Johnson v. Altamirano

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ANTHONY JOHNSON, Case No.: 3:19-cv-01185-H-BLM

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Plaintiff,

ORDER:

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v.

14 (1) DENYING PLAINTIFF’S

MANUEL ALTAMIRANO, an

MOTION FOR

15 individual; RICHARD TURNER, an

RECONSIDERATION;

individual; DAVID KINNEY, an

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individual; DAVID HUFFMAN, an

[Doc. No. 74.]

17 individual; PAUL TYRELL, an

individual; SEAN SULLIVAN, an

18 (2) DENYING PLAINTIFF’S

individual; STORIX, INC., a California

MOTION FOR ENTRY OF RULE

19 corporation; and DOES 1-5, inclusive,

54(b) PARTIAL FINAL JUDGMENT

20 Defendants. OR FOR § 1292(b)

CERTIFICATION; AND

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22 [Doc. No. 75.]

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(3) GRANTING DEFENDANTS

24 ALTAMIRANO, HUFFMAN,

KINNEY, AND TURNER’S MOTION

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TO STAY

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[Doc. No. 78.]

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1 On December 9, 2019, Plaintiff Anthony Johnson filed (1) a motion for

2 reconsideration of the Court’s December 2, 2019 order on Defendants’ motions to dismiss

3 and anti-SLAPP motions to strike; and (2) a motion for entry of partial final judgment

4 under Rule 54(b) or, in the alternative, for certification under 28 U.S.C. § 1292. (Doc. Nos.

5 74, 75.) On January 7, 2020, Defendants filed their respective responses in opposition to

6 Plaintiff’s motions. (Doc. Nos. 80, 81, 82, 83.) On January 9, 2020, Plaintiff filed his

7 replies in support of his motions. (Doc. Nos. 84, 85.)

8 On January 6, 2020, Defendants Altamirano, Huffman, Kinney, and Turner filed a

9 motion to stay the action pending resolution by the California Court of Appeal of the appeal

10 in Storix, Inc. v. Johnson, Case No. D075308.1 (Doc. No. 78.) On January 6, 2020,

11 Plaintiff filed a response in opposition to Defendants Altamirano, Huffman, Kinney, and

12 Turner’s motion to stay. (Doc. No. 79.) On January 21, 2020, Defendants Altamirano,

13 Huffman, Kinney, and Turner filed their reply in support of their motion. (Doc. No. 87.)

14 On January 13, 2019, the Court took the matters under submission. (Doc. No. 86.)

15 For the reasons below, the Court: (1) denies Plaintiff’s motion for reconsideration of the

16 Court’s December 2, 2019 order on Defendants’ motions to dismiss and anti-SLAPP

17 motions to strike; (2) denies Plaintiff’s motion for entry of partial final judgment under

18 Rule 54(b) or for certification under 28 U.S.C. § 1292; and (3) grants Defendants

19 Altamirano, Huffman, Kinney, and Turner’s motion to stay.

20 Background

21 I. The Prior Federal Action

22 On August 8, 2014, Anthony Johnson – the Plaintiff in this action – filed a complaint

23 in federal court, Case No. 14-cv-1873-H-BLM, against Storix – one of the defendants in

24 this action – alleging claims for: (1) federal copyright infringement under the Copyright

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26 1 The Court notes that in their motion, Defendants Altamirano, Turney, Kinney, and Huffman refer

to the appeal as Johnson v. Huffman, Case No. D075308. However, the California Court of Appeal docket

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titles the appeal as Storix, Inc. v. Johnson, Case No. D075308. See Storix, Inc. v. Johnson, No. D075308

28 (Cal. App., filed Dec. 10, 2018).

1 Act of 1976, 17 U.S.C. § 101, et seq.; (2) contributory copyright infringement; and (3)

2 vicarious copyright infringement. (Doc. No. 34-2, RJN Ex. 1.) On September 19, 2014,

3 Storix filed an answer to Johnson’s complaint and counterclaims for: (1) a declaratory

4 judgment of non-infringement; and a declaratory judgment that it is the owner of the

5 copyrights at issue. (Id. Ex. 2.)

6 The action was tried before a jury beginning on December 8, 2015. (Doc. No. 34-2,

7 RJN Ex. 3 at 1.) On December 15, 2015, the jury returned a verdict that was in favor of

8 Storix on all causes of action. (Id. at 2.) Specifically, in the verdict, the jury found that

9 “Storix, Inc. proved by a preponderance of the evidence that Anthony Johnson’s copyright

10 infringement claim against Storix, Inc. is barred because Anthony Johnson transferred

11 ownership of all pre-incorporation copyrights, including SBAdmin Version 1.3, in writing

12 from himself to Storix, Inc.” (Id.) On November 16, 2016, the Court entered an amended

13 judgment incorporating the jury’s verdict “in favor of Defendant and Counter-Claimant

14 Storix, and against Plaintiff Anthony Johnson.” (Id. at 3.)

15 Johnson appealed the Court’s judgment to the United States Court of Appeals for

16 the Ninth Circuit. On December 19, 2017, the Ninth Circuit affirmed in part, reversed in

17 part, and remanded for further proceedings. Johnson v. Storix, Inc., 716 F. App’x 628, 632

18 (9th Cir. 2017), cert. denied, 139 S. Ct. 76 (2018). In the decision, the Ninth Circuit

19 affirmed the jury’s verdict on liability, as well as the Court’s decision to award Storix

20 attorneys’ fees. Id. at 631. However, the Ninth Circuit held that the fees awarded were

21 “unreasonable,” and remanded with instructions for the Court “to reconsider the amount.”

22 Id. at 632.

23 On August 7, 2018, after issuing an order awarding attorneys’ fees on remand, the

24 Court entered a second amended judgment in the action. (Doc. No. 34-2, RJN Ex. 6.) On

25 August 14, 2018, Plaintiff appealed the Court’s second amended judgment to the Ninth

26 Circuit. Johnson v. Storix, Inc., No. 14-cv-01873-H-BLM, Docket No. 304 (S.D. Cal. Aug.

27 14, 2018). Plaintiff’s appeal of the amount of attorneys’ fees is currently pending before

28 the Ninth Circuit. See Johnson v. Storix, Inc., No. 18-56106 (9th Cir., filed Aug. 16, 2018).

