Filed 4/29/14 Tabrizi v. JP Morgan Chase CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BEHNAM TABRIZI,

Plaintiff and Appellant,

v.

JP MORGAN CHASE BANK et al.,

Defendants and Respondents.

D062847

(Super. Ct. No. 37-2012-00090805-

CU-OR-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy 

Taylor, Judge. Affirmed.

Law Offices of Dennis Moore and Dennis Howard Moore for Plaintiff and 

Appellant

Alvarado Smith, Theodore E. Bacon and David J. Masutani for Defendants and 

Respondents. 

Behnam Tabrizi appeals from an adverse judgment on grounds of res judicata in 

his lawsuit against JP Morgan Chase Bank (Chase) and California Reconveyance 
2

Company (CRC) arising out of the foreclosure on two properties that Tabrizi owns. The 

trial court's conclusion that res judicata applied was based on the judgments in two prior 

lawsuits that Tabrizi filed to challenge Chase's foreclosure on the two properties. We 

conclude that the trial court properly sustained the demurrer on the ground of res judicata, 

and we accordingly affirm the judgment. 

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Tabrizi's Default on Two Deeds of Trust

This lawsuit challenged Chase's attempt to foreclose on two properties owned by 

Tabrizi. 

1. The Northern Lights Property

The first property is located at 7571 Northern Lights in San Diego (the Northern

Lights property). In October 2007 Tabrizi obtained a loan in the amount of $2,430,000 

from Washington Mutual Bank (WaMu) secured by a deed of trust encumbering the 

Northern Lights property, with CRC as the trustee. 

The Federal Deposit Insurance Corporation (the FDIC) was appointed as receiver 

of WaMu in September 2008. Pursuant to an agreement between Chase and the FDIC, 

Chase purchased certain assets of WaMu, pursuant to which Chase allegedly became the 

beneficiary of the deed of trust on the Northern Lights property.1 

 

1 Tabrizi alleges in the operative complaint in this action that the agreement 

between WaMu and the FDIC has not been finalized. 
3

Tabrizi became delinquent on his loan payments on the Northern Lights property, 

and CRC and Chase took steps to foreclose. Specifically, on April 13, 2010, CRC 

recorded a notice of default on the deed of trust secured by the Northern Lights property, 

stating that Tabrizi was in default on his loan payments in the amount of $55,448. A 

notice of trustee sale was recorded on September 1, 2011, for the Northern Lights 

property. 

2. The Encendido Property

Tabrizi's second property is located at 14911 Encendido in San Diego (the 

Encendido property). Tabrizi obtained a loan from WaMu in January 2008 in the amount 

of $2,000,000 secured by a deed of trust encumbering the Encendido property. In 2010, 

CRC was substituted as the trustee for the deed of trust on the Encendido property. As a 

result of Chase's purchase of certain assets of WaMu, Chase also allegedly became the 

beneficiary of the deed of trust on the Encendido property. 

Tabrizi became delinquent on his loan payments on the Encendido property. 

Specifically, on February 8, 2010, CRC recorded a notice of default on the deed of trust 

secured by the Encendido property, stating that Tabrizi owed $92,894.81 in loan 

payments. A notice of trustee sale was recorded on October 14, 2010, for the Encendido 

property. 

B. The Lawsuits

Tabrizi filed two separate lawsuits in San Diego County Superior Court to 

challenge the foreclosures on the Northern Lights property and the Encendido property. 
4

1. The Northern Lights Lawsuit 

With respect to the foreclosure on the Northern Lights property, in May 2010 

Tabrizi filed suit against Chase in San Diego County Superior Court (Tabrizi v. Chase 

Home Finance, LLC, No. 37-2010-00091526-CU-OR-CTL) (the Northern Lights 

lawsuit).2 The initial complaint alleged several causes of action asserting various 

theories of fraud and concealment, as well as negligence. A second amended complaint 

alleged causes of action for fraud, wrongful foreclosure, and violation of Business and 

Professions Code section 17200. In the Northern Lights lawsuit, Tabrizi alleged (1) that 

Chase was improperly foreclosing on the Northern Lights property because WaMu had 

fraudulently induced Tabrizi to obtain a loan he could not afford; (2) that Chase had 

unreasonably denied Tabrizi the right to modify the terms of his loan; and (3) that Chase 

did not follow the required statutory procedures governing foreclosures, which 

purportedly included "[f]ailure to serve upon [Tabrizi] notice of assignment of the Note 

pursuant to California Civil Code § 2932 et [s]eq." Tabrizi sought an order restraining 

Chase from proceeding with the foreclosure, and an order rescinding any sale or transfer 

of title. 

