NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`OCT 18 2019
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 17-55467
`
`
`D.C. No.
`2:16-cv-04610-MWF-PLA
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`KRISTINE ANN BISTILINE,
`
`
`
` v.
`
`
`JPMORGAN CHASE BANK, N.A., a
`California Corporation; et al.,
`
`
`
`
`
`
`
`
`
` Defendants-Appellees.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Michael W. Fitzgerald, District Judge, Presiding
`
`Submitted October 16, 2019**
`San Diego, California
`
`Before: HURWITZ, OWENS, and LEE, Circuit Judges.
`
`
`Kristine Ann Bistline1 appeals the district court’s judgment dismissing her
`
`claims related to the foreclosure proceeding against her home. We have jurisdiction
`
`
`*
` 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).
`
`
`1
`Though the caption reads “Kristine Bistiline,” the appellant’s name is
`“Kristine Bistline,” as indicated by the district court documents.
`
`
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`OCT 18 2019
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 17-55467
`
`
`D.C. No.
`2:16-cv-04610-MWF-PLA
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`KRISTINE ANN BISTILINE,
`
`
`
` v.
`
`
`JPMORGAN CHASE BANK, N.A., a
`California Corporation; et al.,
`
`
`
`
`
`
`
`
`
` Defendants-Appellees.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Michael W. Fitzgerald, District Judge, Presiding
`
`Submitted October 16, 2019**
`San Diego, California
`
`Before: HURWITZ, OWENS, and LEE, Circuit Judges.
`
`
`Kristine Ann Bistline1 appeals the district court’s judgment dismissing her
`
`claims related to the foreclosure proceeding against her home. We have jurisdiction
`
`
`*
` 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).
`
`
`1
`Though the caption reads “Kristine Bistiline,” the appellant’s name is
`“Kristine Bistline,” as indicated by the district court documents.
`
`
`
`
`
`
`
`
`
`under 28 U.S.C. § 1291, and we review de novo the district court’s dismissal under
`
`Federal Rule of Civil Procedure 12(b)(6). See Dougherty v. City of Covina, 654 F.3d
`
`892, 897 (9th Cir. 2011). We AFFIRM.2
`
`1.
`
`The district court did not err in concluding that Bistline lacked standing
`
`under California law to challenge the validity of assignments of the beneficial
`
`interest in her deed of trust in a pre-foreclosure action.
`
`Contrary to Bistline’s arguments, the California Supreme Court in Yvanova v.
`
`New Century Mortgage Corp. expressly limited its holding to post-foreclosure sale
`
`situations only. 365 P.3d 845, 848 (Cal. 2016) (“We do not hold or suggest that a
`
`borrower may attempt to preempt a threatened nonjudicial foreclosure by a suit
`
`questioning the foreclosing party’s right to proceed.”); see also id. at 855
`
`(“disallowing the use of a lawsuit to preempt a nonjudicial foreclosure, is not within
`
`the scope of our review, which is limited to a borrower’s standing to challenge an
`
`assignment in an action seeking remedies for wrongful foreclosure” (emphasis in
`
`original)).
`
`The California Court of Appeal has refused to extend Yvanova to pre-
`
`foreclosure cases. See, e.g., Saterbak v. JPMorgan Chase Bank, N.A., 245 Cal. App.
`
`4th 808, 815 (2016). Because “there is no convincing evidence that the state
`
`
`2
`This disposition does not address claims against Ditech Financial LLC
`or Ditech’s motion for judicial notice. The appeal as to Ditech has been closed for
`administrative purposes because it has filed for bankruptcy.
`
`
`
`2
`
`
`
`
`
`supreme court would decide differently, a federal court is obligated to follow the
`
`decisions of the state’s intermediate appellate courts.” Vestar Dev. II, LLC v. Gen.
`
`Dynamics Corp., 249 F.3d 958, 960 (9th Cir. 2001) (quoting Lewis v. Tel. Emps.
`
`Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996)). 3
`
`2.
`
`The district court also properly dismissed Bistline’s claim for slander
`
`of title based on the defendants-appellees’ recordations of the beneficial interest
`
`assignments. The recordation of assignments is covered by the litigation privilege
`
`in California Civil Code Section 2924(d), which states that “[p]erformance of the
`
`procedures set forth in this article” “shall constitute privileged communications
`
`pursuant to Section 47.” Although this privilege might not apply if a party acted
`
`with malice, Schep v. Capital One, N.A., 12 Cal. App. 5th 1331, 1337 (2017),
`
`Bistline did not plausibly allege malice.
`
`3.
`
`Bistline argues that the district court improperly dismissed her
`
`complaint without leave to amend because she could have added a claim under the
`
`Fair Debt Collection Practices Act. But Bistline did not raise this issue below, nor
`
`did she present new facts or explain why she had failed to include the new claim in
`
`her earlier complaints. The district court therefore did not abuse its discretion in
`
`
`3 We need not consider Bistline’s argument that California Civil Code
`Section 2924.17 allows for a pre-foreclosure action because she did not raise the
`assignments as a basis for a violation of that provision in the district court. See
`Baccei v. United States., 632 F.3d 1140, 1149 (9th Cir. 2011).
`
`
`
`
`3
`
`
`
`
`
`dismissing without leave to amend. See Westlands Water Dist. v. Firebaugh Canal,
`
`10 F.3d 667, 677 (9th Cir. 1993).
`
`4.
`
`Finally, Bistline moves the Court to take judicial notice of the fact that
`
`a foreclosure allegedly occurred, proffering a letter from her own trial attorney. We
`
`deny the motion. See Fed. R. Evid. 201 (allowing judicial notice of facts that can be
`
`determined from sources “whose accuracy cannot reasonably be questioned”).
`
`Moreover, the documents do not show beyond a reasonable dispute that a foreclosure
`
`occurred. ECF No. 66 (letter noting that the foreclosure notice “had been ‘canceled’
`
`by Freddie Mac” and that “if Freddie Mac decides to restart the process you will
`
`contact me”).
`
`AFFIRMED.
`
`
`
`4
`
`
`
`
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