Bonnie O'Connor v. Jeffrey Franke

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 18, 2018
• Docket: 17-55933
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BONNIE O’CONNOR, an individual, No. 17-55933

Plaintiff-Appellant, D.C. No. 2:16-cv-03542-PA-JC

v. MEMORANDUM* JEFFREY ALLAN FRANKE, in his individual capacity,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted May 15, 2018**

Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.

Bonnie O’Connor appeals pro se from the district court’s judgment

dismissing her diversity action alleging various state law tort claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627

F.3d 338, 341 (9th Cir. 2010) (dismissals under Fed. R. Civ. P. 12(b)(6)); Lukovsky

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). v. City & County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008)

(dismissals based on the statute of limitations). We affirm.

The district court properly dismissed O’Connor’s domestic violence claim as

time-barred because O’Connor filed this action after the applicable statute of

limitations had run, and she did not establish that the continuing tort doctrine

applied. See Cal. Civ. Proc. Code § 340.15 (three-year statute of limitations for

domestic violence claims); Pugliese v. Superior Court, 53 Cal. Rptr. 3d 681, 685-

87 (Ct. App. 2007) (applying the continuing tort doctrine to domestic abuse claims

and explaining that a plaintiff may recover damages for prior acts of domestic

violence by showing a “continuing course of abusive conduct and fil[ing] suit

within three years of the ‘last act of domestic violence’”).

The district court properly dismissed O’Connor’s claims for gender

violence, assault, battery, sexual battery, intentional and negligent infliction of

emotional distress, and false imprisonment as time-barred because O’Connor filed

this action after any applicable statute of limitations had run, and she did not

establish that any tolling provisions or equitable tolling applied. See Cal. Civ.

Proc. Code §§ 52.4(b) (three-year statute of limitations for gender violence

claims), 335.1 (two-year statute of limitations for personal injury claims), 340(c)

2 17-55933 (one-year statute of limitations for false imprisonment claims), 351 (statutory

tolling for absence from state), 352 (statutory tolling for disabilities); Fink

v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999) (setting forth requirements for

equitable tolling under California law).

The district court properly dismissed O’Connor’s claims for stalking and

abuse of process because O’Connor failed to allege facts sufficient to state any

plausible claim. See Cal. Civ. Code § 1708.7 (setting forth elements of a stalking

claim); Rusheen v. Cohen, 128 P.3d 713, 718 (Cal. 2006) (setting forth elements of

an abuse of process claim); see also Hebbe, 627 F.3d at 342 (explaining that

although pro se pleadings are liberally construed, a plaintiff must allege facts

sufficient to state a plausible claim).

The district court did not abuse its discretion by dismissing O’Connor’s

action without further leave to amend. See Cervantes v. Countrywide Home Loans,

Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and

explaining that dismissal without leave to amend is proper when amendment would

be futile).

We sua sponte order the Clerk to file the untimely and oversized reply brief

at Docket Entry No. 18, and have considered the arguments set forth therein.

3 17-55933 We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

We reject as unsupported by the record O’Connor’s contentions that the

district court failed to construe her pleadings liberally.

AFFIRMED.

4 17-55933