Opinion
E072905
03-08-2021
ALICIA JOHNSON, Plaintiff and Appellant, v. OCWEN LOAN SERVICING et al, Defendants and Respondents.
Alicia Johnson, in pro. per.; J. Wright Law Group and Jamie E. Wright for Plaintiff and Appellant. Hinshaw & Culbertson and Gary E. Devlin for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CIVDS1808987) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Alicia Johnson, in pro. per.; J. Wright Law Group and Jamie E. Wright for Plaintiff and Appellant. Hinshaw & Culbertson and Gary E. Devlin for Defendants and Respondents.
I.
INTRODUCTION
Plaintiff and appellant, Alicia Johnson, appeals from a judgment of dismissal entered after the trial court sustained the defendants' demurrer to plaintiff's first amended complaint (FAC) without leave to amend. Plaintiff contends the trial court erred in sustaining defendants' demurrer based on plaintiff failing to allege any valid causes of action against defendants. Plaintiff further argues the FAC is not barred by res judicata.
Defendants and respondents are Ocwen Loan Servicing, LLC (Ocwen) and Deutsche Bank National Trust Company, as trustee for the holders of the GSAA Home Equity Trust 2006-16 Asset-Backed Certificates Series 2006-2016 (Deutsche Bank).
We conclude plaintiff's claims alleged in the FAC were already litigated or could have been litigated in her prior federal action, which was dismissed without leave to amend for failure to allege a valid claim. Plaintiff's FAC and her prior federal action are premised on the same nucleus of operative facts, parties or those in privity, real property, deed of trust, and primary right. Therefore all of the FAC claims, which were or could have been alleged in the prior federal action, are barred by res judicata. In view of this conclusion, we need not reach the remaining issues relating to the sufficiency of the FAC allegations. The judgment of dismissal is thus affirmed.
II.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff filed two successive complaints founded on the same facts and alleged wrongful conduct. Plaintiff first filed a complaint in federal court, which was dismissed on the merits. Plaintiff thereafter filed the instant action in state court, which also was dismissed after the trial court sustained defendant's demurrer to the FAC without leave to amend.
A. Federal Action
In July 2017, plaintiff filed in federal district court a complaint against defendants Ocwen and Western Progressive, LLC (WPL). After Ocwen and WPL filed a motion to dismiss, plaintiff filed an amended complaint. Ocwen and WPL filed another motion to dismiss, which the federal district court granted with leave to amend. In October 2017, plaintiff filed a second amended verified complaint (SAC), alleging the following causes of action: (1) violation of 15 U.S.C. section 1692f(6) of the federal Fair Debt Collection Practices Act (FDCPA); (2) violation of 15 U.S.C. sections 1692, et seq., of the FDCPA; (3) violation of California Civil Code, section 2934a, subdivision (a)(1)(A)(C); (4) cancellation of instruments; and (5) violation of California Business & Professions Code, sections 17200.
Plaintiff alleged the following in the SAC. In 2006, plaintiff executed a deed of trust (DOT) and promissory note in favor of Greenpoint Mortgage Funding, Inc. (Greenpoint) in the amount of $645,000, secured by plaintiff's residence (Property). Shortly after execution of the mortgage loan, Greenpoint sold the debt to another entity. In 2007, plaintiff experienced financial hardship, fell behind on her mortgage payments, and defaulted on her loan on August 1, 2008. In May 2009, BAC Home Loan Servicing, LP (BAC), the loan servicer, executed and recorded a notice of default (NOD) on plaintiff's Property.
In 2011, Mortgage Electronic Registration Systems, Inc. (MERS) executed a corporate assignment of the DOT, assigning all beneficial interest to BAC. In February 2013, BAC assigned to Deutsche Bank, as trustee, all beneficial interest in the DOT, which was recorded. In November 2013, Ocwen acquired the servicing of plaintiff's mortgage debt. Ocwen allegedly harassed plaintiff since then by attempting to collect the debt, which plaintiff claimed Ocwen did not have a legal right to. Ocwen sent statements and letters to plaintiff allegedly in violation of the FDCPA.
