Martin Pearson v. U.S. Bank, N.A. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN PEARSON, No. 17-56365
Plaintiff-Appellant, D.C. No. 5:17-cv-00949-CAS-AJW
v.
MEMORANDUM*
U.S. BANK, National Association, as
Trustee for Greenpoint Mortgage Funding
Trust Mortgage Pass-Through Certificates,
Series 2007-AR1; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted April 11, 2018**
Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges.
Martin Pearson appeals pro se from the district court’s order dismissing his
action alleging federal and state law claims related to the foreclosure of his
property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
*
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).
dismissal on the basis of res judicata. Manufactured Home Cmtys. Inc. v. City of
San Jose, 420 F.3d 1022, 1025 (9th Cir. 2005). We affirm.
The district court properly dismissed Pearson’s action as barred by the
doctrine of res judicata because his claims were raised, or could have been raised,
in a prior state court action between the same parties or their privies, and that
action resulted in a final judgment on the merits. See Adam Bros. Farming, Inc. v.
County of Santa Barbara, 604 F.3d 1142, 1148-49 (9th Cir. 2010) (setting forth
elements of res judicata under California law); Brodheim v. Cry, 584 F.3d 1262,
1268 (9th Cir. 2009) (“If two actions involve the same injury to the plaintiff and
the same wrong by the defendant, then the same primary right is at stake even if in
the second suit the plaintiff pleads different theories of recovery, seeks different
forms of relief and/or adds new facts supporting recovery.” (citations and internal
quotation marks omitted)); City of Martinez v. Texaco Trading & Transp. Inc., 353
F.3d 758, 764 (9th Cir. 2003) (privity applies under California law “if a party’s
interests are so similar to another party’s interests that the latter was the former’s
virtual representative in the earlier action” (citation and internal quotation marks
omitted)).
The district court did not abuse its discretion by denying Pearson’s Fed. R.
Civ. P. 60(b) motion because Pearson failed to establish any basis for relief. See
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th
2 17-56365
Cir. 1993) (setting forth standard of review and grounds for relief under Rule
60(b)).
The district court did not abuse its discretion by denying Pearson leave to
amend because Pearson’s time to amend as a matter of course had expired and
amendment would have been futile. See Fed. R. Civ. P. 15(a)(1) (time to file an
amended complaint as a matter of course); Cervantes v. Countrywide Home Loans,
Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and
stating that leave to amend may be denied where amendment would be futile).
The district court did not abuse its discretion by granting the motion for
attorney’s fees because the Deed of Trust provided for attorney’s fees in legal
proceedings relating to the parties’ rights under the Deed of Trust with respect to
the property. See Cal. Civ. Code § 1717(a) (providing for recovery of attorney’s
fees in any contract action where the contract calls for attorney’s fees); Fischer v.
SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000) (setting forth standard of
review).
Appellees’ request to strike the opening brief and dismiss the appeal, set
forth in their answering brief, is denied.
Pearson’s motion for clarification, modification, or reconsideration (Docket
Entry No. 8) is denied.
AFFIRMED.
3 17-56365