Johnson v. Kinney

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 |} ANTHONY JOHNSON, Case No.: 20-cv-1354-JO-MSB

12 Plaintitt,| ORDER DENYING MOTION TO

13 || V- DECLARE PLAINTIFF A

|| DAVID KINNEY, et al., GRANTING MOTION TO DISMISS

15 ||. Defendants.| AND DENYING AS MOOT MOTION

16 FOR ENTRY OF PARTIAL

JUDGMENT

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21 Defendant Storix, Inc. filed a motion for an order declaring Plaintiff Anthony

22 || Johnson a vexatious litigant and a motion to dismiss under Rule 12(b)(6). Plaintiff filed <

23 |}motion for entry of partial judgment under Rule 54(b), to immediately appeal hi:

24 ||previously dismissed claims. On February 16, 2022, the Court held oral argument.

25 For the reasons stated on the record during oral argument, the Court grants the

26 || parties’ requests that the Court take judicial notice under Fed. R. Evid. 201, denies withou

27 || prejudice the motion to declare Plaintiff a vexatious litigant [Dkt. 28], and denies as moo

28 || Plaintiff's motion for entry of partial judgment [Dkt. 61]. For the following reasons, the

1 Court grants the motion to dismiss Plaintiff's common count for money had and receivec

2 ||[Dkt. 49] as duplicative of Plaintiffs claim in an earlier filed case and, in the alternative.

3 barred by claim preclusion.

4 I. FACTUAL AND PROCEDURAL BACKGROUND

5 ||A. Litigation History

6 The litigation history between Plaintiff Anthony Johnson, Defendant Storix, Inc..

7 individual shareholders and directors of Storix is lengthy, with multiple cases in state

8 ||and federal courts. The Court took judicial notice of multiple complaints and filings in

9 || lawsuits between Storix, Plaintiff, and other related parties.

10 Prior to filing this case, Plaintiff sued Storix for copyright infringement in federal

11 court in 2014, and Storix counterclaimed for declaratory judgment. Johnson v. Storix, Case

12 ||no. 3:14-cv-1873-H-BLM.! In 2015, Storix filed in state court a claim for breach of

13 || fiduciary duty against Plaintiff, and Plaintiff later cross-complained against five individual

14 ||Storix shareholders, directors, or officers—David Huffman, Richard Turner, Manuel

15 Altamirano, David Kinney, and David Smilkovich—alleging claims for breach of fiduciary

16 || duty, civil conspiracy, and fraud. Storix v. Johnson, Case no. 37-2015-28262-CU-BT-

17 ||CTL. Later the same year, Plaintiff filed a shareholder derivative action in state court on

18 || behalf of Storix against the same individual defendants for claims of breach of fiduciary

19 || duty, abuse of control, corporate waste, and accounting. Johnson v. Huffman, Case no. 37-

20 ||2015-34545-CU-BT-CTL.

21 ||B. Most Recent Federal Case Filed By Plaintiff Johnson

22 Most recently, Plaintiff filed an earlier case in this Court on June 24, 2019, Johnson

23 |\v. Altamirano, Case no. 3:19-cv-1185 (S.D. Cal.) (“Altamirano”), which was ultimately

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26 pursuant to Fed. R, Evid. 201, the Court also takes judicial notice of the dockets and all filings in the related cases

27 185-H-BLM, including the state court pleadings, filings, and appeals Filed as part of the record in those te

28 federal cases.

1 assigned to U.S. District Judge Marilyn Huff.? In Altamirano, Plaintiff alleged diversity

2 ||jurisdiction and pled state law claims against (1) Storix; (2) Storix shareholders anc

3 || directors Manuel Altamirano, David Kinney, David Huffman, and Richard Turner (there

4 || alleged as “Partner-Defendants”);* and (3) two attorneys for Storix, Sean Sullivan and Pau

5 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

7 |{issue 1500 new shares of Storix to Partner-Defendants, reducing Plaintiff’s ownership o

8 || Storix to 40%. Dkt. 49-4 at 111, 10-12. □

9 In Altamirano, Plaintiff alleged, among other state causes of action, a Californi

10 claim for conversion against Partner-Defendants as follows:

1] Johnson was owed all undistributed profits of Storix earned prior to

2 Partner-Defendants became [sic] shareholders, and such money is

personal property of Johnson. Partner-Defendants substantially

13 interfered with Johnson’s property by knowingly and intentionally

14 taking possession of the money Johnson was entitled to, preventing

Johnson’s access to the money or records pertaining to it, using the

15 money for their personal benefit, and refusing to return Johnson’s

16 money after he discovered the conversion and demanded it be returned

to him.