In April 2014, Deutsche Bank executed a substitution of trustee (SOT), substituting WPL as trustee under the DOT. Plaintiff alleged the SOT was invalid because Deutsche Bank was not the owner or beneficiary of the debt. In May 2014, WPL executed and recorded a NOD on plaintiff's Property Plaintiff alleged the NOD "'makes false statements that the present Beneficiary under such Deed of Trust has executed a written Declaration and Demand for Sale and has deposited with said duly appointed Trustee, the [DOT] and all documents evidencing obligations secured thereby, falsely represents to Plaintiff that Deutsche Bank as Trustee of the 2006-16 Trust is the beneficiary of the alleged debt.'" On June 6, 2017, Ocwen sent plaintiff a qualified written request (QWR), stating that Deutsche Bank was acting as trustee of a securitized investment trust, in which plaintiff's mortgage was one of many mortgages held in the trust. On June 22, 2017, WPL executed a notice of trustee's sale (NOTS) of the Property, which was recorded on June 26, 2017.
Plaintiff alleged in her first and second causes of action that Ocwen and WPL violated the FDCPA by attempting unlawfully to collect debt payments, committing unlawful debt collection practices, and unlawfully threatening nonjudicial foreclosure of plaintiff's Property, without any right to possession of the Property. Plaintiff alleged the Property mortgage debt was never legally transferred, conveyed, or assigned to Ocwen and WPL or anyone else before plaintiff defaulted on the debt. Plaintiff further alleged Deutsche Bank did not own the debt, and Ocwen, as servicer of the mortgage, had no right to collect on the debt. Ocwen and WPL also allegedly violated the California Homeowner's Bill of Rights (HBOR), which forbids proceeding with nonjudicial foreclosure without holding a beneficial interest under the DOT or serving as an agent to a holder of a beneficial interest.
Plaintiff alleged in the third cause of action that Ocwen and WPL violated California Civil Code section 2934a, subdivision (a)(1)(A)(C), which provides that only the beneficiary of a promissory note can substitute a trustee under a DOT. There was allegedly no evidence the promissory note was transferred to Deutsche Bank as beneficiary before plaintiff defaulted on the debt. In addition, there was allegedly no evidence Ocwen could lawfully sign on behalf of the owner or beneficiary.
Plaintiff alleged in the fourth cause of action for cancellation of instruments that Ocwen and WPL created, published, and recorded false instruments, including the DOT, SOT, NOD, and all other documents related to the DOT. Plaintiff alleged in the fifth cause of action that Ocwen and WPL violated California's unfair competition statute, Business & Professions Code section 17200, by committing fraudulent business acts, practices, and conduct likely to deceive. Ocwen and WPL allegedly acted as debt collectors in an attempt to collect on a debt to which they had no right or authority, and unlawfully initiated nonjudicial foreclosure proceedings on plaintiff's Property.
Plaintiff attached to her verified SAC copies of the DOT (exh. A); the $645,000 promissory note (exh. B); assignment of DOT to Deutsche Bank (exh. B); notice of servicing transfer of mortgage loan to Ocwen as of November 30, 2013 (exh. C); MERS corporate assignment of DOT of all beneficial interest to BAC (exh. D); BAC's successor's assignment of the DOT to Deutsche Bank (exh. E); the June 6, 2017 QWR letter Ocwen sent to plaintiff (exh. F); the April 2014, SOT, in which Deutsche Bank substituted WPL as trustee under the DOT (exh. G); the NOD WPL executed in May 2014 (exh. H); and the NOTS WPL recorded on June 22, 2017 (exh. I).
Ocwen and WPL filed a motion to dismiss plaintiff's SAC. On December 11, 2017, the federal district court granted the motion to dismiss without leave to amend. The federal court stated in its detailed order of dismissal that plaintiff had failed to allege any valid claims against Ocwen and WPL, and any leave to amend would be futile. Plaintiff filed in federal district court a motion to alter or amend the judgment granting Ocwen and WPL's motion to dismiss plaintiff's SAC. In January 2018, the federal district court denied that motion as well.
