Filed 4/29/14 Tabrizi v. JP Morgan Chase CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 Californ ia Reconveyance2

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 o n the two properties

. W e 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 ch allenged Chase ' s attempt to foreclose on two properties owned by Tabrizi.
1. The North ern Lights Property The first property is located at 7571 North ern Lights in San Diego (the North ern Lights p roperty) . I n October 2007 Tabrizi obtained a loan in the amount of $2,430,000 from Washington Mutual Bank (WaM u) secured by a deed of trust encumbering the North ern Lights property , with CRC as the trustee. The Federal Deposit Insurance Corporation (the FDIC) was appointed as receiver of WaMu in September 20 08. 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 North ern Lights property. 1

1 Tabrizi alleges in the operative complaint in this action that the agreement betwee n WaMu and the FDIC has not been finalized.3

Tabrizi became delinquent on his loan paym ents on the North ern 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 North ern Lights property, stating that Tabrizi was in default on his loa n payments in the amount of $55,448. A notice of trustee sale was recorded on September 1, 2011, for the North ern Lights property. 2. The Encendido Property
T abrizi ' s se cond property is located at 14911 Encendido in San Diego (the Encendido property). Tabrizi obt ained a loan from WaM u 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 p roperty. As a result of Chas e ' s purchase of certain assets of WaM u, Chase also allegedly became the beneficiary of the deed of trust on the Encendido p roperty. Tabrizi became delinquent on his loan payments on the Encendido p roperty

. Specifically, o n February 8, 2010, CRC recorde d a notice of default on the deed of trust secured by the Encendido p roperty, stating that Tabrizi owed $92,894.81 in loan payments

. A notice of trustee sale was recorded on October 14 , 201 0 , for the Encendido
p roperty

. B. The Lawsuits Tabrizi filed tw o separate lawsuits in San Diego County Superior Court to challenge the foreclosures on the North ern Lights property and the Encendido property

.4

1. The North ern Lights Lawsuit With respect to the foreclosure on the North ern Lights p roperty, in May 201 0 Tabrizi filed suit again st Chase in San Diego County Superior Court ( Tabrizi v. Chase Home Finance, LLC , No. 37

- 2010

- 00091526

- CU

- OR

- CTL) ( the North ern Lights
l awsuit)

. 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 North ern Lights l awsuit, Tabrizi alleged (1) that Cha se was improperly foreclosing on the North ern Lights p rop erty because WaM u 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
d id not follow the required statutory procedures governing foreclosures , which purportedly included " [f]ailure to serve upon [Tabrizi] notice of ass ignment of the Note pursuant to C

alifornia C ivil 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 North ern Lights l awsuit specifically alleged that Chase " claims that it is the current holder of the mortga ge 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 requir e d by law

. . . . " Chase prevailed in the North ern Lights l awsuit by obtaining s ummary judgment. The trial court ruled that Chase h ad not assumed liability for WaM u ' s alleged misconduct and that Chase submitted undisputed evidence that it complied with all of the statutory requirements for foreclosure.
2. The Encendido Lawsuit Wi th respect to the Encendido p roperty, 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 l awsuit )

. The initial complaint alleged c laims for fraud, failure to comply with the statutory requirement for foreclosure, and violation of Business and Professions Code section 17200. Later versions of the c omplaint added claim s for unjust enrichment based on improper foreclosure and breach of an alleged contract to allow Tabrizi to short

- sell the Encendido
p roperty. As in the North ern Lights l aw suit, Tabrizi alleged that WaM u had fraudulently induced Tabrizi to obtain a loan he could not afford, that Chase unreasonably refused to modify the t erms of the loan, and that Chase did not comply with the statutory requirements for foreclosure. In his original complaint, a s a remedy, Tabrizi sought, among other things, an order preventing the foreclosure of the Encendido p roperty. In6

later version s of the complaint , Tabrizi sought damages and an order rescinding the loan transactions

. As relevant here, both the second amended complaint and third amended complai n t alleged on information and belief that Chase might not " have physical custody
of Tabr izi ' s original Mortgage and therefore the foreclosure process is void. " Th ose 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 re lated 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 l awsuit when the trial c ourt sustained
their demurrer s . 3

. Th e Instant Lawsuit After the judgments against him in the North ern Lights l awsuit and the Encendido
l awsuit in 2011, Tabrizi filed the instant lawsuit in January 2012 seeking to prevent foreclosure on the North ern Lig hts p roperty and the Encendido p roperty

. 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 North ern Li ghts 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 North e rn Lights property and the Encendido property

