Johnson v. Kinney

Opinion

.

. } ANTHONY JOHNSON, Case No.: 20-cv-1354-JO-MSB Plaintitt,| ORDER DENYING MOTION TO V- DECLARE PLAINTIFF A DAVID KINNEY, et al., GRANTING MOTION TO DISMISS ||. Defendants.| AND DENYING AS MOOT MOTION FOR ENTRY OF PARTIAL JUDGMENT Defendant Storix, Inc. filed a motion for an order declaring Plaintiff Anthony Johnson a vexatious litigant and a motion to dismiss under Rule 12(b)(6). Plaintiff filed < }motion for entry of partial judgment under Rule 54(b), to immediately appeal hi: previously dismissed claims. On February 16, 2022, the Court held oral argument. For the reasons stated on the record during oral argument, the Court grants the parties’ requests that the Court take judicial notice under Fed. R. Evid. 201, denies withou prejudice the motion to declare Plaintiff a vexatious litigant [Dkt. 28], and denies as moo Plaintiff's motion for entry of partial judgment [Dkt. 61]. For the following reasons, the

Court grants the motion to dismiss Plaintiff's common count for money had and receivec [Dkt. 49] as duplicative of Plaintiffs claim in an earlier filed case and, in the alternative. barred by claim preclusion. A. Litigation History The litigation history between Plaintiff Anthony Johnson, Defendant Storix, Inc.. individual shareholders and directors of Storix is lengthy, with multiple cases in state and federal courts. The Court took judicial notice of multiple complaints and filings in lawsuits between Storix, Plaintiff, and other related parties. Prior to filing this case, Plaintiff sued Storix for copyright infringement in federal court in 2014, and Storix counterclaimed for declaratory judgment. Johnson v. Storix, Case no. 3:14-cv-1873-H-BLM.! In 2015, Storix filed in state court a claim for breach of fiduciary duty against Plaintiff, and Plaintiff later cross-complained against five individual Storix shareholders, directors, or officers—David Huffman, Richard Turner, Manuel Altamirano, David Kinney, and David Smilkovich—alleging claims for breach of fiduciary duty, civil conspiracy, and fraud. Storix v. Johnson, Case no. 37-2015-28262-CU-BT- CTL. Later the same year, Plaintiff filed a shareholder derivative action in state court on behalf of Storix against the same individual defendants for claims of breach of fiduciary duty, abuse of control, corporate waste, and accounting. Johnson v. Huffman, Case no. 37- 2015-34545-CU-BT-CTL. B. Most Recent Federal Case Filed By Plaintiff Johnson Most recently, Plaintiff filed an earlier case in this Court on June 24, 2019, Johnson \v. Altamirano, Case no. 3:19-cv-1185 (S.D. Cal.) (“Altamirano”), which was ultimately || pursuant to Fed. R, Evid. 201, the Court also takes judicial notice of the dockets and all filings in the related cases 185-H-BLM, including the state court pleadings, filings, and appeals Filed as part of the record in those te federal cases.

assigned to U.S. District Judge Marilyn Huff.? In Altamirano, Plaintiff alleged diversity jurisdiction and pled state law claims against (1) Storix; (2) Storix shareholders anc directors Manuel Altamirano, David Kinney, David Huffman, and Richard Turner (there alleged as “Partner-Defendants”);* and (3) two attorneys for Storix, Sean Sullivan and Pau Tyrell. Plaintiff alleged that from 2003-2011, he was the sole shareholder, officer, anc director of Storix and that, prior to taking medical leave in September 2011, he agreed tc {issue 1500 new shares of Storix to Partner-Defendants, reducing Plaintiff’s ownership o Storix to 40%. Dkt. 49-4 at 111, 10-12. □ In Altamirano, Plaintiff alleged, among other state causes of action, a Californi claim for conversion against Partner-Defendants as follows: 1] Johnson was owed all undistributed profits of Storix earned prior to Partner-Defendants became [sic] shareholders, and such money is personal property of Johnson. Partner-Defendants substantially interfered with Johnson’s property by knowingly and intentionally taking possession of the money Johnson was entitled to, preventing Johnson’s access to the money or records pertaining to it, using the money for their personal benefit, and refusing to return Johnson’s money after he discovered the conversion and demanded it be returned to him. . Dkt. 49-4 at 121, 4 50. Plaintiff alleged in A/tamirano that he “was harmed by the conversion of $475,56( owed to him,” as a result of the alleged wrongful conduct. /d. at 121,952. Plaintiff sough >] “general and special damages against all defendants [including Storix and Partner 2 A thorough litigation history between the parties is found at Johnson v. Altamirano, Case no. 3:19-cv-1185-H BLM (S.D. Cal. Jun 8, 2021), at Dkt. 113 at 2-8. Plaintiff alleged in A/tamirano “[b]lecause defendants Altamirano, Turner, Kinney and Huffman, unless otherwis« stated, are shareholder/partners of Plaintiff in the business of Storix and knowingly conspired to initiate, continus or otherwise commit certain wrongful acts alleged below, they are hereafter collectively referred to as ‘Partner Defendants’.” Dkt. 49-4 at 110, 4.

