Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M82002
Premo, J.
Plaintiff Emelita Nocon Solarte appeals from a judgment entered in favor of defendants Washington Mutual Bank (Washington Mutual), California Reconveyance Company (California Reconveyance), Quita Martin and Thomas Johns (hereafter collectively “defendants”) after the trial court found that plaintiff’s complaint was barred by the doctrines of res judicata and collateral estoppel and sustained defendants’ demurrer to her complaint without leave to amend. Plaintiff asserts that the trial court erred in entering judgment in favor of defendants. For the reasons stated below, we find no error and shall affirm the judgment.
Plaintiff, appearing in propria persona, seems to believe this appeal is simply another opportunity to argue the merits of her claims against defendants. Nowhere in her opening brief does plaintiff even mention res judicata or collateral estoppel, let alone argue whether or not the demurrer to her complaint was properly sustained on those grounds. Nevertheless, we will exercise our discretion and consider whether or not the trial court erred in finding that plaintiff’s action is barred. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary”].)
I. Factual and Procedural Background
A. Case No. M82002
On December 6, 2006, plaintiff filed a complaint in the Monterey County Superior Court against defendants. (Emelita Nocon Solarte v. Washington Mutual Bank et al., 2007, No. M82002; hereinafter “Case No. M82002”.) According to the allegations of the complaint in Case No. M82002, Jaime Solarte and Carlos Nocon entered into a loan agreement in February 1995 to purchase certain real property, located at 1860 Delancey Drive, Salinas, California (“the Property”). The loan agreement was secured by a deed of trust on the Property. Plaintiff alleged that she is the “successor to the legal owner of the property.”
Jaime Solarte is plaintiff’s husband, according to a grant deed recorded May 7, 1996.
Several of the documents relating to the Property list its numerical address as “1860” and some list it as “1861.” It does not appear that this discrepancy is material, and none of the parties has raised it as an issue in this appeal.
Plaintiff alleged that she made loan payments in May 2002 and June 2002, both of which were accepted by Washington Mutual. However, on July 8, 2002, plaintiff made another loan payment, which was returned by Washington Mutual. On or about July 17, 2002, plaintiff contacted Washington Mutual to discuss refinancing the Property, but Washington Mutual “refused or failure to talk to [plaintiff] or to communicate to Plaintiff to pay off the total loan amount owed to cure loan default and to avoid illegal trustee’s sale to Plaintiff’s property.” (Sic.)
On August 2, 2002, plaintiff again attempted to make a loan payment, but her payment was again returned by Washington Mutual. Plaintiff alleges that Washington Mutual branch manager Cheryl Brown advised her, on or about August 7, 2002, that she write to Washington Mutual’s “C.E.O. or President” Kerry Killinger regarding her attempt to refinance the loan. Plaintiff did so, but Killinger did not reply to her “at all.”
Sometime in December 2002, a realtor came by plaintiff’s house and asked if plaintiff would sell the Property to her, since there was a trustee’s sale noticed for December 16, 2002. Plaintiff declined, and said that she would “make payment to the loan.” (Sic.) The notice of default and election to sell under deed of trust indicated that the amount due “is $8,716.74 as of June 18, 2002 and will increase until [the] account becomes current.” On December 3, 2002, plaintiff went to Washington Mutual to again try to refinance the loan, but was unsuccessful.
On December 4, 2002, plaintiff mailed a payment of $8,716.74 to Washington Mutual, and alleges that Washington Mutual refused the check, but failed to return it. At no time between April 2002 and December 16, 2002, did Washington Mutual send plaintiff a monthly statement of the amount she should pay on the loan.
On December 11, 2002 and December 16, 2002, plaintiff attempted to make payments of $1,068.58 and $5,489.04, respectively, to Washington Mutual. Washington Mutual returned plaintiff’s checks, but again did not advise her how much she should pay on the loan.
On December 16, 2002, Johns agreed that plaintiff could refinance the loan to cure the default, but California Reconveyance and Washington Mutual refused to discuss refinancing with her. Johns also did not talk to California Reconveyance “regarding in our agreement to get Thomas Johns money back like Thomas Johns said to Plaintiff.” (Sic.) Johns and Martins purchased the Property at Washington Mutual’s “illegal sale.”
