                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NUMA BARNES,                                    No.    16-17258

                Plaintiff-Appellant,            D.C. No. 3:13-cv-03227-RS

 v.
                                                MEMORANDUM*
HOMEWARD RESIDENTIAL, INC.; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Northern District of California
                    Richard Seeborg, District Judge, Presiding

                            Submitted March 16, 2018**
                             San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,*** Senior
District Judge.

      Plaintiff Numa Barnes appeals the district court’s dismissal of her action

challenging the foreclosure of her home. Because Plaintiff’s prior state court


      *
             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 Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
challenge to the same foreclosure proceeding was dismissed with prejudice, the

district court concluded that California principles of res judicata barred Plaintiff’s

federal action.

      California law imposes three requirements for a state court judgment to have

preclusive effect: “(1) the second lawsuit must involve the same ‘cause of action’

as the first one, (2) there must have been a final judgment on the merits in the first

lawsuit and (3) the party to be precluded must itself have been a party, or in privity

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

City Emps.’ Ret. Sys., 568 F.3d 725, 734 (9th Cir. 2009). All three requirements

are satisfied here.

      First, Plaintiff’s federal lawsuit involves the same cause of action as her state

lawsuit. Under California’s “primary rights” theory, 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.” Boeken v. Philip Morris

USA, Inc., 230 P.3d 342, 348 (Cal. 2010). When two actions involve the same

primary right, “the doctrine of res judicata will bar not only claims actually

litigated in [the] prior proceeding, but also claims that could have been litigated.”

Palomar Mobilehome Park Ass’n v. City of San Marcos, 989 F.2d 362, 364 (9th

Cir. 1993). The district court correctly concluded that Plaintiff’s state and federal

actions both involve the primary right to avoid a wrongful foreclosure. Because



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the “critical focus of primary rights analysis ‘is the harm suffered,’” Brodheim v.

Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (quoting San Diego Police Officers’

Ass’n, 568 F.3d at 734), it is of no consequence that Plaintiff’s state action

articulated a different legal theory.

      Second, there was a final judgment on the merits in the state action. The

state court sustained defendant Homeward Residential, Inc.’s demurrer and

dismissed Plaintiff’s claims with prejudice after Plaintiff failed to amend. See

Keidatz v. Albany, 249 P.2d 264, 265 (Cal. 1952) (explaining that when the court

enters judgment following a plaintiff’s failure to amend, it is a judgment on the

merits that bars “a subsequent action alleging the same facts”). Plaintiff has no

plausible argument that the state judgment was not a final judgment on the merits.

      Finally, Plaintiff was a party to the prior state action. Plaintiff focuses on

the identity of the defendants, but California law requires that only “the party to be

precluded” have been a participant in the prior lawsuit. San Diego Police Officers’

Ass’n, 568 F.3d at 734 (emphasis added). Plaintiff was clearly a party to the state

action that she filed.

      Accordingly, Plaintiff’s federal action is foreclosed by res judicata, and we

AFFIRM.




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