Filed 1/24/2017
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                            DIVISION SIX


DOUGLAS GILLIES,                                2d Civil No. B272427
                                            (Super. Ct. No. 15CV04560)
     Plaintiff and Appellant,                 (Santa Barbara County)

v.

JPMORGAN CHASE BANK, N.A.,
et al.,

     Defendants and Respondents.



            “The purpose of the law of contracts is to protect the
reasonable expectations of the parties.” (Ben-Zvi v. Edmar Co.
(1995) 40 Cal.App.4th 468, 475.) This principle applies to the law
of “mortgages.” A person who borrows money from a bank to
purchase or refinance a home has a reasonable expectation that
the bank will fund the loan. The bank has a reasonable
expectation that monthly mortgage payments will be made.
Here, appellant‟s reasonable expectations were met. The bank‟s
were not. Nonpayment of the mortgage for approximately eight
years while the borrower remains in possession is an egregious
abuse. Respondent argued, and the trial court agreed, that
appellant is “gaming the system.” The game is over.
              Douglas Gillies, an attorney, appeals a judgment of
dismissal entered after the trial court sustained the demurrer of
JPMorgan Chase Bank N.A. (Chase) without leave to amend. We
affirm.
             FACTUAL AND PROCEDURAL HISTORY
              This lawsuit is the fourth in a series brought by
Gillies since 2009 challenging Chase‟s efforts to foreclose upon
his real property. The four lawsuits concern similar allegations
of claimed wrongful foreclosure procedures and Chase‟s standing
to foreclose. They each sought to vindicate the same primary
right. (Infra, p. 9 et seq.)
              In 1992, Gillies acquired residential property at 3756
Torino Drive in Santa Barbara. On August 12, 2003, he obtained
a $500,000 loan from Washington Mutual Bank FA (WaMu), and
executed an adjustable interest rate promissory note in favor of
WaMu. A deed of trust was recorded to secure the loan.
              On September 25, 2008, the Federal Deposit
Insurance Corporation, as receiver for WaMu, and Chase entered
into a Purchase and Assumption Agreement (Agreement).
Paragraph 3.1 of the Agreement provides that Chase purchased
“all right, title, and interest of the Receiver in and to all of the
assets” of WaMu. The Agreement also states that Chase
“specifically purchases all mortgage servicing rights and
obligations of [WaMu].”
              In May 2009, Gillies defaulted on the loan.
California Reconveyance Company (CRC), as trustee, recorded a
notice of default on August 13, 2009, and a notice of trustee‟s sale
on November 18, 2009. Prior to the scheduled foreclosure sale,
Gillies filed a complaint in the trial court against CRC and
Chase, alleging that the notice of default was not recorded, that it




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was not filed in compliance with Civil Code section 2923.5, and
that CRC and Chase did not properly record the notice of sale.1
CRC and Chase demurred to the complaint and the trial court
sustained the demurrer without leave to amend. Gillies
appealed. We affirmed the court‟s judgment of dismissal in
Gillies v. California Reconveyance Co. (Gillies I) (April 11, 2011,
B224995 [nonpub. opn.]).
             On June 30, 2011, CRC recorded a second notice of
trustee‟s sale, noticing a July 25, 2011 foreclosure sale. Gillies
filed a second action against CRC. He alleged that the notice of
default was defective and that Chase violated section 2923.52 by
giving premature notice of sale. CRC filed a motion to strike and
the trial court granted the motion. Gillies appealed. We affirmed
the judgment of dismissal in Gillies v. California Reconveyance
Co. (Gillies II) (September 6, 2012, B237562 [nonpub. opn.]).
             On November 8, 2012, CRC recorded another notice
of trustee‟s sale, setting a foreclosure sale for December 12, 2012.
In response, Gillies filed a third lawsuit against Chase, this time
in federal court. In part, he repeated allegations made in Gillies
I and Gillies II regarding the misspelling of his first name as
“Dougles” rather than “Douglas.” Gillies also challenged Chase‟s
right to nonjudical foreclosure. Chase filed a motion to dismiss
the action. The trial court granted the motion without leave to
amend. Gillies appealed and the Ninth Circuit Court of Appeals
affirmed the dismissal without leave to amend. (Gillies v.
JPMorgan Chase Bank N.A. (Gillies III) (9th Cir. 2016) 644
Fed.Appx. 716.)

      1 All statutory references are to the Civil Code unless
stated otherwise.




                                 3
              On November 16, 2015, MTC Financial, Inc., as
trustee, recorded a notice of trustee‟s sale setting a foreclosure
sale of the property for December 30, 2015. Gillies responded by
filing the present complaint alleging violations of the
Homeowners Bill of Rights (HBOR), lack of standing to foreclose,
unlawful substitution of trustee, fraud, injunctive relief, and
damages. He also obtained a temporary restraining order and
filed an application for a preliminary injunction.
              Once again, Chase demurred and asserted that
Gillies‟s allegations did not state facts sufficient to constitute a
cause of action. Following written and oral argument, the trial
court sustained the demurrer without leave to amend, vacated
the temporary restraining order, and denied Gillies‟s request for
a preliminary injunction. It entered a judgment dismissing
Gillies‟s action. Gillies appeals again.2




      2During the pendency of this appeal, Gillies filed a
complaint in the United States Bankruptcy Court. The complaint
alleged that Chase lacks standing to foreclose because it did not
acquire Gillies‟s loan from WaMu and it does not own his
promissory note. In September 2016, the court granted Chase‟s
motion to dismiss the complaint without leave to amend. (Gillies
v. JPMorgan Chase Bank N.A. (In re Gillies) (Bankr. C.D.Cal.
2016) __ B.R. __ [2016 Bankr. LEXIS 3749].)




