PATRICE EDWARDS V. CINELOU FILMS, No. 16-56043 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 17 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT PATRICE EDWARDS, U.S. COURT OF APPEALS No. 16-56043 Plaintiff-Appellant, D.C. No. 2:16-cv-01014-ODWAGR v. MEMORANDUM* CINELOU FILMS; et al., Defendants-Appellees. Appeal from the United States District Court for the Central District of California Otis D. Wright, II, District Judge, Presiding Submitted August 9, 2017** Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges. Patrice Edwards appeals pro se from the district court’s judgment dismissing her copyright action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Edwards’s request for oral argument, set forth in her opening brief, is denied. The district court properly dismissed Edwards’s copyright infringement action because, as a matter of law, Edwards’s works titled “Witch” and defendants’ film The Last Witch Hunter are not substantially similar under the extrinsic test. See Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 624 (9th Cir. 2010) (setting forth the extrinsic test to assess substantial similarity between specific expressive elements of copyrighted works, such as plot, sequence of events, themes, mood, setting, pace, and characters); Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076-78 (9th Cir. 2006) (substantial similarity may be decided as a matter of law by applying the extrinsic test). We do not consider matters not properly raised before the district court. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Defendants’ request for judicial notice (Docket Entry No. 13) is denied. AFFIRMED. 2 16-56043

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