                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 23 2015

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



                            FOR THE NINTH CIRCUIT


GABRIEL LUCIAN ROMAN,                            No. 13-55480

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00437-PSG-SH

 v.
                                                 MEMORANDUM*
LOS ANGELES COUNTY
DEPARTMENT OF PUBLIC SOCIAL
SERVICES, Erroneously Sued As County
of Los Angeles and STATE OF
CALIFORNIA DEPARTMENT OF
SOCIAL SERVICES, Erroneously Sued
As California Department of Social
Services,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                             Submitted June 1, 2015**
                               Pasadena, California



        *
             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).
Before: FERNANDEZ and BEA, Circuit Judges and MARQUEZ,*** District
Judge.

      Gabriel Lucian Roman received benefits from Los Angeles County’s

Department of Public Social Services (“DPSS”) starting in 2004. In 2010, DPSS

determined that he was no longer eligible to receive one portion of his benefits.

Roman filed a Complaint against DPSS and the California Department of Social

Services (“DSS”) alleging that the agencies committed fraud in terminating his

benefits and terminated his benefits because he was disabled. On March 12, 2013,

the district court granted summary judgment after finding, inter alia, that Roman

failed to present any evidence that raised a genuine issue of material fact on

required elements of both his disability discrimination and fraud claims.

      The only evidence presented to demonstrate discriminatory intent was his

caregiver’s statement that a social worker told her Roman’s case was reviewed for

eligibility because the benefits he received “are costing the program the most.”

Putting aside the requirement that evidence considered at the summary judgment

stage be admissible at trial, see Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773

(9th Cir. 2002), the substance of this statement indicates that DPSS’s intent was to

review the continued eligibility of recipients whose benefits cost the County the

        ***
             The Honorable Rosemary Marquez, District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.

                                          2
most money, not to review recipients who were disabled. This is not sufficient to

withstand a summary judgment challenge. See Weinreich v. Los Angeles Cnty.

Metro. Transp. Auth., 114 F.3d 976, 978-79 (9th Cir. 1997).

       As for Roman’s claims of fraud, he similarly failed to offer evidence that

created a triable issue of fact on the necessary elements. Fraud requires proof of

(1) a misrepresentation; (2) the defendant’s knowledge of the statement’s falsity;

(3) the intent to defraud, i.e. the intent to induce reliance; (4) justifiable reliance;

and (5) damages resulting from the justifiable reliance. Vess v. Ciba-Geigy Corp.,

USA, 317 F.3d 1097, 1105-06 (9th Cir. 2003). As the district court rightly noted,

Roman must have established that there were triable issues of fact as to each

element. In re Brazier Forest Prods., Inc., 921 F.2d 221, 223 (9th Cir. 1990)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Roman claimed

DPSS and DSS defrauded him because a DPSS employee made an incorrect

statement regarding the contents and completeness of Roman’s file. However,

Roman offered no evidence that the employee knew his statement was false or that

he intended to defraud Roman. Accordingly, the district court was correct to grant

summary judgment on this claim.




                                             3
      AFFIRMED.1




      1
             Because we find that Roman failed to offer evidence to support his
substantive claims of unlawful disability discrimination and fraud, we need not
address whether DSS can be liable for DPSS’s conduct. Similarly, we need not
consider the documents Roman provided in his Motion Requesting Judicial Notice,
and therefore decline to do so. Roman’s Motion is DENIED.

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