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NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`DEC 6 2023
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`
`
`
` Debtor,
`
`No. 23-55005
`
`
`D.C. No. 8:22-cv-01087-MWF
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`
`
`MEMORANDUM*
`
`
`In the Matter of: ROBERT A. FERRANTE,
`
`
`
`
`------------------------------
`
`
`NANCY KLEIN, Trustee of the Seay
`Intervivos Trust,
`
`
`
` v.
`
`
`THOMAS H. CASEY, Chapter 7 Trustee,
`
`
`
`
`
`
`
`
`
` Appellant,
`
`
`
`
`
`
`
` Appellee.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Michael W. Fitzgerald, District Judge, Presiding
`
`Submitted December 4, 2023**
`Pasadena, California
`
`Before: WARDLAW and BUMATAY, Circuit Judges, and BENCIVENGO,***
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
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`** The panel unanimously concludes this case is suitable for decision
`
`
`without oral argument. See Fed. R. App. P. 34(a)(2).
`
`
`
`
`
`
`
`
`
`

`

`District Judge.
`
`
`
`Nancy Klein Seay (“Klein”), successor in interest to Decedent William L.
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`Seay’s judgment lien against Debtor Robert A. Ferrante, appeals the district court’s
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`affirmance of the bankruptcy court’s dismissal of her Second Amended Complaint
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`(“SAC”) seeking rescission of the 2014 “carve out” agreement between Decedent
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`and Trustee (the “Agreement”). We have jurisdiction under 28 U.S.C. § 158(d) and
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`28 U.S.C. § 1291.
`
`We “independently review the bankruptcy court’s decision and do not give
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`deference to the district court’s determinations.” Saxman v. Educ. Credit Mgmt.
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`Corp. (In re Saxman), 325 F.3d 1168, 1172 (9th Cir. 2003). A bankruptcy court’s
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`Rule 12(b)(6) dismissal of an adversary proceeding for failure to state a claim is
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`reviewed de novo. Rund v. Bank of Am., N.A. (In re EPD Inv. Co., LLC), 523 B.R.
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`680, 684 (B.A.P. 9th Cir. 2015). We affirm.
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`1.
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`The bankruptcy court did not err by declining to convert the motion to
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`dismiss into a motion for summary judgment. Typically, when a court takes judicial
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`notice of facts, the motion to dismiss “shall be treated as one for summary
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`judgment.” Fed. R. Civ. P. 12(b)(6) advisory committee’s note. There are, however,
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`two exceptions to this rule. First, “a court may consider material which is properly
`
`
`*** The Honorable Cathy Ann Bencivengo, United States District Judge
`
`
`for the Southern District of California, sitting by designation.
`
`
`
`2
`
`
`
`

`

`submitted as part of the complaint on a motion to dismiss.” Lee v. City of Los
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`Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation and internal quotation marks
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`omitted). These documents can be considered even if they are “not physically
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`attached to the complaint” so long as their “authenticity is not contested and the
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`plaintiff’s complaint necessarily relies on them.” Id. (citation and internal quotation
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`marks omitted). Second, a court may take judicial notice of matters of public record.
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`Id. at 689.
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`The documents at issue fall under both exceptions. The documents were a
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`matter of public record, and they were submitted to the bankruptcy court in support
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`of the Agreement. Klein also relied on these documents in her SAC and does not
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`contest their authenticity.
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`2. We affirm the grant of the motion to dismiss. To survive a motion to
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`dismiss, a complaint must provide “sufficient factual matter, accepted as true, to
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`‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
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`678 (2009) (citation omitted). The SAC did not allege facts sufficient to state a claim
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`for rescission of the contract, money had and received, or declaratory judgment.
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`Klein supports her rescission claim with five arguments: (1) duress, menace,
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`or undue influence; (2) fraud; (3) failure of consideration; (4) mistake of material
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`fact and law; and (5) public policy. First, Klein is judicially estopped from claiming
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`that the Agreement resulted from duress, menace, or undue influence. Klein’s
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`
`
`3
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`
`
`

`

`current position contradicts the position taken in bankruptcy court, when Decedent
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`sought to have the Agreement approved. In bankruptcy court, Decedent’s counsel
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`represented that negotiations were heated, but that the Agreement was ultimately
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`“fair to all parties,” and the bankruptcy court relied on those representations. See
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`New Hampshire v. Maine, 532 U.S. 742, 749–51 (2001). Second, Klein failed to
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`plead her fraud allegations with sufficient particularity. See Fed. R. Civ. P. 9(b).
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`While Klein generally alleges misrepresentations by Trustee, she does not specify
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`any particular false statements. Third, Klein’s failure of consideration argument also
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`fails. To succeed, she would need to show that consideration either failed in a
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`“material respect . . . before it is rendered,” or that it failed due to the “fault of the
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`party not rescinding or parties not equally at fault.” Koenig v. Warner Unified Sch.
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`Dist., 41 Cal. App. 5th 43, 59 (2019) (simplified). Here, Trustee’s abandonment of
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`the adversary proceedings was expressly contemplated in the Agreement, and
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`Decedent received consideration from Trustee’s agreement not to challenge the lien.
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`Fourth, Klein’s mistake of law claim also fails. During negotiations, Klein and
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`Decedent were represented by counsel, and they understood that there were legal
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`and factual uncertainties when entering into the Agreement. Finally, Klein identifies
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`no public policy that the Agreement cuts against. She argues that the Agreement
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`was made “to benefit the trustee and his lawyers only,” but such an argument is not
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`a basis to rescind the Agreement on public policy grounds. Cf. Hoffman v. Lloyd,
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`
`
`4
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`
`
`

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`572 F.3d 999, 1001–03 (9th Cir. 2009). The bankruptcy court properly dismissed
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`Klein’s rescission claim.
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`The money had and received and declaratory judgment claims also fail. Both
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`claims turn on the success of Klein’s unilateral rescission claim. See SAC ¶¶ 96,
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`100. Because we affirm the dismissal of the unilateral rescission claim, we also
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`affirm the dismissal of these two claims.
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`AFFIRMED.
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`
`
`5
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`
`
`

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