Filed 4/29/14 Tabrizi v. JP Morgan Chase CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



BEHNAM TABRIZI,                                                      D062847

         Plaintiff and Appellant,

         v.                                                          (Super. Ct. No. 37-2012-00090805-
                                                                     CU-OR-CTL)
JP MORGAN CHASE BANK et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, Timothy

Taylor, Judge. Affirmed.



         Law Offices of Dennis Moore and Dennis Howard Moore for Plaintiff and

Appellant

         Alvarado Smith, Theodore E. Bacon and David J. Masutani for Defendants and

Respondents.

         Behnam Tabrizi appeals from an adverse judgment on grounds of res judicata in

his lawsuit against JP Morgan Chase Bank (Chase) and California Reconveyance
Company (CRC) arising out of the foreclosure on two properties that Tabrizi owns. The

trial court's conclusion that res judicata applied was based on the judgments in two prior

lawsuits that Tabrizi filed to challenge Chase's foreclosure on the two properties. We

conclude that the trial court properly sustained the demurrer on the ground of res judicata,

and we accordingly affirm the judgment.

                                             I

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     Tabrizi's Default on Two Deeds of Trust

       This lawsuit challenged Chase's attempt to foreclose on two properties owned by

Tabrizi.

       1.     The Northern Lights Property

       The first property is located at 7571 Northern Lights in San Diego (the Northern

Lights property). In October 2007 Tabrizi obtained a loan in the amount of $2,430,000

from Washington Mutual Bank (WaMu) secured by a deed of trust encumbering the

Northern Lights property, with CRC as the trustee.

       The Federal Deposit Insurance Corporation (the FDIC) was appointed as receiver

of WaMu in September 2008. Pursuant to an agreement between Chase and the FDIC,

Chase purchased certain assets of WaMu, pursuant to which Chase allegedly became the

beneficiary of the deed of trust on the Northern Lights property.1



1     Tabrizi alleges in the operative complaint in this action that the agreement
between WaMu and the FDIC has not been finalized.

                                             2
       Tabrizi became delinquent on his loan payments on the Northern Lights property,

and CRC and Chase took steps to foreclose. Specifically, on April 13, 2010, CRC

recorded a notice of default on the deed of trust secured by the Northern Lights property,

stating that Tabrizi was in default on his loan payments in the amount of $55,448. A

notice of trustee sale was recorded on September 1, 2011, for the Northern Lights

property.

       2.     The Encendido Property

       Tabrizi's second property is located at 14911 Encendido in San Diego (the

Encendido property). Tabrizi obtained a loan from WaMu in January 2008 in the amount

of $2,000,000 secured by a deed of trust encumbering the Encendido property. In 2010,

CRC was substituted as the trustee for the deed of trust on the Encendido property. As a

result of Chase's purchase of certain assets of WaMu, Chase also allegedly became the

beneficiary of the deed of trust on the Encendido property.

       Tabrizi became delinquent on his loan payments on the Encendido property.

Specifically, on February 8, 2010, CRC recorded a notice of default on the deed of trust

secured by the Encendido property, stating that Tabrizi owed $92,894.81 in loan

payments. A notice of trustee sale was recorded on October 14, 2010, for the Encendido

property.

B.     The Lawsuits

       Tabrizi filed two separate lawsuits in San Diego County Superior Court to

challenge the foreclosures on the Northern Lights property and the Encendido property.



                                            3
        1.    The Northern Lights Lawsuit

        With respect to the foreclosure on the Northern Lights property, in May 2010

Tabrizi filed suit against Chase in San Diego County Superior Court (Tabrizi v. Chase

Home Finance, LLC, No. 37-2010-00091526-CU-OR-CTL) (the Northern Lights

lawsuit).2 The initial complaint alleged several causes of action asserting various

theories of fraud and concealment, as well as negligence. A second amended complaint

alleged causes of action for fraud, wrongful foreclosure, and violation of Business and

Professions Code section 17200. In the Northern Lights lawsuit, Tabrizi alleged (1) that

Chase was improperly foreclosing on the Northern Lights property because WaMu had

fraudulently induced Tabrizi to obtain a loan he could not afford; (2) that Chase had

unreasonably denied Tabrizi the right to modify the terms of his loan; and (3) that Chase

did not follow the required statutory procedures governing foreclosures, which

purportedly included "[f]ailure to serve upon [Tabrizi] notice of assignment of the Note

pursuant to California Civil Code § 2932 et [s]eq." Tabrizi sought an order restraining

Chase from proceeding with the foreclosure, and an order rescinding any sale or transfer

of title.


