FREITAS v. BANK OF AMERICA (2021)

MEMORANDUM **

John B. Freitas appeals pro se from the district court's order dismissing his action alleging federal and state law claims arising out of foreclosure proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district court's dismissal based on claim preclusion. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). We affirm.

The district court properly dismissed Freitas's action as barred by the doctrine of claim preclusion because Freitas had already litigated the validity of the operative deed of trust in prior state court actions, which involved the same parties, and resulted in final judgments on the merits. See DKN Holdings LLC v. Faerber, 61 Cal.4th 813, 189 Cal.Rptr.3d 809, 352 P.3d 378, 386 (2015) (elements of claim preclusion under California law).

Although Freitas argues that the present action involves a different cause of action because at the time the trustee's sale was conducted there were two competing trustees under two deeds of trust securing the same obligation, the trustee's sale was conducted by the properly substituted trustee under the operative deed of trust, as had been determined in the prior state court actions. See Boeken v. Philip Morris USA, Inc., 48 Cal.4th 788, 108 Cal.Rptr.3d 806, 230 P.3d 342, 348 (2010) (“[A] judgment for [a] defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.” (quotation marks omitted; emphasis in original)); cf. Dimock v. Emerald Props. LLC, 81 Cal.App.4th 868, 97 Cal. Rptr. 2d 255 (2000) (the recording of the substitution of trustee under California Civil Code § 2934a gave the second trustee the exclusive power to conduct a trustee's sale rendering the sale conducted by the first trustee void).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.