NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 6 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LINDA MORAVEC VARGA, on behalf of No. 18-56572 herself and all others similarly situated, D.C. No. Plaintiff-Appellant, 2:16-cv-09650-DMG-KS

v.

MEMORANDUM*

WELLS FARGO BANK, N.A., a National Association; DOES, 2-10, inclusive,

Defendants-Appellees,

and

WELLS FARGO AND COMPANY, a Delaware corporation,

Defendant.

Appeal from the United States District Court for the Central District of California Dolly M. Gee, District Judge, Presiding

Submitted March 3, 2020** Pasadena, California

* 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). Before: HURWITZ and FRIEDLAND, Circuit Judges, and KORMAN,*** District Judge.

Linda Varga obtained a mortgage loan from Wells Fargo Bank, N.A. that

required fixed monthly payments for ten years, after which the interest rate would

become adjustable. Varga was to receive notice of any adjustments in a prescribed

form that included certain title-and-telephone-number information for a point of

contact at the lender. After ten years, Varga received notices from Wells Fargo

adjusting her interest rate substantially downward. In 2015, two years after her

rate became adjustable, Varga received a notice that her rate would increase; it

would, however, still be below the level set for the first ten years of the loan.

Varga refinanced with another lender and then filed this action, alleging that

Wells Fargo’s rate adjustment notices omitted the title-and-telephone-number

information required by the loan agreement, and asserting contract and tort claims.

The district court dismissed her Second Amended Complaint for failure to state a

claim.

We review de novo and may affirm on any ground supported by the record.

See Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1136 (9th Cir. 2013). We affirm.

1. The district court did not err in dismissing Varga’s contract claims.

*** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

2 Even assuming that Wells Fargo could not adjust the mortgage rate without

providing a precisely conforming notice, Varga did not plausibly allege that she

had suffered damages or other injury. Oasis W. Realty, LLC v. Goldman, 250 P.3d

1115, 1121 (Cal. 2011) (damage to the plaintiff is an element of a breach of

contract claim); Cochran v. Cochran, 66 Cal. Rptr. 2d 337, 342 n.6 (Ct. App.

1997) (“Actual damage as opposed to mere nominal damage is [an] essential

element of a cause of action for breach of contract.”); Yari v. Producers Guild of

Am., Inc., 73 Cal. Rptr. 3d 803, 811 (Ct. App. 2008) (holding that a breach of

implied contract claim includes the same elements as a breach of contract claim).

Because the notices informed her of monthly payment amounts that were

substantially lower than the rates she paid under her fixed-rate mortgage, Varga

was better off if the notices she received were operative than if they were invalid.

Varga’s conclusory assertion that she was “deprived of the contractual and

consumer protections and benefits” of the notice provision is insufficient to

plausibly allege any harm attributable to the noncompliant notice. Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009). Varga expressly declined to amend her

complaint to allege any injury from fees she paid to refinance her mortgage. See

Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004).

2. For similar reasons, the district court did not err in dismissing Varga’s

tort claims, which also require a plausible allegation of harm, see Lazar v. Superior

3 Ct., 909 P.2d 981, 984-85 (Cal. 1996) (fraud); Cadlo v. Owens-Illinois, 23 Cal.

Rptr. 3d 1, 5 (Ct. App. 2004) (negligent misrepresentation); 18 U.S.C. § 1964(c)

(RICO); In re Tobacco II Cases, 207 P.3d 20, 31 (Cal. 2009) (California Unfair

Competition Law); Cal. Penal Code § 496(c) (treble damages for injury from

receipt of stolen property), or that the defendant wrongfully or under false

pretenses deprived her of property, Cal. Penal Code § 518(a) (extortion); 18 U.S.C.

§ 1341 (mail fraud).

AFFIRMED.

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