Filed 3/11/16 Lucas v. Wells Fargo Bank CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



HENDRICK LUCAS,

         Plaintiff and Appellant,                                        E061065

v.                                                                       (Super.Ct.No. MCC1301512)

WELLS FARGO BANK, N.A.,                                                  OPINION

         Defendant and Respondent.




         APPEAL from the Superior Court of Riverside County. Thomas A. Peterson,

Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Hendrick Lucas, in pro. per., for Plaintiff and Appellant.

         Anglin Flewelling Rasmussen Campbell & Trytten, Robert Collings Little and

Robin C. Campbell for Defendant and Respondent.

         Plaintiff and appellant, Hendrick Lucas, sued defendant and respondent, Wells

Fargo Bank, NA (WFB), alleging several causes of action based on the unlawful



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foreclosure sale of his property located at 41102 Lomar Circle in Temecula. The trial

court sustained WFB’s general demurrer, without leave to amend, and dismissed the

complaint with prejudice on the ground it was barred by res judicata.

       In a prior lawsuit, dismissed with prejudice in September 2012 before the present

action was filed in October 2013, Lucas sued WFB in several causes of action based on

the same primary right underlying his present complaint: the alleged wrongful

foreclosure sale of his Lomar Circle property.

       Lucas appeals the judgment of dismissal in the present action, claiming the present

complaint is not barred by res judicata because it alleges different theories of recovery

and facts not alleged in the prior action. We agree that the complaint is barred by res

judicata, and affirm the judgment of dismissal.1

                   I. FACTS AND PROCEDURAL BACKGROUND

A. The Nonjudicial Foreclosure Proceedings

       In 2008, Lucas obtained two loans from WFB totaling $717,432 and secured by

first and second deeds of trust on residential property located at 41102 Lomar Circle,

Temecula. In 2009, Lucas defaulted on the loans, causing the trustee under the deeds of

trust to record a notice of default and, later, a notice of sale. On October 5, 2009, Lucas

filed for bankruptcy, but his bankruptcy petition was dismissed on October 26, 2009.


       1 In an appeal by Lucas in an unrelated case, No. E061178, we affirm a judgment
in Riverside County Superior Court case No. RIC1301701, dismissing Lucas’s complaint
against JP Morgan Chase, N.A. (JPMC) on the ground it is barred by res judicata. Lucas
twice sued JPMC and WFB, in separate, successive actions, for their alleged wrongful
foreclosure of deeds of trust on two separate Temecula properties Lucas owned.

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       On October 13, 2010, Lucas and his wife recorded two documents titled

“Assignment,” granting, assigning, and transferring to “Marcia Willardson, Spiritual

Alliances Corporation Sole,” all “existing right and interest” under the two deeds of trust

securing Lucas’s two WFB loans.

       On December 6, 2010, the trustee under the deeds of trust conducted a trustee’s

sale of the Lomar Circle property, and sold the property to WFB, the foreclosing

beneficiary, for $247,447. The unpaid secured debt at the time of the sale, together with

costs, was $606,368.56. WFB subsequently sold the property to a third party, Amnon

Yadin, on August 26, 2011.

B. The Prior Action (RIC 1110200)

       In June 2011, Lucas filed his first lawsuit against WFB, titled Lucas v. Wells

Fargo Bank, in the Riverside County Superior Court, case No. RIC1110200 (the prior

action). In June 2012, Lucas filed a second amended complaint (SAC) in the prior action,

alleging a single cause of action titled “Set Aside Default.”

       The SAC sought to void the December 6, 2010, trustee’s sale of the Lomar Circle

property to WFB based, among other things, on allegations that the sale was void because

no public auction was conducted when WFB purchased the property at the trustee’s sale.

(Civ. Code, § 2924g, subd. (a).) The SAC also alleged that WFB wrongfully resold the

property to Yadin, in August 2011, without informing Yadin that Lucas filed the prior

action and had a claim to the property. The SAC sought the return of the property to

Lucas, along with statutory, compensatory, and punitive damages, and other relief.



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       WFB answered the SAC and moved for judgment on the pleadings. In September

2012, the court in the prior action granted the motion, dismissed the prior action with

prejudice, and entered judgment in favor of WFB. Lucas did not appeal from the

judgment of dismissal in the prior action. By the time he filed the present action in

October 2013, the time for appealing from the judgment in the prior action had passed.