2      As far as the appellate record reflects, CRC was not named as a defendant in the
Northern Lights lawsuit. Instead, the original complaint and the second amended
complaint alleged that Quality Loan Services Corp. was the trustee to the deed of trust
secured by the Northern Lights property. We note that in supplemental briefing we
requested from the parties, CRC stated that although not reflected in the appellate record,
it was briefly sued as a defendant in one version of the complaint in the Northern Lights
lawsuit (which is not contained in the appellate record), but was effectively dismissed
without prejudice when an amended complaint was filed that did not name CRC as a
defendant.

                                             4
       As relevant here, the initial complaint in the Northern Lights lawsuit specifically

alleged that Chase "claims that it is the current holder of the mortgage and/or other

security interests taken in the . . . loan transaction, despite the fact that public records do

not reflect any assignments from W[a]M[u] to [Chase] as required by law . . . ."

       Chase prevailed in the Northern Lights lawsuit by obtaining summary judgment.

The trial court ruled that Chase had not assumed liability for WaMu's alleged misconduct

and that Chase submitted undisputed evidence that it complied with all of the statutory

requirements for foreclosure.

       2.     The Encendido Lawsuit

       With respect to the Encendido property, in October 2010 Tabrizi filed suit against

Chase and CRC in San Diego County Superior Court (Tabrizi v. Chase Home Finance,

LLC, No. 37-2010-00103336-CU-OR-CTL) (the Encendido lawsuit). The initial

complaint alleged claims for fraud, failure to comply with the statutory requirement for

foreclosure, and violation of Business and Professions Code section 17200. Later

versions of the complaint added claims for unjust enrichment based on improper

foreclosure and breach of an alleged contract to allow Tabrizi to short-sell the Encendido

property. As in the Northern Lights lawsuit, Tabrizi alleged that WaMu had fraudulently

induced Tabrizi to obtain a loan he could not afford, that Chase unreasonably refused to

modify the terms of the loan, and that Chase did not comply with the statutory

requirements for foreclosure. In his original complaint, as a remedy, Tabrizi sought,

among other things, an order preventing the foreclosure of the Encendido property. In



                                               5
later versions of the complaint, Tabrizi sought damages and an order rescinding the loan

transactions.

       As relevant here, both the second amended complaint and third amended

complaint alleged on information and belief that Chase might not "have physical custody

of Tabrizi's original Mortgage and therefore the foreclosure process is void." Those

complaints also alleged that "[Chase] may have no rights in title or interest to Tabrizi's

property. In fact, WaMu is in litigation against the F[D]IC and [Chase] for issues related

to forced devolution of WaMu assets and stock to [Chase] and as such, there is a question

of fact as to whether [Chase] has any rights to Tabrizi's property under the

circumstances."

       Chase and CRC prevailed in the Encendido lawsuit when the trial court sustained

their demurrers.

       3.       The Instant Lawsuit

       After the judgments against him in the Northern Lights lawsuit and the Encendido

lawsuit in 2011, Tabrizi filed the instant lawsuit in January 2012 seeking to prevent

foreclosure on the Northern Lights property and the Encendido property. The first

amended complaint asserts three causes of action against Chase and CRC. The first

cause of action seeks to "void and cancel" the notices of default and notice of trustee's

sale as to both the Northern Lights property and the Encendido property. The second

cause of action seeks injunctive relief preventing the foreclosure sales. The third cause of

action seeks declaratory relief that Chase does not have the right to enforce the notes on

either the Northern Lights property and the Encendido property.

                                              6
       The instant action focuses on a theory that was only briefly mentioned in the

Northern Lights lawsuit and the Encendido lawsuit. Specifically, Tabrizi alleges that

because of irregularities when Chase acquired the assets of WaMu and took over as

beneficiary of the deeds of trust encumbering the Northern Lights property and the

Encendido property, Chase does not have the authority to foreclose on those properties.

