CODRINGTON, J.
This civil matter arises from a dispute between former spouses regarding a parcel of real property in Huntington Park, California (the property). Plaintiff and appellant Dennis Joe Perry (Dennis) appeals from the judgment entered in favor of his former wife, defendant and respondent Anel Arreola Perry (Anel), after the trial court sustained Anel's demurrer to Dennis's complaint without leave to amend.
We agree with the trial court's ruling, and affirm the judgment.
On May 6, 1998, a grant deed dated March 6, 1998, was recorded with the Los Angeles County Recorder's Office, showing a transfer of the property from Anel's parents to Anel and Dennis. The grant deed describes the transfer as a "gift" to Anel, "an unmarried woman," and Dennis, "an unmarried man," as "joint tenants," for which Anel's parents "received nothing in return."
Anel and Dennis married in 1999 and, according to the allegations of Dennis's complaint in the present action, "treated the . . . property as their own from 1998 to 2009 by paying the debt and expenses on the property, collecting rent, and reporting on their personal tax returns the net income stream from the . . . property."
On March 20, 2009, Anel filed for dissolution of marriage in San Bernardino County Superior Court (Case no. FAMSS901495). After that date, according to Dennis, Anel "started to claim that the Grant Deed was a forgery." Shortly thereafter, Anel's parents brought suit in the Superior Court of Los Angeles County, Southeast District (Case no. VC056399, "the Norwalk action"), seeking cancellation of the grant deed. Although Anel was nominally a defendant in the Norwalk action, she sided with her parents, allowing her default to be entered.
On March 23, 2012, Dennis filed a cross-complaint against Anel and her parents in the Norwalk action. The causes of action asserted in Dennis's cross-complaint include one for breach of fiduciary duty against Anel. In relation to that cause of action, the cross-complaint alleges that Anel and Dennis "each owed the other a fiduciary duty by virtue of their marital relationship," and that "[d]uring the period when they were not married, each owed the other a fiduciary duty as each reposed trust and confidence in the other, each accepted such trust and confidence from the other, and each acted according to such trust and confidence." It further alleges, among other things, that Anel acted "against the interests of the marital community and the interests of [Dennis]" by failing to appear and defend the Norwalk action, and by submitting in the Norwalk action "a perjurious declaration . . . accusing [Dennis] of coercing [her] to forge the signatures of [Anel's parents] to the 1998 Deed. . . ." With respect to the breach of fiduciary cause of action, the cross-complaint prayed for "damages in the sum of $400,000 and/or more according to proof," plus interest, attorney fees, costs, and punitive damages.
The Norwalk action was consolidated with the parties' marital dissolution action, and in August 2013 the parties reached a settlement of all claims in the Norwalk action. The settlement was placed on the record orally, with all parties and counsel present.
In September 2015, Dennis filed a request for order in the marital dissolution action, asking the superior court to determine whether the settlement of the Norwalk action applied to Dennis's cross-complaint and precluded Dennis from litigating a breach of fiduciary duty claim against Anel regarding the property in the marital dissolution action. In an order issued in January 2016, the superior court determined that the settlement did cover the breach of fiduciary duty claim asserted by Dennis in the cross complaint against Anel in the Norwalk action, and the doctrines of res judicata and collateral estoppel applied to bar any further litigation of that claim. The court further found, however, that "only the SPECIFIC CLAIMS raised between the parties in the cross complaint are so barred. Any and all other claims or issues between the parties available under the Family Code remain viable."
In October 2016, Dennis filed his complaint in the present action, asserting a single cause of action for breach of fiduciary duty against Anel. The complaint asserts that Anel owed Dennis a "fiduciary duty based on the joint tenancy" they had shared in the property, which "prohibited either party . . . from acting in any manner to interfere with, or defeat, the interest of the other in the . . . property." Anel allegedly breached that fiduciary duty by "manufacturing the false story that the Grant Deed was a forgery, later compelling her parents . . . to make that claim and file [the Norwalk action], and then later join[ing] with [her parents] in their claim that the Grant Deed was a forgery." The complaint further asserts that this breach of Anel's fiduciary duty caused Dennis to be "compelled . . . against his will" to "make the election that his interest in the . . . property be conveyed back to [Anel's parents]." The complaint prays for damages "in the amount of $400,000 and more according to proof at time of trial," plus interest, attorney fees, costs, and punitive damages.
The trial court sustained Anel's demurrer to the complaint without leave to amend, and judgment was entered in Anel's favor.
