Capitol West Appraisals Llc, on behalf of itself and all others similarly situated v. Countrywide Financial Corp;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAPITOL WEST APPRAISALS LLC, on
behalf of itself and all others similarly
situated,
Plaintiff - Appellant,
v.
COUNTRYWIDE FINANCIAL CORP; et
al.,
Defendants - Appellees.
No. 10-35984
D.C. No. 2:08-cv-01520-RAJ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued September 1, 2011
Submitted February 1, 2012
Seattle, Washington
Before: HAWKINS, BEA, and MURGUIA, Circuit Judges.
Capitol West Appraisals, on behalf of itself and all others similarly situated,
appeals the district court’s Rule 12(b)(6) dismissal of this diversity action brought
FILED
FEB 03 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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under the Class Action Fairness Act of 2005. Because the facts and procedural
history are familiar to the parties, we do not recite them here except as necessary to
explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The California common-law duty to provide fair procedures applies when
(1) a significant public interest is affected, and (2) the private company is a
“gatekeeper,” in that it possesses substantial power such that its conduct
“significantly impairs the ability of an ordinary, competent” worker to practice the
trade “in a particular geographic area, thereby affecting an important, substantial
economic interest.” Potvin v. Metro. Life Ins. Co., 997 P.2d 1153, 1160 (Cal.
2000).
We need not decide whether Countrywide’s maintenance of the
Unacceptable Vendor List (“UVL”) implicates a significant public interest,
because the Second Amended Complaint (“SAC”) does not sufficiently allege that
Countrywide is a “gatekeeper” to performing appraisal services in Idaho. The
SAC alleges only that Countrywide is the largest originator of residential home
loans nationally, and contains no allegations specific to Idaho. Indeed, the SAC
admits that both Wade Massey and Capitol West continue to perform appraisal
services despite Massey’s presence on the UVL.
In addition, the SAC fails to allege that Massey’s presence on the UVL
affected an “important, substantial economic interest.” Capitol West alleges only a

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monetary loss, with no context as to what portion of its overall business this loss
represented. Therefore, Capitol West alleges insufficient facts to support applying
the duty of fair procedures to Countrywide.
With respect to the California common-law tort of intentional interference
with prospective economic advantage, the SAC fails to plead Countrywide’s
knowledge of an economic relationship between Capitol West and a third party, a
required element. See Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937,
950 (Cal. 2003). The SAC merely states that Countrywide had knowledge of
economic relationships between Capitol West and mortgage brokers and lenders
without any further specific allegations. These conclusory statements are not
entitled to the presumption of truth, and are insufficient to plead Countrywide’s
knowledge. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009).
“In deciding whether justice requires granting leave to amend, factors to be
considered include the presence or absence of undue delay, bad faith, dilatory
motive, repeated failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party and futility of the proposed amendment.” Moore v.
Kayport Package Exp. Inc., 885 F.2d 531, 538 (9th Cir. 1989). Capitol West failed
even to request the opportunity to amend its complaint below, and did so here only
in its reply brief.
AFFIRMED.

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