                                 4
                            DISCUSSION3
                         Standard of Review
             In reviewing the dismissal of a complaint following
an order sustaining a demurrer without leave to amend, we
review the complaint to determine whether, as a matter of law,
the complaint alleges a valid cause of action. (Yvanova v. New
Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) We assume
the truth of all properly pleaded and judicially noticed material
facts within the complaint, but not contentions, deductions, or
conclusions of fact or law. (Ibid.) The plaintiff bears the burden
of establishing that the facts pleaded establish every element of
the cause of action. (Rossberg v. Bank of America, N.A. (2013)
219 Cal.App.4th 1481, 1490.) Plaintiff must overcome each legal
ground upon which the trial court sustained the demurrer.
(Ibid.) Finally, plaintiff must prove there is a reasonable
possibility that he can amend his pleading to overcome any legal
defects. (Id. at p. 1491 [“„The assertion of an abstract right does
not satisfy this burden‟”].)
                         First Cause of Action
            Violation of HBOR – Sections 2923.6, 2923.7
             Gillies alleges that Chase violated the “dual-tracking”
prohibition of HBOR, specifically section 2923.6, subdivision (c),
by proceeding with the foreclosure while his loan modification
application was pending. He alleges that Chase did not assign “a



      3 We answer appellant‟s claims on the merits but we need
not do so. (See infra, pp. 8-10; res judicata.) This conclusion also
precludes HBOR claims. There were at least two final judgments
allowing the foreclosure to go forward before HBOR was enacted
by the Legislature and became operative in 2013.



                                 5
single point of contact,” as required by section 2923.7, subdivision
(a).
             The allegations of Gillies‟s complaint belie his
contention that Chase violated sections 2923.6 and 2923.7.
Gillies alleges that he applied for a loan modification and
supplied additional documents that Chase requested. He mailed
the completed application to the post office box as instructed by
Chase. Although Chase‟s attorney requested that all documents
be provided to him, Gillies disregarded that instruction. Gillies
alleges that on July 16, 2015, he received a 14-page loan
modification from Chase, conditioned on his acceptance by July
17, 2015. Although he wrote Chase and requested additional
time to review the loan modification, he did not receive a
response. Approximately four months later, MTC recorded a
notice of trustee‟s sale.
             The trial court properly concluded that Gillies did not
state a cause of action for violation of sections 2923.6 and 2923.7.
Section 2923.6, subdivision (c)(2) permits a beneficiary or trustee
to resume the foreclosure process if a borrower does not accept a
loan modification within 14 days of the offer. Gillies does not
allege that he accepted the loan modification during the four
month period after he received the modification agreement and
before MTC recorded the notice of sale.
             Gillies‟s allegations also demonstrate that Chase
provided a single point of contact by assigning a customer service
representative to process his loan modification application.
Gillies admits that he submitted his loan modification application
to this representative at the designated address and ignored the
instruction to communicate with Chase‟s attorney. He also




                                 6
admits that he received a 14-page loan modification in response
to his application.
                        Second Cause of Action
                    Lack of Standing to Foreclose
             Gillies alleges that Chase lacks standing to foreclose
because the “Note and Deed of Trust were almost certainly sold
to a third party” before Chase assumed certain assets of WaMu in
September 2008. He alleges that the “third party” was a
“mortgage-backed securities trust.”
             These allegations do not state a cause of action.
Gillies speculates that WaMu transferred his mortgage to a
securitized trust prior to Chase‟s agreement to purchase WaMu‟s
assets. There is no reasonable basis to dispute that Chase
succeeded to WaMu‟s interest as beneficiary of the trust deed
securing Gillies‟s property.4
                         Third Cause of Action
                    Illegal Substitution of Trustee
             Gillies alleges that Chase is not the beneficiary of his
trust deed and thus cannot substitute MTC as trustee to foreclose
his property. As discussed, it is beyond dispute that Chase
succeeded to WaMu‟s interest as beneficiary. The trial court
properly decided that Gillies did not state a cause of action
regarding substitution of trustee.




      4 We take judicial notice of the Purchase and Assumption
Agreement entered into by Chase and the Federal Deposit
Insurance Corporation, as receiver for WaMu. (Evid. Code,
§§ 452, 459; Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D.Cal.
2010) 732 F.Supp.2d 952, 959.)



