John B. Freitas v. Bank of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN B. FREITAS,
Plaintiff-Appellant,
v.
BANK OF AMERICA,
Defendant-Appellee.
No. 19-17394
D.C. No. 3:19-cv-03347-WHA
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
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
* 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).
FILED
MAR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 19-17394
(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,
352 P.3d 378, 386 (Cal. 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., 240 P.3d 342, 348 (Cal. 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, 97 Cal. Rptr. 2d 255 (Ct. App. 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).

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3 19-17394
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.

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