1 II. The State Court Actions

2 On August 20, 2015, Storix filed a complaint in state court, Case No. 37-2015-

3 28262-CU-BT-CTL, against Anthony Johnson and Janstor Technology, alleging claims

4 for: (1) breach of fiduciary duty against Johnson; and (2) aiding and abetting breach of

5 fiduciary duty against Janstor. (Doc. No. 34-2, RJN Ex. 8.) On October 13, 2015, Anthony

6 Johnson along with Robin Sassi filed a derivative complaint on behalf of Storix in state

7 court, Case No. 37-2015-34545-CU-BT-CTL, against David Huffman, Richard Turner,

8 Manuel Altamirano, David Kinney, and David Smiljkovich, alleging claims for: (1) breach

9 of fiduciary duty; (2) abuse of control; (3) corporate waste; and (4) an accounting. (Doc.

10 No. 34-3, RJN Ex. 14.) The two actions were subsequently consolidated by the state court.

11 On March 14, 2016, Storix filed a first amended complaint in Case No. 37-2015-

12 28262, alleging the same two causes of action. (Doc. No. 34-2, RJN Ex. 9.) On April 13,

13 2016, Johnson filed a cross-complaint in Case No. 37-2015-28262 against David Huffman,

14 Richard Turner, Manuel Altamirano, David Kinney, and David Smiljkovich, alleging

15 claims for: (1) breach of fiduciary duty; (2) civil conspiracy; and (3) fraud. (Id. Ex. 13.)

16 On June 2, 2016, Johnson and Sassi filed a first amended complaint in the derivative action,

17 alleging the same four causes of action. (Doc. No. 34-3, RJN Ex. 15.) On September 6,

18 2016, Storix filed a second amended complaint in Case No. 37-2015-28262, alleging the

19 same two causes of action for: (1) breach of fiduciary duty against Johnson; and (2) aiding

20 and abetting breach of fiduciary duty against Janstor. (Doc. No. 34-2, RJN Ex. 11.)

21 Following a jury trial, on February 20, 2018, a jury returned a verdict in Case No.

22 37-2015-28262 in favor of Storix and against Johnson on Storix’s claim for breach of

23 fiduciary duty and against Johnson on all of his cross-claims. (Doc. No. 34-4, RJN Ex.

24 17.) Specifically, in the verdict, the jury found that “Anthony Johnson breach[ed] his duty

25 of loyalty by knowingly acting against Storix, Inc.’s interests while serving on the Board

26 of Directors of Storix, Inc.” (Id. at 1.) In addition, the jury award Storix $3,739.14 “as a

27 result of Anthony Johnson’s acts or conduct in breach of a fiduciary duty or duties owed

28 to Storix, Inc.” (Id. at 2.)

1 On May 16, 2018, after a bench trial, the state court issued a decision and order on

2 the claims in the derivative action, finding in favor of the defendants and against the

3 plaintiff on all four causes of action. (Doc. No. 34-4, RJN Ex. 20.) On September 12,

4 2018, the state court entered a consolidated judgment in the two actions as follows: (1)

5 “[i]n favor of plaintiff Storix, Inc. and against Defendant Anthony Johnson on Storix Inc’s

6 complaint for breach of fiduciary duty;” (2) “Cross-Complainant Anthony Johnson shall

7 take nothing from Cross-Defendants David Huffman, Richard Turner, Manuel Altamirano,

8 David Kinney, and David Smiljkovich, or any of them, on the Cross-Complaint filed in

9 Case No. 37-2015-00028262-CU-BT-CTL;” (3) Plaintiffs Anthony Johnson and Robin

10 Sassi shall take nothing from Defendants David Huffman, Richard Turner, Manuel

11 Altamirano, David Kinney, and David Smiljkovich, or any of them on the First Amended

12 Derivative Complaint filed in Case No. 37-2015-00034545-CUBT-CTL.” (Id. Ex. 22.) In

13 December 2018, Plaintiff appealed the September 12, 2018 consolidated judgment to the

14 California Court of Appeal. (Doc. No. 63-1, Exs. C, D.) Plaintiff’s appeal is currently

15 pending before the California Court of Appeal. See Storix, Inc. v. Johnson, No. D075308

16 (Cal. App., filed Dec. 10, 2018).

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 September 30, 2019, the Court denied Plaintiff’s motion for recusal under 28 U.S.C. §§

24 144 and 455(a). (Doc. No. 51.) On October 2, 2019, Plaintiff filed a petition for writ of

25 mandamus with the United States Court of Appeals for the Ninth Circuit, challenging the

26 Court’s denial of his motion for recusal. (Doc. No. 60.) On November 22, 2019, the Ninth

27 Circuit denied Plaintiff’s petition for writ of mandamus and closed the case. In re Johnson,

28 No. 19-72507, Docket No. 3 (9th Cir. Nov. 22, 2019). (Doc. No. 71.)

1 On December 2, 2019, the Court issued an order: (1) granting in part and denying in

2 part Defendants Altamirano, Huffman, Kinney, and Turner’s Rule 12(b)(6) motion to

3 dismiss; (2) granting Defendants Storix, Tyrell, and Sullivan’s Rule 12(b)(6) motions to

4 dismiss with prejudice; (3) granting in part and denying in part Defendants Altamirano,

5 Huffman, Kinney, and Turner’s anti-SLAPP motion to strike; (4) granting Defendants

6 Tyrell and Sullivan’s anti-SLAPP motion to strike; and (5) denying Defendants

7 Altamirano, Huffman, Kinney, and Turner’s motion for a statutory undertaking. (Doc. No.

8 73.) In the order, the Court dismissed Plaintiffs’ claims for malicious prosecution,

9 economic interference, breach of contract, rescission, and indemnification with prejudice.

10 (Id. at 40.) The Court declined to dismiss Plaintiff’s claims for conversion and breach of

11 fiduciary duty. (Id.) In addition, on December 2, 2019, the Court denied Plaintiff’s motion

12 to stay the proceedings. (Doc. No. 72.)