(Cal. Rules of Court, rule 8.104.)

       One of the grounds asserted in WFB’s motion for judgment on the pleadings in the

prior action was that Lucas lacked standing to sue WFB for his foreclosure-related claims

because he assigned his rights under the deeds of trust to Willardson in October 2010,

before WFB purchased the property at the December 2010 trustee’s sale.

       In an apparent effort to restore his standing, in September 2012, Lucas accepted an

assignment from Willardson of part of Willardson’s interest under the deeds of trust,

though the December 2010 foreclosure sale had already occurred.

C. The Present Action (MCC1301512)

       In October 2013, Lucas filed the present complaint. It alleges five causes of action

titled “fraudulent misrepresentation,” “negligent misrepresentation,” “fraud by deceit,”

“intentional infliction of emotional distress,” and “violations of [Civil Code section]

2923.55 et seq.” Like the SAC, the present complaint seeks to void the trustee’s sale of

the Lomar Circle property to WFB and alleges, among other things, that no public

auction was conducted at the time of the trustee’s sale.




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       WFB demurred to the complaint on several grounds, including that it was barred

by res judicata. At a February 14, 2014, hearing, the trial court agreed that the complaint

against WFB was barred by res judicata, sustained the demurrer without leave to amend,

and issued an order dismissing the complaint against WFB, with prejudice. (Code Civ.

Proc., § 581d.) Lucas appealed.2

                                      II. ANALYSIS

A. Standard of Review

       On appeal from a judgment dismissing a complaint following the sustaining of a

general demurrer, we review the complaint de novo to determine whether it alleges facts




       2   On January 26, 2015, we denied Lucas’s motion to augment the record on
appeal with 12 items, on the grounds that six of the items were already part of the record
on appeal and the other six items were not, apparently, presented to the trial court. Then,
on February 19, 2015, Lucas requested that we take judicial notice of the same 12 items.
WFB opposes the request, and we deny it in its entirety. Again, six of the items are
already part of the record on appeal and to that extent the request is moot. Regarding the
other six items, we not required to take judicial notice of matters not presented to the trial
court (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325) and generally will not do so
absent exceptional circumstances (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14
Cal.4th 434, 444, fn. 3). No exceptional circumstances appear here. Indeed, the six items
appear to be records from the prior action, including Lucas’s opposition to WFB’s motion
for judgment on the pleadings, but Lucas has not explained why he did not present the
records to the trial court for its consideration in ruling on WFB’s demurrer to the
complaint in the present action. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [“It has long
been the general rule and understanding that ‘an appeal reviews the correctness of a
judgment as of the time of its rendition, upon a record of matters which were before the
trial court for its consideration.’”].) In any event, none of the records are either necessary
or helpful to Lucas’s claims on this appeal. (People ex. rel. Lockyer v. Shamrock Foods
Co. (2000) 24 Cal.4th 415, 422, fn. 2 [a precondition to the taking of judicial notice in
either its mandatory or permissive form is that the matter must be relevant to a material
issue].)

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sufficient to state a cause of action under any legal theory. (Landmark Screens, LLC v.

Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 243-244.)

       In determining whether the complaint states a cause of action, we assume the truth

of all material facts properly pleaded, but not factual contentions or legal conclusions; we

give the complaint a reasonable interpretation by reading it as a whole and its parts in

their context; and we consider matters which may or must be judicially noticed, but we

disregard any allegations that are contrary to law or judicially noticeable facts. (C.R. v.

Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1102.)

       The judgment of dismissal will be affirmed if it is proper on any ground stated in

the demurrer. (Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65

Cal.App.4th 713, 721.) If, however, the plaintiff shows a reasonable possibility that the

complaint can be amended to state a cause of action, we reverse; if not, we affirm.

(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

B. Res Judicata/Overview

       “‘“The doctrine of res judicata rests upon the ground that the party to be affected,

or some other with whom he is in privity, has litigated, or had an opportunity to litigate

the same matter in a former action in a court of competent jurisdiction, and should not be

permitted to litigate it again to the harassment and vexation of his opponent. Public

policy and the interest of litigants alike require that there be an end to litigation.”’

[Citation.] ‘[R]es 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



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and expense in judicial administration.”’ [Citation.]” (Villacres v. ABM Industries Inc.

(2010) 189 Cal.App.4th 562, 575.)

