KATHLEEN ANGEL EISENBERG, AKA Kathleen Angel v. CITIBANK, NA, as Trustee for American Home Mortgage Assets Trust 2006-4 Mortgage…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN ANGEL EISENBERG, AKA
Kathleen Angel,
Plaintiff-Appellant,
v.
CITIBANK, NA, as Trustee for American
Home Mortgage Assets Trust 2006-4
Mortgage Backed Pass-Through Certificates
Series 2006-4; et al.,
Defendants-Appellees.
No. 17-56223
D.C. No.
2:13-cv-01814-CAS-JPR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted September 13, 2019**
Pasadena, California
Before: RAWLINSON, OWENS, and BENNETT, Circuit Judges.
Plaintiff-Appellant Kathleen Eisenberg (“Eisenberg”) appeals (1) the district
court’s grant of Defendants’ motion to dismiss two of her fraud allegations, and (2)
* 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
SEP 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the district court’s entry of summary judgment for Defendants on Eisenberg’s
remaining claims.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
In July 2006, Eisenberg took out a $2 million loan (“the loan”), secured by a
deed of trust, to purchase her multi-million dollar home. As part of the loan, she
signed an adjustable rate rider explaining that the low “teaser” interest rate would
only stay in effect through the end of the month, after which it would rise
substantially. In 2011, Eisenberg defaulted on the loan. In August 2012, she and
Defendant Homeward Residential executed a forbearance agreement requiring her
to make three forbearance payments, after which Defendants “shall consider the
Borrower and Loan for any available and appropriate foreclosure prevention option
. . . in accordance with Lender’s then current policies and procedures.” Eisenberg
made two out of the three forbearance payments, but never tendered the third.
Defendants offered Eisenberg a loan modification, but she rejected the offer.
First, we affirm the district court’s dismissal of Eisenberg’s rescission and
UCL claims because they are time-barred. Under California law, a four-year statute
of limitations governs both the rescission and UCL claims. Cal. Civ. Proc. Code
§ 337 (governing rescissions of written contracts); Cal. Bus. & Prof. Code § 17208
(governing UCL claims). Since both of Eisenberg’s claims pertain to allegedly false
1 We refer to Defendants Citibank, Homeward Residential, and Power
Default Services, Inc. collectively as “Defendants.”

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or misleading statements made in July 2006 when Eisenberg first took out the loan,
the limitations period ran in 2010. Eisenberg did not file her complaint until 2013.
Eisenberg claims that the “delayed discovery rule” should apply because she
did not understand the loan documents until she retained an attorney. Under the
discovery rule, a statute of limitations does not begin to run until “plaintiffs have
reason to at least suspect that a type of wrongdoing has injured them.” Fox v.
Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920 (Cal. 2005). The limitations period
begins when a plaintiff has constructive notice of her injury: “[P]laintiffs are
charged with presumptive knowledge of an injury if they have information of
circumstances to put them on inquiry or if they have the opportunity to obtain
knowledge from sources open to their investigation.” Id. (quotation marks,
alterations, and emphases omitted). Eisenberg had all the necessary information
related to her claims when she signed the loan paperwork at the end of July 2006.
Even if the court credits her assertion that she did not read or understand the
documents, the documents put her on constructive notice. Thus, the discovery rule
does not apply, and Eisenberg’s rescission and UCL claims are time-barred.
Second, the district court did not abuse its discretion by denying Eisenberg
leave to amend her complaint. “A district court abuses its discretion by denying
leave to amend unless amendment would be futile or the plaintiff has failed to cure
the complaint’s deficiencies despite repeated opportunities.” AE ex rel. Hernandez

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v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012).
The district court did not initially deny Eisenberg leave to amend. After
granting Defendants’ motion to dismiss the rescission and UCL claims, the district
court gave her twenty days to file an amended complaint. But Eisenberg missed the
deadline. District courts may—at their discretion—extend filing deadlines for
excusable neglect, “taking account of all relevant circumstances surrounding the
party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 395 (1993). We have noted that when a district court weighs the equities
and declines to allow a late filing, we will be “hard pressed to find any rationale
requiring us to reverse.” Pincay v. Andrews, 389 F.3d 853, 859 (9th Cir. 2004) (en
banc). Eisenberg’s counsel discovered his mistake just days after the deadline
passed, but he took no action for over a month. The district court did not abuse its
discretion in finding counsel’s neglect inexcusable and denying leave to file the late
amended complaint.
Finally, we affirm the district court’s decision granting summary judgment on
Eisenberg’s breach-of-contract claim and the related claim for declaratory relief.
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The non-moving party “must set forth specific facts showing that there is
a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Courts make only reasonable inferences, not every conceivable one, so there must
be “sufficient probative evidence which would permit a finding in favor of the
opposing party based on more than mere speculation, conjecture, or fantasy.”
Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 681 (9th Cir. 1985).
Eisenberg argues that Defendants breached the forbearance agreement
because they did not “consider” her for a loan modification. But Eisenberg concedes
that Defendants “reviewed” her for a loan modification and that they, in fact, offered
her one. She provided no information from which a jury could conclude that
Defendants breached the forbearance agreement or that their offer of a loan
modification was not in accordance with their policies and procedures.
Contrary to Eisenberg’s assertion, Defendants need not prove a negative.
Eisenberg had the burden of showing a genuine dispute of material fact: “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48.
Eisenberg did not meet her burden.
AFFIRMED.

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