Filed 5/23/13 Aghchay v. U.S. Bank Nat. Assn. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for 

publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

REBA AGHCHAY,

Plaintiff and Appellant,

v.

U.S. BANK NATIONAL ASSOCIATION, 

et al.,

Defendants and Respondents.

B238430

(Los Angeles County

Super. Ct. No. LC093456)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Richard A. Adler, Judge. Affirmed.

Ajalat & Ajalat, Lawrence A. Ajalat; Law Office of Joseph Trenk and 

Joseph Trenk for Plaintiff and Appellant.

AlvaradoSmith, S. Christopher Yoo, Yunnie Youn Ahn and Thomas Van for 

Defendants and Respondents.

_______________________________________
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INTRODUCTION

Plaintiff and appellant Reba Aghchay (plaintiff) appeals from a judgment in 

favor of defendants and respondents U.S. Bank N.A., successor in interest to the Federal 

Deposit Insurance Corporation as receiver for PFF Bank and Trust, JPMorgan Chase 

Bank, N.A. and California Reconveyance Company (defendants), following the trial 

court‟s sustaining of defendants‟ demurrer to the original complaint without leave to 

amend. Plaintiff contends the trial court erred in concluding that her complaint was 

barred by res judicata and in denying leave to amend. We disagree and affirm.

FACTUAL BACKGROUND

In 2004, plaintiff borrowed $1,120,000.00 from Washington Mutual Bank, FA 

and executed a deed of trust (Deed of Trust) on the property located at 3784 Deervale 

Drive, Sherman Oaks, California (Property) securing payment of the loan. Washington 

Mutual Bank, FA was the lender and beneficiary of the Deed of Trust, and California 

Reconveyance Company was the trustee. In December 2008, a Notice of Default and 

Election to Sell Under Deed of Trust was recorded stating that plaintiff owed 

$65,810.79 in “past due payments plus permitted costs and expenses.” A trustee‟s sale 

in connection with the deed of trust was held on August 25, 2009 at which JPMorgan 

Chase Bank, N.A. purchased the Property. In October 2009, an Assignment of Deed of 

Trust was recorded assigning all beneficial interest in the Deed of Trust to 

U.S. Bank N.A.
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PROCEDURAL BACKGROUND

On April 29, 2010, plaintiff filed an action against U.S. Bank N.A., JPMorgan 

Chase Bank, N.A., and U.S. Bancorp based on the foreclosure of the Property 

(2010 Lawsuit). The complaint alleged that the defendants agreed to a short sale of the 

Property (a sale for less than the balance due on the note) but then refused to complete 

the short sale and cancel the foreclosure sale as promised. Plaintiff alleged causes of 

action for fraud, breach of implied contract, cancellation of written instrument, and 

quiet title. On April 5, 2011, the court sustained the defendants‟ demurrer to the Third 

Amended Complaint without leave to amend. Judgment dismissing the complaint was 

entered on April 5, 2011, and plaintiff filed a notice of appeal on April 22, 2011. The 

appeal was dismissed on June 13, 2011 due to plaintiff‟s failure to procure the record.

On April 26, 2011, plaintiff filed the complaint in the underlying action 

(2011 Lawsuit). The complaint alleged causes of action for “lack of standing,” 

violation of Business and Professions Code § 17200 and Penal Code § 115.5, and 

intentional infliction of emotional distress. The lack of standing claim alleged that 

“Defendants . . . do not have the right to foreclose on the [Property] because 

Defendants . . . have failed to perfect any security interest in the [Property].” The claim 

for statutory violations alleged that defendants had “fraudulently and knowingly 

procured or offered false or fraudulently prepared documents to fabricate the missing 

gaps in the chain of title . . . and allowed these documents to be filed, registered, or 

recorded in California in violation of California Penal Code § 115.5.” The final claim 
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alleged that defendants‟ wrongful foreclosure of the Property caused plaintiff emotional 

distress.

Defendants filed a demurrer arguing the action was barred by res judicata, 

plaintiff had not alleged tender, and each claim failed to state facts sufficient to 

constitute a cause of action. Plaintiff did not file an opposition. At the hearing, the 

court stated that the primary right involved in both actions was the same, and asked how 

plaintiff would amend to cure the defects in the complaint. Plaintiff‟s counsel 

acknowledged that the “[f]undamental facts are the same” in both actions, and that “the 

transaction is essentially the same . . . it‟s the same foreclosure, same property.” 

However, plaintiff‟s counsel also argued that the two actions were “different” because 

the first case addressed the failed short sale that “led to the foreclosure” while the 

second case involved “the trustees‟ standing to conduct [the] foreclosure.”

