Read v. Deutsche Bank Nat. Trust
Filed 6/25/13 Read v. Deutsche Bank Nat. Trust CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
>
MARINA READ, Plaintiff and Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, et al., Defendants and Respondents. | 2d Civil No. B242319 (Super. Ct. No. 1385990) (Santa Barbara County) |
Marina Read appeals from
judgment of dismissal after an order
sustaining, without leave to amend, the demurrer of Deutsche Bank National
Trust Company (Deutsche Bank)
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to her complaint for cancellation and rescission of a mortgage deed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Read borrowed $827,750
from IndyMac Bank, FSB, secured by a deed of trust against her home. She defaulted on the loan, and the property
was eventually sold in a trustee's sale to Deutsche Bank.
2010, Deutsche Bank brought an unlawful
detainer action against Read. (
Marina Read (Super. Ct. Santa Barbara County, No. 1370083).) The trial court granted summary judgment in
favor of Deutsche Bank. The judgment was
affirmed on appeal.
Read
v. Deutsche Bank I
While the unlawful
detainer action was pending, Read filed a complaint against Deutsche Bank, OWB,
and others for breach of contract, fraud, and common counts "arising out
of the wrongful foreclosure" of her home.
(Read v. Deutsche Bank National
Trust Company (Super. Ct. Santa Barbara County, 2010, No. 1370227) (
She alleged that the foreclosure was based upon an improper trustee
assignment, a fraudulent loan modification agreement, and false documents,
among other things. The trial court
sustained a demurrer to the second amended complaint in favor of Deutsche Bank,
OWB, and others, without leave to amend.
Read did not appeal from the judgment of dismissal following the order
sustaining Deutsche Bank and OWB's demurrer.
Read
v. de Bellefeuille
In March 2012, Read
filed an action in federal court against Judge Denise deBellefeuille, Deutsche
Bank, and others in which she alleged violation of the Racketeer Influenced and
Corrupt Organizations Act (RICO), conspiracy to commit fraud, and other causes
of action based on misconduct in the foreclosure proceedings, the unlawful
detainer action, and in Read v. Deutsche
Bank I. (Read v. deBellefeuille United States District Court for the Central
District, Case No. CV12-02662-JHN (MRWx).)
The federal court dismissed the action with prejudice. Read's appeal is pending. (United
States Court of Appeal for the Ninth
Circuit, Case No. 12-56223.)
In April 2012, Read
filed this action against Deutsche Bank, OWB, and others for "rescission
and cancellation of written instruments."
She asserts three causes of action for fraud in which she alleges the
defendants acted in concert to create and mislead her about fraudulent loan
documents.
The trial court
sustained Deutsche Bank's demurrer to the initial complaint without leave to
amend. The trial court found that Read's
claims were substantively identical to those she litigated in
estoppel. Read appeals from the
judgment of dismissal.
DISCUSSION
Under the doctrine of
res judicata, a valid final judgment on the merits in favor of the defendant
bars further litigation on an identical cause of action. (Murray
v. Alaska Airlines, Inc. (2010) 50
Cal.4th 860, 866.) The doctrine of
collateral estoppel similarly precludes re-litigation of identical issues. (Id. at
p. 867.)
Read contends that the
judgment in Read v. Deutsche Bank I cannot
preclude her claims because the judgment is not valid. She points out that it was signed by a judge
to whom the case was not assigned for all purposes after the case had been
removed to federal court. We reject her
contention.
Santa Barbara Superior
Court Judge deBellefeuille was assigned to Read
v. Deutsche Bank I for all purposes.
She heard Deutsche Bank and OWB's demurrer and she entered a minute
order on March 10, 2011, before removal, sustaining the demurrer without leave
to amend. On April 5, 2011, a remaining
defendant removed the case to federal court.
On April 8, in Judge deBellefeuille's absence, Santa Barbara Superior
Court Judge Thomas P. Anderle signed a formal order sustaining the demurrer and
entering judgment of dismissal. On May
16, the federal district court remanded the case to the Santa Barbara Superior Court.
After notice of removal,
the state court "shall proceed no further unless and until the case is
remanded." (28 U.S.C. 1446(d);
(1982) 132 Cal.App.3d 670, 674-676.) But
Judge deBellefeuille sustained the demurrer before notice of removal, as
demonstrated by the March 10 minute order.
The "prohibition to 'proceed no further' does not extend to
ministerial acts that do not affect the merits of the dispute between the
parties." (Lawrence v. Chancery Court of Tennessee (6th Cir. 1999) 188 F.3d
687, 692 [state court post-removal assessment of costs already accrued was
valid]; Pebble Creek Homes, LLC v.
Upstream Images, LLC (D. Utah 2007) 547 F.Supp.2d 1214, 1218 [signing and
entering formal order reflecting pre-removal ruling was a ministerial act, and
the resulting order was valid].) The
merits of the dispute between Read, Duetsche Bank, and OWB were resolved before
removal. Judge Anderle performed a
ministerial function when he signed the formal order and entered judgment. Read cites no authority for her contention
that only the judge assigned for all purposes may enter judgment, and we are
aware of no support for her position.
Read's claims are
precluded because they involve the same primary right as previously adjudicated
in Read v. Deutsche Bank I. In both actions she alleged that she lost
her home as a result of fraud in connection with the loan and foreclosure
proceedings. A plaintiff cannot avoid
the bar of res judicata by raising new legal theories or requesting different
relief. (California Coastal Com. v. Superior Court (1989) 210 Cal.App.3d
1488, 1499.) Even where there are
multiple legal theories upon which recovery might be predicated, one injury
gives rise to only one claim for relief. (Boeken
v. Phillip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.)
The trial court did not
abuse its discretion when it denied leave to amend. It was Read's burden to demonstrate how
deficiencies could be cured by amendment.
(Fontenot v. Wells Fargo Bank, N.A.
(2011) 198 Cal.App.4th 256, 274-275.)
She did not.
DISPOSITION
The judgment is
affirmed. Respondents shall recover
their costs on appeal.
NOT TO BE PUBLISHED.
GILBERT,
J.
We concur:
YEGAN, P.J.
PERREN, J.
Donna
D. Geck, Judge
Superior
Court County of Santa Barbara
______________________________
Marina Read, in pro.
per., for Plaintiff and Appellant.
Wright Finlay & Zak,
Jonathan D. Fink; Magdalena D. Kozinska, for Defendants and Respondents.
Deutsche Bank appears as Trustee of the IndyMac
Indx Mortgage Trust 2006-AR4, Mortgage Pass-Through Certificates, Series
2006-AR4 under the Pooling and Servicing Agreement dated March 1, 2006, and OneWest Bank, FSB (OWB).
