                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 10 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WES JOHNSON, AKA W. W. Johnson,                 No.    16-55161
AKA Wes W. Johnson,
                                                D.C. No.
                Plaintiff-Appellant,            2:15-cv-01338-JAK-AS

 v.
                                                MEMORANDUM*
JPMORGAN CHASE & CO., as acquirer of
certain assets and liabilities of Washington
Mutual Bank from the Federal Deposit
Insurance Corporation, as Receiver for
Washington Mutual Bank,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                   John A. Kronstadt, District Judge, Presiding

                            Submitted August 7, 2017**
                               Pasadena, California

Before: CALLAHAN and OWENS, Circuit Judges, and FABER,*** District
Judge.

      *
             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 David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
      Wes W. Johnson (Johnson) appeals from the district court’s denial of his

Fed. R. Civ. P. 59(e) motion and dismissal of Johnson’s complaint as barred by

both the statute of limitations and res judicata. The instant appeal follows a series

of lawsuits in which Johnson alleged that JPMorgan Chase Bank, N.A. (Chase)

wrongfully foreclosed on Johnson’s property after Johnson attempted to rescind

the loan on the property pursuant to the Truth in Lending Act (TILA). Because the

parties are familiar with the facts, we do not recount them here. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1. The district court correctly held that the statute of limitations barred

Johnson’s quiet title claim. As the district court held, the limitations period began

to run in 2009 when Chase attempted to foreclose on the property and filed an

unlawful detainer action against Johnson, and it continued running. No authority

supports Johnson’s contention that the statute of limitations stopped running when

the unlawful detainer action was dismissed with prejudice. Instead, it is clear that

“[t]he ‘possession’ required to toll the statute of limitations must be ‘exclusive and

undisputed.’” Ankoanda v. Walker-Smith, 52 Cal. Rptr. 2d 39, 43 (Ct. App. 1996).

Not only did Johnson’s possession become disputed when Chase filed the unlawful

detainer action, but it remained so, as demonstrated by the three separate lawsuits

Johnson filed to establish his right to possession. The record demonstrates that the

parties have engaged in one on-going dispute since 2009, and Johnson has

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consistently incurred “the expense and inconvenience of litigation” in attempting

to quiet title. Muktarian v. Barmby, 407 P.2d 659, 661 (Cal. 1965). Accordingly,

Johnson’s possession has consistently remained disputed since 2009, and there is

no basis on which to toll the statute of limitations.

      2. The district court correctly held that res judicata barred Johnson’s quiet

title action based on his 2009 state court action. Johnson focuses on the district

court’s decision that the claim raised in the instant action is identical to one

litigated in that prior proceeding. Under California’s “primary rights” theory, “the

question of whether a cause of action is identical . . . depends not on the legal

theory or label used, but on the ‘primary right’ sought to be protected in the two

actions.” Johnson v. Am. Airlines, Inc., 203 Cal. Rptr. 638, 640 (Ct. App. 1984).

An alleged “invasion of one primary right gives rise to a single cause of action.”

Id.

      Johnson’s attempt to distinguish the primary right at issue in the instant

action and the 2009 action is entirely unpersuasive. Both actions focused on the

same primary right—Johnson’s right to ownership of the property—and the same

alleged harm to that right—Chase’s purportedly wrongful foreclosure based on an

invalid Deed of Trust. The district court correctly held that res judicata barred

Johnson’s action.

      AFFIRMED.


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