17 .

18 Dkt. 49-4 at 121, 4 50.

19 Plaintiff alleged in A/tamirano that he “was harmed by the conversion of $475,56(

20 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

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23

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2 A thorough litigation history between the parties is found at Johnson v. Altamirano, Case no. 3:19-cv-1185-H

25 || BLM (S.D. Cal. Jun 8, 2021), at Dkt. 113 at 2-8.

26 Plaintiff alleged in A/tamirano “[b]lecause defendants Altamirano, Turner, Kinney and Huffman, unless otherwis«

27 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.

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1 Defendants], jointly and severally” and “recovery of Storix’s earnings owed to Johnson.’

2 at 125, Ff 72, 74.

On June 8, 2021, the district court in Al/tamirano dismissed with prejudice twc

4 ||claims on grounds of res judicata, because Plaintiff's claim for conversion was barred by

5 prior accounting claim in the state court action and his claim for breach of fiduciary

6 || duty was barred by his prior claim for breach of fiduciary duty in state court. Altamiranc

7 113 at 12-20. The judgment in Al/tamirano is currently pending on appeal, and

8 || briefing is filed. See Johnson v. Altamirano, Case no. 21-55614 (9th Cir. filed June 14.

9 |/2021).

10 ||C. The Instant Federal Court Case

11 On July 16, 2020, during a stay in the pending Altamirano case, Plaintiff filed his

12 |/original complaint here, against (1) Storix; (2) five Storix directors, officers, o1

13 ||shareholders: David Kinney, David Huffman, Manuel Altamirano, Richard Turner, and

14 || David Smiljkovich; (3) various attorneys and judges who had been involved in Plaintiff s

15 prior cases, including Storix’s counsel of record and Judge Huff. Plaintiff originally

16 |j alleged federal civil rights violations against all Defendants and two California common

17 count claims against Storix. U.S. District Judge Todd Robinson, then assigned to this case,

18 || dismissed the civil rights claims against all Defendants and the California claim against

19 || Storix for quantum valebant. Dkt. 44 at 69, 79-82.

In the operative Second Amended Complaint (“SAC”), filed on April 15, 2021.

21 || Plaintiff brought a single California common count for money had and received and named

22 ||Storix as the sole Defendant to that count. Dkt. 46. Plaintiff alleged that while he was

23 || originally “Storix’s sole shareholder, officer, and director,’ SAC at § 14, on September 21,

24 |12011, he gifted a 60% share of the company to his long-term employees, David Huffman,

25 ||Richard Turner, Manuel Altamirano, and David Kinney [Altamirano’s Partner-

26 Defendants] and turned over control of the company to them. SAC at 7 16, 19. On that

27 || day, new shareholders Huffman, Turner, Altamirano, and Kinney were elected to the Storix

28 ||board, and Johnson resigned as Board Member and President. SAC at 719. Plaintiff

1 |/alleged that, since then, the A/tamirano Partner-Defendants owned 60% of Storix anc

2 ||““maintained a controlling majority of Storix’s shares, the board of directors [and] all office:

3 || positions.” SAC at § 16.

4 Prior to transferring any Storix shares, Plaintiff “declared a distribution of al

5 |}company earnings to be paid to him for the period in which he was the sole shareholder

6 || Storix became indebted to [him] for all profits during the time he was the only shareholder.’

