Judge Holly J. Fujie, Case 22STCV17722 2022-09-28 Tentative Ruling

On May 31, 2022, Plaintiff filed her Complaint. On August 1, 2022, Defendants demurred to Plaintiff’s Complaint. On the same day, they moved to strike portions of Plaintiff’s Complaint. On September 19, 2022, Plaintiff filed an opposition to Defendants’ Demurrer and Motion to Strike Portions of Plaintiff’s Complaint. On September 20, 2022, Defendants filed a reply to Plaintiff’s opposition.

Defendants’ original deadline to file its responsive pleading was June 30, 2022, but it was entitled to a 30-day extension of time to file its demurrer and/or motion to strike since they showed they were unable to meet and confer five court days before their responsive pleading was initially due. The Court notes that Defendants have satisfied the meet and confer requirement.

The Court grants all of Defendants’ requests of judicial notice under California Evidence Code sections 452(d) and (h).

Defendants oppose Plaintiff’s opposition as untimely. Per Code of Civil Procedure section 1005, subdivision (b), Plaintiff’s opposition was due to be filed and served at least nine court days before the hearing (September 14, 2022). The court has discretion to consider an untimely demurrer as long as the substantial rights of the parties are not affected. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)

The Court notes that Plaintiff filed and served her opposition on Monday, September 19, 2022, by email at 11:00 pm. (Reply p. 7.) Plaintiff’s proof of service shows her opposition was served by regular mail on September 15, 2022. (Oppo., POS.) Defendants claim they did not receive it until September 20, 2022, but they timely filed their reply and provided a full briefing on the merits. The facts do not indicate that Defendants were prejudiced by this delay. Considering that Plaintiff is unrepresented and served her opposition by mail on September 15 (which was still untimely but closer to the deadline), the Court exercises its discretion to consider Plaintiff’s opposition.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

The doctrine of res judicata precludes the re-litigation of certain matters which have been resolved in a prior proceeding under certain circumstances. (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.) “Res judicata, or claim preclusion, prevents re-litigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) “Collateral estoppel, or issue preclusion, precludes re-litigation of issues argued and decided in prior proceedings.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.)

The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issue are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]’” (Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374, 1381.)

“California adheres to a ‘primary rights’ theory in determining whether the claims or causes of action are the same. The significant factor is whether the claim or cause of action is for invasion of a single primary right. Whether the same facts are involved in both suits is not conclusive. Moreover, more than one act may constitute a single cause of action. Under Pomeroy’s primary rights theory, ‘…a cause of action consists of 1) a primary right possessed by the plaintiff, 2) a correspondent primary duty devolving upon the defendant, and 3) a delict or wrong done by the defendant which consist in a breach of such primary right and duty. Thus, two actions constitute a single cause of action if they both affect the same primary right.” (Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1685.) Moreover, a dismissal, with prejudice, is a bar to any future action involving the same subject matter. (Wouldridge v. Burns (1968) 265 Cal.App.2d 82, 84.)

Here, Plaintiff’s claim involves the same primary right because the instant case is based on the $1,000,000 home equity loan line of credit (HELOC) from Wells Fargo Mortgage, Inc. secured by the certain real properly commonly known as 1140 Calle Vista Drive, Beverly Hills, CA 90210 (the Property), and Plaintiff filed a complaint in 2010 based on the same loan. (Compl. ¶ 3, Exhibit L.) Plaintiff’s alleged harm in both cases is that the HELOC should be unenforceable. (Demur. p. 13.) In her 2010 action, Plaintiff asserted the following causes of action: (1) cancellation of instruments; (2) injunctive relief; (3) declaratory judgment; (4) negligence; (5) aiding and abetting fraudulent concealment; (6) intentional interference with economic advantage; and (7) quiet title. (Demur. p. 8.) In the instant action, she claims (1) accounting cancellation of charged-off debt to the bank; and (2) general negligence. (Compl. pp. 4-7.) Plaintiff claims negligence in both cases, satisfying the same issue requirement for collateral estoppel. Additionally, it is immaterial that Plaintiff claims a different theory for recovery in this instant action (accounting) because her claim involves the same primary right, satisfying the same claim requirement for res judicata. Thus, Plaintiff’s instant case involves the same claim and same issue as a prior case, satisfying the first requirement for both res judicata and collateral estoppel.

Here, there was a final judgment on the merits for a prior case involving the same claim and issue as the instant case because the Court sustained Defendants’ demurrer without leave to amend in the 2010 Action. (Exhibits K, M.) Thus, the second requirement for res judicata and collateral estoppel is met.

Here, both actions involve the same parties because Plaintiff sued Wells Fargo Loan Processing Department and Wells Fargo Bank, N.A. in her 2010 action. (Exhibit L.) Thus, the third requirement for res judicata and collateral estoppel is met.

Therefore, Plaintiff’s instant action is subject to res judicata and collateral estoppel. Plaintiff’s current action is barred, and her claim for negligence against Defendants is also barred.

Defendant’s Demurrer is SUSTAINED without LEAVE TO AMEND, and the Motion to Strike is DENIED on the grounds that it is MOOT.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court