FILED
NOT FOR PUBLICATION
JUN 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MASAZUMI INOUE, No. 15-16699
Plaintiff-Appellant, D.C. No. 4:15-cv-01636-YGR
v.
MEMORANDUM*
BANK OF AMERICA, N.A.;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.; THE
BANK OF NEW YORK MELLON, FKA
The Bank of New York as Trustee for the
Alternative Loan Trust 2005-17;
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-17,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted May 19, 2017**
San Francisco, California
*
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).
Before: SCHROEDER and MURGUIA, Circuit Judges, and McCALLA,***
District Judge.
Plaintiff-Appellant Masazumi Inoue (“Inoue”) claims that Defendants-
Appellees lacked legal authority to foreclose on his property because of recording
defects. Inoue raised substantially similar claims in a California state court action
that was ultimately dismissed with final judgment entered against Inoue. The
district court concluded that Inoue’s claims, having already been litigated in state
court, were barred by res judicata and granted the defendants’ motion to dismiss.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Under California law, res judicata applies if (1) the second lawsuit involves
the same “cause of action” as the first, (2) the first lawsuit resulted in a final
judgment on the merits, and (3) the party to be precluded was a party, or in privity
with a party, to the first lawsuit. San Diego Police Officers’ Ass’n v. San Diego
City Employees’ Ret. Sys., 568 F.3d 725, 734 (9th Cir. 2009). Here, the three
elements are clearly met.
Inoue does not argue on appeal that these elements are not met. Inoue
appears to argue that res judicata does not apply because his claims in this action
contain allegations that the defendants engaged in fraud related to the loan
***
The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
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securitization process. There is no res judicata exception for such allegations of
fraud. See Eichman v. Fotomat Corp., 197 Cal. Rptr. 612, 614–15 (Cal. Ct. App.
1983). An opposing party can escape res judicata only on the basis of extrinsic
fraud, i.e., fraud that “deprived the opposing party of the opportunity to appear and
present his case” in the earlier judgment. Id. Inoue has neither argued nor
provided any support for such extrinsic fraud.
We agree with the district court that Inoue’s suit is barred by res judicata.
AFFIRMED.
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