NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 12 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUDENA JAMES; MERCEDES GREEN, Nos. 19-55514 19-55544 Plaintiffs-Appellants, D.C. No. 5:18-cv-01762-RGK-SP

v. MEMORANDUM*

U.S. BANCORP, a business entity, form unknown,

Defendant,

and

KATHY SANDOVAL, an Individual; et al.,

Defendants-Appellees.

Appeals from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Submitted August 5, 2020**

Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes these cases are suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Hudena James and Mercedes Green appeal pro se from the district court’s

order dismissing their 42 U.S.C. § 1981 action alleging discrimination and state

law claims arising out of the denial of plaintiffs’ request to open a bank account.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Cervantes

v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040 (9th Cir. 2011). We affirm

in part, reverse in part, and remand.

The district court properly dismissed plaintiffs’ claim for intentional

infliction of emotional distress (“IIED”) because plaintiffs failed to allege facts

sufficient to show that defendants’ actions were outrageous. See Hughes v. Pair,

209 P.3d 963, 976 (Cal. 2009) (elements of an IIED claim).

The district court properly dismissed plaintiffs’ claim for negligent infliction

of emotional distress (“NIED”) because plaintiffs failed to allege facts sufficient to

show that defendants owed a duty to plaintiffs. See McMahon v. Craig, 97 Cal.

Rptr. 3d 555, 560-61 (Ct. App. 2009) (elements of NIED claim).

The district court properly dismissed plaintiffs’ claim for negligent

supervision or retention of an employee because plaintiffs failed to allege facts

sufficient to show that defendants knew or should have known that their hiring

decisions were negligent. See Delfino v. Agilent Techs., Inc., 52 Cal. Rptr. 3d 376,

397 (Ct. App. 2006) (elements of negligent supervision or retention).

2 19-55514 19-55544 The district court did not abuse its discretion by denying leave to amend

plaintiffs’ claims for IIED, NIED and negligent supervision or retention of an

employee because amendment would have been futile. See Cervantes, 656 F.3d at

1041 (setting forth standard of review and explaining that denial of leave to amend

is proper when amendment would be futile).

The district court dismissed plaintiffs’ claims under § 1981 and California’s

Unruh Act for failure to state a claim. However, plaintiffs’ allegations, liberally

construed, were sufficient to show intentional discrimination. See Starr v. Baca,

652 F.3d 1202, 1216-17 (9th Cir. 2011) (“If there are two alternative explanations,

one advanced by defendant and the other advanced by plaintiff, both of which are

plausible, plaintiff’s complaint survives a motion to dismiss under Rule

12(b)(6).”); Lindsey v. SLT L.A., LLC, 447 F.3d 1138, 1145 (9th Cir. 2006)

(elements of § 1981 claim in a commercial, non-employment context); Munson v.

Del Taco, Inc., 94 Cal. Rptr. 3d 685, 692-93 (Ct. App. 2009) (to state a claim

under the Unruh Act premised on racial discrimination, a plaintiff must plead

intentional discrimination). We reverse the judgment as to the district court’s

dismissal of plaintiffs’ claims under § 1981 and California’s Unruh Act, and

remand for further proceedings as to those claims only.

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

3 19-55514 19-55544 appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We do not consider facts not presented to the district court. See United

States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

Plaintiffs’ request for judicial notice, set forth in the opening brief, is denied.

The parties shall bear their own costs on appeal.

AFFIRMED in part; REVERSED in part, and REMANDED.

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