                                  7
                        Fourth Cause of Action
                                Fraud
             Gillies alleges that Chase commits fraud on each
occasion it notices a trustee‟s sale by stating his name as
“Dougles Gillies” rather than “Douglas Gillies.” Gillies admits
that the misspelling is “a clerical error.”
             This general allegation of fraud does not state a
cause of action. Moreover, the notices contain the street address
of the property and correctly spell Gillies‟s surname. No
reasonable person would be confused by this minor typographical
error.
                       Injunctive Relief and Damages
             The trial court properly considered the declaration of
Chase‟s counsel, among other things, before denying Gillies‟s
motion for a preliminary injunction. (Jessen v. Keystone Savings
& Loan Assn. (1983) 142 Cal.App.3d 454, 460 [trial court may
consider verified complaint and answer as well as declarations,
affidavits, and oral testimony before deciding preliminary
injunction motion].) There was no error in denying the
injunction.
           The Sanctity and Integrity of Final Judgment
             “Somewhere along the line, litigation must cease.”
(In re Marriage of Crook (1992) 2 Cal.App.4th 1606, 1613.)
Gillies has lost three superior court cases which allowed the
foreclosure proceedings to go forward. He lost the first two
appeals to this court and now loses this third appeal. He lost a
federal case in the United States District Court. He lost the
appeal from this judgment in the Ninth Circuit Court of Appeals.
He lost an “emergency” petition for relief in the Ninth Circuit.




                                 8
He filed for protection in the United States Bankruptcy Court.
He lost there.
              Principles of res judicata are fatal to the present
lawsuit and theoretical future lawsuits seeking to vindicate the
same primary right. “A clear and predictable res judicata
doctrine promotes judicial economy. Under this doctrine, all
claims based on the same cause of action must be decided in a
single suit; if not brought initially, they may not be raised at a
later date. „“Res judicata precludes piecemeal litigation by
splitting a single cause of action or relitigation of the same cause
of action on a different legal theory or for different relief.”‟
(Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th
1234, 1245 [65 Cal. Rptr. 2d 25].) A predictable doctrine of res
judicata benefits both the parties and the courts because it „seeks
to curtail multiple litigation causing vexation and expense to the
parties and wasted effort and expense in judicial administration.‟
( 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 280, p.
820.)” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888,
897; see also Mark v. Spencer (2008) 166 Cal.App.4th 219, 229.)
              Where the doctrine applies, it precludes piecemeal
litigation by splitting a single cause of action or relitigating the
same primary right. (Mycogen Corp. v. Monsanto Co., supra, 28
Cal.4th at p. 897.) “Under the doctrine of res judicata [claim
preclusion], „all claims based on the same cause of action must be
decided in a single suit; if not brought initially, they may not be
raised at a later date.‟ [Citation.] [¶] A claim raised in a second
suit is „based on the same cause of action‟ as one asserted in a
prior action if they are both premised on the same „primary right.‟
[Citation.] „The plaintiff‟s primary right is the right to be free
from a particular injury, regardless of the legal theory on which




                                 9
liability for the injury is based. [Citation.]‟” (Estate of Dito
(2011) 198 Cal.App.4th 791, 801; see also Boeken v. Philip Morris
USA, Inc. (2010) 48 Cal.4th 788, 797-798; Acuna v. Regents of
University of California (1997) 56 Cal.App.4th 639, 648 [Pomeroy
primary right theory].) It matters not that appellant has a new
theory of wrongful foreclosure. It is the same primary right
which appellant has always claimed.
              As an attorney, Gillies should have some appreciation
for the rule of law and his obligation to comply with lawful court
orders. He, however, views these adverse final judgments as
mere suggestions which allow him to perpetually file new
lawsuits on new theories. He is wrong. A final judgment is
“[o]ne which leaves nothing open to further dispute and which
sets at rest cause of action between parties.” (See Black‟s Law
Dict. (6th ed. 1990) p. 629, col. 2.) Appellant‟s litigation posture
is, of course, at variance with this definition. Gillies has had
several opportunities to advance his claims and he continues to
tax the legal system in an attempt to retain possession of his
house.
              No litigant has an entitlement to file a lawsuit
seeking relief from an alleged wrong and then not follow the
court‟s ruling denying relief. By submitting to the court to
resolve a dispute, a litigant who is willing to abide by an order
granting relief must be willing to abide by an order denying
relief. This is lost upon Gillies. The sanctity and integrity of a
final judgment must be honored or there is no such thing as a
final judgment. (See People v. Barragan (2004) 32 Cal.4th 236,
255.)




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             The judgment is affirmed. Respondents shall recover
costs.
         CERTIFIED FOR PUBLICATION.



                                     YEGAN, Acting P. J.
We concur:


             PERREN, J.


             TANGEMAN, J.




                                11
                     Thomas P. Anderle, Judge
             Superior Court County of Santa Barbara
                  ______________________________
             Douglas Gillies, in pro per, for Plaintiff and
Appellant.

           Bryan Cave LLP, Richard C. Ochoa and Alfred
Shaumyan, for Defendant and Respondent, JPMorgan Chase
Bank, N.A.

            Burke, Williams & Sorensen, Richard J. Reynolds
and Joseph P. Buchman, for Defendant and Respondent, MTC
Financial Inc., dba Trustee Corps.