In reviewing a ruling on a demurrer, this court "independently evaluate[s] the complaint, construing it liberally, giving it a reasonable interpretation, reading it as a whole, and viewing its parts in context." (Burns v. Neiman Marcus Group, Inc. (2009) 173 Cal.App.4th 479, 486.) We treat "`the demurrer as admitting all material facts properly pleaded. . . .'" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) But we "may not consider conclusions of fact or law, opinions, speculation, or allegations which are contrary either to law or judicially noticed facts." (Long Beach Equities, Inc. v. County of Ventura (1991) 231 Cal.App.3d 1016, 1024.)
The denial of leave to amend is reviewed for abuse of discretion. (Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 743-744.) "To show abuse of discretion, plaintiff must show in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action." (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 992.)
Anel contends, among other things, that the res judicata effect of the judgment entered pursuant to the parties' 2014 settlement agreement bars Dennis's claim in this action. She asserts that Dennis's breach of fiduciary duty cause of action, asserted in the Norwalk case and resolved by means of the parties' 2014 settlement, involved the same primary right as the breach of fiduciary duty cause of action he asserts in the present lawsuit. Dennis argues that the doctrine of res judicata does not apply because the two actions do not involve the same primary right. We agree with Anel that the two actions do involve the same primary right, namely, Dennis's ownership interest in the property. The doctrine of res judicata therefore bars Dennis's claims in the present lawsuit, and the trial court correctly sustained Anel's demurrer without leave to amend.
"Under the doctrine of res judicata, a valid, final judgment on the merits is a bar to a subsequent action by parties or their privies on the same cause of action." (Amin v. Khazindar (2003) 112 Cal.App.4th 582, 589.) "[R]es judicata bars relitigation of the same cause of action by the same parties and . . . the definition of a cause of action for this purpose depends, not on the legal theory or label used, but on the primary right sought to be protected in the two actions." (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1517, fn. 17.) Whether causes of action in two lawsuits are the same for purposes of res judicata depends on whether they involve the same "primary right." (Crowley v. Katleman (1994) 8 Cal.4th 666, 681; see Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (Boeken) ["[t]o determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have `consistently applied the "primary rights" theory'"].)
"[T]he primary right theory provides that a cause of action consists of (1) a primary right possessed by the plaintiff, (2) a corresponding duty devolving upon the defendant, and (3) a delict or wrong done by the defendant which consists of a breach of the primary right." (Amin v. Khazindar, supra, 112 Cal.App.4th at p. 589.) "The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action." (Crowley v. Katleman, supra, 8 Cal.4th at p. 681.) There may be many legal theories that allege liability based on a violation of a single primary right and many remedies for the violation. (Id. at pp. 681-682.) "[T]he primary right is simply the plaintiff's right to be free from the particular injury suffered." (Id. at p. 681; see Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 625 ["[e]xamples of primary rights include the right to be free from personal injury [citation], the right to possession of real property [citation], the right to possession of personal property [citation], and the right to performance of a contractual obligation"].) A "`cause of action' is based upon the harm suffered, as opposed to the particular theory asserted by the litigant." (Slater v. Blackwood (1975) 15 Cal.3d 791, 795; see Boeken supra, 48 Cal.4th at p. 798 ["under the primary rights theory, the determinative factor is the harm suffered"].)
The breach of fiduciary claims asserted by Dennis in his cross-complaint in the Norwalk action and in his complaint in the present lawsuit each arise from the same primary right, namely, his ownership interest in the property. (See Olsen v. Breeze, Inc., supra, 48 Cal.App.4th at p. 625.) In the first lawsuit, Dennis framed Anel's alleged actions as breaches of a fiduciary duty owed to him "by virtue of their marital relationship" and their personal relationship prior to marriage. In the present lawsuit, it is a shared joint tenancy, rather than a personal relationship, that is the source of the fiduciary duty Anel allegedly broke. The underlying harm alleged in each action, however, is the same: Dennis claims to have shared an ownership interest in the property with Anel; she has claimed otherwise, supporting instead her parents' competing claim of ownership, and her actions have allegedly caused Dennis damages of at least $400,000. As such, the two lawsuits are based on the same primary right even though Dennis proposed somewhat different theories of liability, and therefore the second suit is barred by the res judicata effect of the first. (See Boeken, supra, 48 Cal.4th at p. 798; Slater v. Blackwood, supra, 15 Cal.3d at p. 795.)