7 ||SAC at 917. Plaintiff alleged that he was denied the profits that he had declared prior tc

8 ||transfer of ownership because “[a]t the end of 2011, the new board [Partner-Defendant:

9 ||Huffman, Turner, Altamirano, and Kinney] substantially underreported Storix’s annua

10 || profits” and falsely “reported to Johnson that all company profits earned while he wa:

11 || Storix’s sole shareholder had been distributed to him.” SAC at ff] 19-20.

12 Plaintiff pled his common count for money had and received against Storix a:

13 || follows:

14 Storix declared that all profits earned while Johnson was the company’s sole

15 shareholder were to be distributed and were therefore Johnson’s personal

property to which he is fully entitled. Storix took possession and retained

16 substantial money owned [sic] to Johnson and is indebted to Johnson for the

17 amount owed. [] Since September 2011, the Storix board had no authority to

supersede the distributions declared by Johnson while he was the sole

18 company director, nor did it have authority to distribute the money owed to

19 Johnson to other shareholders or appropriate it for any other use.

20 ||SAC at {J 38-39.

21 Plaintiff alleged that he “was harmed by Storix’s concealment and unlawfu

22 retention of $475,5 60 owed to him,” SAC at { 43, the same amount of money that Plaintif

23 ||sought in his A/tamirano conversion claim from Partner-Defendants. Dkt. 49-4 at 121

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25 Defendant Storix moved to dismiss the SAC on multiple grounds, including □□□□□□□

26 remaining count in the SAC is duplicative of the conversion count in Altamirano. A

27 time Defendant filed its motion to dismiss, the A/tamirano court had not yet dismissec

28 conversion claim with prejudice on grounds of res judicata.

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1 Il. ANALYSIS

2 ||A. Legal Standard

3 When reviewing a motion to dismiss under Rule 12(b)(6), the allegations of material

4 || fact in plaintiff's complaint are taken as true and construed in the light most favorable tc

5 plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

6 ||“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”

7 || Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Bell Atlantic Corp. v. Twombly, 550

8 544, 556 (2007)). Where, as here, Plaintiff proceeds pro se, the Court liberally

9 construes the complaint’s allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hebbe

10 || v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). “Determining whether a complaint states

11 |/a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court

12 || to draw on its judicial experience and common sense.” Jgbal, 556 U.S. at 678. In reviewing

13 motion to dismiss, courts may look to judicially noticeable facts, Barron v. Reich, 13 F.3d

14 || 1370, 1377 (9th Cir. 1994), and need not accept as true allegations that contradict judicially

15 ||noticed facts. Schwartz v. United States, 234 F.3d 428, 435 (9th Cir. 2000).

16 ||B. Duplicative Claims or Impermissible Claim Splitting

17 The Court examines whether Plaintiff's SAC should be dismissed because it is

18 || duplicative of his earlier filed conversion claim in Altamirano. The claim splitting doctrine

19 gives courts discretion to dismiss a duplicative second case with prejudice to prevent

20 || piecemeal litigation. Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 694 (9th Cir.

21 ||2007), overruled on other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008). A plaintiff

22 generally may not file a second complaint and “maintain two separate actions involving

23 same subject matter at the same time in the same court and against the same defendant.”

24 || Id. at 688 (citation omitted).

25 As the Adams court explained, to “determine whether a suit is duplicative, [courts]

26 borrow from the test for claim preclusion.” Jd. A second case is duplicative of one

27 previously filed by the party where “the causes of action and relief sought, as well as the

28 || 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

2 ||the last of which is the most important:

3 (1) whether rights or interests established in the prior judgment would be

4 destroyed or impaired by prosecution of the second action; (2) whether

substantially the same evidence is presented in the two actions; (3) whether

5 the two suits involve infringement of the same right; and (4) whether the two

6 suits arise out of the same transactional nucleus of facts.

7 Id. (citing Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir

8 11 1982)).

