Anthony Johnson v. Manuel Altamirano

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2022
• Docket: 21-55614
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY J. JOHNSON, No. 21-55614

Plaintiff-Appellant, D.C. No. 3:19-cv-01185-H-BLM

v. MEMORANDUM* MANUEL ALTAMIRANO, an individual; RICHARD TURNER; DAVID KINNEY; DAVID HUFFMAN; PAUL TYRELL; SEAN SULLIVAN, an individual; STORIX, INC.; DOES, 1-5 inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding

Submitted August 17, 2022**

Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

Anthony J. Johnson appeals pro se from the district court’s judgment

dismissing his diversity action alleging state law claims. We have jurisdiction

* 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). under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of

Civil Procedure 12(b)(6). Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir. 2017).

We affirm.

The district court properly dismissed Johnson’s claims for malicious

prosecution and indemnification because Johnson did not prevail in the state court

action filed against him. See Lane v. Bell, 228 Cal. Rptr. 3d 605, 606 (Ct. App.

2018) (setting forth elements of a malicious prosecution claim under California

law, including that “the underlying action was terminated on the merits in favor of

the defendant”); Dalany v. Am. Pac. Holding Corp., 50 Cal. Rptr. 2d 13, 17 (Ct.

App. 1996) (applying favorable termination requirement to claim for

indemnification under Corporations Code § 317(d)). Contrary to Johnson’s

contention, he did not prevail on a distinct breach of fiduciary duty claim in the

underlying litigation.

The district court properly dismissed Johnson’s claims for breach of contract

and rescission as barred by claim preclusion because these claims arise out of the

same nucleus of operative fact as Johnson’s claims in his prior federal copyright

action against the same parties or their privies that resulted in a final judgment on

the merits. See Taylor v. Sturgell, 553 U.S. 880, 891 (2008) (“The preclusive

effect of a federal-court judgment is determined by federal common law.”); Mpoyo

v. Litton Electro-Optical Sys., 430 F.3d 985, 987-88 (9th Cir. 2005) (setting forth

2 21-55614 elements of res judicata and explaining this court’s transaction test used to

determine whether two suits share a common nucleus of operative fact).

The district court properly dismissed Johnson’s claim for intentional

interference with contractual relations as barred by issue preclusion because the

issues relating to Johnson’s transfer of copyrights were actually litigated and

decided in Johnson’s prior federal copyright action. See Taylor, 553 U.S. at 892

(issue preclusion bars “successive litigation of an issue of fact or law actually

litigated and resolved in a valid court determination essential to the prior judgment,

even if the issue recurs in the context of a different claim” (citation and internal

quotation marks omitted)); Paulo v. Holder, 669 F.3d 911, 917 (9th Cir. 2011)

(requirements for federal issue preclusion); Quelimane Co. v. Stewart Title Guar.

Co., 960 P.2d 513, 530 (Cal. 1998) (claim for intentional interference with

contractual relations requires a valid contract between plaintiff and a third party).

The district court properly dismissed Johnson’s claim for intentional

interference with prospective economic advantage because Johnson failed to allege

facts sufficient to state a claim. See Roy Allan Slurry Seal, Inc. v. Am. Asphalt

South, Inc., 388 P.3d 800, 803 (Cal. 2017) (setting forth elements of an intentional

interference with prospective economic advantage claim, including “the existence,

between the plaintiff and some third party, of an economic relationship that

contains the probability of future economic benefit to the plaintiff”). The district

3 21-55614 court did not abuse its discretion in denying Johnson leave to amend this claim

because amendment would have been futile. See 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 properly dismissed Johnson’s claims for breach of

fiduciary duty concerning misuse of corporate funds, and conversion, as barred by

claim preclusion because the claims were raised, or could have been raised, in a

prior state court derivative action that involved the same primary rights and parties,

or their privies, and resulted in a final judgment on the merits. See Robi v. Five

Platters, Inc., 838 F.2d 318, 323 (9th Cir. 1988) (“California law [] determine[s]

the res judicata effect of a California judgment.”); Boeken v. Philip Morris USA,

Inc., 230 P.3d 342, 348 (Cal. 2010) (setting forth elements of claim preclusion

under California law and explaining California’s primary rights doctrine); Fed’n of

Hillside & Canyon Ass’ns v. City of Los Angeles, 24 Cal. Rptr. 3d 543, 557 (Ct.

App. 2004) (claim preclusion “bars the litigation not only of issues that were

actually litigated but also issues that could have been litigated”). To the extent

Johnson’s claim for breach of fiduciary duty concerned indemnification, the

district court properly dismissed the claim because, as explained above, Johnson

was not entitled to indemnification.

We do not consider matters not specifically and distinctly raised and argued

4 21-55614 in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We reject as meritless Johnson’s contention that the district judge was biased

against him.

All pending motions are denied.

AFFIRMED.

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