Plaintiff appealed the federal district court judgment dismissing her action. In December 2018, the United States Court of Appeals for the Ninth Circuit (USCOA), affirmed the district court judgment, holding that plaintiff failed to allege facts sufficient to state plausible claims. The USCOA concluded that plaintiff failed to allege facts sufficient to show that the substitution of trustee was improper under Civil Code section 2934a. Plaintiff also failed to show the title documents were void or voidable or that there was a reasonable apprehension of serious injury if the instruments were not cancelled. As to the unfair competition claim, the court concluded plaintiff failed to allege sufficient facts that Ocwen and WPL engaged in unlawful, unfair or fraudulent business acts under California Business & Professions Code section 17200.
B. State Action
On April 16, 2018, shortly after the federal district court dismissed plaintiff's SAC without leave to amend and denied her motion to vacate the judgment of dismissal, plaintiff filed the instant action in state court against Ocwen and Deutsche Bank (defendants). In response to defendants' demurrer, plaintiff filed the FAC, alleging the following causes of action: (1) violation of the California Rosenthal Fair Debt Collection Practices Act, Civil Code section 1788 (Rosenthal Act); (2) violation of Civil Code sections 2924.17 and 2924, subdivision (a)(6); (3) violation of Business & Professions Code section 17200; (4) intentional infliction of emotional distress; and (5) injunctive relief under Business & Professions Code sections 17200 and Code of Civil Procedure section 526.
Attached to the FAC were copies of the $645,000 promissory note (exh. A); assignment of DOT to Deutsche Bank (exh. B); notice of servicing transfer of mortgage loan to Ocwen (exh. C); June 6, 2017 QWR, acknowledging that Deutsche Bank was acting as trustee of the DOT (exh. D); and NOTS (exh. E).
Plaintiff alleged in the FAC the same facts she alleged in her federal complaint (SAC). In summary, plaintiff alleged she obtained a home mortgage loan (debt) from GreenPoint, secured by her home (the Property). Ocwen "purportedly" acquired on November 13, 2013, the right to service plaintiff's mortgage debt. Deutsche Bank "purportedly" acquired a beneficial interest under the DOT, but not the promissory note. Plaintiff alleged the DOT assigned to Deutsche Bank was invalid and Ocwen did not have legal authority to service and collect payments on the mortgage loan. Defendants allegedly unlawfully attempted to collect on the debt by proceeding with nonjudicial foreclosure, without any legal right or authority to do so and based on false representations and false foreclosure documents. Plaintiff alleged in the FAC that defendants committed essentially the same wrongful conduct plaintiff alleged in the federal SAC, of attempting illegally to collect payments on plaintiff's mortgage debt.
Defendants demurred to the FAC and plaintiff filed opposition. On December 17, 2018, the trial court heard defendants' demurrer and sustained it without leave to amend. The court concluded, based on the documents attached to the FAC, that plaintiff had failed to allege that (1) defendants were not assigned the right to enforce the DOT; (2) defendants were not within the chain of title; (3) defendants committed unfair business practices; (4) defendants acted outrageously in attempting to enforce their rights under the DOT and promissory note; and (5) plaintiff was entitled to injunctive relief based on the allegations contained in the third cause of action for unfair business practices.
During the hearing, plaintiff's counsel requested the trial court to find that the FAC was not barred by res judicata because the FAC was based on violations of the Rosenthal Act, which were not alleged in the federal action. The trial court indicated that it intended to sustain the demurrer based on plaintiff's failure to allege sufficient facts as to each cause of action, and did not address res judicata. On January 10, 2019, the trial court entered a judgment of dismissal of the FAC. Plaintiff filed a motion to set aside the judgment, and filed with the county recorder a lis pendens on the Property. Defendants filed a motion to expunge. On March 15, 2019, the trial court denied plaintiff's motion to set aside the judgment and granted defendant's motion to expunge the lis pendens.
III.