As to the promissory notes for both the Northern Lights property and the Encendido

property, the first amended complaint alleges: "Chase has not received any assignment

of [the note] in any manner"; "Chase was never in possession of [the note]"; "Chase never

acquired the rights of Wa[M]u"; "Chase is not a successor to Wa[M]u"; [the note] has

never been delivered to Chase in any manner"; "[e]ven if [the note] was delivered to

Chase in any manner, the transferor of [the note] did not have any rights to enforce the

terms of [the note]"; "[the note] was never assigned to Chase or assigned in favor of

Chase"; "[s]ince Chase (1) was never in possession of [the note], (2) never acquired rights

of Wa[M]u, (3) is not a successor to Wa[M]u, and since (4) [the note] has never been

delivered to Chase in any manner, and (5) [the note] was never assigned to Chase or in

favor of Chase, Chase cannot enforce [the note]." The first amended complaint alleges

that instead of being entitled to enforce the notes, "Chase is the servicer" of the loans, and

thus is not entitled to foreclose.

       Chase and CRC demurred to the first amended complaint on the ground of res

judicata arising from the judgments in the Northern Lights lawsuit and the Encendido

lawsuit. In support of the demurrer, Chase and CRC filed an unopposed request for

judicial notice concerning the Northern Lights lawsuit and the Encendido lawsuit.

                                              7
       The trial court sustained the demurrer on the basis of res judicata and entered

judgment against Tabrizi.

       Tabrizi appeals from the judgment.

                                              II

                                       DISCUSSION

A.     Standard of Review

       " ' "On appeal from an order of dismissal after an order sustaining a demurrer, our

standard of review is de novo, i.e., we exercise our independent judgment about whether

the complaint states a cause of action as a matter of law." ' [Citation.] 'A judgment of

dismissal after a demurrer has been sustained without leave to amend will be affirmed if

proper on any grounds stated in the demurrer, whether or not the court acted on that

ground.' [Citation.] In reviewing the complaint, 'we must assume the truth of all facts

properly pleaded by the plaintiffs, as well as those that are judicially noticeable.' "

(Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.)

B.     The Doctrine of Res Judicata

       The trial court sustained the demurrer on the grounds of res judicata. "Res

judicata, or claim preclusion, prevents relitigation of the same cause of action in a second

suit between the same parties or parties in privity with them." (Mycogen Corp. v.

Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen).) "To operate as a bar a judgment

must be final, on the same claim or cause of action, between the same parties, and must

be an adjudication on the merits." (McKinney v. County of Santa Clara (1980) 110

Cal.App.3d 787, 794 (McKinney).)

                                               8
C.     CRC May Assert Res Judicata for the Northern Lights Lawsuit Because It Was in
       Privity with Chase, Which Did Obtain Judgment in Its Favor

       As an initial matter we discuss an issue that was not raised by Tabrizi in his appeal

but which we noted upon our review of the record and afforded the parties an opportunity

to address pursuant to Government Code section 68081.

       It is well established that claim preclusion arises only if the current lawsuit and the

previous lawsuit are "between the same parties or parties in privity with them" (Mycogen,

supra, 28 Cal.4th at p. 896) and if there was "an adjudication on the merits" as to those

parties (McKinney, supra, 110 Cal.App.3d at p. 794).3

       There was no final adjudication on the merits against CRC in the Northern Lights

lawsuit, because (according to CRC's representation) CRC was only briefly a party and

was dismissed from the lawsuit without prejudice. Chase obtained a judgment on the

merits in the Northern Lights lawsuit, but CRC did not.




3       CRC contends that to apply claim preclusion, there is no requirement that the party
asserting claim preclusion have been a party to or in privity with a party to the previous
lawsuit. CRC contends that it is sufficient that the party against whom claim preclusion
is asserted was a party to the previous lawsuit. We disagree. There are two types of res
judicata — claim preclusion and issue preclusion (also referred to as collateral estoppel).
(Mycogen, supra, 28 Cal.4th at p. 896, fn. 7.) For issue preclusion to apply, several
requirements must be met, including that "the party against whom preclusion is sought
must be the same as, or in privity with, the party to the former proceeding." (Lucido v.
Superior Court (1990) 51 Cal.3d 335, 341, italics added (Lucido).) Accordingly, for
issue preclusion to apply there is no requirement that the party asserting issue preclusion
have obtained a final judgment in the previous action. However, the type of res judicata
at issue here is not issue preclusion; it is claim preclusion. Accordingly, for CRC to
assert res judicata it must establish that it was a party who obtained a final judgment in
the Northern Lights lawsuit or was in privity with such a party.
                                              9
       As we have explained, however, a party may still rely on claim preclusion if it was

in privity with a party who obtained a final judgment in an action. (Mycogen, supra, 28

Cal.4th at p. 896.) Therefore, we examine whether CRC was in privity with Chase and

may, on that basis, assert claim preclusion arising from the Northern Lights lawsuit.

