Filed 8/24/20 Zimmerman v. Wells Fargo Bank CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


LYNN BEHRENS                                                  2d Civil No. B294935
ZIMMERMAN,                                                (Super. Ct. No. 18CV01746)
                                                            (Santa Barbara County)
     Plaintiff and Appellant,

v.

WELLS FARGO BANK, N.A.,

     Defendant and Respondent.


             This is an appeal from the sixth lawsuit involving the
same parties (Lynn Behrens Zimmerman and Wells Fargo Bank,
N.A.), the same property, the same loans, and the same
foreclosure sale. As in the previous lawsuits, Zimmerman sued
Wells Fargo alleging several causes of action, including wrongful
foreclosure. The trial court sustained Wells Fargo’s demurrer to
the complaint without leave to amend, finding that the complaint
was barred by res judicata. It entered judgment in favor of Wells
Fargo. We affirm.
            FACTS AND PROCEDURAL HISTORY
            In 2003, Zimmerman and another person purchased
property with a loan obtained from Wells Fargo. In 2007, they
obtained a second loan from Wells Fargo. The 2007 deed of trust
named Zimmerman as co-borrower and trustor, and Wells Fargo
as the beneficiary. In 2014, Zimmerman defaulted on the loan.
One year later, the property was sold to Wells Fargo in a
foreclosure sale.
                            Prior Cases
                          Zimmerman 1
            In June 2015, Wells Fargo filed an unlawful detainer
lawsuit against Zimmerman. (Zimmerman 1, Case No.
15CV01403.) The trial court entered a default judgment against
Zimmerman in October 2015.
                          Zimmerman 2
            In July 2015, Zimmerman filed a lawsuit against
Wells Fargo in federal district court. (Zimmerman 2, Case No.
CV-15-053320CAS-MRW.) She alleged 27 causes of action,
including wrongful foreclosure. Zimmerman voluntarily
dismissed the lawsuit in November 2015.
                          Zimmerman 3
            One week after dismissing Zimmerman 2,
Zimmerman filed a lawsuit against Wells Fargo in Santa Barbara
County Superior Court. (Zimmerman 3, Case No. 15CV04112.)
She alleged causes of action for wrongful foreclosure, unfair
competition, intentional misrepresentation, negligent
misrepresentation, elder abuse, unjust enrichment, and
cancellation of instruments. She sought an order cancelling the
documents related to the foreclosure.




                               2
             In July 2016, Zimmerman voluntarily dismissed the
lawsuit with prejudice. Two years later, she filed a motion to set
aside the dismissal, which was denied.
                            Zimmerman 4
             In February 2016, while Zimmerman 3 was pending,
Zimmerman filed another lawsuit against Wells Fargo in Santa
Barbara County Superior Court. (Zimmerman 4, Case No.
16CV00796.) She alleged causes of action for cancellation of
instruments (the 2003 deed of trust, 2007 deed of trust, and
substitution of trustee) and declaratory relief. As in Zimmerman
3, she sought an order cancelling documents relating to the
foreclosure. The trial court sustained a demurrer without leave
to amend.
             We affirmed the order on the grounds that the case
alleged “a violation of the same primary right” and sought “the
same remedy” as the Zimmerman 3 case. (Zimmerman v. Wells
Fargo (June 28, 2017, B275595) [nonpub. opn.].)
                            Zimmerman 5
             In June 2016, Wells Fargo filed a lawsuit against
Zimmerman in Santa Barbara County Superior Court.
(Zimmerman 5, Case No. 16CV02773.) Wells Fargo alleged that
Zimmerman “disparaged and slandered” Wells Fargo’s title to the
property by recording a “Notice of Intent to Preserve Interest”
(Notice of Intent). Wells Fargo alleged causes of action for
declaratory relief, cancellation of the Notice of Intent, and
slander of title.
             Zimmerman moved for leave to file a cross-complaint.
In the proposed cross-complaint, she sought to allege the same
causes of action she alleged in Zimmerman 3 (i.e., wrongful
foreclosure, unfair competition, intentional misrepresentation,




                                3
negligent misrepresentation, elder abuse, unjust enrichment and
cancellation of instruments).1 The trial court denied the motion
on the grounds that the cross-complaint was “barred by the
doctrine of res judicata, given that it asserts the same causes of
action arising from the same events and transaction as
[Zimmerman 3] dismissed by Zimmerman with prejudice in July
2016.”
             Following a court trial, the court declared the Notice
of Intent void and cancelled it, enjoined Zimmerman from
recording documents that disparaged Wells Fargo’s title, and
awarded Wells Fargo damages of $61,704.
                             Present Case
             Zimmerman filed this lawsuit against Wells Fargo in
Santa Barbara County Superior Court in April 2018, while
Zimmerman 5 was pending. The causes of action involve the
same loan and deed of trust, and the gravamen of her complaint
alleges wrongful foreclosure of the same property. She alleges
these causes of action: (1) a violation of Garn St. Germain
Act/RESPA, (2) breach of contract, (3) unfair practices (4)
wrongful foreclosure, (6) violation of the Homeowner’s Bills of
Rights, (7) violation of Civil Code section 2934a, (8) cancellation
of instruments, (9) false promises/fraud, (10) unfair competition,
(11) false promises/fraud, and (12) intentional infliction of
emotional distress. She seeks compensatory and special damages
($8.5 million); punitive damages; an order “restoring ownership
and title”; a “declaratory judgment finding that [Wells Fargo] did
not have legally cognizable rights as to [Zimmerman], the
Property, the [loan] tendered to an executed by [Zimmerman].”

