Deborah Barefield, as administrator of the Estate of Thomas W. Hatch v. Hsbc Holdings, Plc;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBORAH BAREFIELD, as administrator
of the Estate of Thomas W. Hatch,
Plaintiff-Appellant,
v.
HSBC HOLDINGS, PLC; et al.,
Defendants-Appellees.
No. 19-16324
D.C. No. 1:18-cv-00527-LJO-JLT
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Deborah Barefield appeals pro se from the district court’s order dismissing
her action alleging federal and state law claims arising out of foreclosure
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
the existence of subject matter jurisdiction and a dismissal under Federal Rule of
* 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
JAN 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Civil Procedure 12(b)(6) for failure to state a claim. Naffe v. Frey, 789 F.3d 1030,
1035 (9th Cir. 2015). We affirm.
The district court properly denied Barefield’s May 15, 2018 motion to
remand the action to state court because the district court had subject matter
jurisdiction under 28 U.S.C. §§ 1331 and 1332, and the action was properly
removed under 28 U.S.C. § 1441. See Rivet v. Regions Bank of La., 522 U.S. 470,
475 (1998) (to establish jurisdiction under § 1331, a federal question must be
“presented on the face of the plaintiff’s properly pleaded complaint” (citation and
internal quotation marks omitted)); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68
(1996) (requirements for diversity jurisdiction under § 1332).
The district court properly denied Barefield’s October 24, 2018 motion to
remand the action to state court because the district court continued to have
diversity jurisdiction. See Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 757
(9th Cir. 1999) (“[D]iversity jurisdiction is determined at the time the action
commences, and a federal court is not divested of jurisdiction if . . . the amount in
controversy subsequently drops below the minimum jurisdictional level.” (citation
omitted)).
The district court properly dismissed Barefield’s claims against Caliber
Home Loans, Inc. and Summit Management Company, LLC (erroneously sued as
Summit Property Management, Inc.) (“Caliber Defendants”) as well as HSBC

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Mortgage Services Inc. (erroneously sued as HSBC Holdings, PLC) because
Barefield failed to allege facts sufficient to state a plausible claim. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face” (citation and internal quotation marks omitted)); see also Fed. R. Civ.
P. 9(b) (claims for fraud must be pleaded with particularity); Cal. Civ. Code
§ 882.020(a)(1) (security instrument is enforceable until 10 years after the final
maturity date “[i]f the final maturity date or the last date fixed for payment of the
debt or performance of the obligations in ascertainable from the recorded evidence
of indebtedness”); Cal. Code. Civ. Proc. § 761.020 (elements of claim for adverse
claim to title); Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1110 (Cal. 2000)
(explaining the nature of a breach of covenant of good faith and fair dealing
claim); Lazar v. Superior Court, 909 P.2d 981, 984 (Cal. 1996) (elements of fraud
under California law); Lona v. Citibank, N.A., 134 Cal. Rptr. 3d 622, 640-42 (Ct.
App. 2011) (explaining the tender requirement and excuses to tender).
The district court properly dismissed Barefield’s laches claim because laches
is an affirmative defense and not a claim. See Golden Gate Water Ski Club v.
County of Contra Costa, 80 Cal. Rptr. 3d 876, 890 (Ct. App. 2008) (“Laches is an
equitable defense based on the principle that those who neglect their rights may be
barred from obtaining relief in equity.” (internal quotation marks omitted)).

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The district court did not abuse its discretion by denying Barefield’s motion
to strike the Caliber Defendants’ answer because the delay was brief and had no
impact on the proceedings, and there was no evidence of bad faith. See Fed. R.
Civ. P. 12(a)(4)(A); McCabe v. Arave, 827 F.2d 634, 639-40 (9th Cir. 1987) (the
district court did not abuse its discretion by denying plaintiffs’ motion for
sanctions for failing to file a timely answer because failure to file was due to
inadvertence).
AFFIRMED.

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