Defendants], jointly and severally” and “recovery of Storix’s earnings owed to Johnson.’ at 125, Ff 72, 74. On June 8, 2021, the district court in Al/tamirano dismissed with prejudice twc claims on grounds of res judicata, because Plaintiff's claim for conversion was barred by prior accounting claim in the state court action and his claim for breach of fiduciary duty was barred by his prior claim for breach of fiduciary duty in state court. Altamiranc 113 at 12-20. The judgment in Al/tamirano is currently pending on appeal, and briefing is filed. See Johnson v. Altamirano, Case no. 21-55614 (9th Cir. filed June 14. /2021). C. The Instant Federal Court Case On July 16, 2020, during a stay in the pending Altamirano case, Plaintiff filed his /original complaint here, against (1) Storix; (2) five Storix directors, officers, o1 shareholders: David Kinney, David Huffman, Manuel Altamirano, Richard Turner, and David Smiljkovich; (3) various attorneys and judges who had been involved in Plaintiff s prior cases, including Storix’s counsel of record and Judge Huff. Plaintiff originally j alleged federal civil rights violations against all Defendants and two California common count claims against Storix. U.S. District Judge Todd Robinson, then assigned to this case, dismissed the civil rights claims against all Defendants and the California claim against Storix for quantum valebant. Dkt. 44 at 69, 79-82. In the operative Second Amended Complaint (“SAC”), filed on April 15, 2021. Plaintiff brought a single California common count for money had and received and named Storix as the sole Defendant to that count. Dkt. 46. Plaintiff alleged that while he was originally “Storix’s sole shareholder, officer, and director,’ SAC at § 14, on September 21, 12011, he gifted a 60% share of the company to his long-term employees, David Huffman, Richard Turner, Manuel Altamirano, and David Kinney [Altamirano’s Partner- Defendants] and turned over control of the company to them. SAC at 7 16, 19. On that day, new shareholders Huffman, Turner, Altamirano, and Kinney were elected to the Storix board, and Johnson resigned as Board Member and President. SAC at 719. Plaintiff

/alleged that, since then, the A/tamirano Partner-Defendants owned 60% of Storix anc ““maintained a controlling majority of Storix’s shares, the board of directors [and] all office: positions.” SAC at § 16. Prior to transferring any Storix shares, Plaintiff “declared a distribution of al }company earnings to be paid to him for the period in which he was the sole shareholder Storix became indebted to [him] for all profits during the time he was the only shareholder.’ SAC at 917. Plaintiff alleged that he was denied the profits that he had declared prior tc transfer of ownership because “[a]t the end of 2011, the new board [Partner-Defendant: Huffman, Turner, Altamirano, and Kinney] substantially underreported Storix’s annua profits” and falsely “reported to Johnson that all company profits earned while he wa: Storix’s sole shareholder had been distributed to him.” SAC at ff] 19-20. Plaintiff pled his common count for money had and received against Storix a: follows: Storix declared that all profits earned while Johnson was the company’s sole shareholder were to be distributed and were therefore Johnson’s personal property to which he is fully entitled. Storix took possession and retained substantial money owned [sic] to Johnson and is indebted to Johnson for the amount owed. [] Since September 2011, the Storix board had no authority to supersede the distributions declared by Johnson while he was the sole company director, nor did it have authority to distribute the money owed to Johnson to other shareholders or appropriate it for any other use. SAC at {J 38-39. Plaintiff alleged that he “was harmed by Storix’s concealment and unlawfu retention of $475,5 60 owed to him,” SAC at { 43, the same amount of money that Plaintif sought in his A/tamirano conversion claim from Partner-Defendants. Dkt. 49-4 at 121 Defendant Storix moved to dismiss the SAC on multiple grounds, including □□□□□□□ remaining count in the SAC is duplicative of the conversion count in Altamirano. A time Defendant filed its motion to dismiss, the A/tamirano court had not yet dismissec conversion claim with prejudice on grounds of res judicata.

