Johnson v. Altamirano

Opinion

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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY JOHNSON, Case No.: 3:19-cv-01185-H-BLM

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO STAY

14 MANUEL ALTAMIRANO, et al., [Doc. No. 63.] 15 Defendants. 16

17 On October 21, 2019, Plaintiff Anthony Johnson filed a motion (1) to stay the present 18 action pending resolution of his petition for writ of mandamus filed with the United States 19 Court of Appeals for the Ninth Circuit, and (2) to stay the resolution of Defendants’ 20 motions to dismiss and to strike Plaintiff’s malicious prosecution claim pending Plaintiff’s 21 state court appeal of the judgment in the underlying lawsuit. (Doc. No. 63.) On October 22 25, 2019, the Court took the motion to stay under submission. (Doc. No. 65.) On 23 November 8, 2019, Defendants Storix Inc., Paul Tyrell and Sean Sullivan filed a response 24 in opposition to Plaintiff’s motion to stay. (Doc. No. 68.) On November 18, 2019, Plaintiff 25 filed his reply. (Doc. No. 70.) For the reasons below, the Court denies Plaintiff’s motion 26 to stay. 27 /// 28 1 Background 2 I. The State Court Actions 3 On August 20, 2015, Storix filed a complaint in state court, Case No. 37-2015- 4 28262-CU-BT-CTL, against Anthony Johnson and Janstor Technology, alleging claims 5 for: (1) breach of fiduciary duty against Johnson; and (2) aiding and abetting breach of 6 fiduciary duty against Janstor. (Doc. No. 34-2, RJN Ex. 8.) On October 13, 2015, Anthony 7 Johnson along with Robin Sassi filed a derivative complaint on behalf of Storix in state 8 court, Case No. 37-2015-34545-CU-BT-CTL, against David Huffman, Richard Turner, 9 Manuel Altamirano, David Kinney, and David Smiljkovich, alleging claims for: (1) breach 10 of fiduciary duty; (2) abuse of control; (3) corporate waste; and (4) an accounting. (Doc. 11 No. 34-3, RJN Ex. 14.) The two actions were subsequently consolidated by the state court. 12 On March 14, 2016, Storix filed a first amended complaint in Case No. 37-2015- 13 28262, alleging the same two causes of action. (Doc. No. 34-2, RJN Ex. 9.) On April 13, 14 2016, Johnson filed a cross-complaint in Case No. 37-2015-28262 against David Huffman, 15 Richard Turner, Manuel Altamirano, David Kinney, and David Smiljkovich, alleging 16 claims for: (1) breach of fiduciary duty; (2) civil conspiracy; and (3) fraud. (Id. Ex. 13.) 17 On June 2, 2016, Johnson and Sassi filed a first amended complaint in the derivative action, 18 alleging the same four causes of action. (Doc. No. 34-3, RJN Ex. 15.) On September 6, 19 2016, Storix filed a second amended complaint in Case No. 37-2015-28262, alleging the 20 same two causes of action for: (1) breach of fiduciary duty against Johnson; and (2) aiding 21 and abetting breach of fiduciary duty against Janstor. (Doc. No. 34-2, RJN Ex. 11.) 22 Following a jury trial, on February 20, 2018, a jury returned a verdict in Case No. 23 37-2015-28262 in favor of Storix and against Johnson on Storix’s claim for breach of 24 fiduciary duty and against Johnson on all of his cross-claims. (Doc. No. 34-4, RJN Ex. 25 17.) Specifically, in the verdict, the jury found that “Anthony Johnson breach[ed] his duty 26 of loyalty by knowingly acting against Storix, Inc.’s interests while serving on the Board 27 of Directors of Storix, Inc.” (Id. at 1.) In addition, the jury award Storix $3,739.14 “as a 28 result of Anthony Johnson’s acts or conduct in breach of a fiduciary duty or duties owed 1 to Storix, Inc.” (Id. at 2.) 2 On May 16, 2018, after a bench trial, the state court issued a decision and order on 3 the claims in the derivative action, finding in favor of the defendants and against the 4 plaintiff on all four causes of action. (Doc. No. 34-4, RJN Ex. 20.) On September 12, 5 2018, the state court entered a consolidated judgment in the two actions as follows: (1) 6 “[i]n favor of plaintiff Storix, Inc. and against Defendant Anthony Johnson on Storix Inc.’s 7 complaint for breach of fiduciary duty;” (2) “Cross-Complainant Anthony Johnson shall 8 take nothing from Cross-Defendants David Huffman, Richard Turner, Manuel Altamirano, 9 David Kinney, and David Smiljkovich, or any of them, on the Cross-Complaint filed in 10 Case No. 37-2015-00028262-CU-BT-CTL;” (3) Plaintiffs Anthony Johnson and Robin 11 Sassi shall take nothing from Defendants David Huffman, Richard Turner, Manuel 12 Altamirano, David Kinney, and David Smiljkovich, or any of them on the First Amended 13 Derivative Complaint filed in Case No. 37-2015-00034545-CUBT-CTL.” (Id. Ex. 22.) In 14 December 2018, Plaintiff appealed the September 12, 2018 consolidated judgment to the 15 California Court of Appeal. (Doc. No. 63-1, Exs. C, D.) Plaintiff’s appeal is currently 16 pending before the California Court of Appeal. 17 III. The Present Action 18 On June 24, 2019, Plaintiff Anthony Johnson, proceeding pro se, filed a complaint 19 against Defendants Manuel Altamirano, Richard Turner, David Kinney, David Huffman, 20 Paul Tyrell, Sean Sullivan, and Storix, Inc., alleging causes of action for: (1) malicious 21 prosecution; (2) breach of fiduciary duty; (3) conversion; (4) economic interference; (5) 22 breach of contract; (6) rescission; and (7) indemnification. (Doc. No. 1, Compl.) On 23 August 29 and 30, 2019, Defendants filed motions to dismiss Plaintiffs’ complaint pursuant 24 to Federal Rule of Civil Procedure 12(b)(6) along with anti-SLAPP motions to strike 25 certain claims in Plaintiff’s complaint under California Code of Civil Procedure § 425.16. 