9 Even liberally construing a pro se plaintiff's complaint, as courts must under Fed

10 ||R. Civ. P. 12(b)(6), a district court does not err in dismissing a duplicative complaint wher

11 ||the Adams test is satisfied. See Patten v. Clark, 623 Fed. App’x. 889, 890 (9th Cir. 2015)

12 1. Causes of Action Are the Same

13 Plaintiffs allegations demonstrate a common transactional nucleus of facts □□□□□□

14 instant cause of action and his cause of action for conversion in Altamirano. □□□□

15 |}complaints alleged that Plaintiff took actions as a sole shareholder that entitled him tc

16 Storix’s undistributed profits. SAC at 917; Dkt. 49-4 at 111, 99 11-12; id at 121

17 50. Both complaints alleged that, after Plaintiff passed majority ownership of Storix tc

18 || Partner-Defendants in 2011, Partner-Defendants took actions to deprive Plaintiff o

19 || Storix’s undistributed profits. Dkt. 49-4 at 113, § 19; id. at 121, 950; SAC at 17, 20

20 |{37-39. □

21 The shared nucleus of facts in both cases forms one “convenient trial unit” that rest:

22 |{on substantially the same evidence. Adams, 487 F.3d at 690. Both the □□□□□□□□□□

23 ||conversion count and the instant claim require (1) proof of Johnson’s entitlement tc

24 undistributed profits, whether drawn from corporate documents, accounting records, o

25 employee testimony, and (2) the actions taken by Storix and Partner-Defendants regardins

26 ||this money. The fact that the two claims are styled differently does not change the fact tha

27 || the “claims in both complaints relate to the same set of facts.” Id.

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1 Plaintiffs Altamirano conversion claim and the instant action also share a common

2 |{nexus of the same impacted rights and requested relief, supporting a finding that the claims

3 |jare duplicative. See id at 690-91. Both complaints alleged that Storix retained

4 || undistributed profits after Plaintiff's transfer of majority ownership in 2011. Dkt. 49-4 at

5 9 50; id. at 125, | 74; SAC at J] 18-20, 42-43. Both complaints sought relief in the

6 ||amount of $475,560. Dkt. 49-4 at 121, § 52; SAC at 43. As pled, Plaintiffs conversion

7 claim in Altamirano and his claim in this case seek to vindicate the same right in the same

8 || dollar amount from Storix’s profit. Dkt. 49-4 at 111, | 12; id. at 121, 9 52; SAC at FF 19.

9 || 20, 38.

10 Finally, the Court examines whether the rights or interests established in Al/tamiranc

11 || would be destroyed or impaired by prosecution of Plaintiff's cause here. See Adams, 487

12 at 689 (quotation omitted). In Altamirano, Partner-Defendants obtained a dismissal

13 |/of Plaintiffs conversion claim on res judicata grounds. If this case were to proceed,

14 Partner-Defendants would be deprived of the benefit of that judgment in their favor and

15 to defend this action involving substantially the same transactional facts, rights, and

16 ||requested relief.

17 2. Privity Exists Between the Parties

18 Finally, in determining whether a previous suit should bar this action as duplicative,

19 ||the Court must consider whether the parties to the two suits are the same, and if not,

20 whether privity exists between the different patties. “Even when the parties are not

21 ||identical, privity may exist if there is substantial identity between parties, that is, when

22 ||there is sufficient commonality of interest.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe

23 || Reg] Planning Agency, 322 F.3d 1064, 1081 (9th Cir. 2003) (internal quotation omitted).

24 Federal courts deem several relationships sufficiently close to find privity, even to bind a

25 ||non-party, including one “whose interests were represented adequately by a party in the

26 || original action” or “where there is substantial identity between” the party and the nonparty.

27 |\Id. at 1082 (quoting Jn re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997)). “When a person

28 ||owns most or all of the shares in a corporation and controls the affairs of the corporation,

1 ||it is presumed that in any litigation involving that corporation the individual has sufficien

2 ||commonality of interest.” In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 1983).

3 Here, the Court does not seek to bind a non-party to a prior suit. Plaintiff □□□□□□□

4 ||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.

6 ||Defendants in the conversion claim, and here, Plaintiff names Storix in the substantialls

7 ||identical common count. Thus, the Court examines whether there is substantial identity

8 || between Partner-Defendants in A/tamirano and Storix here such that they can be □□□□□□

9 || in privity.