13 By the present motions, Plaintiff Johnson: (1) moves for reconsideration of the

14 Court’s December 2, 2019 order on Defendants’ Rule 12(b)(6) motions to dismiss and anti-

15 SLAPP motions to strike; and (2) moves for the entry of a partial final judgment under to

16 Federal Rule of Civil Procedure 54(b) or, in the alternative, for certification under 28

17 U.S.C. § 1292. (Doc. No. 74-1 at 1; Doc. No. 75-1 at 1.) In addition, Defendants

18 Altamirano, Huffman, Kinney, and Turner move to stay the action pending resolution by

19 the California Court of Appeal of the appeal in Storix, Inc. v. Johnson, Case No. D075308.

20 (Doc. No. 78-1 at 1-2.)

21 Discussion

22 I. Plaintiff’s Motion for Reconsideration

23 Plaintiff moves for reconsideration of the Court’s December 2, 2019 order on

24 Defendants’ Rule 12(b)(6) motions to dismiss and anti-SLAPP motions to strike. (Doc.

25 No. 74-1 at 1-2.) In response, Defendants argue that Plaintiff’s motion should be denied

26 because he has failed to set forth any grounds justifying reconsideration of that prior order.

27 (Doc. No. 80 at 2-5; Doc. No. 82 at 3-6.)

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1 A. Legal Standards for a Motion for Reconsideration

2 A district court has inherent jurisdiction to modify, alter, or revoke a prior order.

3 United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000). “Reconsideration [of a prior

4 order] is appropriate if the district court (1) is presented with newly discovered evidence,

5 (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an

6 intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255,

7 1263 (9th Cir. 1993); see C.D. Cal. Civ. L.R. 7-18.

8 Reconsideration should be used conservatively, because it is an “extraordinary

9 remedy, to be used sparingly in the interests of finality and conservation of judicial

10 resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); see also Marlyn

11 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)

12 (“‘[A] motion for reconsideration should not be granted, absent highly unusual

13 circumstances . . . .’”). A motion for reconsideration may not be used to relitigate old

14 matters, or to raise arguments or present evidence for the first time that reasonably could

15 have been raised earlier in the litigation. Exxon Shipping Co. v. Baker, 554 U.S. 471, 486

16 n.5 (2008); see Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.

17 2000) (“A [motion for reconsideration] may not be used to raise arguments or present

18 evidence for the first time when they could reasonably have been raised earlier in the

19 litigation.”). “A party seeking reconsideration must show more than a disagreement with

20 the Court’s decision.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131

21 (E.D. Cal. 2001); accord Huhmann v. FedEx Corp., No. 13-CV-00787-BAS NLS, 2015

22 WL 6128494, at *2 (S.D. Cal. Oct. 16, 2015).

23 B. Legal Standards for a Rule 12(b)(6) Motion to Dismiss

24 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal

25 sufficiency of the pleadings and allows a court to dismiss a complaint if the plaintiff has

26 failed to state a claim upon which relief can be granted. See Conservation Force v. Salazar,

27 646 F.3d 1240, 1241 (9th Cir. 2011). Federal Rule of Civil Procedure 8(a)(2) requires that

28 a pleading stating a claim for relief containing “a short and plain statement of the claim

1 showing that the pleader is entitled to relief.” The function of this pleading requirement is

2 to “give the defendant fair notice of what the . . . claim is and the grounds upon which it

3 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

4 A complaint will survive a Rule 12(b)(6) motion to dismiss if it contains “enough

5 facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

6 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual

7 content that allows the court to draw the reasonable inference that the defendant is liable

8 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading

9 that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of

10 action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint

11 suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.

12 (quoting Twombly, 550 U.S. at 557). Accordingly, dismissal for failure to state a claim is

13 proper where the claim “lacks a cognizable legal theory or sufficient facts to support a

14 cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104

15 (9th Cir. 2008).

16 In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true

17 all facts alleged in the complaint, and draw all reasonable inferences in favor of the

18 claimant. See Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d

19 938, 945 (9th Cir. 2014). But, a court need not accept “legal conclusions” as true. Ashcroft

20 v. Iqbal, 556 U.S. 662, 678 (2009). Further, it is improper for a court to assume the

21 claimant “can prove facts which it has not alleged or that the defendants have violated the

22 . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v.

23 Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

24 In addition, a court may consider documents incorporated into the complaint by

25 reference and items that are proper subjects of judicial notice. See Coto Settlement v.

26 Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Further, “[a] pro se complaint must be

27 ‘liberally construed,’ since ‘a pro se complaint, however inartfully pleaded, must be held

28 to less stringent standards than formal pleadings drafted by lawyers.’” Entler v. Gregoire,

1 872 F.3d 1031, 1038 (9th Cir. 2017) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

2 If the court dismisses a complaint for failure to state a claim, it must then determine

3 whether to grant leave to amend. See Doe v. United States, 58 F.3d 494, 497 (9th Cir.

4 1995). “A district court may deny a plaintiff leave to amend if it determines that ‘allegation

5 of other facts consistent with the challenged pleading could not possibly cure the

6 deficiency,’ or if the plaintiff had several opportunities to amend its complaint and

7 repeatedly failed to cure deficiencies.” Telesaurus VPC, LLC v. Power, 623 F.3d 998,

8 1003 (9th Cir. 2010) (internal quotation marks and citations omitted).

9 C. Legal Standards for an Anti-SLAPP Motion

10 “California’s anti-SLAPP statute was ‘enacted to allow early dismissal of meritless

11 first amendment cases aimed at chilling expression through costly, time-consuming

12 litigation.’” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003) (quoting

13 Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001)). “California’s anti-

14 SLAPP statute allows a defendant to file a ‘special motion to strike’ to dismiss an action

15 before trial. Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013) (citing Cal.