RES JUDICATA CLAIM PRECLUSION
Plaintiff contends the trial court abused its discretion in sustaining defendants' demurrer to the FAC without leave to amend, and dismissing the action. Plaintiff argues the trial court erred in ruling the FAC failed to state facts sufficient to constitute a cause of action. She also argues the trial court abused its discretion in applying the res judicata doctrine.
A. Standard of Review
We perform an independent review of a ruling on a demurrer and decide de novo whether the challenged pleading states facts sufficient to constitute a cause of action. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) "In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "'[W]here the nature of the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.'" (Buchanan v. Maxfield Enterprises, Inc. (2005) 130 Cal.App.4th 418, 421.)
On appeal, we will affirm a "trial court's decision to sustain the demurrer [if it] was correct on any theory. [Citation.]" (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808, fn. omitted.) Thus, "we do not review the validity of the trial court's reasoning but only the propriety of the ruling itself. [Citations.]" (Orange Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 757.)
The record shows the trial court did not address res judicata and sustained the demurrer solely on the ground plaintiff failed to allege facts sufficient to support any cause of action against defendants. Nevertheless, we affirm dismissal of the FAC on the ground it is barred by res judicata as a matter of law. Therefore we need not consider the sufficiency of the allegations as to each cause of action.
B. Applicable Res Judicata Principles
"'Res judicata' describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, 'precludes relitigation of issues argued and decided in prior proceedings.' [Citation.][] Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897 (Mycogen).)
"While the term 'res judicata' has been used to encompass both claim preclusion and issue preclusion, we here use the term 'res judicata' only to refer to claim preclusion. As we have noted, 'The doctrine of collateral estoppel is one aspect of the concept of res judicata. In modern usage, however, the two terms have distinct meanings.'" (Mycogen, supra, 28 Cal.4th at p. 897, fn. 7; see also DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 [to avoid future confusion, the California Supreme Court follows other courts in using "the terms 'claim preclusion' to describe the primary aspect of the res judicata doctrine and 'issue preclusion' to encompass the notion of collateral estoppel]; Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 91 [the California Supreme Court recognizes that the claim preclusion doctrine was formerly called res judicata.].) "Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding." (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202 (Federation), citing Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974 (Busick).)
"Two proceedings are on the same cause of action if they are based on the same 'primary right.' [Citation.] The plaintiff's primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. [Citation.] The scope of the primary right therefore depends on how the injury is defined. A cause of action comprises the plaintiff's primary right, the defendant's corresponding primary duty, and the defendant's wrongful act in breach of that duty." (Federation, supra, 126 Cal.App.4th at p. 1202, citing Mycogen, supra, 28 Cal.4th at p. 904.) A plaintiff's "injury" under the res judicata doctrine "is defined in part by reference to the set of facts, or transaction, from which the injury arose." (Federation, supra, at p. 1203.)
"'The primary right theory . . . is invoked . . . when a plaintiff attempts to divide a primary right and enforce it in two suits. . . . [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.' [Citation.]" (Franceschi v. Franchise Tax Bd. (2016) 1 Cal.App.5th 247, 258 (Franceschi).)
"Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated." (Federation, supra, 126 Cal.App.4th at p. 1202, citing Busick, supra, 7 Cal.3d at p. 975; Franceschi, supra, 1 Cal.App.5th at p. 258.) As our Supreme Court stated, "The law abhors a multiplicity of actions. . . . [A] party cannot by negligence or design withhold issues and litigate them in successive actions; he may not split his demands or defenses; he may not submit his case in piecemeal fashion." (Flickinger v. Swedlow Engineering Co. (1955) 45 Cal.2d 388, 393.)
"In other words, the doctrine of res judicata goes beyond the four corners of the operative pleading in the prior action: '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. 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."'" (Franceschi, supra, 1 Cal.App.5th at p. 259.)
C. Analysis
We conclude res judicata applies here because (1) the decision in the prior federal proceeding is final and on the merits; (2) the present proceeding satisfies the requirement that it is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. (Federation, supra, 126 Cal.App.4th at p. 1202; Busick, supra, 7 Cal.3d at p. 974.)