       "The term 'privity' refers to some relationship or connection with the party which

makes it proper to hold 'privies' bound with the actual parties. ' "Who are privies requires

careful examination into the circumstances of each case as it arises." ' [Citations.] The

courts have abandoned application of rigid categories in favor of a practical approach

which addresses the question of 'whether the non-party is sufficiently close to the original

case to afford application of the principle of preclusion.' " (Martin v. County of Los

Angeles (1996) 51 Cal.App.4th 688, 700.)

       As relevant here, res judicata arises when one party is in privity with another

because the parties' relationship is "analogous to that of principal and agent." (Triano v.

F.E. Booth & Co. (1932) 120 Cal.App. 345, 347.) "If the party who actually causes the

injury is free from liability by reason of his acts, it must follow that his principal is

entitled to a like immunity. In other words, a judgment in favor of the immediate actor is

a bar to an action against one whose liability is derivative from or dependent upon the

culpability of the immediate actor." (Id. at pp. 347-348.)

       Although the role of a trustee to a deed of trust is complex and depends on the

transaction at issue, in the foreclosure on the Northern Lights property, CRC (as the

trustee on the deed of trust) was acting as an agent to its principal, Chase, who was the

beneficiary on the deed of trust. "A trustee under a deed of trust has neither the powers

                                               10
nor the obligations of a strict trustee; rather, he serves as a kind of common agent for the

trustor and the beneficiary. . . . His agency is a passive one, for the limited purpose of

conducting a sale in the event of the trustor's default or reconveying the property upon

satisfaction of the debt. . . . 'The "trustee" of a deed of trust is not a trustee at all in a

technical or strict sense . . . .' . . . A trustee . . . , while an agent for both the beneficiary

and the trustor, does not stand in a fiduciary relationship to either." (Hatch v. Collins

(1990) 225 Cal.App.3d 1104, 1111-1112, citations omitted, italics added.) The trustee of

a deed of trust "acts as a common agent for the trustor and the beneficiary of the deed of

trust," with the trustee's only duties being "(1) upon default to undertake the steps

necessary to foreclose the deed of trust; or (2) upon satisfaction of the secured debt to

reconvey the deed of trust." (Vournas v. Fidelity Nat. Title Ins. Co. (1999) 73

Cal.App.4th 668, 677, italics added.) Logically, as a common agent, when fulfilling the

first of a trustee's duties (i.e., foreclosing on a deed of trust), a trustee is acting as an

agent of the beneficiary; when fulfilling the second of a trustee's duties (reconveying the

deed of trust upon satisfaction), a trustee is acting as an agent of the trustor. (Cf. Jenkins

v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 515 [trustee to deed of trust

recorded a notice of default " 'as agent for beneficiary' "].)

       Here, because Tabrizi challenges the foreclosure on the deed of trust for the

Northern Lights property, CRC was acting as an agent of the beneficiary, Chase, when

performing the acts on which Tabrizi based both this lawsuit and the Northern Lights

lawsuit. Indeed, as we understand Tabrizi's allegations against CRC, because CRC was

acting on behalf of Chase, all of CRC's alleged liability is derivative of Tabrizi's claim

                                                11
that Chase had no authority to initiate the foreclosure. Accordingly, as an agent of Chase,

CRC was in privity with Chase for the purpose of the Tabrizi's attempt in the Northern

Lights lawsuit to challenge the foreclosure of the Northern Lights property. As a party in

privity with Chase, CRC is entitled to assert res judicata based on the judgment obtained

by Chase.

       Having concluded that CRC may assert res judicata based on the judgment in

favor of Chase in the Northern Lights lawsuit, we next proceed to consider whether the

trial court properly sustained the demurrer on the ground of res judicata as to both CRC

and Chase based on the judgments in the Northern Lights lawsuit and the Encendido

lawsuit.

