Joseph Weinberg v. Valeant Pharmaceuticals

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2019
• Docket: 17-56359
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSEPH WEINBERG, No. 17-56359

Plaintiff-Appellant, D.C. No. 8:15-cv-01260-KES

v. MEMORANDUM* VALEANT PHARMACEUTICALS NORTH AMERICA, LLC,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Karen E. Scott, Magistrate Judge, Presiding

Argued and Submitted March 8, 2019 Pasadena, California

Before: WARDLAW and BENNETT, Circuit Judges, and CARDONE, ** District Judge.

Joseph Weinberg appeals the district court’s grant of summary judgment to

Valeant Pharmaceuticals on his claim for intentional infliction of emotional

distress (“IIED”). He argues the district court erroneously declined to toll the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. statute of limitations under California’s incapacity-tolling statute, Cal. Code Civ.

Proc. § 352(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

Weinberg concedes that without tolling the two-year statute of limitations

for at least one day, his IIED claim would be time-barred. See Pugliese v. Superior

Court, 146 Cal. App. 4th 1444, 1450 (2007). The latest that Weinberg’s IIED

claim could have accrued is August 5, 2013, the day his employment with Valeant

ended. See Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1008 (9th Cir. 2011).

Weinberg filed his complaint more than two years later, on August 6, 2015.

The district court correctly concluded the statute of limitations cannot be

tolled under California Code of Civil Procedure § 352(a) because Weinberg did not

lack legal capacity to make decisions the last day his IIED claim could have

accrued. Rather, the undisputed evidence establishes Weinberg’s capacity on

August 5, 2013. On that day, Weinberg communicated with Valeant through email

and in person about a severance package. He then decided not to “sign away [his]

rights,” rejected the offered package, and sent a resignation email. Weinberg’s

negotiation and decision-making establish he was not “incapable of caring for his

property or transacting business, or understanding the nature or effects of his acts”

1 The district court also granted summary judgment to Valeant on the basis that its conduct was not sufficiently outrageous to support a claim for IIED. However, because Weinberg’s claim is time-barred, we do not reach the merits of this issue.

2 on August 5, 2013. See Hsu v. Mt. Zion Hosp., 259 Cal. App. 2d 562, 571 (1968).

With the undisputed evidence in the record, no triable issue exists whether

Weinberg became incapacitated for the purposes of section 352(a) the last day his

IIED claim could have accrued. See Celotex Corp. v. Catrett, 477 U.S. 317, 327

(1986). Weinberg possessed legal capacity to make decisions. See Cal. Civ. Proc.

Code § 352(a); Hsu, 259 Cal. App. 2d at 574. The limitations period, therefore,

cannot be tolled, and Weinberg’s claim is time-barred.

AFFIRMED.