. □

Il. ANALYSIS A. Legal Standard When reviewing a motion to dismiss under Rule 12(b)(6), the allegations of material fact in plaintiff's complaint are taken as true and construed in the light most favorable tc plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 544, 556 (2007)). Where, as here, Plaintiff proceeds pro se, the Court liberally construes the complaint’s allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). “Determining whether a complaint states /a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Jgbal, 556 U.S. at 678. In reviewing motion to dismiss, courts may look to judicially noticeable facts, Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994), and need not accept as true allegations that contradict judicially noticed facts. Schwartz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). B. Duplicative Claims or Impermissible Claim Splitting The Court examines whether Plaintiff's SAC should be dismissed because it is duplicative of his earlier filed conversion claim in Altamirano. The claim splitting doctrine gives courts discretion to dismiss a duplicative second case with prejudice to prevent piecemeal litigation. Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 694 (9th Cir. 2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008). A plaintiff generally may not file a second complaint and “maintain two separate actions involving same subject matter at the same time in the same court and against the same defendant.” Id. at 688 (citation omitted). As the Adams court explained, to “determine whether a suit is duplicative, [courts] borrow from the test for claim preclusion.” Jd. A second case is duplicative of one previously filed by the party where “the causes of action and relief sought, as well as the parties or privies to the action, are the same.” Jd. at 689. To determine whether the causes

1 of action should have been brought in the same action, federal courts apply four factors the last of which is the most important: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. Id. (citing Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir 11 1982)). Even liberally construing a pro se plaintiff's complaint, as courts must under Fed R. Civ. P. 12(b)(6), a district court does not err in dismissing a duplicative complaint wher the Adams test is satisfied. See Patten v. Clark, 623 Fed. App’x. 889, 890 (9th Cir. 2015) 1. Causes of Action Are the Same Plaintiffs allegations demonstrate a common transactional nucleus of facts □□□□□□ instant cause of action and his cause of action for conversion in Altamirano. □□□□ }complaints alleged that Plaintiff took actions as a sole shareholder that entitled him tc Storix’s undistributed profits. SAC at 917; Dkt. 49-4 at 111, 99 11-12; id at 121 50. Both complaints alleged that, after Plaintiff passed majority ownership of Storix tc Partner-Defendants in 2011, Partner-Defendants took actions to deprive Plaintiff o Storix’s undistributed profits. Dkt. 49-4 at 113, § 19; id. at 121, 950; SAC at 17, 20 {37-39. □ The shared nucleus of facts in both cases forms one “convenient trial unit” that rest: {on substantially the same evidence. Adams, 487 F.3d at 690. Both the □□□□□□□□□□ conversion count and the instant claim require (1) proof of Johnson’s entitlement tc undistributed profits, whether drawn from corporate documents, accounting records, o employee testimony, and (2) the actions taken by Storix and Partner-Defendants regardins this money. The fact that the two claims are styled differently does not change the fact tha the “claims in both complaints relate to the same set of facts.” Id.

Plaintiffs Altamirano conversion claim and the instant action also share a common {nexus of the same impacted rights and requested relief, supporting a finding that the claims jare duplicative. See id at 690-91. Both complaints alleged that Storix retained undistributed profits after Plaintiff's transfer of majority ownership in 2011. Dkt. 49-4 at 9 50; id. at 125, | 74; SAC at J] 18-20, 42-43. Both complaints sought relief in the amount of $475,560. Dkt. 49-4 at 121, § 52; SAC at 43. As pled, Plaintiffs conversion claim in Altamirano and his claim in this case seek to vindicate the same right in the same || dollar amount from Storix’s profit. Dkt. 49-4 at 111, | 12; id. at 121, 9 52; SAC at FF 19. 20, 38. Finally, the Court examines whether the rights or interests established in Al/tamiranc would be destroyed or impaired by prosecution of Plaintiff's cause here. See Adams, 487 at 689 (quotation omitted). In Altamirano, Partner-Defendants obtained a dismissal /of Plaintiffs conversion claim on res judicata grounds. If this case were to proceed, Partner-Defendants would be deprived of the benefit of that judgment in their favor and to defend this action involving substantially the same transactional facts, rights, and requested relief. 2. Privity Exists Between the Parties Finally, in determining whether a previous suit should bar this action as duplicative, the Court must consider whether the parties to the two suits are the same, and if not, whether privity exists between the different patties. “Even when the parties are not identical, privity may exist if there is substantial identity between parties, that is, when there is sufficient commonality of interest.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg] Planning Agency, 322 F.3d 1064, 1081 (9th Cir. 2003) (internal quotation omitted). Federal courts deem several relationships sufficiently close to find privity, even to bind a non-party, including one “whose interests were represented adequately by a party in the original action” or “where there is substantial identity between” the party and the nonparty. \Id. at 1082 (quoting Jn re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997)). “When a person owns most or all of the shares in a corporation and controls the affairs of the corporation,