16 Civ. Proc. Code § 425.16). “Motions to strike a state law claim under California’s anti-

17 SLAPP statute may be brought in federal court.” Vess, 317 F.3d at 1109.

18 “A court considering a motion to strike under the anti-SLAPP statute must engage

19 in a two-part inquiry.” Id. at 1110. First, “the moving defendant must make a prima facie

20 showing that the plaintiff’s suit arises from an act in furtherance of the defendant’s

21 constitutional right to free speech.” Makaeff, 715 F.3d at 261. “Second, once the defendant

22 has made a prima facie showing, ‘the burden shifts to the plaintiff to demonstrate a

23 probability of prevailing on the challenged claims.’” Vess, 317 F.3d at 1110 (quoting

24 Globetrotter Software, Inc. v. Elan Comput. Grp., Inc., 63 F. Supp. 2d 1127, 1129 (N.D.

25 Cal. 1999)). Under this standard, “when an anti-SLAPP motion to strike challenges only

26 the legal sufficiency of a claim, a district court should apply the Federal Rule of Civil

27 Procedure 12(b)(6) standard and consider whether a claim is properly stated. And, on the

28 other hand, when an anti-SLAPP motion to strike challenges the factual sufficiency of a

1 claim, then the Federal Rule of Civil Procedure 56 standard will apply. But in such a case,

2 discovery must be allowed.” Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med.

3 Progress, 890 F.3d 828, 834 (9th Cir.), amended, 897 F.3d 1224 (9th Cir. 2018).

4 Defendants challenged the legal sufficiency of Plaintiff’s claim for malicious

5 prosecution. (Doc. No. 29-1 at 8-14; Doc. No. 33-1 at 9-12.) As such, the Rule 12(b)(6)

6 standard applies to the determination of whether Plaintiff demonstrated a probability of

7 prevailing on the claim. See Planned Parenthood, 890 F.3d at 834.

8 D. Analysis

9 Plaintiff argues that the Court should reconsider its December 2, 2019 Order on

10 Defendants’ motions to dismiss and motions to strike because the order: (1) contains

11 manifest errors of law; (2) dismisses claims based on arguments not raised by the

12 defendants; and (3) failed to acknowledge arguments and authorities in Plaintiff’s

13 opposition. (Doc. No. 74-1 at 1-2.) In response, Defendants argue that Plaintiff’s motion

14 should be denied because he has failed to set forth a sufficient basis for reconsideration of

15 the Court’s prior order. (Doc. No. 80 at 3-5; Doc. No. 82 at 2-6.) The Court agrees with

16 Defendants.

17 In his motion, Plaintiff does not identify any new evidence or intervening change in

18 law that would justify reconsideration of the prior order. Rather, Plaintiff argues that the

19 Court clearly erred in dismissing his claims for malicious prosecution, economic

20 interference, breach of contract, rescission, and indemnification with prejudice. (Doc. No.

21 74-1 at 3-16.) But, in attempting to establish error, Plaintiff relies on arguments that he

22 either did raise or reasonable could have raised in his oppositions to Defendants’ motions

23 to dismiss these claims. In essence, Plaintiff disagrees with the Court’s prior order

24 dismissing his claims with prejudice and seeks to relitigate Defendants’ motions to dismiss

25 through a motion for reconsideration. This is not a proper basis for reconsideration of a

26 prior order, and the Court denies Plaintiff’s motion for reconsideration on this basis alone.

27 See Exxon, 554 U.S. at 486 n.5 (explaining that a motion for reconsideration may not be

28 used to relitigate old matters, or to raise arguments or present evidence for the first time

1 that reasonably could have been raised earlier in the litigation); Huhmann, 2015 WL

2 6128494, at *2 (“‘A party seeking reconsideration must show more than a disagreement

3 with the Court’s decision.’”). Nevertheless, the Court will address the specific arguments

4 set forth in Plaintiff’s motion for reconsideration below.

5 With respect to Plaintiff’s claim for malicious prosecution, in order for the favorable

6 termination element of a claim for malicious prosecution to be satisfied, “‘there must first

7 be a favorable termination of the entire action.’” Crowley v. Katleman, 8 Cal. 4th 666, 686

8 (1994) (emphasis in original). Regardless of how Plaintiff attempts to characterize the

9 claims that were at issue in the state court action, the judicially noticeable documents show

10 that a judgment was entered against him in that action. (Doc. No. 34-4, RJN Ex. 22 at 8

11 (entering judgment “[i]n favor of plaintiff Storix., Inc. and against Defendant Anthony

12 Johnson on Storix Inc.’s complaint for breach of fiduciary duty”).) See also In re Gilead

13 Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (“‘The court need not . . . accept as

14 true allegations that contradict matters properly subject to judicial notice or by exhibit.’”).

15 Because the prior state court action at issue concluded with a judgment against him,

16 Plaintiff’s claim for malicious prosecution fails as a matter of law. See Crowley, 8 Cal.

17 4th at 686; Lane v. Bell, 20 Cal. App. 5th 61, 68-76 (2018), review denied (Apr. 18, 2018);

18 Staffpro, Inc. v. Elite Show Servs., Inc., 136 Cal. App. 4th 1392, 1405 (2006); Dalany v.

19 Am. Pac. Holding Corp., 42 Cal. App. 4th 822, 829 (1996); see, e.g., Cairns v. Cty. of El

20 Dorado, 694 F. App’x 534, 535 (9th Cir. 2017); Rezek v. City of Tustin, 684 F. App’x 620,

21 622 (9th Cir. 2017); Law Offices of Bruce Altschuld v. Wilson, 632 F. App’x 321, 323–24

22 (9th Cir. 2015). In addition, because Plaintiff’s claim for malicious prosecution fails as

23 matter of law, his claim for indemnification also fails as a matter of law. See Dalany, 42

24 Cal. App. 4th at 830 (after finding that plaintiff could not establish the favorable

25 termination element of his malicious prosecution claim, holding that “his indemnity cause

26 of action is also defective”).

