Filed 7/19/16 Kling v. Bank of America CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MARIA D. KLING,

         Plaintiff and Appellant,                                       E063835

v.                                                                      (Super.Ct.No. CIVDS1417120)

BANK OF AMERICA, N.A., as                                               OPINION
Successor, etc.,

         Defendant and Respondent.



         APPEAL from the Superior Court of San Bernardino County. Keith D. Davis,

Judge. Affirmed.

         Maria D. Kling, in pro. per., for Plaintiff and Appellant.

         Severson & Werson, Jan T. Chilton and Kerry W. Franich for Defendant and

Respondent.

         Plaintiff and appellant, Maria D. Kling, formerly Maria D. Angelo, sued defendant

and respondent Bank of America, N.A. (BANA) to quiet title to property located on

Glendale Avenue in Hesperia (Property). The trial court granted BANA’s motion for

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judgment on the pleadings on the ground the action was barred by res judicata due to the

prior federal court judgment entered against Kling and in favor of BANA. We conclude

the res judicata issue is dispositive and affirm the judgment.

                   I. PROCEDURAL BACKGROUND AND FACTS

       In December 2006, Kling obtained a loan from Countrywide Bank, N.A., secured

by a deed of trust encumbering the Property. The deed of trust was later assigned to

BANA.

       On April 16, 2013, Kling filed an action in the United States District Court for the

Central District of California, case No. 2:13-cv-02648-DSF-CW, against BANA as

successor in interest to Countrywide Bank, N.A. and Wells Fargo Bank, as Trustee for

Harborview Mortgage Loan Trust 2007-1, Mortgage Pass-through Certificates Series

2007-1. Kling alleged that there was no enforceable deed of trust on the Property, that

defendants had no interest in the loan, securitization of her loan somehow rendered it

unenforceable; and that she did not have to pay on the deeds that form the basis of this

action. BANA successfully moved for summary judgment. The federal district court

noted that BANA “provided evidence that it had an interest in the note and the authority

to foreclose.” Judgment was entered in BANA’s favor on July 8, 2014. Kling did not

appeal.

       Four months later, on November 14, 2014, Kling initiated this action against

Countrywide Bank, N.A., and Countrywide Bank, FSB, to quiet title to the Property.

Kling asserted that she executed a first trust deed in December 2006 and a second one in

September 2007; however, “there is no holder of any valid ‘Deed of Trust’ as claimed

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herein and that no Party herein can establish that they are the valid holder of any ‘Deed of

Trust’ whatsoever.”

       On January 8, 2015, BANA filed an answer to the complaint, alleging that it was

the successor by merger to Countrywide Bank, N.A. and successor by merger to

Countrywide Bank, FSB (erroneously sued as Countrywide Bank, N.A. and Countrywide

Bank, FSB. BANA asserted the affirmative defense of res judicata. On January 9, 2015,

Kling requested, and the court entered, default against Countrywide Bank, N.A.

       On January 20, 2015, BANA moved for judgment on the pleadings on the ground

that the action was barred by res judicata. It also requested that default against

Countrywide Bank, N.A. be set aside due to a clerical error, namely, the failure to remove

Countrywide Bank, N.A. upon the filing of BANA’s answer, which noted that it was the

successor by merger to Countrywide Bank, N.A. and had been erroneously sued as such.

On January 27, 2015, the court set aside the default.

       On April 16, 2015, over Kling’s opposition, the trial court granted BANA’s

motion for judgment on the pleadings. Judgment was entered in favor of BANA on

May 5, 2015, and Kling appealed.

                                     II. DISCUSSION

A. Standard of Review

       A motion for judgment on the pleadings is equivalent to a general demurrer, but is

filed after the time for filing a demurrer has expired. (Hopp v. City of Los Angeles (2010)

183 Cal.App.4th 713, 717; Code Civ. Proc., § 438, subd. (f).) “Like a general demurrer,

a motion for judgment on the pleadings tests the sufficiency of the complaint to state a

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cause of action.” (Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel &

Pastore (2008) 162 Cal.App.4th 1331, 1337.) The court assumes the truth of all factual

allegations in the complaint, along with matters subject to judicial notice. (Ibid.) We

independently review an order granting a motion for judgment on the pleadings.

(Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321.)1

B. Analysis

       In her complaint, Kling sought to quiet title to the Property on the grounds that

there was no enforceable deed of trust, that defendants had no interest in the loan, that

securitization of her loan somehow rendered it unenforceable, and that she did not have

to pay on the deeds that form the basis of this action. Although she named Countrywide

Bank, N.A., and Countrywide Bank, FSB, she failed to name BANA, to whom the deed

of trust was assigned. In her federal action, Kling sued BANA on the same primary right

or claim, i.e., that BANA’s interest in the Property was extinguished because the loan had



       1  “‘The standard for granting a motion for judgment on the pleadings is
essentially the same as that applicable to a general demurrer, that is, under the state of the
pleadings, together with matters that may be judicially noticed, it appears that a party is
entitled to judgment as a matter of law.’ [Citation.] ‘Matters which are subject to
mandatory judicial notice may be treated as part of the complaint and may be considered
without notice to the parties. [Citation.] Matters which are subject to permissive judicial
notice must be specified in the notice of motion, the supporting points and authorities, or
as the court otherwise permits.’ [Citation.] ‘Judgment on the pleadings does not depend
upon a resolution of questions of witness credibility or evidentiary conflicts. In fact,
judgment on the pleadings must be denied where there are material factual issues that
require evidentiary resolution. [Citation.] In determining whether the pleadings, together
with matters that may be judicially noticed, entitle a party to judgment, a reviewing court
can itself conduct the appropriate analysis and need not defer to the trial court.’
[Citation.]” (Bezirdjian v. O’Reilly, supra, 183 Cal.App.4th at pp. 321-322.)