 

2 As far as the appellate record reflects, CRC was not named as a defendant in the 

Northern Lights lawsuit. Instead, the original complaint and the second amended 

complaint alleged that Quality Loan Services Corp. was the trustee to the deed of trust 

secured by the Northern Lights property. We note that in supplemental briefing we 

requested from the parties, CRC stated that although not reflected in the appellate record, 

it was briefly sued as a defendant in one version of the complaint in the Northern Lights 

lawsuit (which is not contained in the appellate record), but was effectively dismissed 

without prejudice when an amended complaint was filed that did not name CRC as a 

defendant. 
5

As relevant here, the initial complaint in the Northern Lights lawsuit specifically 

alleged that Chase "claims that it is the current holder of the mortgage and/or other 

security interests taken in the . . . loan transaction, despite the fact that public records do 

not reflect any assignments from W[a]M[u] to [Chase] as required by law . . . ."

Chase prevailed in the Northern Lights lawsuit by obtaining summary judgment. 

The trial court ruled that Chase had not assumed liability for WaMu's alleged misconduct 

and that Chase submitted undisputed evidence that it complied with all of the statutory 

requirements for foreclosure. 

2. The Encendido Lawsuit 

With respect to the Encendido property, in October 2010 Tabrizi filed suit against 

Chase and CRC in San Diego County Superior Court (Tabrizi v. Chase Home Finance, 

LLC, No. 37-2010-00103336-CU-OR-CTL) (the Encendido lawsuit). The initial 

complaint alleged claims for fraud, failure to comply with the statutory requirement for 

foreclosure, and violation of Business and Professions Code section 17200. Later 

versions of the complaint added claims for unjust enrichment based on improper 

foreclosure and breach of an alleged contract to allow Tabrizi to short-sell the Encendido 

property. As in the Northern Lights lawsuit, Tabrizi alleged that WaMu had fraudulently 

induced Tabrizi to obtain a loan he could not afford, that Chase unreasonably refused to 

modify the terms of the loan, and that Chase did not comply with the statutory 

requirements for foreclosure. In his original complaint, as a remedy, Tabrizi sought, 

among other things, an order preventing the foreclosure of the Encendido property. In 
6

later versions of the complaint, Tabrizi sought damages and an order rescinding the loan 

transactions.

As relevant here, both the second amended complaint and third amended 

complaint alleged on information and belief that Chase might not "have physical custody 

of Tabrizi's original Mortgage and therefore the foreclosure process is void." Those 

complaints also alleged that "[Chase] may have no rights in title or interest to Tabrizi's 

property. In fact, WaMu is in litigation against the F[D]IC and [Chase] for issues related 

to forced devolution of WaMu assets and stock to [Chase] and as such, there is a question 

of fact as to whether [Chase] has any rights to Tabrizi's property under the 

circumstances."

Chase and CRC prevailed in the Encendido lawsuit when the trial court sustained 

their demurrers.

3. The Instant Lawsuit

After the judgments against him in the Northern Lights lawsuit and the Encendido 

lawsuit in 2011, Tabrizi filed the instant lawsuit in January 2012 seeking to prevent 

foreclosure on the Northern Lights property and the Encendido property. The first 

amended complaint asserts three causes of action against Chase and CRC. The first 

cause of action seeks to "void and cancel" the notices of default and notice of trustee's 

sale as to both the Northern Lights property and the Encendido property. The second 

cause of action seeks injunctive relief preventing the foreclosure sales. The third cause of 

action seeks declaratory relief that Chase does not have the right to enforce the notes on 

either the Northern Lights property and the Encendido property. 
7

The instant action focuses on a theory that was only briefly mentioned in the 

Northern Lights lawsuit and the Encendido lawsuit. Specifically, Tabrizi alleges that 

because of irregularities when Chase acquired the assets of WaMu and took over as 

beneficiary of the deeds of trust encumbering the Northern Lights property and the 

Encendido property, Chase does not have the authority to foreclose on those properties. 