On January 3, 2003 and January 6, 2003, plaintiff attempted to make two more payments, totaling $9,785.32, but those payments were also returned.
The complaint in Case No. M82002 lists a single cause of action, entitled “WASHINGTON MUTUAL BANK FAILURE TO ACCEPT A TIMELY TENDER OF THE AMOUNT DUE.” Plaintiff alleges that the December 16, 2002 trustee’s sale violated Civil Code section 2924c because Washington Mutual wrongfully rejected her “timely tender” of $8,716.74 on December 4, 2002.
E. Defendants’ demurrer to the complaint in Case No. M82002
On January 18, 2007, defendants demurred to the complaint on the grounds that it was barred by res judicata or collateral estoppel. In support of their demurrer, defendants requested that the trial court take judicial notice of a number of documents, including three complaints previously filed by plaintiff against defendants in the Monterey County Superior Court.
Jaime Solarte, Emelita Solarte, Carlos Nocon, Leonora Nocon and Romel Nocon v. Washington Mutual Bank et al., Superior Court Monterey County, 2003, No. M63392 (hereafter “the 2003 Action”); Emelita Nocon Solarte v. Washington Mutual Bank et al., Superior Court Monterey County, 2006, No. M78521; and Emelita Nocon Solarte v. Washington Mutual Bank et al., Superior Court Monterey County, 2006, No. M79615.
On February 27, 2007, the trial court granted defendants’ requests for judicial notice and sustained defendants’ demurrer to the complaint without leave to amend. The trial court, in its order, noted that plaintiff had “previously sued the same defendants for misconduct stemming from the same foreclosure,” citing the 2003 Action. The trial court indicated that, in the 2003 Action, it had found that “Plaintiff was on notice that her loan was in default and failed to cure the default, and that Defendants [sic] conduct with regard to the loan and the foreclosure sale was appropriate.” In addition, the trial court noted that this court had, on appeal, affirmed the judgment in favor of defendants in the 2003 Action. The trial court concluded that it “appear[ed] . . . that the claims raised by Plaintiff in this action are barred by the court’s determination in the prior action [i.e., the 2003 Action]. Under the doctrine of collateral estoppel, Plaintiff is barred from relitigating any issues that were raised or could have been raised in that action. Carroll v. Puritan Leasing Co. (1978) 77 Cal.App.3d 481, 490.”
In its order sustaining defendants’ demurrer, the trial court did not expressly cite and apparently did not rely on either of the actions filed by plaintiff against defendants in 2006, i.e., case Nos. M78521 and M79615, as a basis for its decision. Both of those complaints had previously been dismissed by the trial court on res judicata and collateral estoppel grounds. Plaintiff did not appeal the judgments entered against her in case Nos. M78521 and M79615.
In the same order, the trial court granted the motion by defendants Washington Mutual and California Reconveyance to have plaintiff declared a “vexatious litigant,” pursuant to Code of Civil Procedure section 391.7. Plaintiff does not challenge that portion of the trial court’s ruling.
On or about March 2, 2007, plaintiff filed a document entitled “Plaintiff Answer Judge Ruling to Plaintiff Complaint: Washington Mutual Bank Failure to Accept a Timely Tender of the Amount Due.” (Sic.) It appears from the record that this document was treated by the trial court as a motion for a new trial, which was set for hearing on April 20, 2007. By written order dated April 27, 2007, the trial court denied plaintiff’s motion for a new trial.
C. The 2003 Action
In the 2003 Action, plaintiff alleged that she had an interest in the Property, pursuant to a loan secured by a deed of trust. She further alleged that Washington Mutual began refusing to accept monthly payments on the loan, claiming they were insufficient. A notice of default was recorded in June 2002, followed by a notice of trustee’s sale in November 2002. On or about December 16, 2002, the Property was sold at a trustee’s sale to defendants Johns and Martin.
