Colebrook v. CIT Bank, N.A.

Filed 5/17/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
TEENA COLEBROOK, 2d Civil No. B305844
(Super. Ct. No. 19CV-0200)
Plaintiff and Appellant, (San Luis Obispo County)
v.
CIT BANK, N.A.,
Defendant and Respondent.
Teena Colebrook’s present lawsuit involves the same
primary right as three prior lawsuits that she brought against
CIT Bank, N.A., respondent. She lost on the merits in all three
prior lawsuits – one in the Los Angeles County Superior Court
and two in the United States District Court. The Ninth Circuit
Court of Appeals concluded that her appeal in one of the district
court lawsuits was “frivolous.” Division Two of the Second
Appellate District affirmed the judgment in the prior superior
court lawsuit. Undaunted, appellant filed the present lawsuit in
the San Luis Obispo County Superior Court. She lost there, and
she loses here in her appeal from the judgment. The prior
adverse decisions by three trial and two appellate courts were not
advisory opinions suggesting how appellant should proceed in
future. Pursuant to the doctrine of res judicata, the decisions
constitute final judgments on the merits precluding further
litigation against respondent concerning the same primary right.
As we indicated almost thirty years ago, “Somewhere along the
line, litigation must cease.” (In re Marriage of Crook (1992) 2
Cal.App.4th 1606, 1613.) Although the present appeal is
frivolous, we will not order sanctions to be imposed on appellant.
But we caution appellant that further attempts to litigate the
subject matter of this lawsuit will result in sanctions.
Appellant, in propria persona, appeals from the judgment
entered after the trial court had sustained, without leave to
amend, a demurrer filed by respondent. She contends that the
trial court erroneously ruled that her action for declaratory relief
was barred by the doctrine of res judicata. We affirm and review
the doctrine of res judicata and principles that end repetitive and
needless litigation.
Factual and Procedural Background
In 2004 a bank loaned appellant $400,000. The loan was
evidenced by a promissory note signed by appellant. The note
was secured by a deed of trust encumbering appellant’s real
property in Hawthorne, California. The note was assigned to
respondent.
In 2013 appellant defaulted on the note. She was served
with notice of default and election to sell pursuant to the deed of
trust. The Hawthorne property was sold at public auction on
April 10, 2015.
In 2019 appellant, in propria persona, filed a complaint in
the present lawsuit alleging that the promissory note was “fully
satisfied on or about April 16th, 2015,” six days after the sale of
the property. Relying upon Civil Code section 2941, subdivision
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(b)(1), appellant sought declaratory relief that respondent must
“execute and deliver to the trustee [pursuant to the deed of trust]
the original note, deed of trust, request for a full reconveyance,
and other documents as may be necessary to reconvey, or cause to
be reconveyed, the deed of trust.”1
Respondent demurred to the complaint. The trial court
sustained the demurrer based on, inter alia, the doctrine of res
judicata. We need not, and do not, reach other issues. (Lewis v.
Superior Court (1999) 19 Cal.4th 1232, 1263-1264; Homes v.
Rogers (1859) 13 Cal. 191, 202 [a litigant is not entitled to “a brief
in reply to the counsel [or the litigant] against whose views we
decide”].)
Appellant’s Prior Lawsuits Against Respondent
Appellant’s prior lawsuits were filed in 2011, 2014, and
2015. For various reasons, a pre-foreclosure 2011 lawsuit was
1 Civil Code section 2941, subdivision (b)(1) provides,
“Within 30 calendar days after the obligation secured by any deed
of trust has been satisfied, the beneficiary or the assignee of the
beneficiary shall execute and deliver to the trustee the original
note, deed of trust, request for a full reconveyance, and other
documents as may be necessary to reconvey, or cause to be
reconveyed, the deed of trust.” Section 2941, subdivision (b)(1)
does not apply where, as here, title to the property has been
transferred through a nonjudicial foreclosure sale at a public
auction. “After the security is foreclosed by the power of sale, the
interest of the trustor in the property is totally and finally
terminated, and the trustor has no further rights in the property.
Neither the trustor nor any other person having an interest in
the property can redeem or otherwise recover the property
regardless of any willingness to pay the debt.” (5 Miller & Starr,
Cal. Real Estate (4th ed. Nov. 2020 update) § 13:266.)
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dismissed in federal court with prejudice and without leave to
amend. The 2014 lawsuit was dismissed in federal court on res
judicata grounds without leave to amend. In the 2014 lawsuit
the United States District Court concluded: “[I]n both [the 2011
and 2014] Complaints [appellant] brings causes of action that
resulted from [respondent’s] alleged wrongful acts in connection
with the creation and transfer of the same loan. These
Complaints arise from the same transactional nucleus of facts
and, therefore, the 2011 Lawsuit bars claims brought in this [the
2014] Complaint.” The Ninth Circuit Court of Appeals found
appellant’s appeal “frivolous.” It summarily affirmed the district
court’s order granting respondent’s motion to dismiss.