27 With respect to Plaintiff’s claims for breach of contract, rescission, and intentional

28 interference with contractual relations, the existence of a valid contract is an essential

1 element of each of these claims. See Oasis W. Realty, LLC v. Goldman, 51 Cal. 4th 811,

2 821 (2011) (breach of contract); Viterbi v. Wasserman, 191 Cal. App. 4th 927, 935 (2011)

3 (rescission); Quelimane Co. v. Stewart Title Guar. Co., 19 Cal. 4th 26, 55 (1998), as

4 modified (Sept. 23, 1998) (intentional interference with contractual relations). As

5 explained in the December 2, 2019 order, Plaintiff’s allegations of an oral contract between

6 Storix and Johnson for the transfer of the copyrights to SBAdmin fail as a matter of law

7 under 17 U.S.C. § 204(a). See Valente-Kritzer Video v. Pinckney, 881 F.2d 772, 774 (9th

8 Cir. 1989) (“Section 204(a) not only bars copyright infringement actions but also breach

9 of contract claims based on oral agreements.”); Foad Consulting Grp., Inc. v. Azzalino,

10 270 F.3d 821, 825 (9th Cir. 2001); Radio Television Espanola S.A. v. New World Entm’t,

11 Ltd., 183 F.3d 922, 929 (9th Cir. 1999). In addition, Plaintiff’s allegations of an oral

12 contract between Storix and Johnson for the transfer of the copyrights to SBAdmin are

13 barred under the doctrines of claim preclusion and issue preclusion in light of the prior

14 judgment that was entered in Johnson v. Storix, 14-cv-1873-H-BLM. (See Doc. No. 73 at

15 18-21) In that prior action, it was specifically determined that “Anthony Johnson

16 transferred ownership of all pre-incorporation copyrights, including SBAdmin Version 1.3,

17 in writing from himself to Storix, Inc.” (Doc. No. 34-2, RJN Ex. 6 at 2.) In his motion for

18 reconsideration, Plaintiff concedes that the transfer of ownership in the copyrights was

19 specifically determined in that prior action and states that he does not dispute the transfer

20 of ownership. (See Doc. No. 74-1 at 10-11 (“The Complaint does not dispute the transfer

21 of ownership. . . . The Ninth Circuit affirmed, finding ‘[t]he Annual Report qualified as a

22 ‘note or memorandum’ that was signed by Johnson and memorialized a transfer of assets.’

23 (ECF No. 46, Ex. 3, p. 13)”).)

24 Nevertheless, in his motion for reconsideration, Plaintiff attempts to argue that the

25 Court should not have dismissed his claim for breach of contract because his allegations of

26 an oral contract between Johnson and Storix regarding the copyrights to SBAdmin is

27 different from the agreement to transfer copyright ownership. (Doc. No. 74-1 at 7-8.)

28 Plaintiff argues that he did not allege an oral contract involving the transfer of his copyright

1 ownership. (Id.) Plaintiff argues that, instead, he alleged that there was an oral contract

2 where “Johnson granted Storix all the copyrights it needed to conduct its business in

3 exchange for future compensation.” (Id. at 7; see also Doc. No. 1, Compl. ¶ 11 (“Johnson

4 entered into an oral contract with Storix upon its formation, wherein Storix was granted

5 rights to market, sell, copy, distribute and license SBAdmin to third-parties in exchange

6 for future compensation for the copyright . . . . Johnson continually performed his

7 obligations under the contract by providing Storix the copyrights to SBAdmin needed to

8 conduct its business for over fifteen (15) years.”).)

9 But any assertion or allegation of an agreement between Johnson and Storix where

10 Johnson provided certain rights to SBAdmin to Storix upon its formation and for the next

11 15 years fails as a matter of law. In the prior action, it was determined that Johnson

12 transferred ownership of all copyrights, included the rights to SBAdmin, to Storix upon its

13 formation in 2003, (see Doc. No. 34-2, RJN Ex. 6 at 2), and Plaintiff concedes this in his

14 motion. (See Doc. No. 74-1 at 8, 10-11.) Thus, Storix, not Johnson, owned those

15 copyrights upon its formation in 2003, and Storix has continued to own those copyrights.

16 Plaintiff cannot allege that he conferred any rights to SBAdmin during the 15 years at issue

17 because Plaintiff did not own those rights during that period, Storix did. In sum, Plaintiff’s

18 allegations of an alleged oral contract between Johnson and Storix fail as a matter of law,

19 and, thus, his claims for breach of contract, rescission, and intentional interference with

20 contractual relations all fail as matter of law.

21 With respect to Plaintiff’s claim for intentional interference with a prospective

22 economic advantage, in order to state a claim, Plaintiff had to adequately allege an existing

23 economic relationship between himself and a third party. See Korea Supply Co. v.

24 Lockheed Martin Corp., 29 Cal. 4th 1134, 1153 (2003); Roth v. Rhodes, 25 Cal. App. 4th

25 530, 546 (1994). In his motion for reconsideration, Plaintiff argues that he adequately

26 alleged that there was a relationship between Veeam and Storix’s shareholders, which

27 would include himself, for the sale of Storix to Veeam. (Doc. No. 74-1 at 15.) Plaintiff

28 notes that in his complaint, he alleged that Veeam “‘provided Storix a letter of intent to

1 purchase Storix for $5M.’” (Id. (quoting Doc. No. 1, Compl. ¶ 25).) But an intent to

2 purchase is insufficient to establish an existing economic relationship. At best, Plaintiff

3 alleges a potential relationship, not an existing one. As such, Plaintiff’s claim for

4 intentional interference with a prospective economic advantage fails as a matter of law.

5 In his motion for reconsideration, Plaintiff also argues that the Court committed clear

6 error in the December 2, 2019 order by conducting its own research into the issues and

7 citing to authorities that were not presented in Defendants’ motions. (Doc. No. 74-1 at 17.)

8 But in resolving legal issues presented to the Court by the parties, a district court is not

9 limited to the specific authorities presented in the parties’ briefing. Rather, in reviewing

10 questions of a law, a court should “use its ‘full knowledge of its own [and other relevant]

11 precedents.’” Elder v. Holloway, 510 U.S. 510, 516 (1994); accord United States v.

12 Rapone, 131 F.3d 188, 197 (D.C. Cir. 1997); see Elder v. Holloway, 984 F.2d 991, 999

13 (9th Cir. 1993) (Kozinski, J., dissenting) (“The district court can, after all, find cases not

14 cited by one party.”); see also U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., Inc.,

15 508 U.S. 439, 447 (1993) (“[A] court may consider an issue ‘antecedent to . . . and

16 ultimately dispositive of’ the dispute before it, even an issue the parties fail to identify and

17 brief.”).

18 Plaintiff also argues that the Court erred by not converting Defendants’ motions to

19 dismiss into motions for summary judgment and reviewing the motions under that standard.

