                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 23 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


KATHLEEN CALLAN,                                 No. 13-17198

               Plaintiff - Appellant,            D.C. No. 4:12-cv-03563-SBA

 v.
                                                 MEMORANDUM*
NEW YORK COMMUNITY BANK,

               Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                  Saundra B. Armstrong, District Judge, Presiding

                             Submitted March 15, 2016**

Before:        GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.

      Kathleen Callan appeals from the district court’s judgment dismissing her

action alleging state law claims relating to the foreclosure of her property. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal under Federal Rule of Civil Procedure 12(b)(6) on the basis of res

          *
             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).
judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). We affirm.

      The district court properly dismissed Callan’s action as barred by the

doctrine of res judicata because Callan could have raised her claims in her prior

California state court action, which involved the same primary right, the same

parties, and resulted in a final judgment on the merits. See Fed’n of Hillside &

Canyon Ass’ns v. City of Los Angeles, 24 Cal. Rptr. 3d 543, 557 (Ct. App. 2004)

(setting forth elements of res judicata under California law).

      The district court did not abuse its discretion in sua sponte taking judicial

notice of Callan’s complaint, New York Community Bank’s demurrer, and the

resulting judgment in Callan’s state court action and considering these documents

in ruling on the motion to dismiss. See Fed. R. Evid. 201(c), (d) (a court “may take

judicial notice on its own” at any stage of the proceeding); Reyn’s Pasta Bella,

LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (courts “may take

judicial notice of court filings and other matters of public record”); see also

Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012)

(“[A] court may take judicial notice of matters of public record without converting

a motion to dismiss into a motion for summary judgment . . . .” (citation and

internal quotation marks omitted)). Contrary to Callan’s contention, these

documents were not hearsay because they were not offered to prove the truth of the


                                           2                                      13-17198
matter asserted. See United States v. Boulware, 384 F.3d 794, 806 (9th Cir. 2004)

(“A prior judgment is not hearsay . . . to the extent that it is offered as legally

operative verbal conduct that determined the rights and duties of the parties.”).

      We do not consider New York Community Bank’s argument that the district

court did not have supplemental jurisdiction over Callan’s state law claims because

the district court had original jurisdiction over these claims under 28 U.S.C.

§ 1332.

      New York Community Bank’s request for judicial notice, filed on May 9,

2014, is granted.

      AFFIRMED.




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