      1 Respondent’s request for judicial notice filed on
February 13, 2020, is granted.




                                 4
              Wells Fargo demurred to the complaint on the
grounds that Zimmerman’s claims are (1) barred by res judicata,
and (2) barred by the pending Zimmerman 5 action. Thereafter,
the judgment in favor of Wells Fargo in Zimmerman 5 became
final. The trial court sustained the demurrer without leave to
amend. It found the claims were barred by res judicata. It said
the “voluntary dismissal in Zimmerman 3 effected a retraxit
which barred [Zimmerman] from bringing in another action any
other claims [sic] against Wells Fargo which [Zimmerman]
actually brought or could have brought against Wells Fargo in
Zimmerman 3. The same claims are presented here and all arise
out of the same transactions.”
                             DISCUSSION
              Zimmerman contends the trial court erred when it
sustained the demurrer without leave to amend because res
judicata does not bar the complaint. There was no error.
              We review an order sustaining a demurrer de novo.
We accept the truth of material facts properly pled but not
contentions, deductions, or conclusions of fact or law. (Yvanova v.
New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) A
demurrer should be sustained where the complaint fails to allege
facts sufficient to state a cause of action, or discloses a defense
that would bar recovery. (Code Civ. Proc., § 430.10.) We will
affirm if the trial court’s order is proper on any ground, “whether
or not the court acted on that ground.” (Carman v. Alvord (1982)
31 Cal.3d 318, 324.)
              Res judicata precludes litigation of a cause of action
litigated in a prior proceeding if: (1) “the parties in the present
action or parties in privity with them were parties to the prior
proceeding[;]” (2) “the prior proceeding resulted in a final




                                 5
judgment on the merits;” and (3) “the present action is on the
same cause of action as the prior proceeding.” (Bullock v. Philip
Morris USA, Inc. (2011) 198 Cal.App.4th 543, 557 (Bullock).) Res
judicata also precludes litigation of issues that could have been,
but were not, litigated in a prior proceeding. (Ibid.)
             The trial court correctly found that Zimmerman 3
precludes this action because Zimmerman’s claims were, or could
have been, litigated in Zimmerman 3. First, Wells Fargo and
Zimmerman were parties to the previous lawsuit. Second,
Zimmerman voluntarily dismissed Zimmerman 3 with prejudice,
and a dismissal with prejudice is “equivalent of a final judgment
on the merits” for res judicata purposes. (Boeken v. Philip Morris
USA, Inc. (2010) 48 Cal.4th 788, 793, 804 [plaintiff was barred
from litigating “the same primary right a second time,” where the
previous action was dismissed with prejudice].) Third, this action
raises the same “cause of action” as in Zimmerman 3. A cause of
action “consists of the plaintiff’s primary right to be free from a
particular injury, the defendant’s corresponding duty and the
defendant’s wrongful act in breach of that duty. [Citation.] The
violation of a primary right gives rise to only a single cause of
action.” (Bullock, supra, 198 Cal.App.4th at p. 557, citing
Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.)
             This action alleges a violation of the same primary
right—i.e., to be free from the foreclosure sale of the property.
Zimmerman reasserts that Wells Fargo engaged in wrongful
conduct when it serviced the loans and foreclosed on the property.
She also seeks the same relief, including an order restoring her
title and ownership of the property, “declaratory judgment
finding that [Wells Fargo] did not have any legally cognizable
rights as to [Zimmerman], the Property, [and] the alleged debt,”




                                6
and damages against Wells Fargo for alleged misconduct relating
to the foreclosure.
             Zimmerman contends the RESPA cause of action and
a wrongful eviction claim2 arose from different primary rights
than those alleged in her previous lawsuits. She argues that
because the RESPA cause of action alleges a violation of a federal
right, the cause of action “rests on a different primary right than
the state common law tort remedies.” (Ivanoff v. Bank of America
(2017) 9 Cal.App.5th 719, 728-729; Agarwal v. Johnson (1979) 25
Cal.3d 932, 955.) With respect to the wrongful eviction claim, she
alleges that the complaint “attacks how the eviction was carried
out,” which is a different primary right than a claim based on the
validity of the foreclosure. Res judicata precludes these claims
because she could have raised them in an earlier action.
(Bullock, supra, 198 Cal.App.4th at p. 557.) The complaint states
the alleged RESPA violation occurred before the foreclosure sale.
She therefore had the opportunity to raise this claim in
Zimmerman 3. The eviction occurred in January 2016. She filed
Zimmerman 4 a month later, but she did not raise a wrongful
eviction claim. She is thus precluded from bringing these claims
in this action.




      2 Zimmerman    does not allege a separate cause of action for
wrongful eviction.




                                 7
                        DISPOSITION
             The judgment is affirmed. Wells Fargo shall recover
its costs on appeal.
             NOT TO BE PUBLISHED.


                                    TANGEMAN, J.
We concur:


             GILBERT, P. J.


             PERREN, J.




                                8
                     Donna D. Geck, Judge

            Superior Court County of Santa Barbara

                ______________________________


            Law Office of Richard L. Antognini and Richard L.
Antognini, for Plaintiff and Appellant.

           Sheppard, Mullin, Richter & Hampton, Edward D.
Vogel and Karin Dougan Vogel, for Defendant and Respondent.