20 (Doc. No. 74-1 at 17-18.) To support this argument, Plaintiff notes that in his November

21 7, 2019 opposition brief, he argued that Defendants’ motion to dismiss raised factual issues

22 and referenced evidence not subject to judicial notice, thereby, converting the motion to

23 dismiss into a motion for summary judgment, and, therefore, the motion should be denied.

24 (Id. (citing Doc. No. 67 at 4-5).) The Court notes that Plaintiff’s November 7, 2019

25 opposition brief was in response to Defendants Altamirano, Huffman, Kinney, and

26 Turner’s supplemental briefing in support of their motion to dismiss Plaintiff’s conversion

27 claim. (See Doc. Nos. 66, 67.) The Court denied Defendants Altamirano, Huffman,

28 Kinney, and Turner’s motion to dismiss Plaintiff’s conversion claim and that claim remains

1 in the case. (See Doc. No. 73 at 40.)

2 Finally, Plaintiff argues that the Court erred in allowing Defendants to re-raise their

3 res judicata defenses at a later stage in the proceedings once the relevant state court

4 judgment has become final. (Doc. No. 74-1 at 18-19.) Plaintiff argues that under the

5 Federal Rules of Civil Procedure, a defendant is required to raise all affirmative defenses

6 in its first responsive pleading, and defenses not so raised are deemed raised. (Id. at 18.)

7 Federal Rule of Civil Procedure 12(h)(1) provides: “A party waives any defense listed in

8 Rule 12(b)(2)–(5) by: . . . failing to either: (i) make it by motion under this rule; or (ii)

9 include it in a responsive pleading . . . .” Fed. R. Civ. P. 12(h)(1). But Rule 12(h)(1) is

10 inapplicable here. By its terms, Rule 12(h)(1) only applies to “defense[s] listed in Rule

11 12(b)(2)–(5).” Fed. R. Civ. P. 12(h)(1). Defendants’ motion to dismiss was made pursuant

12 to Rule 12(b)(6), not (b)(2)-(5). Further, even if Rule 12(h)(1) applied here, there still

13 would be no waiver. Defendants included their res judicata defense in the briefing in

14 support of their motion to dismiss. As such, Plaintiff’s waiver argument fails. In sum, the

15 Court denies Plaintiff’s motion for reconsideration of the Court’s December 2, 2019 order

16 on Defendants’ Rule 12(b)(6) motions to dismiss and anti-SLAPP motions to strike.

17 II. Plaintiff’s Motion for Entry of a Rule 54(b) Partial Final Judgment

18 Plaintiff moves for the entry of partial final judgment under Federal Rule of Civil

19 Procedure 54(b). (Doc. No. 75-1 at 1.) Specifically, Plaintiff requests that the Court enter

20 a Rule 54(b) partial final judgment as to his claims for malicious prosecution, economic

21 interference, breach of contract, rescission, and indemnification, which the Court dismissed

22 with prejudice in its December 2, 2019 order. (Id.)

23 Federal Rule of Civil Procedure 54(b) provides: “When an action presents more than

24 one claim for relief . . . or when multiple parties are involved, the court may direct entry of

25 a final judgment as to one or more, but fewer than all, claims or parties only if the court

26 expressly determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). “Rule

27 54(b) permits district courts to authorize immediate appeal of dispositive rulings on

28 separate claims in a civil action raising multiple claims.” Gelboim v. Bank of Am. Corp.,

1 135 S. Ct. 897, 902 (2015). Under Rule 54(b), a judgment may be entered where (1) there

2 is a final judgment of an individual claim; and (2) there is no just reason to delay. See

3 Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7–8 (1980); Pakootas v. Teck Cominco

4 Metals, Ltd., 905 F.3d 565, 574 (9th Cir. 2018).

5 Under this two-part test, “[a] district court must first determine that it is dealing with

6 a ‘final judgment.’” Curtiss-Wright, 446 U.S. at 7. “It must be a ‘judgment’ in the sense

7 that it is a decision upon a cognizable claim for relief, and it must be ‘final’ in the sense

8 that it is ‘an ultimate disposition of an individual claim entered in the course of a multiple

9 claims action.’” Id. (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956)).

10 If the district court finds finality, “the district court must go on to determine whether

11 there is any just reason for delay.” Id. at 8. “In deciding whether there are no just reasons

12 to delay the appeal of individual final judgments . . . , a district court must take into account

13 judicial administrative interests as well as the equities involved.” Id. In particular, a court

14 should “consider such factors as whether the claims under review [a]re separable from the

15 others remaining to be adjudicated and whether the nature of the claims already determined

16 [are] such that no appellate court would have to decide the same issues more than once

17 even if there were subsequent appeals.” Id.

18 “Not all final judgments on individual claims should be immediately appealable,

19 even if they are in some sense separable from the remaining unresolved claims.” Curtiss-

20 Wright, 446 U.S. at 8. “Judgments under Rule 54(b) must be reserved for the unusual case

21 in which the costs and risks of multiplying the number of proceedings and of overcrowding

22 the appellate docket are outbalanced by pressing needs of the litigants for an early and

23 separate judgment as to some claims or parties.” Morrison-Knudsen Co. v. Archer, 655

24 F.2d 962, 965 (9th Cir. 1981). Rule 54(b) should be applied to “‘preserves the historic

25 federal policy against piecemeal appeals.’” Curtiss-Wright, 446 U.S. at 8 (quoting Sears,

26 Roebuck, 351 U.S. at 438. “It is left to the sound judicial discretion of the district court to

27 determine the ‘appropriate time’ when each final decision in a multiple claims action is

28 ready for appeal.” Id.

1 In the Court’s December 2, 2019 order on Defendants’ motions to dismiss, the Court

2 dismissed Plaintiff’s claims for malicious prosecution, economic interference, breach of

3 contract, rescission, and indemnification with prejudice. (Doc. No. 73 at 40.) The Court’s

4 December 2, 2019 dismissal of those claims with prejudice represents a final judgment as

5 to those individual claims as it was “‘an ultimate disposition’” of those individual claims

6 in this action. See Curtiss-Wright, 446 U.S. at 8.

