                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                       FEB 23 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 LINDSAY KAN,                                    No. 15-56231

                  Plaintiff-Appellant,           D.C. No. 2:15-cv-03407-DSF-
                                                 VBK
   v.

 BANK OF NEW YORK MELLON CORP.,                  MEMORANDUM*
 FKA The Bank of New York as Trustee for
 Cwalt, Inc.; et al.,

                  Defendants-Appellees.

                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                           Submitted February 14, 2017**

Before:       GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

        Lindsay Kan appeals pro se from the district court’s judgment dismissing his

action alleging federal and state law claims arising from foreclosure proceedings.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal on

        *
             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).
the basis of res judicata. Manufactured Home Cmtys. Inc. v. City of San Jose, 420

F.3d 1022, 1025 (9th Cir. 2005). We may affirm on any basis supported by the

record. United States v. Washington, 969 F.2d 752, 755 (9th Cir. 1992). We

affirm.

      The district court properly dismissed Kan’s action as barred by the doctrine

of res judicata because his claims were raised, or could have been raised, in two

prior state court actions that resulted in final judgments. See MHC Fin. Ltd. P’ship

v. City of San Rafael, 714 F.3d 1118, 1125-26 (9th Cir. 2013) (setting forth

elements of res judicata under California law and discussing the primary rights

theory of res judicata under California law); see also City of Martinez v. Texaco

Trading & Transp. Inc., 353 F.3d 758, 764 (9th Cir. 2003) (privity applies under

California law “if a party’s interests are so similar to another party’s interests that

the latter was the former’s virtual representative in the earlier action.” (citation and

internal quotation marks omitted); Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir.

2009) (“If two actions involve the same injury to the plaintiff and the same wrong

by the defendant, then the same primary right is at stake even if in the second suit

the plaintiff pleads different theories of recovery, seeks different forms of relief

and/or adds new facts supporting recovery.” (citations and internal quotation marks

                                           2                                     15-56231
omitted)).

      The district court did not abuse its discretion in ruling on defendants’ motion

to dismiss without an oral hearing. See Novak v. United States, 795 F.3d 1012,

1023 (9th Cir. 2015) (due process was not violated by the district court ruling on a

motion to dismiss without an oral hearing where the parties had the opportunity to

present arguments in writing); see also Mahon v. Credit Bureau of Placer Cty. Inc.,

171 F.3d 1197, 1200 (9th Cir. 1999) (standard of review).

      The district court did not abuse its discretion by denying Kan’s motion for

leave to file a second amended complaint. See Gardner v. Martino, 563 F.3d 981,

990, 992 (9th Cir. 2009) (no abuse of discretion in denying leave to amend where

the proposed amendment would be futile).

      AFFIRMED.




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