10 The facts alleged by Plaintiff demonstrate sufficient commonality of interes

11 || between the company and its Partner-Defendants to find that privity exists. During th

12 || time periods at issue in both actions, the Court can presume commonality of interest fron

13 ||Partner-Defendants’ significant ownership and control of the company: Partner

14 || Defendants “retained a collective majority of Storix’s outstanding shares, the majority o

15 || Storix board seats, all officer positions, and have maintained sole possession and exclusive

16 || control of all accounts and records of Storix.” Dkt. 49-4 at 1 17, | 32; Inre Gottheiner, 70:

17 ||F.2d at 1140. Furthermore, as Plaintiff alleged in Altamirano, the wrongful acts by th«

18 || company were those of Partner-Defendants: “/e/very act and decision of Storix relevant tc

19 || this action was exclusive [sic] that of Partner-Defendants.” Dkt. 49-4 at 117, □□

20 ||(emphasis added). As there is no material distinction between the wrongful acts tha

21 Plaintiff alleged against Partner-Defendants and Storix, these two defendants have

22 sufficient commonality of interest in defending the instant claim for money had anc

23 ||received.*

24 .

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76 || —____

27 The Court notes that David Huffman, a Partner-Defendant, appeared at oral argument as Storix’s part

28 representative.

1 Plaintiff argues that this court’s dismissal on duplicative claims ground would be

2 ||inappropriate because the Altamirano judgment is pending on appeal. As set forth in

3 || Adams, however, a final decision is not a requirement for a duplicative claims analysis.

4 || 487 F.3d at 689.

5 ||C. Res Judicata in the Alternative

6 When the instant Rule 12(b)(6) motion to dismiss was filed on April 29, 2021, the

7 ||court in Altamirano had not yet decided Plaintiff's conversion claim was barred by res

8 judicata. Since then, the court in Altamirano dismissed with prejudice □□□□□□□□□□□

9 || conversion claim and entered final judgment. Because there is now a final judgment in the

10 |/earlier filed Altamirano case, the Court also conducts a res judicata analysis in the

11 || alternative.

12 To determine the claim-preclusive effect of the federal diversity court’s dismissal

13 || with prejudice of Plaintiff's state conversion claim, this Court must apply the law of the

14 || State in which the A/tamirano court sits, California. Semtek Int’, Inc. v. Lockheed Martin

15 || Corp., 531 U.S. 497, 508 (2001) (holding that “federal common law governs the claim-

16 || preclusive effect of a dismissal by a federal court sitting in diversity” and “adopting, as the

17 || federally prescribed rule of decision, the law that would be applied by state courts in the

18 || State in which the federal diversity court sits”); see also Gustafson v. U.S. Bank N.A., 618

19 ||Fed. App’x 921, 922 (9th Cir. 2015).

20 In California, “res judicata, or claim preclusion, prevents relitigation of the same

21 cause of action in a second suit between the same parties or parties in privity with them.”

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23 || OS

24 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

25 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

26 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,

28 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

1 || Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 896 (2002); see also Samara v. Matar,

2 Cal. 5th 322, 327 (2018) (addressing the preclusive effects of claims addressed by trial

3 ||court judgment but not addressed on appeal). Claim preclusion bars a second suit with

4 ||(1) the same cause of action (2) between the same parties or their privies (3) after a final

5 ||judgment on the merits in the first suit. See DKN Holdings LLC v. Faerber, 61 Cal. 4th

6 ||813, 824 (2015); Mycogen Corp., 28 Cal. 4th at 896.

7 1. Causes of Action Are the Same

8 California law requires that courts conduct a primary rights analysis to □□□□□□□□□

9 || whether two causes of action are the same. Boeken v. Philip Morris USA, Inc., 48 Cal. 4tt

10 || 788, 797 (2010); see also Hi-Desert Med. Ctr. v. Douglas, 239 Cal. App. 4th 717, □□□□□□□

11 |/(2015). “[U]nder the primary rights theory, the determinative factor is the harm suffered

12 || When two actions involving the same parties seek compensation for the same harm, they

13 || generally involve the same primary right.” Boeken, 48 Cal. 4th at 798. “[T]he significan

14 || factor guiding the application of the doctrine is whether the ‘cause of action’ is for □□□□□□□□

15 a single primary right; whether the same facts are involved in both suits is no

16 ||conclusive.” Franceschi v. Franchise Tax Bd., 1 Cal. App. 5th 247, 258 (2016). Thi

17 || primary rights doctrine “also precludes litigation of claims that could have been brought it

18 || the prior action but were not.” Jd.; Mycogen Corp., 28 Cal. 4th at 897.

