FILED
NOT FOR PUBLICATION FEB 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP FRANK KENNEDY; DANA No. 11-56557
LYNN KENNEDY,
D.C. No. 3:10-cv-01516-JLS-
Plaintiffs - Appellants, MDD
v.
MEMORANDUM*
LEHMAN BROTHERS BANK, FSB; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Philip Frank Kennedy and Dana Lynn Kennedy appeal pro se from the
district court’s judgment dismissing their action arising out of foreclosure
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, plaintiffs’
request for oral argument is denied.
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
King v. California, 784 F.2d 910, 912 (9th Cir. 1986), and we affirm.
The district court properly dismissed plaintiffs’ claims for wrongful
foreclosure and quiet title because defendants had statutory authority to initiate
non-judicial foreclosure proceedings. See Cal. Civ. Code § 2924(a)(1); see also
Gomes v. Countrywide Home Loans, Inc., 121 Cal. Rptr. 3d 819, 823-24 (Ct. App.
2011) (Cal. Civ. Code § 2924(a)(1) does not allow plaintiffs to bring an action to
determine foreclosure authority). Moreover, plaintiffs failed to allege that they
tendered or satisfied their payment obligations under the deed of trust. See Arnolds
Mgmt. Corp. v. Eischen, 205 Cal. Rptr. 15, 17 (Ct. App. 1984) (“[A]n action to set
aside a trustee’s sale for irregularities in sale notice or procedure should be
accompanied by an offer to pay the full amount of the debt for which the property
was security.”); Aguilar v. Bocci, 114 Cal. Rptr. 91, 92 (Ct. App. 1974) (a
mortgagee cannot quiet title without satisfying his debt). Contrary to plaintiffs’
contention, their offer of performance did not constitute adequate tender. See
Karlsen v. Am. Sav. & Loan Ass’n, 92 Cal. Rptr. 851, 854 (Ct. App. 1971) (“[A]n
offer of performance is of no effect if the person making it is not able to
perform.”).
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The district court properly dismissed plaintiffs’ claims for fraud because
plaintiffs failed to make allegations with the specificity required by Fed. R. Civ. P.
9(b). See Kearns v. Ford Motor Co., 567 F.3d 1120, 1124-25 (9th Cir. 2009).
The district court did not abuse its discretion by dismissing without leave to
amend where amendment would be futile. See Gordon v. City of Oakland, 627
F.3d 1092, 1094 (9th Cir. 2010).
Plaintiffs’ contentions that the foreclosure proceedings violated
constitutional and California Commercial Code provisions lack merit.
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) (per curiam).
AFFIRMED.
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