       “Under the doctrine of res judicata, a valid, final judgment on the merits is a bar to

a subsequent action by parties or their privies on the same cause of action. [Citation.] In

California, a ‘cause of action’ is defined by the ‘primary right’ theory. ‘The most salient

characteristic of a primary right is that it is indivisible: the violation of a single primary

right gives rise to but a single cause of action.’ [Citation.] In particular, the primary right

theory provides that a cause of action consists of (1) a primary right possessed by the

plaintiff, (2) a corresponding duty devolving upon the defendant, and (3) a delict or

wrong done by the defendant which consists of a breach of the primary right. [Citation.]

‘“If 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

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

issues and litigate them in consecutive actions. Hence the rule is that the prior judgment

is res judicata on matters which were raised or could have been raised, on matters

litigated or litigable. . . .”’” (Amin v. Khazindar (2003) 112 Cal.App.4th 582, 589-590.)

       “The fact that different forms of relief are sought in the two lawsuits is irrelevant,

for if the rule were otherwise, ‘litigation finally would end only when a party ran out of

counsel whose knowledge and imagination could conceive of different theories of relief

based upon the same factual background.’ [Citation.] . . . ‘. . . [U]nder what

circumstances is a matter to be deemed decided by the prior judgment? Obviously, if it is



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actually raised by proper pleadings and treated as an issue in the cause, it is conclusively

determined by the first judgment. But the rule goes further. If 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. . . . “. . . [A]n issue may not be thus split into

pieces. If it has been determined in a former action, it is binding notwithstanding the

parties litigant may have omitted to urge for or against it matters which, if urged, would

have produced an opposite result . . . .”’” (Interinsurance Exchange of the Auto. Club v.

Superior Court (1989) 209 Cal.App.3d 177, 181-182, italics omitted.)

       “‘In California the phrase “cause of action” is often used indiscriminately . . . to

mean counts which state [according to different legal theories] the same cause of action

. . . .’ [Citation.] But for purposes of applying the doctrine of res judicata, the phrase

‘cause of action’ has a more 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. [Citation.] . . . ‘[T]he “cause of action” is based

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

[Citation.] 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 [the plaintiff] presents a different legal ground for relief.”

[Citation.]’ Thus, under the primary rights theory, the determinative factor is the harm



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suffered. When two actions involving the same parties seek compensation for the same

harm, they generally involve the same primary right.” (Boeken v. Philip Morris USA,

Inc. (2010) 48 Cal.4th 788, 798.)

       “As far as its content is concerned, the primary right is simply the plaintiff’s right

to be free from the particular injury suffered. [Citation.] It must therefore be

distinguished from the legal theory on which liability for that injury is premised: ‘Even

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

injury gives rise to only one claim for relief.’ [Citation.] 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.’” (Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682.)

C. Res Judicata Bars the Present Action and Complaint

       “Res judicata bars a cause of action that was or could have been litigated in a prior

proceeding if ‘(1) the present action is on the same cause of action as the prior

proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3)

the parties in the present action or parties in privity with them were parties to the prior

proceeding. [Citation.]’ [Citation.]” (Federal Home Loan Bank of San Francisco v.

Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1527.)

       All three elements of res judicata are present here. First, the parties to the present

action, Lucas and WFB, were parties to the prior action. Second, the complaint in the



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present action and the SAC in the prior action are based on the same “cause of action” or

claim of right: the alleged wrongful foreclosure under the deeds of trust and the trustee’s

sale of the Lomar Circle property to WFB in December 2010. Third, the prior action

resulted in a final judgment on the merits, simply because it was dismissed with

prejudice.

       “[F]or purposes of applying the doctrine of res judicata . . . a dismissal with

prejudice is the equivalent of a final judgment on the merits, barring the entire cause of

action. [Citations.] . . . ‘The statutory term “with prejudice” clearly means the plaintiff’s

right of action is terminated and may not be revived . . . [A] dismissal with prejudice . . .

bars any future action on the same subject matter.’” (Boeken v. Phillip Morris USA, Inc.,

supra, 48 Cal.4th at p. 793.) As noted, Lucas did not appeal from the judgment in the

prior action.

