                                                                               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                            NOT FOR PUBLICATION                                FEB 19 2013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.”).




                                           2                                      11-56557
      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.




                                           3                                      11-56557