As to the promissory notes for both the Northern Lights property and the Encendido 

property, the first amended complaint alleges: "Chase has not received any assignment 

of [the note] in any manner"; "Chase was never in possession of [the note]"; "Chase never 

acquired the rights of Wa[M]u"; "Chase is not a successor to Wa[M]u"; [the note] has 

never been delivered to Chase in any manner"; "[e]ven if [the note] was delivered to 

Chase in any manner, the transferor of [the note] did not have any rights to enforce the 

terms of [the note]"; "[the note] was never assigned to Chase or assigned in favor of 

Chase"; "[s]ince Chase (1) was never in possession of [the note], (2) never acquired rights

of Wa[M]u, (3) is not a successor to Wa[M]u, and since (4) [the note] has never been 

delivered to Chase in any manner, and (5) [the note] was never assigned to Chase or in 

favor of Chase, Chase cannot enforce [the note]." The first amended complaint alleges

that instead of being entitled to enforce the notes, "Chase is the servicer" of the loans, and 

thus is not entitled to foreclose.

Chase and CRC demurred to the first amended complaint on the ground of res 

judicata arising from the judgments in the Northern Lights lawsuit and the Encendido 

lawsuit. In support of the demurrer, Chase and CRC filed an unopposed request for 

judicial notice concerning the Northern Lights lawsuit and the Encendido lawsuit. 
8

The trial court sustained the demurrer on the basis of res judicata and entered 

judgment against Tabrizi. 

Tabrizi appeals from the judgment. 

II

DISCUSSION

A. Standard of Review

" ' "On appeal from an order of dismissal after an order sustaining a demurrer, our 

standard of review is de novo, i.e., we exercise our independent judgment about whether 

the complaint states a cause of action as a matter of law." ' [Citation.] 'A judgment of 

dismissal after a demurrer has been sustained without leave to amend will be affirmed if 

proper on any grounds stated in the demurrer, whether or not the court acted on that 

ground.' [Citation.] In reviewing the complaint, 'we must assume the truth of all facts 

properly pleaded by the plaintiffs, as well as those that are judicially noticeable.' "

(Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.)

B. The Doctrine of Res Judicata

The trial court sustained the demurrer on the grounds of res judicata. "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 (Mycogen).) "To operate as a bar a judgment 

must be final, on the same claim or cause of action, between the same parties, and must 

be an adjudication on the merits." (McKinney v. County of Santa Clara (1980) 110 

Cal.App.3d 787, 794 (McKinney).) 
9

C. CRC May Assert Res Judicata for the Northern Lights Lawsuit Because It Was in 

Privity with Chase, Which Did Obtain Judgment in Its Favor

As an initial matter we discuss an issue that was not raised by Tabrizi in his appeal 

but which we noted upon our review of the record and afforded the parties an opportunity 

to address pursuant to Government Code section 68081. 

It is well established that claim preclusion arises only if the current lawsuit and the 

previous lawsuit are "between the same parties or parties in privity with them" (Mycogen,

supra, 28 Cal.4th at p. 896) and if there was "an adjudication on the merits" as to those 

parties (McKinney, supra, 110 Cal.App.3d at p. 794).3

 There was no final adjudication on the merits against CRC in the Northern Lights 

lawsuit, because (according to CRC's representation) CRC was only briefly a party and 

was dismissed from the lawsuit without prejudice. Chase obtained a judgment on the 

merits in the Northern Lights lawsuit, but CRC did not. 

 

3 CRC contends that to apply claim preclusion, there is no requirement that the party 

asserting claim preclusion have been a party to or in privity with a party to the previous 

lawsuit. CRC contends that it is sufficient that the party against whom claim preclusion 

is asserted was a party to the previous lawsuit. We disagree. There are two types of res 

judicata — claim preclusion and issue preclusion (also referred to as collateral estoppel). 

(Mycogen, supra, 28 Cal.4th at p. 896, fn. 7.) For issue preclusion to apply, several 

requirements must be met, including that "the party against whom preclusion is sought 

must be the same as, or in privity with, the party to the former proceeding." (Lucido v. 