19 Based on the above analysis that Plaintiff's claim in this case and the Altamiranc

20 || case share a common transactional nucleus, seek vindication of the same right, and reques

21 || the same relief, the Court concludes that the same primary right was involved in both suit:

22 || for res judicata purposes.

23 2. Parties or Privies Are the Same

24 California claim preclusion law requires that the parties or their privies are the same

25 || Under California’s claim preclusion analysis, “privity requires the sharing of ‘an identity

26 ||or community of interest,’ with ‘adequate representation’ of that interest in the first suit

27 ||and circumstances such that the nonparty ‘should reasonably have expected to be bound

28

1]

1 || by the first suit.” Cal Sierra Dev., Inc. v. George Reed, Inc., 14 Cal. App. Sth 663, 672—

2 ||73 (2017) (quoting DKN Holdings, LLC, 61 Cal. 4th at 826).

3 As explained in the privity analysis above, the Court finds that the Plaintiff is

4 |\identical in both cases and that Storix and Partner-Defendants share a commonality of

5 ||interest with regard to defending Plaintiff's claims against Storix in the instant matter.

6 3. Judgment on the Merits Is Final

7 Finally, for res judicata to bar the instant action, the ruling on Plaintiff's Altamirano

8 ||conversion claim must constitute a final judgment on the merits. First, under both

9 ||California and federal law, “dismissal with prejudice is considered a judgment on the

10 merits preventing subsequent litigation between the parties on the dismissed claim.” Kim

11 ||v. Reins Int’l California, Inc., 9 Cal. 5th 73, 91 (2020); Goddard v. Security Title Ins. &

12 ||Guar. Co., 14 Cal. 2d 47, 52 (1939); see also Semtek Int’l, Inc., 531 U.S. at □□□□□□□

13 ||Federal district court judgments, unlike California state court judgments, are final for

14 || purposes of res judicata during the pendency of an appeal. Sosa, 437 F.3d at 928 (citing

15 ||Calhoun v. Franchise Tax Bd., 20 Cal. 3d 881, 887 (1978)). Here, the Altamirano court

16 ||dismissed Plaintiff's earlier filed conversion claim with prejudice on June 8, 2021.

17 || Although Altamirano is pending on appeal, the district court’s order is a final judgment on

18 ||the merits for purposes of res judicata.

19 For the above reasons, the Court concludes that, in the alternative, res judicata bars

20 || Plaintiff's claim for money had and received against Storix.

2] Hil. CONCLUSION

22 For the reasons above, the Court GRANTS the motion to dismiss [Dkt. 49] and

23 dismisses with prejudice Plaintiff's Second Amended Complaint. The Court concludes

24 || that the instant case is duplicative of the previous conversion claim. Alternatively, the case

25 precluded by the dismissal with prejudice of Plaintiff's conversion claim in Altamirano.

26 || The Court declines to reach Defendant’s other grounds for dismissal. In the event the

27

28

Aa

1 earlier A/tamirano case is remanded to the district court, that court is the appropriate forum

2 ||to decide any remaining issues.

3 For the reasons stated on the record during oral argument, the Court DENIES

4 || without prejudice the motion to declare Plaintiff a vexatious litigant [Dkt. 28]. In light □□

5 ||the dismissal and for the reasons stated during oral argument, the Court DENIES AS

6 || MOOT the motion for entry of partial judgment [Dkt. 61].

7

8 IT IS SO ORDERED.

9

10 || Dated: S| a | 2

11 . JInsook Ohta

nited States District Judge

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