       Lucas claims res judicata does not bar the present action against WFB because the

prior action was not adjudicated on its merits. He asserts that the motion for judgment on

the pleadings in the prior action was granted based on his lack of standing to sue WFB,

and a dismissal based on lack of standing to sue is not an adjudication of a case on its

merits. He relies on Hollingsworth v. Perry (2013) ___ U.S. ___ [133 S.Ct 2652] for the

proposition that a dismissal of an action based on a party’s lack of standing to sue is not

an adjudication of the merits of the case. The high court in Perry held that the “official

proponents” of California’s Proposition 8, a voter initiative, did not have standing, under

article III of the federal Constitution, to appeal the federal district court order declaring



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that Proposition 8 violated the federal Constitution. (Hollingsworth v. Perry, supra, 133

S.Ct. at pp. 2662-2668.) As Lucas points out, the high court declared early in its opinion

that “[b]ecause we find that petitioners do not have standing, we have no authority to

decide this case on the merits . . . .” (Id. at p. 2659, italics added.) To be sure, Perry did

not reach the merits of the proponents’ claim that Proposition 8 was constitutional. But

Perry is inapposite because, unlike the present case, it did not involve the application of

res judicata or claim preclusion to a second action between the same parties based on the

same primary right under California law.

       Lucas further claims res judicata does not apply to the present complaint against

WFB because his prior action against WFB was erroneously dismissed based on his lack

of standing to sue. Again, Lucas is mistaken. A final judgment of dismissal in a prior

action is not subject to collateral attack in a subsequent action, unless the court in the

prior action lacked “fundamental jurisdiction [i.e. of the person and subject matter] . . . .”

(In re Marriage of Maxfield (1983) 142 Cal.App.3d 755, 760-761.) In other words, when

the error in a judgment “does not reach the power of the court to act, but concerns instead

a mistaken application of law,” the judgment may not be collaterally attacked in a

subsequent action. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950-951; see also

Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 727-728.) Here, the court

in the prior action ostensibly had jurisdiction over the parties and the subject matter.

Thus, the judgment in the prior action may not be collaterally attacked regardless of




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whether the prior action was erroneously dismissed based on Lucas’s lack of standing to

sue WFB.

       Our state Supreme Court’s recent decision in Yvanova v. New Century Mortgage

Corp. (Feb. 18, 2016, S218973) ___ Cal.4th ___ [2016 Cal. Lexis 956] does not assist

Lucas. There, the court narrowly held that, in an action for the wrongful, nonjudicial

foreclosure of a deed of trust securing a home loan, the borrower has standing to

challenge the assignment of the note and deed of trust based on defects allegedly

rendering the assignment void.

       Unlike the present action case, Yvanova did not involve a second action that was

barred by res judicata based on a prior action involving the same parties, in which the

plaintiff asserted injury to the same primary right he or she asserted in the second action.

Here, for the reasons discussed, the judgment of dismissal in the prior action is final, and

Lucas cannot collaterally attack that judgment regardless of the reasons the action was

dismissed, or erroneously dismissed.

       Further, the court in the prior action concluded that Lucas lacked standing to sue

for wrongful foreclosure because he had transferred his interest under the foreclosing

deed or deeds of trust. In the prior action, Lucas did not assert that the foreclosure sale

was void based on alleged defects in an assignment of beneficial interest under the

foreclosing deed of trust. Because such a claim “was within the scope of the [prior]

action, related to the subject matter and relevant to the issues, so that it could have been

raised,” the judgment in the prior action is conclusive on it even though it was not urged



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in the prior action. (Interinsurance Exchange of the Auto. Club v. Superior Court, supra,

209 Cal.App.3d at pp. 181-182, italics omitted.)

       Lastly, Lucas claims the trial court abused its discretion in denying him leave to

amend his complaint because he demonstrated a reasonable probability that it could be

amended to state a cause of action against WFB. (Blank v. Kirwan, supra, 39 Cal.3d at p.

318; Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 53 [a demurrer

sustained based on technical or formal defects in a complaint, curable by amendment, is

not a judgment on the merits].) We disagree. The defects in the present complaint are

not curable “defects of form,” as Lucas asserts. For the reasons explained, the present

complaint is barred by res judicata, and it cannot be amended to state any cause of action

against WFB based on the alleged wrongful foreclosure and trustee’s sale of the Lomar

Circle property to WFB.

                                   III. DISPOSITION

       The judgment of dismissal is affirmed. WFB shall recover its costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                               RAMIREZ
                                                                                       P. J.


We concur:

McKINSTER
                          J.

MILLER
                          J.


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