FILED

NOT FOR PUBLICATION

MAY 14 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KAYODE POWELL, No. 19-16536

Plaintiff-Appellant, D.C. No. 3:14-cv-04248-TSH

v.

MEMORANDUM*

WELLS FARGO HOME MORTGAGE; et al.,

Defendants-Appellees,

and

FIDELITY NATIONAL TITLE

INSURANCE COMPANY, as Trustee,

Defendant.

Appeal from the United States District Court for the Northern District of California Thomas S. Hixson and Maria-Elana James, Magistrate Judges, Presiding

Submitted May 12, 2021** San Francisco, 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: THOMAS, Chief Judge, and HAWKINS and MILLER, Circuit Judges.

Kayode Powell (“Powell”) appeals a judgment issued by the district court in

favor of his loan servicer, Wells Fargo Bank, N.A. (“Wells Fargo”), as well as a

number of the district court’s orders. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm. Because the parties are familiar with the facts of this case,

we need not recount them here.

1. We review a district court’s grant of summary judgment de novo and

may affirm on any ground supported by the record. Campidoglio LLC v. Wells

Fargo & Co., 870 F.3d 963, 973 (9th Cir. 2017). Summary judgment is properly

granted when there is no genuine issue of material fact; “summary judgment will

not lie . . . if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

The district court properly granted summary judgment to Wells Fargo.

Under California law, Wells Fargo did not owe Powell a duty of care in processing

his loan modification applications. See Lueras v. BAC Home Loans Servicing, LP,

221 Cal. App. 4th 49, 68 (2013) (financial institutions have no “common law duty

of care to offer, consider, or approve loan modification, to offer . . . alternatives to

foreclosure,” or to handle a loan to prevent foreclosure); Nymark v. Heart Fed.

2 Sav. & Loan Ass’n, 231 Cal. App. 3d 1089, 1096 (1991) (financial institutions owe

no duty of care to borrowers when acting as lenders of money). Even assuming it

did, the record evidence does not establish a triable issue of fact as to Wells

Fargo’s alleged negligence. Because the duty of care issue is not determinative of

this case’s outcome, we decline to certify the issue to the California Supreme

Court. See Calif. R. Ct. 8.548(a).

2. We review a district court’s ruling on a motion to strike for abuse of

discretion. See Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 963 (9th Cir.

2018). The district court did not abuse its discretion in granting Wells Fargo’s

Motion to Strike. The district court had previously dismissed “all claims based on

challenges to the Assignment and transfer of the Loan.” The court only allowed

Powell to amend the complaint with respect to his negligence and UCL claims and

specifically warned Powell that it was “not grant[ing] Plaintiff leave to amend as to

any of the other Defendants or to add any other claims against Wells Fargo” and

“w[ould] strike any pleading that does not comply with this Order.” The district

court correctly determined that the paragraphs stricken were not relevant to

Powell’s negligence or UCL claims because they made “no reference to contracts

or agreements, nor d[id] they address the loan modification process.” Thus, it was

3 not an abuse of discretion for the district court to conclude that the paragraphs fell

outside the scope of what Powell was permitted to amend.

3. We review for abuse of discretion a district court’s decision to dismiss

a complaint or claim with prejudice and without leave to amend. Okwu v. McKim,

682 F.3d 841, 844 (9th Cir. 2012). The district court did not abuse its discretion in

granting summary judgment on the basis of the Fourth Amended Complaint

without providing Powell leave to amend. Powell never sought to amend his

Fourth Amended Complaint, and “[w]here a party does not ask the district court for

leave to amend, ‘the request [on appeal] to remand with instructions to permit

amendment comes too late.’” Alaska v. United States, 201 F.3d 1154, 1163–64

(9th Cir. 2000) (quoting Jackson v. Am. Bar Ass’n, 538 F.2d 829, 833 (9th Cir.

1976)).

4. “We review de novo [a] district court’s dismissal of a complaint for

failure to state a claim” and “review for abuse of discretion a district court’s

decision to dismiss with prejudice.” Okwu, 682 F.3d at 844. The district court did

not err in dismissing Powell’s robo-signing claim with prejudice. Powell’s robo-

signing claim depended on a provision of the California Homeowner’s Bill of

Rights (“HBOR”), Cal. Civ. Code § 2924.17. Section 2924.17 does not contain a

retroactivity provision, and there are no other indications that the California

4 Legislature intended it apply retroactively; therefore, it does not apply retroactively

to allow Powell to bring a claim regarding the allegedly robo-signed documents

because they were signed and recorded prior to the HBOR’s effective date, January

1, 2013. See Myers v. Philip Morris Cos., Inc., 28 Cal. 4th 828, 841 (2002)

(“[U]nless there is an express retroactivity provision, a statute will not be applied

retroactively unless it is very clear from extrinsic sources that the Legislature . . .

must have intended a retroactive application.” (internal quotation marks and

citation omitted)); see also Saterbak v. JP Morgan Chase Bank, N.A., 245 Cal.

App. 4th 808, 818 (2016) (concluding the HBOR did not apply retroactively to

authorize challenge to deed of trust assignment recorded prior to effective date of

HBOR).

Powell did not raise in district court his argument regarding notary fraud,

nor did he cite Section 8205(b) of California’s Government Code in either the First

Amended Complaint or in his opposition to Wells Fargo’s Motion to Dismiss the

First Amended Complaint. This argument is therefore waived. See In re Mortg.

Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir. 2014) (arguments not

made in district court are generally waived).

5. We review the denial of a request for a continuance of a summary

judgment motion for abuse of discretion. See Singh v. Am. Honda Fin. Corp., 925

5 F.3d 1053, 1062–63 (9th Cir. 2019). The district court did not abuse its discretion

in denying Powell’s request to continue summary judgment. The court had granted

Powell extensions numerous times earlier in the proceedings, and it expressly

stated that it would “not grant any further extensions absent a stipulation between

the parties or compelling reasons to do so.” Finally, despite numerous

opportunities to do so, Powell has not cited any evidence or argument that would

defeat summary judgment.

6. We review a district court’s resolution of a motion for relief from

judgment pursuant to Federal Rule of Civil Procedure 60(b) for abuse of discretion.

Henson v. Fid. Nat’l Fin., Inc., 943 F.3d 434, 443 (9th Cir. 2019). The district

court did not abuse its discretion in denying Powell’s motion. Powell’s excusable

neglect argument is waived because he failed to raise it adequately in district court,

and the district court did not abuse its discretion in declining to address it. In re

Mortg. Elec. Registration Sys., Inc., 754 F.3d at 780. Nor did the district court err

in declining to revisit its prior ruling that Wells Fargo did not owe Powell a duty of

care in processing his loan modification applications.

AFFIRMED.

6