7 Nevertheless, the Court, exercising its sound discretion, declines to enter a Rule

8 54(b) partial judgment. The Ninth Circuit has instructed that a Rule 54(b) partial final

9 judgment is generally inappropriate where the “the case would inevitable come back to [the

10 Court of Appeals] on the same set of facts.” Wood v. GCC Bend, LLC, 422 F.3d 873, 879

11 (9th Cir. 2005). “This inquiry does not require the issues raised on appeal to be completely

12 distinct from the rest of the action, so long as resolving the claims would ‘streamline the

13 ensuing litigation.” Jewel v. Nat’l Sec. Agency, 810 F.3d 622, 628 (9th Cir. 2015) (internal

14 quotation marks omitted).

15 Here, there is some factual overlap between the five dismissed claims and the two

16 remaining claims in the action as all of the claims in Plaintiff’s complaint are broadly

17 related to Plaintiff’s relationship over the years with Storix Inc. and its

18 shareholders/partners. Thus, there is a substantial risk of piecemeal appeals before the

19 Ninth Circuit Court of Appeals on the same set of facts. Further, there is no indication that

20 the entry of a Rule 54(b) partial final judgment as to the five dismissed claims has the

21 potential to streamline the ensuing litigation. Under these circumstances, the Court,

22 exercising its sound discretion, declines to enter a Rule 54(b) partial final judgment.

23 III. Plaintiff’s Motion for a 28 U.S.C. § 1292(b) Certification

24 In his motion, in the event the Court denies his request for entry of a partial final

25 judgment under Rule 54(b), Plaintiff moves, in the alternative, for the Court issue a

26 certification under 28 U.S.C. § 1292(b). (Doc. No. 75-1 at 1, 4.) Specifically, Plaintiff

27 requests that the Court certify for immediate appeal its December 2, 2019 order denying

28 Plaintiff’s request for a stay of his claim for malicious prosecution pending his appeal of

1 the underlying state court judgment. (Id.)

2 “The denial of a stay is not a final decision appealable under [28 U.S.C. §] 1291

3 because it does not end the litigation on the merits.” Mayacamas Corp. v. Gulfstream

4 Aerospace Corp., 806 F.2d 928, 930 (9th Cir. 1986). Nevertheless, 28 U.S.C. § 1292(b)

5 provides “district courts circumscribed authority to certify for immediate appeal

6 interlocutory orders deemed pivotal and debatable.” Swint v. Chambers Cty. Comm’n,

7 514 U.S. 35, 46 (1995). Under section 1292(b), a district court may certify an interlocutory

8 order for immediate appeal only if the following requirements for certification have been

9 met: “(1) that there be a controlling question of law, (2) that there be substantial grounds

10 for difference of opinion, and (3) that an immediate appeal may materially advance the

11 ultimate termination of the litigation.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026

12 (9th Cir. 1981); see 28 U.S.C. § 1292(b).

13 The ultimate decision of whether to certify an interlocutory order for immediate

14 appeal under section 1292(b) is subject to the district court’s discretion. See Swint, 514

15 U.S. at 47 (“Congress . . . chose to confer on district courts first line discretion to allow

16 interlocutory appeals.”); Tsyn v. Wells Fargo Advisors, LLC, No. 14-CV-02552-LB, 2016

17 WL 1718139, at *3 (N.D. Cal. Apr. 29, 2016) (“Even where the statutory criteria of §

18 1292(b) are met, the district court ‘retains discretion to deny permission for interlocutory

19 appeal.’”). Interlocutory appeals under § 1292(b) “are intended to be rare and used only in

20 “exceptional circumstances.’” Greenspan v. Orrick, Herrington & Sutcliffe LLP, No. C

21 09-4256 CRB, 2010 WL 3448240, at *1 (N.D. Cal. Sept. 1, 2010) (quoting In re Cement

22 Antitrust Litig., 673 F.2d at 1026); see also James v. Price Stern Sloan, Inc., 283 F.3d 1064,

23 1068 n.6 (9th Cir. 2002) (“Section 1292(b) is a departure from the normal rule that only

24 final judgments are appealable, and therefore must be construed narrowly.”). “The party

25 seeking certification bears the burden of demonstrating that the requirements are satisfied

26 and that such a departure is warranted.” Stiner v. Brookdale Senior Living, Inc., 383 F.

27 Supp. 3d 949, 957 (N.D. Cal. 2019).

28 Plaintiff has failed to demonstrate that the requirements for an interlocutory appeal

1 under 28 U.S.C. § 1292(b) have been met. First, there was no controlling question of law

2 at issue in the Court’s December 2, 2019 order denying Plaintiff’s request for a stay. The

3 Court’s decision to deny Plaintiff’s request for a stay did not turn on any controlling

4 question of law. Rather, the Court denied the request for a stay as an exercise of the Court’s

5 discretion after reviewing the Keating factors. (See Doc. No. 72 at 5-6 (citing Keating v.

6 Office of Thrift Supervision, 45 F.3d 322, 324–25 (9th Cir. 1995)). Second, an immediate

7 appeal of Plaintiff’s request for a stay issue would not materially advance the ultimate

8 termination of the litigation. Plaintiff’s request for a stay pending the resolution of the

9 appeal in the state court action was related only to his claim for malicious prosecution.

10 (See Doc. No. 63 at 5-7.) Plaintiff’s claim for malicious prosecution is only one of the

11 seven claims alleged in Plaintiff’s complaint and at issue in this action. (See Doc. No. 1,

12 Compl ¶¶ 37-71.) In addition, the Court notes that it is staying the remaining claims in this

13 action pending the state court proceedings. See infra. Moreover, even assuming the

14 Court’s December 2, 2019 order denying Plaintiff’s motion to stay met the requirements

15 for certification, the Court under these circumstances would still decline to exercise its

16 discretion to issue a section 1292(b) certification. There simply are no exceptional

17 circumstances here.

18 In his motion, Plaintiff also argues that the Court’s order denying his motion to stay

19 is appealable under the collateral order doctrine. (See Doc. No. 75-1 at 2, 4 (citing DC

20 Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1012 (9th Cir. 2013)).) Plaintiff is incorrect.

