) (“[T]he court is not

required to accept legal conclusions cast in the form of factual allegations if those

conclusions cannot reasonably be drawn from the facts alleged.”).

      Plaintiff’s failure to allege credible tender is equally fatal to her Unfair

Competition Law Claim (“UCL”) and fraud claims. The UCL broadly prohibits

“any unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof.

Code § 17200. To establish standing under the UCL’s fraud prong, a plaintiff must

demonstrate actual reliance on the alleged misrepresentations. Kwikset Corp. v.

Superior Court, 246 P.3d 877, 888 (Cal. 2011).3 Plaintiff’s claims for fraud and

negligent misrepresentation required a similar showing. Conroy v. Regents of Univ.

of Cal., 203 P.3d 1127, 1136 (Cal. 2009). Thus, without adequately pleading

tender, plaintiff failed to show the requisite causal connection between the alleged

misrepresentations and her failure to take positive steps to avoid foreclosure; that



      2
        Moreover, plaintiff’s amended complaint and argument below failed to
overcome an admission in her original complaint suggesting she lacked adequate
financial resources to cure default. See Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 859-
60 (9th Cir. 1995).
      3
        This requirement applies “equally to the ‘unlawful’ prong of the UCL,
when . . . the predicate unlawful conduct is misrepresentation.” Hale v. Sharp
Healthcare, 108 Cal. Rptr. 3d 669, 679 (Ct. App. 2010).

                                           3
is, by failing to allege credible tender, plaintiff’s amended complaint failed to

demonstrate it was defendants’ conduct, rather than her own inability to cure, that

resulted in the loss of her home.

      The district court did not err in dismissing non-appearing defendants

Titanium Solutions and Cal-Western Reconveyance Corporation as they were in a

similar position to that of moving defendants and therefore were properly

dismissed based on the facts and law presented. See Abagninin v. AMVAC Chem.

Corp., 545 F.3d 733, 742-43 (9th Cir. 2008).

      Finally, the district court did not abuse its discretion in denying plaintiff

leave to file a second amended complaint. Because the district court provided

plaintiff several opportunities to cure highlighted deficiencies, both through initial

amendment and oral argument below, the district court properly concluded any

additional amendment would prove futile. See Hernandez, 666 F.3d at 636.

       Accordingly, the district court’s dismissal of the amended complaint is

      AFFIRMED.




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