Jovita G. Marquez v. Select Portfolio Servicing, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOVITA G. MARQUEZ,
Plaintiff-Appellant,
v.
SELECT PORTFOLIO SERVICING,
INC.; et al.,
Defendants-Appellees.
No. 17-15747
D.C. No. 3:16-cv-03012-EMC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted September 10, 2018**
San Francisco, California
Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.
1. The district court did not err in dismissing Jovita G. Marquez’s first,
second, third, fifth, and sixth claims. Each of those claims is premised on alleged
fraud with respect to the origination and assignments of the loan and deed of trust,
FILED
SEP 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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and each falls outside the applicable three-year statute of limitations for fraud
claims. See Cal. Civ. Proc. Code § 338(d). Marquez’s arguments on appeal for
tolling the statute of limitations are unavailing. She contends that she did not have
a “complete” cause of action until she was injured by the foreclosure sale in 2016,
but that injury was the result of her failure to repay the loan, not the alleged fraud.
She also argues that defendants’ concealment of the loan’s funding arrangement
justifies delayed accrual of her claim. To succeed on that argument, she would
have to allege that she could not have discovered through diligent investigation the
facts underlying the alleged fraud until three years before she brought her action.
See Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920–21 (Cal. 2005). The
operative complaint contains no such allegations.
2. The district court properly dismissed Marquez’s one remaining
claim—for breach of contract—for failure to state a claim. Under California law,
“performance by the plaintiff or excuse for nonperformance” is a necessary
element for a breach of contract claim. First Commercial Mortg. Co. v. Reece, 108
Cal. Rptr. 2d 23, 33 (Ct. App. 2001). Marquez cannot satisfy this element because
she nowhere alleges that she made the payments required of her under the deed of
trust. Defendants’ alleged failure to comply with certain notice requirements in the

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notice of default cannot excuse Marquez’s failure leading up to that point to make
payments on the loan, despite receiving the benefit of the loan agreement.
3. Marquez argues that the district court erred in taking judicial notice of
various documents setting forth the record chain of title for the property. But the
only documents necessary to the court’s decision—the deed of trust and the two
assignments—were also attached to the complaint. The order dismissing the
complaint thus properly relied on the allegations in the complaint and the
documents attached to it. See United States v. Ritchie, 342 F.3d 903, 907–08 (9th
Cir. 2003).
4. Finally, Marquez argues that defendants violated her due process rights
under the Fourteenth Amendment. This claim was not raised in the district court
and is therefore forfeited. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.
2009). Even if it had been raised in the district court, the claim would fail because
“California’s nonjudicial foreclosure procedure does not constitute state action and
is therefore immune from the procedural due process requirements of the federal
Constitution.” Garfinkle v. Superior Court, 578 P.2d 925, 933 (Cal. 1978) (in
bank); see also Apao v. Bank of New York, 324 F.3d 1091, 1094–95 (9th Cir.
2003).
AFFIRMED.

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