it is presumed that in any litigation involving that corporation the individual has sufficien commonality of interest.” In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983). Here, the Court does not seek to bind a non-party to a prior suit. Plaintiff □□□□□□□ is identical in both lawsuits, and at the original filing of each lawsuit, Storix and Partner _5 ||Defendants were named parties in both cases. There, however, Plaintiff named Partner. Defendants in the conversion claim, and here, Plaintiff names Storix in the substantialls identical common count. Thus, the Court examines whether there is substantial identity between Partner-Defendants in A/tamirano and Storix here such that they can be □□□□□□ in privity. The facts alleged by Plaintiff demonstrate sufficient commonality of interes between the company and its Partner-Defendants to find that privity exists. During th time periods at issue in both actions, the Court can presume commonality of interest fron Partner-Defendants’ significant ownership and control of the company: Partner Defendants “retained a collective majority of Storix’s outstanding shares, the majority o Storix board seats, all officer positions, and have maintained sole possession and exclusive || control of all accounts and records of Storix.” Dkt. 49-4 at 1 17, | 32; Inre Gottheiner, 70: F.2d at 1140. Furthermore, as Plaintiff alleged in Altamirano, the wrongful acts by th« company were those of Partner-Defendants: “/e/very act and decision of Storix relevant tc this action was exclusive [sic] that of Partner-Defendants.” Dkt. 49-4 at 117, □□ (emphasis added). As there is no material distinction between the wrongful acts tha Plaintiff alleged against Partner-Defendants and Storix, these two defendants have sufficient commonality of interest in defending the instant claim for money had anc received.* . 76 —____ The Court notes that David Huffman, a Partner-Defendant, appeared at oral argument as Storix’s part representative.

Plaintiff argues that this court’s dismissal on duplicative claims ground would be inappropriate because the Altamirano judgment is pending on appeal. As set forth in Adams, however, a final decision is not a requirement for a duplicative claims analysis. 487 F.3d at 689. C. Res Judicata in the Alternative When the instant Rule 12(b)(6) motion to dismiss was filed on April 29, 2021, the court in Altamirano had not yet decided Plaintiff's conversion claim was barred by res judicata. Since then, the court in Altamirano dismissed with prejudice □□□□□□□□□□□ conversion claim and entered final judgment. Because there is now a final judgment in the /earlier filed Altamirano case, the Court also conducts a res judicata analysis in the alternative. To determine the claim-preclusive effect of the federal diversity court’s dismissal with prejudice of Plaintiff's state conversion claim, this Court must apply the law of the State in which the A/tamirano court sits, California. Semtek Int’, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001) (holding that “federal common law governs the claim- preclusive effect of a dismissal by a federal court sitting in diversity” and “adopting, as the federally prescribed rule of decision, the law that would be applied by state courts in the State in which the federal diversity court sits”); see also Gustafson v. U.S. Bank N.A., 618 Fed. App’x 921, 922 (9th Cir. 2015). In California, “res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” OS 5 “Under California law, ... a judgment is not final for purposes of res judicata during the pendency of and until the resolution of an appeal.” Sosa v. DirecTV, Inc., 437 F.3d 923, 928 (9th Cir. 2006) (quoting Eichman v. Fotomat Corp., 759 F.2d 1434, 1439 (9th Cir. 1985); Nathanson v. Hecker, 99 Cal. App. 4th 1158, 1163 n.1 (2002). A federal district court’s dismissal of Plaintiff's conversion claim, however, is final for res judicata purposes even with the appeal pending. See Sosa, 437 F.3d at 928. However, the Court declines to reach Defendant’s res judicata challenge to the SAC on grounds that a prior state claim for accounting bars both Plaintiff's conversion and money had and received claims. The issue is before the Court of Appeals, Johnson v. Altamirano, Case no. 21-55614 (9th Cir. filed June 14, 2021), at Dkt. 8, 24. In the event of remand, the earlier filed case in this district should review any remaining issues. 1n

Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 896 (2002); see also Samara v. Matar, Cal. 5th 322, 327 (2018) (addressing the preclusive effects of claims addressed by trial court judgment but not addressed on appeal). Claim preclusion bars a second suit with (1) the same cause of action (2) between the same parties or their privies (3) after a final judgment on the merits in the first suit. See DKN Holdings LLC v. Faerber, 61 Cal. 4th 813, 824 (2015); Mycogen Corp., 28 Cal. 4th at 896. 1. Causes of Action Are the Same California law requires that courts conduct a primary rights analysis to □□□□□□□□□ whether two causes of action are the same. Boeken v. Philip Morris USA, Inc., 48 Cal. 4tt 788, 797 (2010); see also Hi-Desert Med. Ctr. v. Douglas, 239 Cal. App. 4th 717, □□□□□□□ /(2015). “[U]nder the primary rights theory, the determinative factor is the harm suffered When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” Boeken, 48 Cal. 4th at 798. “[T]he significan factor guiding the application of the doctrine is whether the ‘cause of action’ is for □□□□□□□□ a single primary right; whether the same facts are involved in both suits is no conclusive.” Franceschi v. Franchise Tax Bd., 1 Cal. App. 5th 247, 258 (2016). Thi primary rights doctrine “also precludes litigation of claims that could have been brought it the prior action but were not.” Jd.; Mycogen Corp., 28 Cal. 4th at 897. Based on the above analysis that Plaintiff's claim in this case and the Altamiranc case share a common transactional nucleus, seek vindication of the same right, and reques the same relief, the Court concludes that the same primary right was involved in both suit: for res judicata purposes. 2. Parties or Privies Are the Same California claim preclusion law requires that the parties or their privies are the same Under California’s claim preclusion analysis, “privity requires the sharing of ‘an identity or community of interest,’ with ‘adequate representation’ of that interest in the first suit and circumstances such that the nonparty ‘should reasonably have expected to be bound

1]

by the first suit.” Cal Sierra Dev., Inc. v. George Reed, Inc., 14 Cal. App. Sth 663, 672— 73 (2017) (quoting DKN Holdings, LLC, 61 Cal. 4th at 826). As explained in the privity analysis above, the Court finds that the Plaintiff is \identical in both cases and that Storix and Partner-Defendants share a commonality of interest with regard to defending Plaintiff's claims against Storix in the instant matter. 3. Judgment on the Merits Is Final Finally, for res judicata to bar the instant action, the ruling on Plaintiff's Altamirano conversion claim must constitute a final judgment on the merits. First, under both California and federal law, “dismissal with prejudice is considered a judgment on the merits preventing subsequent litigation between the parties on the dismissed claim.” Kim v. Reins Int’l California, Inc., 9 Cal. 5th 73, 91 (2020); Goddard v. Security Title Ins. & Guar. Co., 14 Cal. 2d 47, 52 (1939); see also Semtek Int’l, Inc., 531 U.S. at □□□□□□□ Federal district court judgments, unlike California state court judgments, are final for purposes of res judicata during the pendency of an appeal. Sosa, 437 F.3d at 928 (citing Calhoun v. Franchise Tax Bd., 20 Cal. 3d 881, 887 (1978)). Here, the Altamirano court dismissed Plaintiff's earlier filed conversion claim with prejudice on June 8, 2021. Although Altamirano is pending on appeal, the district court’s order is a final judgment on the merits for purposes of res judicata. For the above reasons, the Court concludes that, in the alternative, res judicata bars Plaintiff's claim for money had and received against Storix. 2] Hil. CONCLUSION For the reasons above, the Court GRANTS the motion to dismiss [Dkt. 49] and dismisses with prejudice Plaintiff's Second Amended Complaint. The Court concludes that the instant case is duplicative of the previous conversion claim. Alternatively, the case precluded by the dismissal with prejudice of Plaintiff's conversion claim in Altamirano. The Court declines to reach Defendant’s other grounds for dismissal. In the event the

Aa

earlier A/tamirano case is remanded to the district court, that court is the appropriate forum to decide any remaining issues. For the reasons stated on the record during oral argument, the Court DENIES without prejudice the motion to declare Plaintiff a vexatious litigant [Dkt. 28]. In light □□ the dismissal and for the reasons stated during oral argument, the Court DENIES AS MOOT the motion for entry of partial judgment [Dkt. 61]. || Dated: S| a | 2 . JInsook Ohta nited States District Judge □