Superior Court (1990) 51 Cal.3d 335, 341, italics added (Lucido).) Accordingly, for 

issue preclusion to apply there is no requirement that the party asserting issue preclusion 

have obtained a final judgment in the previous action. However, the type of res judicata 

at issue here is not issue preclusion; it is claim preclusion. Accordingly, for CRC to 

assert res judicata it must establish that it was a party who obtained a final judgment in 

the Northern Lights lawsuit or was in privity with such a party.
10

As we have explained, however, a party may still rely on claim preclusion if it was 

in privity with a party who obtained a final judgment in an action. (Mycogen, supra, 28 

Cal.4th at p. 896.) Therefore, we examine whether CRC was in privity with Chase and 

may, on that basis, assert claim preclusion arising from the Northern Lights lawsuit.

"The term 'privity' refers to some relationship or connection with the party which 

makes it proper to hold 'privies' bound with the actual parties. ' "Who are privies requires 

careful examination into the circumstances of each case as it arises." ' [Citations.] The 

courts have abandoned application of rigid categories in favor of a practical approach 

which addresses the question of 'whether the non-party is sufficiently close to the original 

case to afford application of the principle of preclusion.' " (Martin v. County of Los 

Angeles (1996) 51 Cal.App.4th 688, 700.) 

As relevant here, res judicata arises when one party is in privity with another 

because the parties' relationship is "analogous to that of principal and agent." (Triano v. 

F.E. Booth & Co. (1932) 120 Cal.App. 345, 347.) "If the party who actually causes the 

injury is free from liability by reason of his acts, it must follow that his principal is 

entitled to a like immunity. In other words, a judgment in favor of the immediate actor is 

a bar to an action against one whose liability is derivative from or dependent upon the 

culpability of the immediate actor." (Id. at pp. 347-348.)

Although the role of a trustee to a deed of trust is complex and depends on the 

transaction at issue, in the foreclosure on the Northern Lights property, CRC (as the 

trustee on the deed of trust) was acting as an agent to its principal, Chase, who was the 

beneficiary on the deed of trust. "A trustee under a deed of trust has neither the powers 
11

nor the obligations of a strict trustee; rather, he serves as a kind of common agent for the 

trustor and the beneficiary. . . . His agency is a passive one, for the limited purpose of 

conducting a sale in the event of the trustor's default or reconveying the property upon 

satisfaction of the debt. . . . 'The "trustee" of a deed of trust is not a trustee at all in a 

technical or strict sense . . . .' . . . A trustee . . . , while an agent for both the beneficiary 

and the trustor, does not stand in a fiduciary relationship to either." (Hatch v. Collins

(1990) 225 Cal.App.3d 1104, 1111-1112, citations omitted, italics added.) The trustee of 

a deed of trust "acts as a common agent for the trustor and the beneficiary of the deed of 

trust," with the trustee's only duties being "(1) upon default to undertake the steps 

necessary to foreclose the deed of trust; or (2) upon satisfaction of the secured debt to 

reconvey the deed of trust." (Vournas v. Fidelity Nat. Title Ins. Co. (1999) 73 

Cal.App.4th 668, 677, italics added.) Logically, as a common agent, when fulfilling the 

first of a trustee's duties (i.e., foreclosing on a deed of trust), a trustee is acting as an 

agent of the beneficiary; when fulfilling the second of a trustee's duties (reconveying the 

deed of trust upon satisfaction), a trustee is acting as an agent of the trustor. (Cf. Jenkins 

v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 515 [trustee to deed of trust

recorded a notice of default " 'as agent for beneficiary' "].) 

Here, because Tabrizi challenges the foreclosure on the deed of trust for the 

Northern Lights property, CRC was acting as an agent of the beneficiary, Chase, when 

performing the acts on which Tabrizi based both this lawsuit and the Northern Lights 

lawsuit. Indeed, as we understand Tabrizi's allegations against CRC, because CRC was 

acting on behalf of Chase, all of CRC's alleged liability is derivative of Tabrizi's claim 
12

that Chase had no authority to initiate the foreclosure. Accordingly, as an agent of Chase, 

CRC was in privity with Chase for the purpose of the Tabrizi's attempt in the Northern 

Lights lawsuit to challenge the foreclosure of the Northern Lights property. As a party in 

privity with Chase, CRC is entitled to assert res judicata based on the judgment obtained 

by Chase.

Having concluded that CRC may assert res judicata based on the judgment in 

favor of Chase in the Northern Lights lawsuit, we next proceed to consider whether the 

trial court properly sustained the demurrer on the ground of res judicata as to both CRC 

and Chase based on the judgments in the Northern Lights lawsuit and the Encendido 

lawsuit.