The analysis in Boeken is instructive. In that case, a wife had brought, but then voluntarily dismissed with prejudice, a claim for loss of consortium against a cigarette manufacturer based on injuries from smoking suffered by her husband. (Boeken, supra, 48 Cal.4th at p. 791.) After her husband subsequently died of lung cancer, the wife brought a second action, for wrongful death. (Id. at p. 792.) The Supreme Court found that the wrongful death action was barred by the res judicata effect of the previous dismissal with prejudice of the loss of consortium action, because both claims arose from the same primary right, specifically, the right "not to be wrongfully deprived of spousal companionship and affection." (Id. at pp. 798-799.)
The facts of the present case are not identical to those of Boeken, but they are analogous. The primary difference between the claims of Dennis's first lawsuit and the second are that, as of the time of the first lawsuit, he had not yet been "forced," as he would have it, to sign the property back over to Anel's parents. In both lawsuits, however, the alleged harm is that Anel's actions have interfered with his ownership interest in the property, damaging him in the amount of at least $400,000. Even though the culminating act of signing over title had not yet taken place as of the time of the first lawsuit, the primary right at issue in both lawsuits is therefore the same.
As Dennis points out on appeal, there are circumstances where "`different primary rights may be violated by the same wrongful conduct.'" (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 728 (Ivanoff).) In Ivanoff, the Court of Appeal found that the primary right at issue in the plaintiff's claims under the federal Truth in Lending Act—namely, the right to full disclosure of the material terms of a home loan—was different from the one underlying plaintiff's state law contract claim—namely, "the common law right to have enforced only those contractual terms to which she had agreed." (Ivanoff, supra, at pp. 728-729.) Ivanoff also cites to a series of cases finding that different primary rights were at issue in statutory and common law claims arising from the same alleged wrongful conduct. (Id. at p. 728, citing Agarwal v. Johnson (1979) 25 Cal.3d 932, 954-955, disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, fn. 4 ["employer's racially discriminatory conduct may violate distinct primary rights under federal civil rights law and state tort law"]; Le Parc Community Assn. v. Workers' Comp. Appeals Bd. (2003) 110 Cal.App.4th 1161, 1172-1173 ["uninsured employer's negligence may violate employee's distinct primary rights under worker's compensation and tort law"]; Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 342 ["corporation's failure to indemnify may violate employee's statutory right to indemnity under Corp. Code, § 317 and a separate contractual right to indemnity"].)
The present case does not involve circumstances similar to those at issue in Ivanoff and the cases cited therein. This is not a case where the same underlying facts may give rise to claims under both statutory law (federal or state) and state common law, as in Ivanoff and each of the cases cited therein. Rather, in both the Norwalk action and in the case at bar, Dennis has asserted common law claims of breach of fiduciary duty based on the same underlying facts. In each case, the alleged injury is to his ownership interest in the property, whether as a joint tenant or as someone with a half interest in a marital community. Dennis has not cited to, and we have not discovered, any case holding breach of fiduciary duty claims asserted in two separate lawsuits arising out of the same underlying facts to involve two different primary rights. We are not persuaded that this case is an exception to the rule of thumb that "when two actions involving the same parties seek compensation for the same harm, `"they generally involve the same primary right."'"
Moreover, a fundamental premise of Dennis's arguments on appeal is that his cross-complaint in the Norwalk action was limited to a claim for "breach of fiduciary duty based on the fiduciary relationship between marital partners . . . and the resultant damages for the loss to the community of community funds and community efforts put into the maintenance of the Property" during Anel and Dennis's marriage. His claims in the present lawsuit, on the other hand, he contends arise solely from "the common law rights of cotenants in real property," and Anel's alleged breach of the fiduciary duty she owed to Dennis individually as a "co-landowner."
The notion that Dennis's claims in the Norwalk action were so limited in scope is not supported, however, by examination of his cross-complaint. In the Norwalk action, Dennis claimed Anel's actions were contrary to the "interests of the marital community," but also his own individual interests. Those individual interests included, at least implicitly, his interest as joint tenant in the property.
Because we conclude the present action is barred by the res judicata effect of Dennis's first lawsuit, we need not and do not discuss the other arguments raised by the parties, including their disputes over the applicability of the doctrine of collateral estoppel, whether the present lawsuit is barred by the applicable statute of limitations, and the scope of the settlement of Dennis's first lawsuit.
The judgment is affirmed. Defendant and respondent Anel Arreola Perry is awarded her costs on appeal.