The first cause of action for negligence alleged that Washington Mutual and California Reconveyance failed to adequately inform plaintiff of her obligations, did not properly collect payments and prevented plaintiff from reinstating the loan. The second cause of action for breach of contract alleged that plaintiff’s failure to pay any amounts due on the loan was caused by Washington Mutual’s failure to inform her of the full amount of loan payments and Washington Mutual’s wrongful refusal to allow her to reinstate the loan. In the third cause of action for breach of the implied covenant of good faith and fair dealing, plaintiff alleged that Washington Mutual prevented plaintiff from performing the conditions of the loan agreement by failing to inform her of the amount of her monthly mortgage payment, by foreclosing on the Property and by preventing plaintiff from reinstating the loan. The fourth cause action for breach of statutory foreclosure requirements alleged that Washington Mutual and California Reconveyance failed to comply with the statutory notice requirements set forth in Civil Code section 2924 et seq. The fifth cause of action alleged that Washington Mutual and California Reconveyance breached the Soldiers’ and Sailors’ Civil Relief Act of 1940 by foreclosing on the Property and the sixth cause of action sought a declaration regarding the validity of the foreclosure sale.
On August 10, 2004, a one day court trial was conducted in the 2003 Action, which resulted in a judgment in favor of Washington Mutual and California Reconveyance on all causes of action. Defendants Johns and Martin had previously obtained a judgment in their favor by way of a motion for summary judgment.
Plaintiff appealed from the judgment, and after the matter was fully briefed and argued, this court affirmed the trial court’s decision in an unpublished decision filed December 6, 2005. (Emelita Solarte v. Washington Mutual et al. (Dec. 6, 2005) H028002 [nonpub. opn.].) In that decision, we held that plaintiff had failed to show error had occurred in the proceedings below and had failed to show that “Washington Mutual acted improperly or unlawfully in foreclosing on the property.” (Id. at pp. 11-12.)
Plaintiff’s petition for rehearing was denied by this court on December 28, 2005. Her petition for review was denied by the California Supreme Court on February 22, 2006, and remittitur was issued on February 24, 2006.
II. Discussion
“On appeal from dismissal following a sustained demurrer, we take as true all well-pleaded factual allegations of the complaint.” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 495.) In determining if a complaint is subject to demurrer, the court considers not only the face of the complaint, but any facts judicially noticed. (Teachers Management & Inv. Corp. v. City of Santa Cruz (1976) 64 Cal.App.3d 438, 444.) We exercise our independent judgment about whether the pleading states a cause of action as a matter of law. (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869-870.)
The doctrine of res judicata applies when: (1) there is a final judgment on the merits in a previous action; (2) the party against whom the plea is raised was a party or in privity with a party to the previous action; and (3) the issues decided in the previous action are identical to those in the later action. (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.) This doctrine “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.” (Ibid.)
“California has consistently applied the ‘primary rights’ theory, under which the invasion of one primary right gives rise to a single cause of action.” (Slater v. Blackwood (1975) 15 Cal.3d 791, 795.) The primary right theory may be invoked “when a plaintiff attempts to divide a primary right and enforce it in two suits.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 682.) “[I]f the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata. (Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 638-640.)” (Ibid.)
“[The primary right theory] provides that a ‘cause of action’ is comprised of a ‘primary right’ of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty. (McKee v. Doud (1908) 152 Cal. 637, 641 . . . .) 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. (Slater v. Blackwood (1975) 15 Cal.3d 791, 795 . . . .)” (Crowley v. Katleman, supra, 8 Cal.4th at p. 681.) “[T]he 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.” (Ibid.) In this context, a “cause of action” should not be confused with counts pled in a complaint, “which are merely ways of stating the same cause of action differently.” (Bay Cities Paving & Grading, Inc. v. Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 860, fn. 1; see Slater v. Blackwood, supra, 15 Cal.3d at p. 796.)
In both the 2003 Action and Case No. M82002, the “primary right” at issue is plaintiff’s alleged right to continued ownership of the Property. In each of those complaints, plaintiff alleged that defendants violated that “primary right” in one of several ways, i.e., that they were “negligent” or that they breached their contractual obligations to her or that they violated the statutory notice requirements set forth in Civil Code section 2924 et seq. Plaintiff has had her day in court on this “primary right.”
Plaintiff’s claims against defendants are barred by the doctrine of res judicata. There was a judgment on the merits in the 2003 Action in favor of defendants, which was affirmed on appeal by this court and which has been final since February 24, 2006. The parties are the same in both cases, and the issues decided in the 2003 Action are identical to those raised in Case No. M82002. Thus, the trial court properly sustained the demurrer without leave to amend and dismissed plaintiff’s claims against defendants.
III. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.