21 The Ninth Circuit has held that the collateral order doctrine does not apply to orders

22 denying a motion to stay the proceedings. See Mayacamas, 806 F.2d at 930 (“The

23 collateral order exception applies only where there is an ‘asserted right the legal and

24 practical value of which could be destroyed if it were not vindicated before trial.’ [¶] Here,

25 Gulfstream has no right to have this federal action stayed or dismissed.” (citations

26 omitted)). In sum, the Court denies Plaintiff’s motion for the Court to certify for immediate

27 appeal under 28 U.S.C. § 1292(b) its December 2, 2019 order denying Plaintiff’s motion

28 to stay.

1 IV. Defendants Altamirano, Huffman, Kinney, and Turner’s Motion to Stay

2 Defendants Altamirano, Huffman, Kinney, and Turner move to stay the action

3 pending resolution by the California Court of Appeal of the appeal in Storix, Inc. v.

4 Johnson, Case No. D075308. (Doc. No. 78-1 at 1.) A district court has “broad discretion

5 to stay proceedings as an incident to its power to control its own docket.” Clinton v. Jones,

6 520 U.S. 681, 706 (1997) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). “‘A

7 trial court may, with propriety, find it is efficient for its own docket and the fairest course

8 for the parties to enter a stay of an action before it, pending resolution of independent

9 proceedings which bear upon the case.’” Mediterranean Enters., Inc. v. Ssangyong Corp.,

10 708 F.2d 1458, 1465 (9th Cir. 1983) (quoting Leyva v. Certified Grocers of California,

11 Ltd., 593 F.2d 857, 863 (9th Cir. 1979)). But “‘[a] stay should not be granted unless it

12 appears likely the other proceedings will be concluded within a reasonable time.’

13 Generally, stays should not be indefinite in nature.” Dependable Highway Exp., Inc. v.

14 Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007) (quoting Leyva, 593 F.2d at 864)

15 (citations omitted).

16 In determining whether to grant a motion to stay, a court “should generally consider

17 the following factors:”

18 (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

19

delay; (2) the burden which any particular aspect of the proceedings may

20 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

21

not parties to the civil litigation; and (5) the interest of the public in the

22 pending civil and criminal litigation.

23 Keating v. Office of Thrift Supervision, 45 F.3d 322, 324–25 (9th Cir. 1995); see Blue

24 Cross & Blue Shield of Alabama v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718, 724

25 (9th Cir. 2007). “The proponent of a stay bears the burden of establishing its need.”

26 Clinton, 520 U.S. at 708.

27 Defendants Altamirano, Huffman, Kinney, and Turner note that following the

28 Court’s December 2, 2019 order granting in part and denying in part their Rule 12(b)(6)

1 motion to dismiss and their anti-SLAPP motion to strike, only two causes of action remain

2 in case: Plaintiff’s claim for breach of fiduciary duty and Plaintiff’s claim for conversion.

3 (Doc. No. 78-1 at 2.) In their briefing in support of their motion to dismiss, Defendants

4 argued that both of these claims are barred by the doctrine of res judicata in light of the

5 prior consolidated judgment that was entered in the state court action. (Doc. No. 30-1 at

6 8-9; Doc. No. 66 at 3-8.) In denying Defendants’ motion to dismiss, the Court rejected

7 Defendants’ assertion of res judicata on the grounds that the consolidated judgment at issue

8 is not yet final because Plaintiff’s appeal of the judgment remains pending before the

9 California Court of Appeal. (See Doc. No. 73 at 29, 32 (citing Sosa v. DIRECTV, Inc.,

10 437 F.3d 923, 928 (9th Cir. 2006) (“‘Under California law, . . . a judgment is not final for

11 purposes of res judicata during the pendency of and until the resolution of an appeal.’”)).)

12 Defendants argue that, in light of this, the Court should stay the current proceedings

13 pending resolution of the state court appeal, which is fully briefed and awaiting oral

14 arguments. (Doc. No. 78-1 at 2.) Defendants argue that because the two remaining claims

15 are duplicative of the claims in the state court litigation, a stay pending resolution of the

16 state court appeal will significantly narrow, if not completely eliminate, the issues and

17 claims before this Court. (Id. at 3.)

18 After reviewing the relevant factors, the Court, exercising its sound discretion grants

19 Defendants’ request for a stay. In light of Defendants’ asserted res judicata defense, a stay

20 of the action pending resolution of the state court appeal has the potential to narrow and/or

21 clarify the remaining issues in this case.2 In addition, the Court notes that Plaintiff

22 previously requested that part of the action be stayed pending the resolution of the state

23 court appeal. (Doc. No. 63.) As such, the Court grants Defendants’ request to stay the

24 action pending the state court proceedings.

25 Nevertheless, the Court declines to stay the action pending the California Court of

26

27

28 2 The Court notes that it is not making any findings as to the ultimate merits of Defendants’ res

1 || Appeal’s decision in Case No. D075308 as that would be a stay of indefinite duration.

2 ||Rather, the Court grants a six-month stay of the action without prejudice to Defendants

3 || seeking a further stay of the action.

4 Conclusion

5 For the reasons above, the Court:

6 (1) denies Plaintiff's motion for reconsideration of the Court’s December 2, 2019

7 || order on Defendants’ Rule 12(b)(6) motions to dismiss and anti-SLAPP motions to strike;

8 (2) denies Plaintiff’s motion for entry of partial final judgment under Rule 54(b) or

9 || for certification under 28 U.S.C. § 1292; and

10 (3) grants Defendants Altamirano, Turner, Kinney, and Huffman’s motion to stay

11 || the action.

12 || The Court stays the action pending the appeal in Storix, Inc. v. Johnson, Case No. D075308

13 || for six months from the date this order is filed. This stay is without prejudice to Defendants

14 seeking a further stay of the action. If the California Court of Appeal issues a decision in

15 || Storix, Inc. v. Johnson, Case No. D075308 during the stay, Defendants must file a notice

16 || of decision with the Court within fourteen (14) days from the date the decision is issued.

17 || The California Court of Appeal’s opinion must be attached to the notice.

18 IT IS SO ORDERED.

19 || DATED: January 30, 2020 | | ul | | |

20 MARILYN &. HUFF, Distri ge

21 UNITED STATES DISTRICT COURT

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