Gayle Fowler v. the University of Phoenix, Inc

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 14, 2020
• Docket: 19-55560
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GAYLE M. FOWLER, No. 19-55560

Plaintiff-Appellant, D.C. No. 3:18-cv-01544-WQH-MSB v.

THE UNIVERSITY OF PHOENIX, INC., MEMORANDUM* an AZ corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Submitted August 14, 2020** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

Gayle M. Fowler appeals pro se from the district court’s dismissal of her

claims against the University of Phoenix (“the University”) and others without

leave to amend. The parties are familiar with the facts, so we do not repeat them

* 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). here. We affirm.

Under California law, a cause of action accrues when “the wrongful act is

done and the obligation or liability arises.” Wind Dancer Prod. Grp. v. Walt

Disney Pictures, 10 Cal. App. 5th 56, 73 (Ct. App. 2017) (internal quotation marks

omitted). The gravamen of Gayle’s various causes of action is the University’s

failure to confer her a degree until 2015, even though she had earned it in 2002 or

“prior to 2005.” See Hensler v. City of Glendale, 8 Cal. 4th 1, 22 (1994) (In Bank)

(“To determine the statute of limitations which applies to a cause of action it is

necessary to identify the nature of the cause of action, i.e., the ‘gravamen’ of the

cause of action.”). The statutes of limitations—between two to four years for the

asserted causes of action—began to accrue no later than 2005 and barred all her

claims by 2009. See Cal. Civ. Proc. Code §§ 335.1, 337, 338, 339, 343. Thus,

when Gayle filed her complaint on July 9, 2018, all of her claims were barred.

No exception applies to delay the accrual of or toll the statutes of limitations.

The discovery rule is not applicable because Gayle knew, or reasonable

investigation would have revealed, the factual basis for her claim by, at the latest,

2012, when, according to the Complaint, Gayle suspected that the University tried

to get her to sign up for more classes instead of awarding her a degree. See Fox v.

Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807–08 (2005); Alexander v. Exxon

Mobil, 219 Cal. App. 4th 1236, 1251 (Ct. App. 2013). Gayle’s assertion that she

2 did not actually discover until 2016 that she had fulfilled her degree requirements

by 2005 is belied by her frequent assertions of the purported right to her degree

starting in 2003 and the University’s repeated rejections of her requests. Neither

equitable tolling nor equitable estoppel apply. See McDonald v. Antelope Valley

Cmty. Coll. Dist., 45 Cal. 4th 88, 100 (2008); Lantzy v. Centex Homes, 31 Cal. 4th

363, 383 (2003). Thus, the district court correctly dismissed Gayle’s claims as

time-barred.

The district court also did not abuse its discretion in denying leave to amend.

See Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1103 (9th Cir. 2018) (“leave to

amend need not be granted when any amendment would be an exercise in futility,

such as when the claims are barred by the applicable statute of limitations”

(internal quotations and citations omitted)).

AFFIRMED.