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been securitized. In both actions, Kling sought the same remedy, namely, a declaration

that BANA has no lien on the Property and may not assert any interest in it.

       “Res judicata is a doctrine which prevents parties from relitigating a cause of

action previously determined between them.” (Wright v. Ripley (1998) 65 Cal.App.4th

1189, 1193.) Under state law, a cause of action is based on the violation of a single

primary right, rather than on the particular theory upon which recovery is sought (e.g.,

breach of contract, quantum meruit). (Bay Cities Paving & Grading, Inc. v. Lawyers’

Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.)

       Here, by virtue of the assignment of the deed of trust to BANA, the doctrine of res

judicata bars Kling from reasserting in the present action the same primary right or claim

that she unsuccessfully asserted in her federal action. (See City of Simi Valley v. Superior

Court (2003) 111 Cal.App.4th 1077, 1082.)

       “The primary aspect of res judicata is sometimes referred to as ‘“claim

preclusion”’; the secondary aspect is referred to as ‘collateral estoppel’ or ‘“issue

preclusion.”’ [Citation.] “‘The rule of claim preclusion, [citation], is that a party

ordinarily may not assert a civil claim arising from a transaction with respect to which he

has already prosecuted such a claim, whether or not the two claims wholly correspond to

each other. The rule of issue preclusion, sometimes referred to as collateral estoppel,

[citation], is that a party ordinarily may not relitigate an issue that he fully and fairly

litigated on a previous occasion.”’ [Citation.]” (Benasra v. Mitchell Silberberg & Knupp

(2002) 96 Cal.App.4th 96, 104.)



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       Kling’s present claims are barred by the doctrine of claim preclusion. As

indicated: “‘The principle underlying the rule of claim preclusion is that a party who

once has had a chance to litigate a claim before an appropriate tribunal usually ought not

to have another chance to do so. A related but narrower principle—that one who has

actually litigated an issue should not be allowed to relitigate it—underlies the rule of

issue preclusion.’” (7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 338, p. 942,

italics added.)

       “‘The law of res judicata expresses the terms for assessing whether the procedural

system afforded the contending party an adequate opportunity to litigate. In the now

accepted phrase, the question is whether that opportunity was “full and fair.” Modern

civil procedure usually does provide full and fair freedom to present substantive

contentions and full and fair access to evidence.’” (7 Witkin, Cal. Procedure, supra,

Judgment, § 338, p. 942.) By contrast, “[r]es judicata principles should not apply where

the ‘scope of substantive inquiry and the potential for development of evidence are much

more restricted than the corresponding opportunity afforded in a court of general

jurisdiction . . . .’” (Gouvis Engineering v. Superior Court (1995) 37 Cal.App.4th 642,

650.) Here, through her federal action, Kling had every chance to litigate her claims

regarding her loan’s securitization and BANA’s interest in the Property.

       Kling contends that she sued Countrywide Bank, N.A. and Countrywide Bank,

FSB, not BANA, and the trial court erred in permitting BANA to appear as successor by

merger. We disagree. Kling admits that BANA is the successor to both Countrywides.

Moreover, Kling’s deed of trust was assigned to BANA. Thus, the interest either

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Countrywide possessed in the note and deed of trust was transferred to BANA at the time

of the merger. (Corp. Code, § 1107; Beltran v. Accubane Mortg. Corp. (E.D. Cal. 2012)

2012 U.S. Dist. LEXIS 166630, *14-*15.) Because BANA has a claim of interest in the

Property, allowing BANA to appear was not only proper, but mandatory, regardless of

which defendants Kling named in her action to quiet title. (Code Civ. Proc., § 762.010

[“The plaintiff shall name as defendants in the action the persons having adverse claims

to the title of the plaintiff against which a determination is sought.”]; see § 762.050

[“Any person who has a claim to the property described in the complaint may appear in

the proceeding. Whether or not the person is named as a defendant in the complaint, the

person shall appear as a defendant.”].)

       Alternatively, Kling contends the trial court erred in vacating the default that was

entered against Countrywide Bank, N.A. However, Kling failed to raise this issue at the

trial court level. “‘Under familiar general rules, theories not raised in the trial court may

not be raised for the first time on appeal.’ [Citation.]” (San Diego Municipal Employees

Assn. v. Superior Court (2012) 206 Cal.App.4th 1447, 1462.) The exception to this

general rule is a purely legal issue. (Ibid.) Nonetheless, we reject Kling’s contention,

because the record shows that the court clerk mistakenly overlooked BANA’s answer

indicating that Kling had erroneously sued BANA as Countrywide Bank, N.A. Since

BANA timely appeared as the successor by merger to Countrywide Bank, N.A., entering

default was improper. (Code Civ. Proc. § 1169.) Thus, the trial court did not err in

vacating the default that had been entered as a result of clerical error. (See Taliaferro v.

Taliaferro (1957) 154 Cal.App.2d 495. 499.)

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                                   III. DISPOSITION

      The judgment is affirmed. Defendant and Respondent is awarded its costs on

appeal.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                          HOLLENHORST
                                                                   Acting P. J.
We concur:

      MCKINSTER
                              J.

      CODRINGTON
                              J.




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