Steven Lucore, Sr. v. Deutsche Bank National Trust C

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2020
• Docket: 19-55365
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEVEN HARRY LUCORE, Sr.; JUDY No. 19-55365 LYNNE LUCORE, D.C. No. 3:17-cv-02452-DMS- Plaintiffs-Appellants, BLM

v. MEMORANDUM* DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee for the Holders of New Century Home Equity Loan Trust, Series 2005-A, Asset Backed Pass-Through Certificates; et al.,

Defendants-Appellees,

and

FIRST LEGAL INVESTIGATIONS; R.T. HANSELL,

Defendants.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding

Submitted November 9, 2020**

* 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). Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Steven Harry Lucore, Sr. and Judy Lynne Lucore appeal pro se from the

district court’s judgment dismissing their action alleging federal and state law

claims arising from appellees Deutsche Bank National Trust Company and Bank of

America, N.A.’s counterclaim against the Lucores filed in another lawsuit. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Kwan v.

SanMedica Int’l, 854 F.3d 1088, 1093 (9th Cir. 2017). We affirm.

The district court properly dismissed the Lucores’ malicious prosecution

claim because the Lucores failed to allege facts sufficient to show the counterclaim

was brought against them without probable cause. See Parrish v. Latham &

Watkins, 400 P.3d 1, 7 (Cal. 2017) (elements of a malicious prosecution claim);

Jarrow Formulas, Inc. v. LaMarche, 74 P.3d 747, 742 (2003) (probable cause for

bringing a claim exists “if, at the time the claim was filed, any reasonable attorney

would have thought the claim is tenable” (citation and internal quotation marks

omitted)).

We do not consider 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).

Appellees’ motion to strike Mr. Lucore’s declaration (Docket Entry No. 10)

is granted because the declaration was not presented to the district court. See

2 19-55365 Barcamerica Int'l USA Trust v. Tyfield Importers, Inc., 289 F.3d 589, 595 (9th Cir.

2002) (granting motion to strike documents, including deposition transcript, that

were not part of the record before the district court).

Appellees’ motion to strike the opening brief filed by Mrs. Lucore and to

dismiss her appeal for lack of subject matter jurisdiction (Docket Entry No. 12) is

denied. See Fed. R. App. P. 3(c)(2) (“A pro se notice of appeal is considered filed

on behalf of the signer and the signer’s spouse . . . (if they are parties), unless the

notice clearly indicates otherwise.”).

All other requests are denied.

AFFIRMED.

3 19-55365