MEMORANDUM Amal Gustafson appeals the district court’s dismissal of this action as claim-precluded by the judgment in an earlier case, Gustafson v. SunTrust Mortgage, Inc., No. 2:13-cv-01502 (C.D.Cal. July 12, 2013) (“Gustafson I ”). We have jurisdiction under 28 U.S.C. § 1291 and we reverse. The district court concluded that the judgment in Gustafson I operated as claim preclusion because the two suits “ar[o]se from the same ‘transactional nucleus of facts’ ” because they “relate[d] to the same subject note, subject deed of trust, and subject property.” See Costantini v.
Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir.1982). Contrary to the district court’s analysis, however, we apply state law, not federal law, to determine the effect of the prior dismissal in this diversity case. Semtek Int’l Inc. v. Lockheed Martin Cow, 531 U.S. 497, 508-09, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). Under California preclusion law, the question is not whether the two suits “arise out of the same transactional nucleus of facts,” but whether the plaintiff seeks to vindicate the same “primary right” in both suits. Boeken v.
Philip Morris USA, Inc., 48 Cal.4th 788, 797, 108 Cal.Rptr.3d 806, 230 P.3d 342 (2010); see also Gamble v. General Foods Cow, 229 Cal.App.3d 893, 898, 280 Cal.Rptr. 457 (1991). We have no difficulty concluding that Gustafson did not seek to vindicate the same “primary rights” in Gustafson I as in this suit. Gustafson I concerned the defendants’ conduct during the origination of Gustafson’s mortgage. This suit concerns the defendants’ conduct during the servicing of Gustafson’s mortgage. Gustafson brought different claims in each suit, and to remedy different wrongs.
Indeed, Gustafson’s second suit is based on SunTrust’s April 3, 2013, notice of default, which had not even been recorded when she brought Gustafson I. We doubt that the dismissal in Gustafson I would bar this suit under federal law, and it certainly does not bar this suit under California law. The district court erred in dismissing Gustafson’s second action on claim preclusion grounds, as Defendants concede in their briefing before this court.. We decline Defendants’ invitation to affirm the judgment on the alternative ground that Gustafson’s complaint failed to state a claim. See Haskell v.
Harris, 745 F.3d 1269, 1271 (9th Cir.2014) (“[W]e are a court of review, not first view.”). We express no view on the merits of Gustafson’s claims and remand the case to the district court to conduct the analysis in the first instance. REVERSED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Defendants’ Motions for Judicial Notice are hereby DENIED.