.7

The instant action focuse s on a theory that was only briefly mentioned in the North ern Lights lawsuit and the Encendido l awsuit . Specifically, Tabrizi alleges that because of irregularit ies when Chase acqu ired the assets of WaMu and took over as beneficiary of the deeds of trust encumbering the North ern 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 Nor th ern Lights property and the Encendido property , the first amended complaint alleges : " Ch ase 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 d elivered to Chase in any manner " ; " [e] ven if [the note ] was deliver ed to Chase in any manner, the transferor of [the note] did not have any right s to enforce the

term s of [the note] " ; " [the note] wa s 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 man ner, and (5) [the note] was never assigned to Chase or in favor of Chase, Chase cannot enforce [the n ote]. " The first amended complaint alleges that i nstead of being entitled to enforce the notes, " Chase is the service r " of the loans, and thus is not enti tled to foreclose. Chase and CRC demurred to the first amended complaint on th e ground of res judicata arising from the judgments in the North ern Lights lawsuit and the Encendido lawsuit

. In support of the demurrer, Chase and CRC filed an unopposed requ est for judicial notice concerning the North ern 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. St andard 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. " ' [C itation

. ] ' 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 m ust assume the truth of all facts properly pleaded by the plaintiffs, as well as thos e that are judicially noticeable. ' " ( Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153

. )
B. The Do c trine 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.4 th 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 f or the Northern Lights Lawsuit Because It Was i n Privity w ith Chase, Which Did Obtain Judgment i n Its Favor As an initial matter we discuss an issue that was not raised by Tabrizi in his appeal but which we note d upon our review of the record and afforded the parties an opportunity to address pursuant to Government Code section 68081.
I t is well established that claim preclusion arises only if the current lawsuit and the previous lawsuit are " between the same partie s 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 t o 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 asserte d was a party to the previous lawsuit. We disagree. There are two type s 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, sev eral 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 ). ) Accordi ngly, 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

m akes it proper to hold ' privies ' bound with the actual parties. ' " Who are privies requi res 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 cl ose 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, r es judicata arises when one party is in privity with another because the parties ' rel ationship 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 t o 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. " ( I d

. at pp. 347

- 348. ) Although the role of a tr ustee to a deed of trust is complex and depends on the transaction at issue, i n the foreclosure on the Northern Lights property, CRC (as the trustee on the deed of trust) was acting as an agent to it s principal, Chase, who was the beneficiary on the deed o f trust. " A trustee under a deed of trust has neither the powers11

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 condu cting 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 f iduciary 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 tr ustor 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, w hen fulfilling the first of a trustee ' s dut ies (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 dut ies (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 b ased 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 claim12

that Chase had no authority to i nitiate 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 Cha se, CRC is entitled to assert res judicata based on the judgment obtained by Chase

. Having conclude d 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 cou rt 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 t he Demurrer Based on Res Judicata As we have explained, res judicata arises whe n 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 estab lish th e requirements for res judicata because the instant lawsuit does not assert the same cause s 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 an y 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 th e 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, " fo r purposes of applying the doctri ne 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 (com mon 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, 79 8, citations omitted ( Boeken )

. )

" ' The primary right must also be distinguished from the remedy sought: " The violation of one primary right cons titutes 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 assessin g 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 desp ite 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, t he primary right involved in both prior proceedings , as in t his proceeding, was Tabrizi ' s " ' r ight to be free from ' " the wrongful foreclosure of his p roperty. ( 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 enjoi ned. That is the same injury Tabrizi asserts in this case

— th at 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
theor y 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 cur rent 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 d evelop that theory
in the Northern Lights lawsuit , although he easily could have done so.
In the Encendido l awsuit, Tabrizi also alleged that he was injured by an unlawful foreclosure. Specifically, he alleged that he was improperly subject to foreclosur e on the Encendido property because Chase and CRC did not comply with the statutor y requirements for foreclosure and had breached a promise to allow him to short

- sale the15

property. Being subjected to an unlawful foreclosure of the Encendido property is th e same injury Tabrizi alleges in this case. In the Encendido lawsuit , Tabrizi could have focus ed on the allegations that he makes in this lawsuit as to why the foreclosure on the Encendido property is unlawful. 5 In deed, 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 forec losure 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 r ight 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 regardi ng 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 a rgues 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 typ es 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 on ly 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

" ' w as not in fact expressly pleaded or otherwise urged

. ' " ( Tensor Group , supra , 14 Cal.Ap p.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. 79 8

. ) 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.4 th 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 an d 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. ( I bi d .) Here, in contrast, as we have explained, there is only a single primary right asserted, namely the right of Tab rizi 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 liabili ty 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 j udgment s 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.