NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEPIDEH CIRINO, an individual, No. 19-55817
Plaintiff-Appellant, D.C. No.
8:18-cv-00409-DOC-JDE
and
THE CIRINO FAMILY TRUST, an MEMORANDUM*
Irrevocable Trust (plaintiff in pro se
personally as well as trustee for the Cirino
Family Trust),
Plaintiff,
v.
OCWEN LOAN SERVICING LLC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted August 6, 2020**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
*
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).
Sepideh Cirino, individually and as trustee of The Cirino Family Trust,
appeals pro se from the district court’s order dismissing with prejudice her second
amended complaint. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the district court’s grant of a motion to dismiss, Edwards v. Marin Park, Inc.,
356 F.3d 1058, 1061 (9th Cir. 2004), and we affirm.
Cirino contends that the district court erred by dismissing all claims in her
second amended complaint and several claims in her first amended complaint with
prejudice because the complaints adequately alleged that the defendants had no
ownership rights in the note secured by a deed of trust on certain real property and,
as a result, had no legal authority to commence a nonjudicial foreclosure on the
property. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc)
(“For claims dismissed with prejudice and without leave to amend, we will not
require that they be repled in a subsequent amended complaint to preserve them for
appeal.”). The district court did not err by concluding the complaints failed to state
causes of action on this theory notwithstanding the conclusory allegations that the
note was discharged in bankruptcy or as a result of the Troubled Asset Relief
Program and that the defendants, as assignees and agents, are not the true holders of
the note. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (explaining claim
must be facially plausible to survive motion to dismiss and court need not accept as
true legal conclusions presented as factual allegations).
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Further, contrary to Cirino’s contention, the district court did not make
impermissible factual findings and instead permissibly evaluated whether the
pleadings contained sufficient factual allegations to plausibly demonstrate the
elements of each asserted claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–
56 (2007) (setting forth plausibility pleading standard); Lee v. City of Los Angeles,
250 F.3d 668, 688–89 (9th Cir. 2001) (recognizing court may consider matters of
public record and documents incorporated by reference in complaint without
converting motion to dismiss into motion for summary judgment); Schwarz v. United
States, 234 F.3d 428, 435 (9th Cir. 2000) (“In reviewing a Rule 12(b)(6) motion . . .
[t]he court need not accept as true . . . allegations that contradict facts that may be
judicially noticed by the court” (internal citations omitted)).
The district court also did not err by dismissing Cirino’s misrepresentation-
based claims predicated on allegedly false statements regarding the amounts owed
on the loan because the second amended complaint failed, at a minimum, to allege
facts plausibly demonstrating detrimental reliance. See, e.g., Philipson & Simon v.
Gulsvig, 154 Cal. App. 4th 347, 363 (2007) (justifiable reliance as an element of
intentional misrepresentation); Fox v. Pollack, 181 Cal. App. 3d 954, 962 (1986)
(justifiable reliance as an element of negligent misrepresentation).
Because Cirino’s demand for accounting was a derivative claim, the district
court did not err by dismissing it after concluding that the second amended complaint
3 19-55817
failed to state any predicate claims. See Duggal v. G.E. Capital Commc’ns Servs.,
Inc., 81 Cal. App. 4th 81, 95 (2000) (“The right to an accounting is derivative and
depends on the validity of a plaintiff’s underlying claims.”).
Finally, the district court did not abuse its discretion in resolving defendants’
requests for judicial notice. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988,
1001 (9th Cir. 2018).
AFFIRMED.
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