Marasovic v. Contra Costa County Adult Protective Services

Ninth Circuit

Marasovic v. Contra Costa County Adult Protective Services

269 F. App'x 758

Court of Appeals for the Ninth Circuit·Decided March 12, 2008·No. No. 06-15579·Published

Opinion

MEMORANDUM **

Carole Marasovic appeals pro se from the district court’s judgment dismissing her 42 U.S.C. § 1983 action as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 1291. The district court’s decision whether to apply equitable tolling is reviewed for abuse of discretion. See Jones v. Blanas, 393 F.3d 918, 926 (9th Cir.2004). We affirm.

The district court correctly determined that Marasovic was not entitled to equitable tolling of the statute of limitations, because she did not diligently pursue her initial action against the defendants. See Wood v. Filing Corp., 20 Cal.3d 353, 142 Cal.Rptr. 696, 572 P.2d 755, 758 (1977) (“[A] party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed.... ”); Hull v. Central Pathology Serv. Med. Clinic, 28 Cal.App.4th 1328, 34 Cal.Rptr.2d 175, 180 (1994) (holding that statute of limitations was not equitably tolled because plaintiff did not diligently pursue claims).

Marasovic’s equitable estoppel claim fails because she did not claim that opposing counsel intentionally misled her. See City of Goleta v. Superior Court, 40 Cal.4th 270, 52 Cal.Rptr.3d 114, 147 P.3d 1037, 1042 (2006) (“[The doctrine of equitable estoppel] provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment.”) (quotation marks and citation omitted).

We do not consider Marasovic’s argument concerning her former counsel’s role in failing to prosecute her initial federal action, because Marasovic did not raise that argument in the district court. See Scott v. Ross, 140 F.3d 1275, 1283 (9th Cir.1998) (“Generally, we do not consider issues raised for the first time on appeal.”)

Marasovic’s motion to file a late reply brief is granted. The Clerk shall file the reply brief received on March 26, 2007. We have considered the arguments raised on reply and find them unpersuasive. Appellant’s motions to supplement the record and for judicial notice are denied.

AFFIRMED.

Footnotes

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MEMORANDUM **

Carole Marasovic appeals pro se from the district court’s judgment dismissing her 42 U.S.C. § 1983 action as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 1291. The district court’s decision whether to apply equitable tolling is reviewed for abuse of discretion. See Jones v. Blanas, 393 F.3d 918, 926 (9th Cir.2004). We affirm.

The district court correctly determined that Marasovic was not entitled to equitable tolling of the statute of limitations, because she did not diligently pursue her initial action against the defendants. See Wood v. Filing Corp., 20 Cal.3d 353, 142 Cal.Rptr. 696, 572 P.2d 755, 758 (1977) (“[A] party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed.... ”); Hull v. Central Pathology Serv. Med. Clinic, 28 Cal.App.4th 1328, 34 Cal.Rptr.2d 175, 180 (1994) (holding that statute of limitations was not equitably tolled because plaintiff did not diligently pursue claims).

Marasovic’s equitable estoppel claim fails because she did not claim that opposing counsel intentionally misled her. See City of Goleta v. Superior Court, 40 Cal.4th 270, 52 Cal.Rptr.3d 114, 147 P.3d 1037, 1042 (2006) (“[The doctrine of equitable estoppel] provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment.”) (quotation marks and citation omitted).

We do not consider Marasovic’s argument concerning her former counsel’s role in failing to prosecute her initial federal action, because Marasovic did not raise that argument in the district court. See Scott v. Ross, 140 F.3d 1275, 1283 (9th Cir.1998) (“Generally, we do not consider issues raised for the first time on appeal.”)

Marasovic’s motion to file a late reply brief is granted. The Clerk shall file the reply brief received on March 26, 2007. We have considered the arguments raised on reply and find them unpersuasive. Appellant’s motions to supplement the record and for judicial notice are denied.

AFFIRMED.

Footnotes

Marasovic v. Contra Costa County Adult Protective Services, 269 F. App'x 758 (9th Cir. 2008).

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