It is undisputed the judgment of dismissal in the federal action is final and on the merits. It is also unrefuted that the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. Privity exists when an individual, even though not a party, "has a proprietary or financial interest in and controls the conduct of a lawsuit." (Aronow v. LaCroix, et al. (1990) 219 Cal.App.3d 1039, 1050.) "At a minimum . . . privity requires an identity of interest in and control over the prior action such that the nonparty should reasonably expect to be bound." (Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc. (9th Cir.2000) 204 F.3d 867, 878.)
Ocwen, Deutsche Bank and WPL all shared the same goals and interests in collecting plaintiff's unpaid mortgage debt and had control over and involvement in the process such that they were in privity and could reasonably expect to be bound by the federal judgment. (Reyes v. Kenosian & Miele, LLP (N.D. Cal. 2008) 619 F.Supp.2d 796, 809.) Ocwen was a defendant in both actions and Deutsche Bank was only named as a defendant in the instant action but was in privity with the defendants in the federal action, particularly WPL. In April 2014, Deutsche Bank, as beneficiary of the DOT, substituted WPL as trustee under the DOT. Thereafter, WPL proceeded with nonjudicial foreclosure of plaintiff's Property.
Plaintiff argues that res judicata does not apply here because the present action does not satisfy the requirement that the instant action "is on the same cause of action as the prior proceeding." (Federation, supra, 126 Cal.App.4th at p. 1202.) We disagree. Although plaintiff alleged different legal theories in her federal action and instant action, the two complaints nevertheless are founded on the same primary right and injuries. (Ibid.; Mycogen, supra, 28 Cal.4th at p. 904; Eichman v. Fotomat Corp. (1983) 147 Cal.App.3d 1170, 1174 (Eichman) ["If two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit, the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery."].)
Plaintiff alleged in both actions that defendants Ocwen, Deutsche Bank, and WPL wrongfully and illegally attempted to collect plaintiff's mortgage debt and exercise the power of sale under the deed of trust, without authority to do so. Plaintiff alleged in both actions that Ocwen and WPL had no right to possession of the Property and the mortgage debt was not legally transferred, conveyed, or assigned to Ocwen, Deutsche Bank, or WPL. Because the federal action and instant action are founded on the same primary right, and the federal court dismissed the federal action on the merits as failing to allege any valid claim, the instant action is barred under the doctrine of res judicata. (Mycogen, supra, 28 Cal.4th at p. 897.)
Plaintiff argues that her complaint is not barred by res judicata for the following reasons: (1) plaintiff did not allege a violation of the Rosenthal Act in her prior complaints; (2) under Hancock v. Receivables Mgmt. Solutions, Inc. (N.D. Cal, May 30, 2006, No. C 06-1365 CW) 2006 U.S.Dist. Lexis 38639 (Hancock) and Hapin v. Arrow Fin. Servs., Inc. (N.D. Cal. 2006) 428 F.Supp.2d 1057 (Hapin), state Rosenthal Act claims may be lodged concurrently with or independently from federal FDCPA claims; (3) the Rosenthal Act's definition of a "debt collector" is not as restrictive as the FDCPA's definition of "debt collector" and Rosenthal Act's definition of "debtor" is limited to a natural person; (4) Rosenthal Act claims are subject to the one-year statute of limitations; and (5) plaintiff's Rosenthal Act claims are subject to the continuing violation doctrine. None of these theories successfully refutes the res judicata bar.
1. Absence of Rosenthal Act Claim in Federal Action
Even though plaintiff did not allege a violation of the Rosenthal Act in her federal action, the claim is founded on the same primary right and operative facts as those that form the basis of her claims alleged in the federal action. Furthermore, plaintiff could have alleged a Rosenthal Act claim in her federal action, along with her other state claims alleged in her federal action. Although the FDCPA and Rosenthal Act provide different remedies, plaintiff's FDCPA and Rosenthal Act claims are based on the same primary right, that of being free from unlawful debt collection activities and unauthorized nonjudicial foreclosure proceedings on plaintiff's Property.