D.     The Trial Court Properly Sustained the Demurrer Based on Res Judicata

       As we have explained, res judicata arises when a judgment is final, on the same

claim or cause of action, between the same parties, and is adjudicated based on the

merits. (McKinney, supra, 110 Cal.App.3d at p. 794.) Tabrizi claims that Chase and

CRC did not establish the requirements for res judicata because the instant lawsuit does

not assert the same causes of action as are asserted in the Northern Lights lawsuit and the

Encendido lawsuit.4



4      We note that much of Tabrizi's appellate brief addresses issues that are not
pertinent to the trial court's ruling sustaining the demurrer on the basis of res judicata.
Tabrizi sets forth an extensive, yet irrelevant, discussion about whether his complaint has
substantive merit and whether he can amend the complaint to cure any deficiencies. We
do not address these issues as they are not relevant to the issues presented in the
demurrer.

                                            12
       For the purposes of res judicata, "[c]auses of action are considered the same if

based on the same primary right." (Citizens for Open Government v. City of Lodi (2012)

205 Cal.App.4th 296, 325.) " '[T]he primary right is simply the plaintiff's right to be free

from the particular injury suffered.' " (Mycogen, supra, 28 Cal.4th at p. 904.) As our

Supreme Court has explained, "for purposes of applying the doctrine of res judicata, the

phrase 'cause of action' has a . . . precise meaning: The cause of action is the right to

obtain redress for a harm suffered, regardless of the specific remedy sought or the legal

theory (common law or statutory) advanced. . . . '[T]he "cause of action" is based upon

the harm suffered, as opposed to the particular theory asserted by the litigant. . . .' Thus,

under the primary rights theory, the determinative factor is the harm suffered." (Boeken

v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798, citations omitted (Boeken).)

" 'The primary right must also be distinguished from the remedy sought: "The violation

of one primary right constitutes a single cause of action, though it may entitle the injured

party to many forms of relief, and the relief is not to be confounded with the cause of

action, one not being determinative of the other." ' " (Mycogen, at p. 904.)

       Further, in assessing whether the same cause of action was at issue in a previous

lawsuit, " '[i]f the matter was within the scope of the action, related to the subject matter

and relevant to the issues, so that it could have been raised, the judgment is conclusive on

it despite the fact that it was not in fact expressly pleaded or otherwise urged. . . . The

reason for this is manifest. A party cannot by negligence or design withhold issues and

litigate them in consecutive actions.' " (Tensor Group v. City of Glendale (1993) 14

Cal.App.4th 154, 160 (Tensor Group).)

                                              13
       Here, the Northern Lights lawsuit and the Encendido lawsuit both asserted the

same cause of action as is asserted in this action. As we will explain, the primary right

involved in both prior proceedings, as in this proceeding, was Tabrizi's " 'right to be free

from' " the wrongful foreclosure of his property. (Mycogen, supra, 28 Cal.4th at p. 904.)

       In the Northern Lights lawsuit, the gist of Tabrizi's case was that the foreclosure

should not go forward because (1) there was fraud at the origination of the loan; and (2)

Chase violated several legal statutory requirements relating to foreclosure. The injury

Tabrizi alleged was the unlawful foreclosure on the Northern Lights property, which he

sought to have enjoined. That is the same injury Tabrizi asserts in this case — that he is

suffering an unlawful foreclosure. Tabrizi simply asserts different theories about why the

foreclosure is unlawful. Tabrizi could have, but did not, focus on the specific legal

theory that he now asserts when litigating the Northern Lights lawsuit. Indeed, as we

have noted above, Tabrizi's complaint in the Northern Lights lawsuit touched upon the

theory that he focuses on in this lawsuit, stating that Chase "claims that it is the current

holder of the mortgage and/or other security interests taken in the . . . loan transaction,

despite the fact that public records do not reflect any assignments from W[a]M[u] to

[Chase] as required by law . . . ." Tabrizi simply chose not to further develop that theory

in the Northern Lights lawsuit, although he easily could have done so.

       In the Encendido lawsuit, Tabrizi also alleged that he was injured by an unlawful

foreclosure. Specifically, he alleged that he was improperly subject to foreclosure on the

Encendido property because Chase and CRC did not comply with the statutory

requirements for foreclosure and had breached a promise to allow him to short-sale the

                                              14
property. Being subjected to an unlawful foreclosure of the Encendido property is the

same injury Tabrizi alleges in this case. In the Encendido lawsuit, Tabrizi could have

focused on the allegations that he makes in this lawsuit as to why the foreclosure on the

Encendido property is unlawful.5 Indeed, in the Encendido lawsuit, Tabrizi touched on

the theory of his current lawsuit, alleging that Chase may not "have physical custody of

Tabrizi's original Mortgage and therefore the foreclosure process is void," and that

"[Chase] may have no rights in title or interest to Tabrizi's property." As in the

Encendido lawsuit, Tabrizi could have further developed that theory, but he simply chose

not to.

