United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION TO STAY [DOC.
NO. 63.]
MARILYN L. HUFF, DISTRICT JUDGE UNITED STATES DISTRICT COURT
On
October 21, 2019, Plaintiff Anthony Johnson filed a motion
(1) to stay the present action pending resolution of his
petition for writ of mandamus filed with the United States
Court of Appeals for the Ninth Circuit, and (2) to stay the
resolution of Defendants' motions to dismiss and to
strike Plaintiff's malicious prosecution claim pending
Plaintiff's state court appeal of the judgment in the
underlying lawsuit. (Doc. No. 63.) On October 25, 2019, the
Court took the motion to stay under submission. (Doc. No.
65.) On November 8, 2019, Defendants Storix Inc., Paul Tyrell
and Sean Sullivan filed a response in opposition to
Plaintiff's motion to stay. (Doc. No. 68.) On November
18, 2019, Plaintiff filed his reply. (Doc. No. 70.) For the
reasons below, the Court denies Plaintiff's motion to
stay.
Background
I.
The State Court Actions
On
August 20, 2015, Storix filed a complaint in state court,
Case No. 37-2015-28262-CU-BT-CTL, against Anthony Johnson and
Janstor Technology, alleging claims for: (1) breach of
fiduciary duty against Johnson; and (2) aiding and abetting
breach of fiduciary duty against Janstor. (Doc. No. 34-2, RJN
Ex. 8.) On October 13, 2015, Anthony Johnson along with Robin
Sassi filed a derivative complaint on behalf of Storix in
state court, Case No. 37-2015-34545-CU-BT-CTL, against David
Huffman, Richard Turner, Manuel Altamirano, David Kinney, and
David Smiljkovich, alleging claims for: (1) breach of
fiduciary duty; (2) abuse of control; (3) corporate waste;
and (4) an accounting. (Doc. No. 34-3, RJN Ex. 14.) The two
actions were subsequently consolidated by the state court.
On
March 14, 2016, Storix filed a first amended complaint in
Case No. 37-2015-28262, alleging the same two causes of
action. (Doc. No. 34-2, RJN Ex. 9.) On April 13, 2016,
Johnson filed a cross-complaint in Case No. 37-2015-28262
against David Huffman, Richard Turner, Manuel Altamirano,
David Kinney, and David Smiljkovich, alleging claims for: (1)
breach of fiduciary duty; (2) civil conspiracy; and (3)
fraud. (Id. Ex. 13.) On June 2, 2016, Johnson and
Sassi filed a first amended complaint in the derivative
action, alleging the same four causes of action. (Doc. No.
34-3, RJN Ex. 15.) On September 6, 2016, Storix filed a
second amended complaint in Case No. 37-2015-28262, alleging
the same two causes of action for: (1) breach of fiduciary
duty against Johnson; and (2) aiding and abetting breach of
fiduciary duty against Janstor. (Doc. No. 34-2, RJN Ex. 11.)
Following
a jury trial, on February 20, 2018, a jury returned a verdict
in Case No. 37-2015-28262 in favor of Storix and against
Johnson on Storix's claim for breach of fiduciary duty
and against Johnson on all of his cross-claims. (Doc. No.
34-4, RJN Ex. 17.) Specifically, in the verdict, the jury
found that “Anthony Johnson breach[ed] his duty of
loyalty by knowingly acting against Storix, Inc.'s
interests while serving on the Board of Directors of Storix,
Inc.” (Id. at 1.) In addition, the jury award
Storix $3, 739.14 “as a result of Anthony Johnson's
acts or conduct in breach of a fiduciary duty or duties owed
to Storix, Inc.” (Id. at 2.)
On May
16, 2018, after a bench trial, the state court issued a
decision and order on the claims in the derivative action,
finding in favor of the defendants and against the plaintiff
on all four causes of action. (Doc. No. 34-4, RJN Ex. 20.) On
September 12, 2018, the state court entered a consolidated
judgment in the two actions as follows: (1) “[i]n favor
of plaintiff Storix, Inc. and against Defendant Anthony
Johnson on Storix Inc.'s complaint for breach of
fiduciary duty;” (2) “Cross-Complainant Anthony
Johnson shall take nothing from Cross-Defendants David
Huffman, Richard Turner, Manuel Altamirano, David Kinney, and
David Smiljkovich, or any of them, on the Cross-Complaint
filed in Case No. 37-2015-00028262-CU-BT-CTL;” (3)
Plaintiffs Anthony Johnson and Robin Sassi shall take nothing
from Defendants David Huffman, Richard Turner, Manuel
Altamirano, David Kinney, and David Smiljkovich, or any of
them on the First Amended Derivative Complaint filed in Case
No. 37-2015-00034545-CUBT-CTL.” (Id. Ex. 22.)
In December 2018, Plaintiff appealed the September 12, 2018
consolidated judgment to the California Court of Appeal.
(Doc. No. 63-1, Exs. C, D.) Plaintiff's appeal is
currently pending before the California Court of Appeal.
III.
The Present Action
On June
24, 2019, Plaintiff Anthony Johnson, proceeding pro
se, filed a complaint against Defendants Manuel
Altamirano, Richard Turner, David Kinney, David Huffman, Paul
Tyrell, Sean Sullivan, and Storix, Inc., alleging causes of
action for: (1) malicious prosecution; (2) breach of
fiduciary duty; (3) conversion; (4) economic interference;
(5) breach of contract; (6) rescission; and (7)
indemnification. (Doc. No. 1, Compl.) On August 29 and 30,
2019, Defendants filed motions to dismiss Plaintiffs'
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) along with anti-SLAPP motions to strike certain
claims in Plaintiff's complaint under California Code of
Civil Procedure § 425.16. (Doc. Nos. 29, 30, 31, 32,
33.)
On
September 30, 2019, the Court denied Plaintiff's motion
for recusal under 28 U.S.C. §§ 144 and 455(a).
(Doc. No. 51.) On October 2, 2019, Plaintiff filed a petition
for writ of mandamus with the United States Court of Appeals
for the Ninth Circuit, challenging the Court's denial of
his motion for recusal. (Doc. No. 60.) On November 22, 2019,
the Ninth Circuit denied Plaintiff's petition for writ of
mandamus and closed the case. In re Johnson, No.
19-72507, Docket No. 3 (9th Cir. Nov. 22, 2019). By the
present motion, Plaintiff moves (1) for a stay of the action
pending the resolution of his petition for writ of mandamus
and (2) for a stay of his malicious prosecution claim pending
the resolution of his state court appeal. (Doc. No. 63 at 2.)
Discussion
I.
Plaintiff's Motion to Stay Pending His Writ of
Mandamus
Plaintiff
moves to stay the entire action pending the resolution of his
petition for writ of mandamus filed with the Ninth Circuit.
(Doc. No. 63 at 4-5; Doc. No. 70 at 2-3.) On November 22,
2019, the Ninth Circuit issued an order denying
Plaintiff's petition for writ of mandamus and closing the
case. In re Johnson, No. 19-72507, Docket No. 3 (9th
Cir. Nov. 22, 2019). As such, Plaintiff's request to stay
the action pending the ...