Therefore, because plaintiff's federal action was decided on the merits and plaintiff failed to bring a Rosenthal Act claim in the federal action, her Rosenthal Act claim alleged in the instant action is barred under the doctrine of res judicata. (Federation, supra, 126 Cal.App.4th at p. 1202 ["Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated"]; Franceschi, supra, 1 Cal.App.5th at p. 259; Mycogen, supra, 28 Cal.4th at p. 904; Eichman, supra, 147 Cal.App.3d at p. 1174.)
2. Hancock and Hapin
Citing Hancock, supra, 2006 U.S.Dist. Lexis 38639, and Hapin, supra, 428 F.Supp.2d 1057, plaintiff argues res judicata does not apply because her Rosenthal Act claims may be lodged concurrently with or independently from federal FDCPA claims. Plaintiff's reliance on Hancock and Hapin is misplaced.
In Hancock, supra, 2006 U.S.Dist. Lexis 38639, the plaintiff filed a complaint in federal court alleging a consumer class action under the FDCPA and the Rosenthal Act. Plaintiff alleged that the defendant's debt collection practices violated both federal and State fair debt collection practice law. The federal court in Hancock concluded that the defendant failed to allege a violation of the FDCPA and therefore ordered the FDCPA claim dismissed. As is proper when the federal court dismisses all federal claims in a federal action, leaving a sole state claim, the court in Hancock dismissed the Rosenthal Act claim without prejudice to the plaintiff refiling the unresolved Rosenthal Act claim in state court. (Hancock, supra, 2006 U.S.Dist. Lexis 38639, 2006 WL 1525723, at p. 4.) In the instant case, plaintiff alleged state claims in the federal action but not a Rosenthal Act claim. Hancock does not support the proposition res judicata does not apply under this circumstance.
Similarly, Hapin, supra, 428 F.Supp.2d 1057, does not support the proposition FDCPA and Rosenthal Act claims can be prosecuted separately in successive actions, without being subject to the res judicata bar. In Hapin, the plaintiff filed a class action suit, alleging that the debt collection agency's collection letter violated the FDCPA and Rosenthal Act. The defendant agency filed a motion to dismiss, which the district court granted as to some but not all of the plaintiff's FDCPA claims. (Hapin, supra, at p. 1062.) The court in Hapin did not address the plaintiff's Rosenthal Act claims, which were included in the federal action but were not challenged in the defendant's motion to dismiss. Thus the Rosenthal Act claims remained pending in the federal action, along with the remaining FDCPA claims. (Hapin, supra, at p. 1062.) Unlike in Hapin, in the instant case, plaintiff could have, but did not, allege a Rosenthal Act claim in her federal action. Therefore, the res judicata bar applies.
In plaintiff's appellate reply, she also cites Youssofi v. Allied Interstate LLC (S.D. Cal., Jan. 4. 2016, No. 15CV2197-GPC (JLB), 2016 U.S. Dist. Lexis 808, *2 (Youssofi) for the proposition that alleging a claim under the FDCPA in the federal court did not preclude her from bringing the instant independent Rosenthal Act claim in state court. In Youssofi, the plaintiff filed a putative class action complaint alleging violations of the FDCPA and Rosenthal Act.
Youssofi, supra, 2016 U.S. Dist. Lexis 808, is not on point. In the instant case, plaintiff did not simultaneously, in the same lawsuit, allege and request damages under both the FDCPA and Rosenthal Act even though plaintiff could have. Furthermore, the court in Youssofi did not consider or address the doctrine of res judicata. Thus Youssofi is not dispositive or relevant to the instant case.
3. The Rosenthal Act is Broader than the FDCPA
Plaintiff argues res judicata does not apply because the Rosenthal Act and FDCPA differ in scope. The Rosenthal Act's definition of a "debt collector" is less restrictive than that of the FDCPA, and the Rosenthal Act's definition of "debt collection" differs as well. (Izenberg v. ETS Services, LLC (C.D. Cal. 2008) 589 F.Supp.2d 1193, 1199; Civ. Code, § 1788.2, subds. (c) and (f); 15 U.S.C. § 1692a(6).) Nevertheless, because plaintiff's Rosenthal and FDCPA claims are founded on the same primary right and injuries, and plaintiff could have asserted her Rosenthal Act claim in the federal action, but failed to do so, plaintiff's Rosenthal Act claim and other related claims alleged in the FAC are barred by res judicata. (Federation, supra, 126 Cal.App.4th at p. 1202 ["Res judicata bars the litigation not only of issues that were actually litigated but also issues that could have been litigated."]; Franceschi, supra, 1 Cal.App.5th at p. 259; Mycogen, supra, 28 Cal.4th at p. 904; Eichman, supra, 147 Cal.App.3d at p. 1174.)