The court sustained the demurrer in its entirety without leave to amend on the 

grounds that the action was barred by the doctrine of res judicata, plaintiff had not made 

a valid tender offer, and each claim failed to state facts sufficient to constitute a cause of 

action. Plaintiff filed a motion for reconsideration which the court denied on the 

grounds that it was not based upon new or different facts, circumstances or law. An 

order dismissing the complaint was entered on November 10, 2011. Plaintiff filed 

a timely appeal.
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DISCUSSION

1. Standard of Review

On appeal from a dismissal following the sustaining of a demurrer, we review the 

complaint de novo to determine whether it alleges facts stating a cause of action under 

any legal theory. (Linear Technology Corp. v. Applied Materials, Inc. (2007) 

152 Cal.App.4th 115, 122.) “ „ “We treat the demurrer as admitting all material facts 

properly pleaded, but not contentions, deductions or conclusions of fact or law. 

[Citation.]” ‟ ” [¶] “When a demurrer is sustained without leave to amend, the 

reviewing court must determine whether there is a reasonable probability that the 

complaint could have been amended to cure the defect; if so, it will conclude that the 

trial court abused its discretion by denying the plaintiff leave to amend. [Citation.] The 

plaintiff bears the burden of establishing that it could have amended the complaint to 

cure the defect. [Citation.]” (Sprinkles v. Associated Indemnity Corp. (2010) 

188 Cal.App.4th 69, 75-76.)

2. Res Judicata

Plaintiff contends that her action was not barred by the doctrine of res judicata 

because the two lawsuits were based on different facts. “ „Res judicata‟ describes the 

preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, 

prevents relitigation 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.) “Res judicata applies when (1) the claim raised in the prior 

adjudication is identical to the claim presented in the later action; (2) the prior 
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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 

adjudication. [Citation.]” (In re Anthony H. (2005) 129 Cal.App.4th 495, 503.)

For purposes of res judicata, the term “cause of action” refers neither to the legal 

theory asserted by a plaintiff nor to the remedy the plaintiff seeks. (Mycogen Corp. v. 

Monsanto Co., supra, 28 Cal.4th at p. 904.) Instead, “California has consistently 

applied the „primary rights‟ theory, under which the invasion of one primary right gives 

rise to a single cause of action.” (Slater v. Blackwood (1975) 15 Cal.3d 791, 795-796 

[noting that “the phrase „cause of action‟ is „often used indiscriminately to mean what it 

says and to mean counts which state differently the same cause of action. . . . ‟ ”]) “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.]” (Crowley v. Katleman (1994) 8 Cal.4th 

666, 681.)

Plaintiff does not dispute that she brought the 2010 Lawsuit or that the 

2010 Lawsuit resulted in a final judgment on the merits. Plaintiff only argues that the 

claims raised in the 2010 Lawsuit were different than the claims alleged in the present 

action. Plaintiff argues that different primary rights were at issue in the first and second 

actions because the lawsuits were based on “different facts:” “the 2010 lawsuit was 

based upon the agency relationship between US Bank and JPMorgan such that 

JPMorgan had the power and authority to negotiate a loan modification and/or short sale 

on behalf of Plaintiff. This 2011 lawsuit is based upon the lack of standing the Trustee 

had under the Deed of Trust to conduct the foreclosure sale.” In making this argument, 
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plaintiff mischaracterizes the primary right based upon the legal theories alleged, not the 

“right to be free from the particular injury suffered.” (Crowley v. Katleman, supra, 

8 Cal.4th at p. 681.)

The primary right at issue in the first action and second action was the same. 

The first action was based on the defendants‟ alleged wrongful foreclosure of the 

Property despite their promise to proceed with a short sale. The second action was 

based on defendants‟ alleged wrongful foreclosure of the Property despite their 

“fail[ure] to perfect any security interest in the [Property].” The primary right involved 

in both proceedings was plaintiff‟s “right to be free from” the wrongful foreclosure of 

her Property. (Crowley v. Katleman, supra, 8 Cal.4th at p. 681.)

3. New Facts

Plaintiff also contends that res judicata does not apply because the 2011 Lawsuit 

was based on new facts. “Res judicata serves as a bar to all causes of action that were 

litigated or that could have been litigated in the first action. [Citations.] . . . [¶] But 

where it cannot be said that plaintiff knew or should have known of the claim when the 

first action was filed, res judicata should not bar the second action. [Citation.]” (Allied 

Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155-156.) 

Plaintiff claims that after she filed the 2010 Lawsuit she heard reports in the media 

stating that lenders were using improper foreclosure procedures such as robo-signing. 

