NOT FOR PUBLICATION FILED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