Bert Thompson v. Barrett Daffin Frappier Treder

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 28 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERT THOMPSON, an individual, No. 19-56460
Plaintiff-Appellant, D.C. No.
5:18-cv-01509-JAK-SP
v.
BARRETT DAFFIN FRAPPIER TREDER MEMORANDUM*
& WEISS et al.,
Defendant-Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted October 20, 2021**
San Francisco, California
Before: WALLACE and GOULD, Circuit Judges, and VITALIANO,*** District
Judge.
Appellant Bert Thompson, facing default on a home mortgage and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
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threatened foreclose, ignited a firestorm of litigation in state and federal court that
eventually led to this appeal. In 2009 and again in 2010, he sought state-court
injunctive relief against appellees, all loan servicing companies, foreclosure
trustees, or other businesses engaged in the transfer of rights to the mortgaged
property. All claims relevant on this appeal were dismissed with prejudice.
Thompson’s house was eventually sold at a nonjudicial foreclosure sale in
2017. A year later, he sued again in state court, seeking to “reverse the
foreclosure.” The action was removed to the United States District Court for the
Central District of California. Pursuant to Federal Rule of Civil Procedure
12(b)(6), the district court dismissed it on the ground, among others equally fatal,
that Thompson’s causes of action had already been the subject of final judgment in
state-court lawsuits against the same defendants, and that res judicata thus
precluded him from raising them again. On Thompson’s appeal, we review that
order of dismissal de novo, and we affirm.
The doctrine of res judicata focuses the inquiry on whether the same claims
raised in the subsequent lawsuit were raised or could have been raised against the
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same parties in the previous lawsuit, and whether the causes of action in the
previous suit were adjudicated to final judgment on the merits. See Headwaters
Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051–52 (9th Cir. 2005).
In the new case, Thompson alleged twelve causes of action, ranging from
violations of the California Homeowner Bill of Rights to violations of the
Racketeer Influenced and Corrupt Organizations Act. But, while the labels and
form of these claims vary at times from those raised in his earlier actions, the
injury Thompson seeks to redress remains the same, as does the nucleus of facts
essential to each claim presented on this appeal.
For example, just as he did in the earlier actions, Thompson argues in this
action that an assignment from a “defunct company” and various drafting defects
in notices prerequisite to foreclosure had voided the notices and the foreclosure
itself. Though Thompson’s briefing directs attention to the form of his “new”
claims, it does so precisely to deflect attention from their substance. Thompson
seeks refuge in the fact that his latest lawsuit alleges defects in the 2016 notice of
default that preceded the foreclosure sale, not in the notices that he had previously
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challenged in his 2009 and 2010 state court actions. But the same alleged defects
were litigated to final judgment in those actions.
Dispositive here is California’s “primary rights” approach to claim
preclusion, which clearly recognizes the preclusive effect of the first two actions
on the third, since all of the actions contemplate the same primary right: ownership
of the mortgaged property. See Boeken v. Philip Morris USA, Inc., 230 P.3d 342,
348 (Cal. 2010). Because the notices of default and trustee sale concern the same
property and the same unpaid loan, Thompson’s injuries from wrongful foreclosure
are identical, and he may not seek relief through a multiplicity of claims if the
issue of wrongful foreclosure has been reduced to final judgment.
Plainly, Thompson’s claims were in no way resurrected by the arrival of a
postjudgment notice. Considering the three actions as a whole, the transactional
nuclei of facts, the relevant evidence, the acts of alleged infringement, and the
property rights in dispute are all identical. See Littlejohn v. United States, 321 F.3d
915, 920 (9th Cir. 2003). Given the adverse judgments suffered in the prior
actions, the doctrine of res judicata precludes relief on any claim that Thompson
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brought or could have brought in the earlier actions for the same injury, against the
same parties and others in privity with them.
For these reasons, every claim before us on this appeal falls victim to res
judicata’s bar, and we need not reach the substance of Thompson’s other claims.
Reviewed de novo, the district court’s dismissal of the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6) was well-supported – and, in fact,
correctly applied.
AFFIRMED.
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