She thereafter obtained an analysis of the foreclosure of her Property and the resulting 

report “formed the basis of the allegations in the 2011 Lawsuit.”
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Plaintiff‟s counsel, however, did not make this argument in opposition to the 

defendants‟ demurrer. Therefore, she forfeited the argument on appeal. (Kaufman & 

Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 

226.) Plaintiff argues that she did make this argument in her motion for reconsideration. 

However, those facts did not constitute “new or different facts” within the meaning of 

Code of Civil Procedure section 1008 because they were apparently known to plaintiff 

when she opposed the demurrer. (New York Times Co. v. Superior Court (2005) 

135 Cal.App.4th 206, 213.) As the trial court stated: “Plaintiff‟s assertion of „new 

facts‟ points to the wrong time period. On a motion for reconsideration, Plaintiff is 

required to articulate facts which were unknown to her at the time of the hearing on the 

motion as to which she seeks reconsideration.” Plaintiff does not argue here that she 

was unaware of the “new facts” at the time of the hearing on the demurrer, but only 

argues that these facts came to her attention after the 2010 Lawsuit was filed.

Plaintiff contends that she “did not, and couldn‟t have known she needed to, 

include any allegations in the 2011 Lawsuit regarding newly acquired 

information . . . . ”



 However, plaintiff may have been entitled to amend her complaint 

to allege these facts had she argued in opposition to the demurrer that her claims in the 

 

 Plaintiff also points out that a Notice of Related Actions was filed in the 

department where the 2010 Lawsuit was assigned, and the court found that the two 

actions were not related. Plaintiff argues that the court therefore determined that the 

two actions were based on different facts. We disagree. The relating of cases is a case 

management tool used to promote judicial efficiency and prevent plaintiffs from 

“judge-shopping.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 

(The Rutter Group 2012) ¶ 12:38 at 12(I)-B.) The court‟s decision to relate a case or 

not does not affect the court‟s rulings on the merits of the action.
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2011 Lawsuit were based on newly discovered information. Plaintiff did not file an 

opposition and her counsel did not argue at the hearing that her claims were based on 

new facts. Accordingly, plaintiff has forfeited this argument on appeal. Moreover, 

even assuming the argument was not forfeited, the trial court found that plaintiff‟s 

claims failed on alternate grounds and, as explained below, plaintiff has not shown how 

she could amend to cure the defects in the complaint.

4. Leave to Amend

The trial court also sustained defendants‟ demurrer on the grounds that plaintiff 

had not made a valid tender offer or alleged sufficient facts to state each cause of action. 

Plaintiff does not dispute that she was required to make a valid tender offer in order to 

set aside the foreclosure sale or that she failed to do so. Nor does plaintiff dispute that 

her complaint failed to allege sufficient facts to state a claim. Plaintiff only argues that 

she could have cured the defects in her complaint had she been granted leave to amend.

Plaintiff has not shown that she could successfully amend the complaint. When 

a demurrer is sustained without leave to amend, a plaintiff may show in the first 

instance on appeal how the complaint can be amended to state a cause of action. 

(Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 

1386.) The burden is on the plaintiff to show “ „in what manner he can amend his 

complaint and how that amendment will change the legal effect of his pleading. 

[Citation.]‟ ” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Here, plaintiff makes 

the general argument that “any deficiencies that exist in the allegations of each of the [] 

causes of action can be cured if Plaintiff is given the opportunity.” In addition, plaintiff 
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states that she would amend the complaint to allege that “Respondent” did not comply 

with the Deed of Trust‟s provision that “Lender, at its option, may from time to time 

appoint a successor trustee to any Trustee to [sic] appointed hereunder by an instrument 

executed and acknowledged by Lender and recorded . . . . ” Plaintiff contends that, in 

violation of this provision, “[n]o assignment was executed, acknowledged or recorded at 

the time the foreclosure sale took place.” Plaintiff appears to be arguing that California 

Reconveyance Company (CRC) was not authorized to initiate the foreclosure 

proceeding. This theory was alleged in the complaint and the court addressed it, stating 

correctly that “[t]he DOT here clearly authorizes CRC to act as the trustee for lender 

and beneficiary Washington Mutual . . . . ”

Plaintiff does not otherwise show in what manner she would amend the 

complaint or how that amendment would change the legal effect of her pleading. On 

these grounds, plaintiff has not met her burden of showing how she could amend to cure 

the defects in the complaint. As plaintiff has failed to make other arguments regarding 

the court‟s alternate bases for its ruling, she has therefore waived any other challenge to 

these grounds. (Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 217-218.)
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DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J. 

WE CONCUR:

KLEIN, P. J.

KITCHING, J.