Defendant CitiMortgage, Inc. (“Defendant”) demurs to the complaint filed by plaintiff Sado Labtis (“Plaintiff”) and also moves to strike portions of the complaint.

Defendant’s request for judicial notice is GRANTED. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1382 [a “court may take judicial notice of something that cannot reasonably be controverted [such as a recorded deed], even if it negates an express allegation of the pleading”]; see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [a court may take judicial notice of its own records if they are relevant to the issues of the case at hand]; see also Evid. Code,
§ 452, subds. (d), (h).)

As an initial matter, Defendant argues that, although the opposition was timely filed, it was not timely served and therefore Plaintiff’s opposition should not be considered. “[A]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days…before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) While the proof of service attached to the opposition states that it was served via regular mail on February 19, 2014, which was the last day for timely service, Defendant attaches a copy of the envelope in which the opposition was mailed, which has a postmarked date of February 20, 2014. Further, Defendant states that it did not receive the opposition until Monday, February 24, 2014, giving Defendant less than 24 hours to prepare the reply before the filing deadline. While the opposition does not appear to have been timely served, the Court, in its discretion, will overlook this procedural deficiency in this particular instance because there is no prejudice to Defendant in doing so.

Plaintiff alleges the following causes of action against Defendant: declaratory relief, injunctive relief, malicious prosecution/abuse of process, wrongful foreclosure, and breach of implied covenant of good faith and fair dealing. Defendant argues that these causes of action are barred by res judicata based on a judgment obtained by Defendant in a previous lawsuit brought by Plaintiff in this Court. “The prerequisite elements for applying the doctrine [of res judicata] to either an entire cause of action or one or more issues 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.” (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.)

According to Defendant, the first element is met because the issues presented in these claims regarding the modification of a mortgage loan (“Subject Loan”) relating to real property located at 236 B East Red Oak Drive, Sunnyvale, California (“Property”) – are identical to the issues that were litigated in a prior case brought by Plaintiff against Defendant. In opposition, Plaintiff argues that the issues in this lawsuit are not identical to her previous lawsuit because this lawsuit relates to actions that occurred after the judgment in the previous lawsuit was entered, e.g., the filing of the Notice of Default dated June 20, 2013, and the Notice of Trustee’s Sale dated September 27, 2013.

“For purposes of identifying a cause of action under the doctrine of res judicata, ‘California has consistently applied the ‘primary rights’ theory, under which the invasion of one primary right gives rise to a single cause of action.’” (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 340 (quoting Slater v. Blackwood (1975) 15 Cal.3d 791, 795).) Two actions constitute a single cause of action if they both affect the same primary right. (Id.) In determining the primary right, the significant factor is the harm suffered. (Craig v. County of Los Angeles (1990) 221 Cal.App.3d 1294, 1301.)

On April 27, 2012, the Court entered a Judgment of Dismissal with prejudice in the case of Labtis v. CitiMortgage, Inc., et al., Case No. 1-11-CV-202622 (“Labtis I”), after the demurrer to the first amended complaint was sustained without leave to amend. (Request for Judicial Notice in Support of Demurrer to Complaint (“RJN”), Exh. K.) In Labtis I, Plaintiff alleged causes of action for violations of the federal Real Estate Settlement Procedures Act (“RESPA”), “breach of a loan modification agreement,” and “fraud and breach of the implied covenant of good faith and fair dealing.” In sustaining the “breach of a loan modification agreement” cause of action without leave to amend, the Court found that Plaintiff did not and could not allege the existence of a loan modification agreement between Plaintiff and Defendant. (RJN, Exh. K.)

Here, the subject pleading is based on the same primary right as the previous action filed by Plaintiff. Specifically, in both actions, Plaintiff sought relief based on alleged predatory lending and wrongful foreclosure practices in connection with the Subject Loan. Although Plaintiff now alleges violations that occurred after the judgment was entered in Labtis I, the causes of action alleged in this lawsuit arise out of the same issues litigated in Labtis I, i.e., the alleged modification of the Subject Loan and the foreclosure proceedings regarding the Property. (See Complaint, ¶¶ 11, 12, 19, 23, 27.) Moreover, the relief requested and the harm allegedly suffered by Plaintiff are the same in this lawsuit as in the previous lawsuit. (See Complaint, ¶¶ 12, 17, 21, 29 and RJN, Exh. E.) Accordingly, the Court finds that the first element of the res judicata doctrine is established here.

Next, Defendant argues that the second element of the res judicata doctrine is met because Labtis I resulted in a final judgment on the merits, i.e., a judgment of dismissal with prejudice. In opposition, Plaintiff asserts that a dismissal with prejudice does not have a res judicata effect if the new pleading is based on new or additional facts that cure the defects in the prior pleading, citing Keidatz v. Albany (1952) 39 Cal. 2d 826, 829-30. Plaintiff contends that because she has alleged new facts regarding Defendant’s failure to comply with foreclosure notice requirements, the dismissal with prejudice of Labtis I should not bar her from proceeding with this lawsuit. Plaintiff’s argument is not well-taken. Even though Plaintiff claims she has alleged facts that were not alleged in Labtis I, such allegations arise from the same default on the same Subject Loan. The Court in Labtis I noted that Plaintiff’s “default on the loan caused damages,” rather than any conduct on the part of Defendant. (RJN, Exh. J, p. 4:22-23.) Based on this statement, even if Plaintiff’s new facts were true, they would not cure the defects in the prior pleading because it has been decided that Plaintiff’s default on the Subject Loan caused her damages. Accordingly, the Court finds that the second element of the res judicata doctrine is established here.

Plaintiff concedes that the third element is met. (Opp., p. 3:20.) Because all three elements of the res judicata doctrine have been established, the Court finds that the judgment of dismissal with prejudice entered in Labtis I bars Plaintiff from litigating the instant action. Accordingly, the demurrer to the complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

In light of the Court’s ruling on the demurrer, Defendant’s motion to strike portions of the complaint is MOOT.