D. The Trial Court Properly Sustained the Demurrer Based on Res Judicata

As we have explained, res judicata arises when a judgment is final, on the same 

claim or cause of action, between the same parties, and is adjudicated based on the 

merits. (McKinney, supra, 110 Cal.App.3d at p. 794.) Tabrizi claims that Chase and 

CRC did not establish the requirements for res judicata because the instant lawsuit does 

not assert the same causes of action as are asserted in the Northern Lights lawsuit and the 

Encendido lawsuit.4

 

4 We note that much of Tabrizi's appellate brief addresses issues that are not 

pertinent to the trial court's ruling sustaining the demurrer on the basis of res judicata. 

Tabrizi sets forth an extensive, yet irrelevant, discussion about whether his complaint has 

substantive merit and whether he can amend the complaint to cure any deficiencies. We 

do not address these issues as they are not relevant to the issues presented in the 

demurrer. 
13

For the purposes of res judicata, "[c]auses of action are considered the same if 

based on the same primary right." (Citizens for Open Government v. City of Lodi (2012) 

205 Cal.App.4th 296, 325.) " '[T]he primary right is simply the plaintiff's right to be free 

from the particular injury suffered.' " (Mycogen, supra, 28 Cal.4th at p. 904.) As our 

Supreme Court has explained, "for purposes of applying the doctrine of res judicata, the 

phrase 'cause of action' has a . . . precise meaning: The cause of action is the right to 

obtain redress for a harm suffered, regardless of the specific remedy sought or the legal 

theory (common law or statutory) advanced. . . . '[T]he "cause of action" is based upon 

the harm suffered, as opposed to the particular theory asserted by the litigant. . . .' Thus, 

under the primary rights theory, the determinative factor is the harm suffered." (Boeken 

v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798, citations omitted (Boeken).) 

" '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." ' " (Mycogen, at p. 904.) 

Further, in assessing whether the same cause of action was at issue in a previous 

lawsuit, " '[i]f the matter was within the scope of the action, related to the subject matter 

and relevant to the issues, so that it could have been raised, the judgment is conclusive on 

it despite the fact that it was not in fact expressly pleaded or otherwise urged. . . . The 

reason for this is manifest. A party cannot by negligence or design withhold issues and 

litigate them in consecutive actions.' " (Tensor Group v. City of Glendale (1993) 14 

Cal.App.4th 154, 160 (Tensor Group).)
14

Here, the Northern Lights lawsuit and the Encendido lawsuit both asserted the 

same cause of action as is asserted in this action. As we will explain, the primary right 

involved in both prior proceedings, as in this proceeding, was Tabrizi's " 'right to be free 

from' " the wrongful foreclosure of his property. (Mycogen, supra, 28 Cal.4th at p. 904.)

In the Northern Lights lawsuit, the gist of Tabrizi's case was that the foreclosure 

should not go forward because (1) there was fraud at the origination of the loan; and (2) 

Chase violated several legal statutory requirements relating to foreclosure. The injury 

Tabrizi alleged was the unlawful foreclosure on the Northern Lights property, which he 

sought to have enjoined. That is the same injury Tabrizi asserts in this case — that he is 

suffering an unlawful foreclosure. Tabrizi simply asserts different theories about why the 

foreclosure is unlawful. Tabrizi could have, but did not, focus on the specific legal 

theory that he now asserts when litigating the Northern Lights lawsuit. Indeed, as we 

have noted above, Tabrizi's complaint in the Northern Lights lawsuit touched upon the 

theory that he focuses on in this lawsuit, stating that Chase "claims that it is the current 

holder of the mortgage and/or other security interests taken in the . . . loan transaction, 

despite the fact that public records do not reflect any assignments from W[a]M[u] to 

[Chase] as required by law . . . ." Tabrizi simply chose not to further develop that theory 

in the Northern Lights lawsuit, although he easily could have done so.

