Steven Lucore, Sr. v. U.S. Bank, N.A.

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 18, 2020
• Docket: 19-55315
• Status: Unpublished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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 18 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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. 19-55315 LYNNE LUCORE, D.C. No. 3:15-cv-02246-JLS-MDD Plaintiffs-Appellants,

v. MEMORANDUM*

U.S. BANK, N.A., as Trustee for the Certificate Holders of Bank of America Funding Corporation Mortgage Pass- Through Certificates, Series 2006-H; BANK OF AMERICA, NA,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

Submitted November 9, 2020**

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 diversity action alleging state law claims

* 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). arising from a foreclosure sale on their real property. We have jurisdiction under

28 U.S.C. § 1291. We review de novo a district court’s dismissal based on res

judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). We affirm.

The district court properly dismissed the Lucores’ California Rosenthal Fair

Debt Collection Practices Act (“RFDCPA”) claim as barred by res judicata

because this claim was based on the same primary right asserted in a prior state

court action and all other elements for the application of res judicata were met. See

Manufactured Home Cmtys., Inc. v. City of San Jose, 420 F.3d 1022, 1031 (9th

Cir. 2005) (“To determine the preclusive effect of a state court judgment federal

courts look to state law.”); Boeken v. Philip Morris USA, Inc., 230 P.3d 342, 348

(Cal. 2010) (elements of res judicata under California law).

The district court did not abuse its discretion in denying leave to amend the

RFDCPA claim because amendment would have been futile. See

AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 949, 951 (9th Cir.

2006) (setting forth standard of review and explaining that leave to amend can be

denied if amendment would be futile).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); see also

Nat’l Wildlife Fed’n v. Burlington N. R.R., 23 F.3d 1508, 1511 n.5 (9th Cir. 1994)

2 19-55315 (“Facts not presented to the district court are not part of the record on appeal.”).

The Lucores’ request for judicial notice (Docket Entry No. 8) is denied as

unnecessary.

AFFIRMED.

3 19-55315