NOT FOR PUBLICATION FILED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