Smith v. Wolf

• Court: District Court, S.D. California
• Decided: August 8, 2022
• Docket: 3:20-cv-01409
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 G. SMITH, Case No.: 3:20-cv-01409-JAH-JLB

13 Plaintiff, ORDER DENYING MOTION FOR 14 v. RECONSIDERATION

15 DANIEL WOLF and PAUL

BEDINGTON, 16 Defendants. [ECF No. 17] 17 18 Pending before the Court is Plaintiff G. Smith’s (“Plaintiff”) Motion for Relief from 19 Judgment or Order. (ECF No. 17). Pursuant to Federal Rules of Civil Procedure 60(b)(1), 20 Plaintiff moves for reconsideration of the Court’s Order sua sponte dismissing with 21 prejudice Plaintiff’s Assault, Trespass, Trespass to Chattels, Conversion, Abuse of Process, 22 Unjust Enrichment, Negligent Interference with Prospective Economic Relations, and 23 Intentional Infliction of Emotional Distress claims as time-barred. (ECF No. 12). Plaintiff 24 claims she intended to bring the instant motion in January of 2022, and her failure to seek 25 leave to amend her complaint and serve Defendants is the result of inadvertence and 26 excusable neglect. Rule 60(b) (1) of the Federal Rules of Civil Procedure provides: 27 28 1 On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following 2 reasons: (1) mistake, inadvertence, surprise, or excusable neglect. . . . 3 Plaintiff’s motion is brought eight-months after the Court’s Order dismissing eight out of 4 nine claims in her Amended Complaint, and over one-month after the Court issued an 5 Order to Show Cause for Plaintiff’s failure to prosecute this action. (ECF Nos. 12, 14). 6 Pursuant to Rule 60(c)(1), a motion “must be made within a reasonable time . . . [but] no 7 more than a year after the entry of the . . . order . . . .” Fed. R. Civ. P. 60(c)(1). Plaintiff 8 accounts for the delay stating that it is the result of “COVID-19 related illness and 9 incapacity”. Mot. at 2. Plaintiff does not provide any further context or clarification and 10 does not submit an affidavit in support of this statement. In re Int’l Fibercom, Inc., 503 11 F.3d 933, 945 (9th Cir. 2007) (“What qualifies as a reasonable time depends on the facts 12 of each case.”) (citation and quotation marks omitted). Plaintiff does not adequately show 13 “that circumstances beyond [her] control prevented timely action”. Id. 14 However, even assuming Plaintiff is entitled to relief under Rule 60(b)(1), her 15 request for leave to amend would be denied as futile. Rutman Wine Co. v. E. & J. Gallo 16 Winery, 829 F.2d 729, 738 (9th Cir. 1987) (“Denial of leave to amend is not an abuse of 17 discretion where the pleadings before the court demonstrate that further amendment would 18 be futile.”). Plaintiff seeks leave to amend her complaint to re-allege claims for Unjust 19 Enrichment, Negligent Interference with Prospective Economic Relations, Intentional 20 Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress, citing to 21 the doctrine of delayed discovery and continuing injury. Mot. at 6-8. Plaintiff primarily 22 relies on case law from the California Supreme Court and Idaho Supreme Court to support 23 her proposition that the doctrine of delayed discovery “provides that a court will most likely 24 err by dismissing the vast majority of claims for relief in a complaint . . . as th[is] Court 25 did”. Mot. at 8; but see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) 26 (section 1915(e) “not only permits but requires, a district court to dismiss an in forma 27 pauperis complaint that fails to state a claim.”). However, the doctrine of delayed 28 1 discovery does not provide the remedy Plaintiff asserts. The delayed discovery doctrine 2 “makes accrual of a cause of action contingent on when a party discovered or should have 3 discovered that his or her injury had a wrongful cause.” Lederer v. Gursey Schneider LLP, 4 22 Cal.App.5th 508, 527 (2018) (citation and quotations omitted). That Plaintiff seeks to 5 add new facts to claims previously pled while invoking the delayed discovery doctrine does 6 not remedy the statute of limitations defect. Plaintiff commenced this action against 7 Defendants asserting the claims she now seeks to re-allege, evincing a “reason to at least 8 suspect that a type of wrongdoing has injured her.” Fox v. Ethicon Endo-Surgery, Inc., 25 9 Cal.4th 797, 807 (2005). 10 To the extent that Plaintiff relies on the continuing damages, or continuing violations 11 doctrine, that argument is also unavailing. “The continuing violation doctrine aggregates 12 a series of wrongs or injuries for purposes of the statute of limitations, treating the 13 limitations period as accruing for all of them upon commission or sufferance of the last of 14 them.” Willis v. City of Carlsbad, 48 Cal.App.5th 1104, 1124 (2020) (citation omitted). 15 For the continuing violation doctrine to apply, a plaintiff must show the defendant engaged 16 in “a pattern of reasonably frequent and similar acts [that] may, in a given case, justify 17 treating the acts as an indivisible course of conduct actionable in its entirety, 18 notwithstanding that the conduct occurred partially outside and partially inside the 19 limitations period.” Id. Plaintiff asserts that she suffered “ongoing injury, chaos and 20 trauma that would not have happened but for Defendants’ malice . . . [and] the fact is due 21 to the ongoing consequences of Defendants’ actions, Plaintiff was unable to exercise such 22 due diligence.” Mot. at 7. However, Plaintiff’s proposed complaint fails to show that 23 Defendants engaged in a pattern of reasonably frequent and similar acts. See Aryeh v. 24 Canon Business Solutions, Inc., 55 Cal.4th 1185, 1198 (2013) (finding the continuing 25 violation doctrine inapplicable where the allegations against Defendants are “a series of 26 discrete, independently actionable wrongs”). “Nor is this a case in which a wrongful course 27 of conduct became apparent only through the accumulation of a series of harms[.]” Id. As 28 1 |}such, Plaintiff fails to demonstrate that the continuing damages doctrine is applicable. 2 || Accordingly, for the reasons above, the Court denies Plaintiff's motion for reconsideration. 3 IT IS SO ORDERED. 4 ||DATED: August 8, 2022 | ) | | |

6 J A. HOUSTON UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28