                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 21 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MASAZUMI INOUE,                                  No.   15-16699

              Plaintiff-Appellant,               D.C. No. 4:15-cv-01636-YGR

 v.
                                                 MEMORANDUM*
BANK OF AMERICA, N.A.;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; THE
BANK OF NEW YORK MELLON, FKA
The Bank of New York as Trustee for the
Alternative Loan Trust 2005-17;
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-17,

              Defendants-Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding

                             Submitted May 19, 2017**
                              San Francisco, California



      *
             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).
Before: SCHROEDER and MURGUIA, Circuit Judges, and McCALLA,***
District Judge.

      Plaintiff-Appellant Masazumi Inoue (“Inoue”) claims that Defendants-

Appellees lacked legal authority to foreclose on his property because of recording

defects. Inoue raised substantially similar claims in a California state court action

that was ultimately dismissed with final judgment entered against Inoue. The

district court concluded that Inoue’s claims, having already been litigated in state

court, were barred by res judicata and granted the defendants’ motion to dismiss.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Under California law, res judicata applies if (1) the second lawsuit involves

the same “cause of action” as the first, (2) the first lawsuit resulted in a final

judgment on the merits, and (3) the party to be precluded was a party, or in privity

with a party, to the first lawsuit. San Diego Police Officers’ Ass’n v. San Diego

City Employees’ Ret. Sys., 568 F.3d 725, 734 (9th Cir. 2009). Here, the three

elements are clearly met.

      Inoue does not argue on appeal that these elements are not met. Inoue

appears to argue that res judicata does not apply because his claims in this action

contain allegations that the defendants engaged in fraud related to the loan


      ***
            The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
                                            2
securitization process. There is no res judicata exception for such allegations of

fraud. See Eichman v. Fotomat Corp., 197 Cal. Rptr. 612, 614–15 (Cal. Ct. App.

1983). An opposing party can escape res judicata only on the basis of extrinsic

fraud, i.e., fraud that “deprived the opposing party of the opportunity to appear and

present his case” in the earlier judgment. Id. Inoue has neither argued nor

provided any support for such extrinsic fraud.

      We agree with the district court that Inoue’s suit is barred by res judicata.

      AFFIRMED.




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