In the Encendido lawsuit, Tabrizi also alleged that he was injured by an unlawful 

foreclosure. Specifically, he alleged that he was improperly subject to foreclosure on the 

Encendido property because Chase and CRC did not comply with the statutory 

requirements for foreclosure and had breached a promise to allow him to short-sale the 
15

property. Being subjected to an unlawful foreclosure of the Encendido property is the 

same injury Tabrizi alleges in this case. In the Encendido lawsuit, Tabrizi could have

focused on the allegations that he makes in this lawsuit as to why the foreclosure on the 

Encendido property is unlawful.5 Indeed, in the Encendido lawsuit, Tabrizi touched on 

the theory of his current lawsuit, alleging that Chase may not "have physical custody of 

Tabrizi's original Mortgage and therefore the foreclosure process is void," and that 

"[Chase] may have no rights in title or interest to Tabrizi's property." As in the 

Encendido lawsuit, Tabrizi could have further developed that theory, but he simply chose 

not to.

Tabrizi acknowledges that he was attempting to prevent an unlawful foreclosure in 

all three lawsuits. However, he argues that the same primary right is not at issue in this 

case because it is focused on contractual theories as to why the foreclosures are unlawful 

rather than statutory theories as alleged in the Northern Lights lawsuit and the Encendido 

lawsuit. Tabrizi argues that "issues regarding whether Chase is a party to the note and 

deed of trust is a contractual issue while compliance with the statutory scheme governing 

 

5 Tabrizi asserts that "[t]he issue has to be decided in the prior action in order for 

Res Judicata to apply." Based on this premise, he argues that even if his other theories of 

liability are barred, he may pursue a theory of fraud in this case because "whether or not 

Mr. Tabrizi actually was a victim of fraud was never decided." Tabrizi's argument is 

flawed because it confuses the two types of res judicata. Only issue preclusion requires 

that an issue be actually litigated and necessarily decided. (Lucido, supra, 51 Cal.3d at 

p. 341.) In contrast, claim preclusion — upon which the trial court relied to sustain the 

demurrer — requires only that " 'the matter was within the scope of the action, related to 

the subject matter and relevant to the issues, so that it could have been raised' " even if it 

" 'was not in fact expressly pleaded or otherwise urged.' " (Tensor Group, supra, 14 

Cal.App.4th at p. 160.)
16

non-judicial foreclosure sales raises issues with laws." We reject Tabrizi's argument. 

Case law is clear that it is the harm suffered rather than the legal theory alleged that is 

dispositive in determining whether lawsuits assert the same cause of action.6 " 'Even 

where there are multiple legal theories upon which recovery might be predicated, one 

injury gives rise to only one claim for relief. "Hence a judgment for the 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." ' " (Boeken, supra, 48 

Cal.4th at p. 798.)

In sum, we conclude that the doctrine of res judicata is applicable to Tabrizi's 

claims in this lawsuit. The demurrer was accordingly properly sustained as to Chase and 

 

6 Despite case law establishing that it is the harm suffered rather than the legal 

theory alleged that determines whether two lawsuits involve the same primary right, 

Tabrizi relies on Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327 to argue 

that his lawsuit is not barred by res judicata because it is purportedly based on contractual 

theories while the former lawsuits were purportedly based on statutory theories. We 

reject the argument because Branson is not applicable here and does not abrogate the rule 

that the harm suffered rather than the legal theory asserted determines whether res 

judicata applies. Branson concerned a unique situation in which a defendant to a first 

lawsuit filed a posttrial motion seeking a court order requiring that a defendant, who he 

alleged to be his corporate principal, indemnify him under Corporations Code section 

317. (Id. at pp. 332-338.) Applying the doctrine of issue preclusion, Branson concluded 

that a ruling adverse to the defendant on his posttrial motion did not bar a subsequent 

lawsuit by the defendant alleging breach of contract for indemnity against the principal, 

as different primary rights were at issue. (Id. at pp. 343-344.) Specifically, the 

defendant's posttrial motion concerned his primary right to seek statutory indemnity, 

while his subsequent lawsuit concerned his primary right to seek contractual indemnity. 

(Ibid.) Here, in contrast, as we have explained, there is only a single primary right 

asserted, namely the right of Tabrizi to be free from an unlawful foreclosure. Branson

does not stand for the principle claimed by Tabrizi, that a party may bring one lawsuit 

alleging statutory theories of liability and then bring a second lawsuit alleging contractual 

theories of liability when, as here, the primary right asserted in the lawsuits is the same.
17

CRC on the ground that Tabrizi's claims against those parties are barred by the judgments

in the Northern Lights lawsuit and the Encendido lawsuit.

DISPOSITION

The judgment is affirmed. 

IRION, J.

WE CONCUR:

O'ROURKE, Acting P. J.

AARON, J.