          Tabrizi acknowledges that he was attempting to prevent an unlawful foreclosure in

all three lawsuits. However, he argues that the same primary right is not at issue in this

case because it is focused on contractual theories as to why the foreclosures are unlawful

rather than statutory theories as alleged in the Northern Lights lawsuit and the Encendido

lawsuit. Tabrizi argues that "issues regarding whether Chase is a party to the note and

deed of trust is a contractual issue while compliance with the statutory scheme governing


5       Tabrizi asserts that "[t]he issue has to be decided in the prior action in order for
Res Judicata to apply." Based on this premise, he argues that even if his other theories of
liability are barred, he may pursue a theory of fraud in this case because "whether or not
Mr. Tabrizi actually was a victim of fraud was never decided." Tabrizi's argument is
flawed because it confuses the two types of res judicata. Only issue preclusion requires
that an issue be actually litigated and necessarily decided. (Lucido, supra, 51 Cal.3d at
p. 341.) In contrast, claim preclusion — upon which the trial court relied to sustain the
demurrer — requires only that " 'the matter was within the scope of the action, related to
the subject matter and relevant to the issues, so that it could have been raised' " even if it
" 'was not in fact expressly pleaded or otherwise urged.' " (Tensor Group, supra, 14
Cal.App.4th at p. 160.)

                                              15
non-judicial foreclosure sales raises issues with laws." We reject Tabrizi's argument.

Case law is clear that it is the harm suffered rather than the legal theory alleged that is

dispositive in determining whether lawsuits assert the same cause of action.6 " 'Even

where there are multiple legal theories upon which recovery might be predicated, one

injury gives rise to only one claim for relief. "Hence a judgment for the defendant is a

bar to a subsequent action by the plaintiff based on the same injury to the same right,

even though he presents a different legal ground for relief." ' " (Boeken, supra, 48

Cal.4th at p. 798.)

       In sum, we conclude that the doctrine of res judicata is applicable to Tabrizi's

claims in this lawsuit. The demurrer was accordingly properly sustained as to Chase and



6       Despite case law establishing that it is the harm suffered rather than the legal
theory alleged that determines whether two lawsuits involve the same primary right,
Tabrizi relies on Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327 to argue
that his lawsuit is not barred by res judicata because it is purportedly based on contractual
theories while the former lawsuits were purportedly based on statutory theories. We
reject the argument because Branson is not applicable here and does not abrogate the rule
that the harm suffered rather than the legal theory asserted determines whether res
judicata applies. Branson concerned a unique situation in which a defendant to a first
lawsuit filed a posttrial motion seeking a court order requiring that a defendant, who he
alleged to be his corporate principal, indemnify him under Corporations Code section
317. (Id. at pp. 332-338.) Applying the doctrine of issue preclusion, Branson concluded
that a ruling adverse to the defendant on his posttrial motion did not bar a subsequent
lawsuit by the defendant alleging breach of contract for indemnity against the principal,
as different primary rights were at issue. (Id. at pp. 343-344.) Specifically, the
defendant's posttrial motion concerned his primary right to seek statutory indemnity,
while his subsequent lawsuit concerned his primary right to seek contractual indemnity.
(Ibid.) Here, in contrast, as we have explained, there is only a single primary right
asserted, namely the right of Tabrizi to be free from an unlawful foreclosure. Branson
does not stand for the principle claimed by Tabrizi, that a party may bring one lawsuit
alleging statutory theories of liability and then bring a second lawsuit alleging contractual
theories of liability when, as here, the primary right asserted in the lawsuits is the same.
                                              16
CRC on the ground that Tabrizi's claims against those parties are barred by the judgments

in the Northern Lights lawsuit and the Encendido lawsuit.

                                    DISPOSITION

      The judgment is affirmed.



                                                                               IRION, J.

WE CONCUR:



O'ROURKE, Acting P. J.



AARON, J.




                                           17
