Numa Barnes v. Homeward Residential, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NUMA BARNES,
Plaintiff-Appellant,
v.
HOMEWARD RESIDENTIAL, INC.; et al.,
Defendants-Appellees.
No. 16-17258
D.C. No. 3:13-cv-03227-RS
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted March 16, 2018**
San Francisco, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,*** Senior
District Judge.
Plaintiff Numa Barnes appeals the district court’s dismissal of her action
challenging the foreclosure of her home. Because Plaintiff’s prior state court
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
FILED
MAR 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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challenge to the same foreclosure proceeding was dismissed with prejudice, the
district court concluded that California principles of res judicata barred Plaintiff’s
federal action.
California law imposes three requirements for a state court judgment to have
preclusive effect: “(1) the second lawsuit must involve the same ‘cause of action’
as the first one, (2) there must have been a final judgment on the merits in the first
lawsuit and (3) the party to be precluded must itself have been a party, or in privity
with a party, to that first lawsuit.” San Diego Police Officers’ Ass’n v. San Diego
City Emps.’ Ret. Sys., 568 F.3d 725, 734 (9th Cir. 2009). All three requirements
are satisfied here.
First, Plaintiff’s federal lawsuit involves the same cause of action as her state
lawsuit. Under California’s “primary rights” theory, 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.” Boeken v. Philip Morris
USA, Inc., 230 P.3d 342, 348 (Cal. 2010). When two actions involve the same
primary right, “the doctrine of res judicata will bar not only claims actually
litigated in [the] prior proceeding, but also claims that could have been litigated.”
Palomar Mobilehome Park Ass’n v. City of San Marcos, 989 F.2d 362, 364 (9th
Cir. 1993). The district court correctly concluded that Plaintiff’s state and federal
actions both involve the primary right to avoid a wrongful foreclosure. Because

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the “critical focus of primary rights analysis ‘is the harm suffered,’” Brodheim v.
Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (quoting San Diego Police Officers’
Ass’n, 568 F.3d at 734), it is of no consequence that Plaintiff’s state action
articulated a different legal theory.
Second, there was a final judgment on the merits in the state action. The
state court sustained defendant Homeward Residential, Inc.’s demurrer and
dismissed Plaintiff’s claims with prejudice after Plaintiff failed to amend. See
Keidatz v. Albany, 249 P.2d 264, 265 (Cal. 1952) (explaining that when the court
enters judgment following a plaintiff’s failure to amend, it is a judgment on the
merits that bars “a subsequent action alleging the same facts”). Plaintiff has no
plausible argument that the state judgment was not a final judgment on the merits.
Finally, Plaintiff was a party to the prior state action. Plaintiff focuses on
the identity of the defendants, but California law requires that only “the party to be
precluded” have been a participant in the prior lawsuit. San Diego Police Officers’
Ass’n, 568 F.3d at 734 (emphasis added). Plaintiff was clearly a party to the state
action that she filed.
Accordingly, Plaintiff’s federal action is foreclosed by res judicata, and we
AFFIRM.

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