The 2015 third lawsuit was filed in Los Angeles County
Superior Court. The trial court sustained the demurrer without
leave to amend, ruling that the principles of res judicata and
collateral estoppel barred all of the causes of action.
The Court of Appeal affirmed. (Colebrook, et al. v. CIT
Bank, N.A. (Apr. 25, 2018, B279942) [nonpub. opn.], hereafter
“prior Court of Appeal opinion.”) It concluded that the doctrine of
res judicata barred the 2015 lawsuit’s causes of action because
they were either adjudicated in the 2011 and 2014 lawsuits or
could have been raised in the 2014 lawsuit. The court reasoned
that all of the actions involved the same injury – the loss of
appellant’s interest in the Hawthorne property.
No Error in Sustaining Demurrer without
Leave to Amend Based on Res Judicata
“California’s res judicata doctrine is based upon the
primary right theory. . . . [¶] ‘The primary right theory is a
theory of code pleading that has long been followed in California.
It provides that a “cause of action” is comprised of a “primary
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right” of the plaintiff, a corresponding “primary duty” of the
defendant, and a wrongful act by the defendant constituting a
breach of that duty. [Citation.] 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. [Citation.]
. . . [¶] ‘As far as its content is concerned, the 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: “Even where there are multiple legal theories upon
which recovery might be predicated, one injury gives rise to only
one claim for relief.” [Citation.] The primary right must also be
distinguished from the remedy sought: “The violation of one
primary right constitutes a single cause of action, though it may
entitle the injured party to many forms of relief, and the relief is
not to be confounded with the cause of action, one not being
determinative of the other.” [Citation.] [¶] ‘The primary right
theory . . . is invoked . . . when a plaintiff attempts to divide a
primary right and enforce it in two suits. The theory prevents
this result by either of two means: (1) if the first suit is still
pending when the second is filed, the defendant in the second suit
may plead that fact in abatement [citations]; or (2) if 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.’”
(Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904; see
also Acuna v. The Regents of the University of California (1997)
56 Cal.App.4th 639, 648-649.)
The prior judgments bar the present action for declaratory
relief. In the present action, the primary right alleged to have
5
been violated is appellant’s ownership interest in the property.
In the prior Court of Appeal opinion, the court noted that the
2011, 2014, and 2015 lawsuits had alleged a violation of the same
primary right. The court observed, “The third amended
complaint [in the 2015 lawsuit] alleges that [respondent]
‘deprive[d] [appellant] of her property through an illegal and void
foreclosure sale’ and that as a result of [respondent’s] unlawful
conduct, [appellant] ‘has suffered the loss of the Property, and the
loss of use of the Property.’”
Appellant contends that res judicata does not apply because
the factual and legal issues in the present lawsuit are different
from those in the prior lawsuits. She claims that in the present
lawsuit she “relies on facts that occurred after the previous law
suits.” “Because [her] . . . Complaint relies on facts that occurred
after the previous law suits [that] Respondent[] rel[ies] upon in
support of [its] res judicata argument, [its] Demurrer must be
overruled.” But all of her claims are premised upon and flow
from respondent’s allegedly wrongful interference with her
ownership rights in the Hawthorne property. She has
consistently sought to vindicate the same “primary right.”
Moreover, the last amended complaint in the 2015 lawsuit was
filed on May 19, 2016, more than one year after the promissory
note had allegedly been satisfied on April 16, 2015. Thus, in the
2015 lawsuit appellant could have sought leave to add a cause of
action for declaratory relief as to respondent’s duties pursuant to
Civil Code section 2941. “Res judicata bars ‘not only the
reopening of the original controversy, but also subsequent
litigation of all issues which were or could have been raised in the
original suit.’” (Torrey Pines Bank v. Superior Court (1989) 216
Cal.App.3d 813, 821.)
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The following statement in the prior Court of Appeal
opinion applies in the present case: “The instant action involves
the same injury – [appellant’s] loss of her interest in the property
– as her prior lawsuits. That injury arises out of the same loan,
and involves the same property and the same parties. Res
judicata bars all of the causes of action asserted by [appellant].
The trial court did not err by sustaining [respondent’s] demurrer,
without leave to amend . . . .”
Four trial courts and three appellate courts have now ruled
against appellant. It is time for her to accept that she may not
relitigate this claim. As the late Judge Rugerro Aldisert said:
“‘Basta!’” This Italian exclamation translates to “Enough.”
(United States v. Desmond (1982) 670 F.2d 414, 420 (dis. opn).)
Disposition
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Tana L. Coates, Judge
Superior Court County of San Luis Obispo
______________________________
Teena Colebrook, in propria persona, for Plaintiff and
Appellant.
Allen Matkins Leck Gamble Mallory & Natsis, Timothy B.
McGinity and Rachel M. Sanders, for Defendant and Respondent.