4. Rosenthal Act Claims Are Subject to One-Year Statute of Limitations
Plaintiff argues her Rosenthal Act claim is not barred by res judicata because the claim was subject to the one-year statute of limitations (Civ. Code, § 1788.30, subd. (f)). The statute of limitations is irrelevant to applying the res judicata doctrine, other than perhaps for purposes of establishing what claims could have been alleged when plaintiff filed her federal and state actions.
The one-year statute of limitations bars all of plaintiff's Rosenthal Act claims that accrued more than one year before plaintiff filed the instant action on April 16, 2018. The federal action was filed almost a year before that, on July 10, 2017, and was not dismissed until December 11, 2017, four months before plaintiff filed the instant action. Plaintiff's FAC does not allege any wrongful acts occurring after defendants recorded a NOTS on June 26, 2017, which was before plaintiff filed her federal action. The Rosenthal Act claim alleged in the FAC is founded on the same acts and facts alleged in the federal action, which occurred before plaintiff filed her federal action on July 10, 2017. Therefore, regardless of the Rosenthal Act claim being subject to a one-year statute of limitations, the claim could have been brought in plaintiff's federal action. (Busick, supra, 7 Cal.3d at p. 975.) Plaintiff's failure to do so resulted in the instant action being barred by res judicata. As the California Supreme Court stated in Busick, supra, 7 Cal.3d at page 973, "There is no doubt that petitioner's cause of action is extinguished and 'the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.'" (Busick, supra, at p. 975; see Federation, supra, 126 Cal.App.4th at p. 1202; Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226; Franceschi, supra, 1 Cal.App.5th at p. 259; Mycogen, supra, 28 Cal.4th at p. 904.)
5. The Continuing Violation Doctrine
Plaintiff contends her Rosenthal Act claims are not barred by res judicata because they are subject to the continuing violation doctrine. Plaintiff indicates in the FAC that defendants continuously violated the Rosenthal Act, beginning when defendants first attempted to collect on her mortgage loan in 2013, up until June 2017, when defendants recorded a NOTS.
The continuing violation doctrine permits recovery "'for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period.'" (Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 343, quoting Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812.) The continuing violation doctrine is a statute of limitations doctrine that thus extends the one-year statute of limitations for bringing a Rosenthal Act claim.
Plaintiff does not explain why the continuing violation doctrine and the one-year statute of limitations for Rosenthal Act claims have anything to do with res judicata. We conclude plaintiff's contention res judicata does not apply based on the continuing violation doctrine is meritless. Here, the continuing violation doctrine is irrelevant to the determination of whether the res judicata doctrine applies in the instant case.
Even assuming the continuing violation doctrine applies to defendants' Rosenthal Act claim, the claim is barred by res judicata because it is founded on violation of the same primary right asserted in plaintiff's federal action, which was dismissed on December 17, 2018. Plaintiff does not allege in her FAC any new wrongful conduct or primary right occurring after dismissal of her federal action. She only alleges defendants continued to commit the same acts of unlawfully attempting to collect on her mortgage debt and proceeding with nonjudicial foreclosure. That issue was resolved in the federal court by the federal court ruling the claim was unfounded. Because that primary right was adjudicated on the merits in the federal action, and because that same primary right is the basis of the Rosenthal Act claim and other claims alleged in the FAC, plaintiff's FAC is barred by res judicata, regardless of the continuing violation doctrine.
IV.
DISPOSITION
The judgment of dismissal is affirmed. Defendants are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. RAPHAEL
J.