Jim Ross Meskimen; Tamra Meskimen v. THE BANK OF NEW YORK MELLON, FKA The Bank of New York, as Trustee as Trustee of…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIM ROSS MESKIMEN; TAMRA
MESKIMEN,
Plaintiffs-Appellants,
v.
THE BANK OF NEW YORK MELLON,
FKA The Bank of New York, as Trustee as
Trustee of CWALT, Inc., Alternative Loan
Trust 2006-9T1, Mortgage Pass-Through
Certificates, Series 2006-9T1; et al.,
Defendants-Appellees.
No. 18-55394
D.C. No. 2:17-cv-05757-GW-FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Jim Ross Meskimen and Tamra Meskimen appeal pro se from the district
court’s judgment dismissing their action alleging claims under the Real Estate
* 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).
FILED
OCT 26 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Settlement Procedures Act (“RESPA”), the Declaratory Judgment Act (“DJA”),
and state law relating to the loan secured by their real property. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal
Rule of Civil Procedure 12(b)(6). Kwan v. SanMedica Int’l, 854 F.3d 1088, 1093
(9th Cir. 2017). We may affirm on any basis supported by the record. Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
The district court properly dismissed the Meskimens’ claims under the DJA
because all of the Meskimens’ predicate claims failed. See 28 U.S.C. § 2201(a)
(basis for declaratory relief in federal courts); Cal. Civ. Code § 1095 (requirements
for execution of instruments transferring an estate in real property by attorney in
fact); Saterbak v. JPMorgan Chase Bank, N.A., 199 Cal. Rptr. 3d 790, 795-796
(Ct. App. 2016) (allegedly untimely assignment of a loan into a securitized trust
was merely voidable rather than void, and therefore borrower lacked standing to
challenge its validity); Teselle v. McLoughlin, 92 Cal. Rptr. 3d 696, 715 (Ct. App.
2009) (elements of an accounting cause of action under California law).
The district court properly dismissed the Meskimens’ cancellation of
instruments and misrepresentation claims based on the allegedly void assignment.
See Saterbak, 199 Cal. Rptr. 3d at 795-796; Thompson v. Ioane, 218 Cal. Rptr. 3d
501, 512 (Ct. App. 2017) (setting forth elements of cancellation of instruments
claim under California law); Wilhelm v. Pray, Price, Williams & Russell, 231 Cal.

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Rptr. 355, 357-358 (Ct. App. 1986) (setting forth elements of fraud or
misrepresentation claim under California law).
The district court properly dismissed the Meskimens’ unfair competition
claim because the Meskimens failed to allege facts sufficient to show that
defendants engaged in business acts that were independently unlawful, unfair or
fraudulent. See Cal. Bus. & Prof. Code § 17200 (prohibiting “any unlawful, unfair
or fraudulent business acts”).
The district court properly dismissed the Meskimens’ intentional infliction
of emotional distress claim because the Meskimens failed to allege facts sufficient
to show that defendants’ conduct was extreme and outrageous. See Potter v.
Firestone Tire & Rubber Co., 863 P.2d 795, 819 (Cal. 1993) (discussing elements
of an intentional infliction of emotional distress claim under California law).
Dismissal of the Meskimens’ RESPA claim concerning defendant Bank of
America Home Loan’s failure to respond or inadequate response to the
Meskimens’ Qualified Written Request (“QWR”) was proper because the
Meskimens failed to allege facts sufficient to state a plausible claim for relief. See
12 U.S.C. § 2605(e)(1)(B) (setting forth requirements for a QWR); Hebbe v. Pliler,
627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are liberally
construed, a plaintiff must allege facts sufficient to state a plausible claim).
The district court did not abuse its discretion by denying the Meskimens

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further leave to amend because amendment would be futile. See Chodos v. West
Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (setting forth standard of review
and noting that a district court’s discretion is particularly broad when it has already
granted leave to amend).
We reject as without merit the Meskimens’ contention that the district court
judge was biased.
We do not consider matters raised for the first time on appeal, or matters not
specifically and distinctly raised and argued in the opening brief. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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