26 (Doc. Nos. 29, 30, 31, 32, 33.) 27 On September 30, 2019, the Court denied Plaintiff’s motion for recusal under 28 28 U.S.C. §§ 144 and 455(a). (Doc. No. 51.) On October 2, 2019, Plaintiff filed a petition 1 for writ of mandamus with the United States Court of Appeals for the Ninth Circuit, 2 challenging the Court’s denial of his motion for recusal. (Doc. No. 60.) On November 22, 3 2019, the Ninth Circuit denied Plaintiff’s petition for writ of mandamus and closed the 4 case. In re Johnson, No. 19-72507, Docket No. 3 (9th Cir. Nov. 22, 2019). By the present 5 motion, Plaintiff moves (1) for a stay of the action pending the resolution of his petition 6 for writ of mandamus and (2) for a stay of his malicious prosecution claim pending the 7 resolution of his state court appeal. (Doc. No. 63 at 2.) 8 Discussion 9 I. Plaintiff’s Motion to Stay Pending His Writ of Mandamus 10 Plaintiff moves to stay the entire action pending the resolution of his petition for writ 11 of mandamus filed with the Ninth Circuit. (Doc. No. 63 at 4-5; Doc. No. 70 at 2-3.) On 12 November 22, 2019, the Ninth Circuit issued an order denying Plaintiff’s petition for writ 13 of mandamus and closing the case. In re Johnson, No. 19-72507, Docket No. 3 (9th Cir. 14 Nov. 22, 2019). As such, Plaintiff’s request to stay the action pending the resolution of his 15 petition for writ of mandamus is now moot, and the Court denies Plaintiff’s motion to stay 16 the action as moot. 17 II. Plaintiff’s Motion to Stay His Malicious Prosecution Claim Pending His State 18 Court Appeal 19 Plaintiff also moves to stay his claim for malicious prosecution pending the final 20 resolution of his appeal in the state court actions. (Doc. No. 63 at 5-7; Doc. No. 70 at 4- 21 6.) Plaintiff argues that a stay is appropriate because if the California Court of Appeal 22 reverses the state court judgment, Plaintiff will be able to satisfy the favorable termination 23 requirement of his malicious prosecution claim. (Id. at 6.) 24 A district court has “broad discretion to stay proceedings as an incident to its power 25 to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. N. 26 Am. Co., 299 U.S. 248, 254 (1936)). “‘A trial court may, with propriety, find it is efficient 27 for its own docket and the fairest course for the parties to enter a stay of an action before 28 it, pending resolution of independent proceedings which bear upon the case.’” 1 Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) 2 (quoting Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 863 (9th Cir. 1979)). 3 In determining whether to grant a motion to stay, a court “should generally consider 4 the following factors:” 5 (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a 6 delay; (2) the burden which any particular aspect of the proceedings may 7 impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons 8 not parties to the civil litigation; and (5) the interest of the public in the 9 pending civil and criminal litigation. 10 Keating v. Office of Thrift Supervision, 45 F.3d 322, 324–25 (9th Cir. 1995); see Blue 11 Cross & Blue Shield of Alabama v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718, 724 12 (9th Cir. 2007). “The proponent of a stay bears the burden of establishing its need.” 13 Clinton, 520 U.S. at 708. 14 After reviewing the above factors, the Court declines to stay Plaintiff’s malicious 15 prosecution claim. Plaintiff chose to file his present claim for malicious prosecution while 16 his appeal was still pending even though the state court judgment at issue was entered 17 against him, (Doc. No. 34-4, RJN Ex. 22), and a favorable termination is “an essential 18 element” of a claim for malicious prosecution. Lane v. Bell, 20 Cal. App. 5th 61, 68 (2018), 19 review denied (Apr. 18, 2018); see Siebel v. Mittlesteadt, 41 Cal. 4th 735, 741 (2007) (“‘[I]t 20 is hornbook law that the plaintiff in a malicious prosecution action must plead and prove 21 that the prior judicial proceeding of which he complains terminated in his favor.’”). As 22 such, the Court declines to stay Plaintiff’s claim for malicious prosecution based on 23 Plaintiff’s speculation that the California Court of Appeal might reverse the judgment in 24 the future. See Pasternack v. McCullough, 235 Cal. App. 4th 1347, 1358 (2015) (affirming 25 the decision to dismiss rather than stay a plaintiff’s claim for malicious prosecution where 26 the malicious prosecution claim “was premature when it was filed and was still premature 27 when the special motions to strike were heard” and explaining: “The proper remedy here, 28 we believe, is to affirm the order dismissing [plaintiff]’s malicious prosecution complaint 1 |/against the [] defendants, the last remaining malicious prosecution defendants. For 2 || whatever reason, [plaintiff] chose not to wait until his malicious prosecution claim had 3 || accrued before filing and proceeding on his malicious prosecution complaint. He should 4 ||bear the consequences of that decision, whatever they may be or have been.”’); Tarsadia 5 Hotels v. Aguirre & Severson, No. D068887, 2016 WL 7488351, at *10 (Cal. Ct. App. 6 || Dec. 30, 2016). 7 Conclusion 8 For the reasons above, the Court denies Plaintiff's motion to stay. 9 IT IS SO ORDERED. 10 || DATED: December 2, 2019 | | | | | i MARILYNW. HUFF, Distri ge 12 UNITED STATES DISTRICT COURT 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28