Zecos v. Nicholas-Applegate Capital Management

42 F. App'x 31

Opinion

MEMORANDUM

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Evangelia Zecos appeals the district court’s grant of summary judgment in favor of Nicholas-Applegate Capital Management. The district court found that Zecos’s claims, predicated upon an alleged oral contract "with Nicholas-Applegate made in 1992, were time-barred by the applicable statutes of limitations when she brought them in August 1999 and that the contract, in any event, was illegal and unenforceable. We have jurisdiction under 28 U.S.C. § 1291, and we affirm on the basis of the applicable statute of limitations. We therefore need not reach the question of the enforceability of the purported contract.

In this diversity case, the parties agree that California law provides the applicable statutes of limitations. Zecos asserts both breach of contract and fraud-based claims arising from the 1992 oral contract. Assuming such a contract exists, the applicable statutes of limitations — two years for breach of an oral contract, Cal.Code Civ. Pro. § 389, and three years for fraud-based claims, Cal.Code Civ. Pro. § 338(d) — bar all of Zecos’s claims. Kurokawa v. Blum, 199 Cal.App.3d 976, 989, 245 Cal.Rptr. 463 (1988) (barring contract and fraud claims based on §§ 339 and 338(d); action accrued from date of nonperformance); Television Adventure Films Corp. v. KCOP Television, Inc., 249 Cal.App.2d 268, 278-79, 57 Cal.Rptr. 526 (1967) (Sections 339 and 338(d) bar actions based on breach of oral contract and fraud if actions are commenced more than three years after plaintiff learns of the breach.).

Although Zecos contends that the oral contract was made in late 1992, she argues that her cause of action did not accrue until Nicholas-Applegate terminated the contractual relationship in 1998. A cause of action for a breach of an oral contract accrues at the time of the breach, i.e., when the party charged with the duty to perform under the contract fails to perform. Cochran v. Cochran, 56 Cal.App.4th 1115, 1124, 66 Cal.Rptr.2d 337 (1997); Parker v. Walker, 5 Cal.App.4th 1173, 1190, 6 Cal.Rptr.2d 908 (1992) (statute of limitations begins to run when oral contract is repudiated). Here, Nicholas-Applegate disavowed and repeatedly refused to perform the alleged contract, almost from the contract’s inception. Moreover, Zecos admitted that she never received the payments contemplated by the alleged contract. As the district court noted, “years of non-payment put Ms. Zecos on notice of [Nicholas-Applegate]’s breach” of the contract.

Zecos’s fraud-based claims did not accrue until she discovered the facts constituting the alleged fraud. Cal. Civ. Proc. § 338(d); see also Magpali v. Farmers Group, Inc., 48 Cal.App.4th 471, 484, 55 Cal.Rptr.2d 225 (1996) (“the crucial event for accrual purposes is the occasion on which the plaintiff first learns of the [claim], not the date on which he is terminated.”). Although Zecos claims that she only discovered the fraud upon her termination in 1998, the termination itself was not a newly discovered element of the fraud. Zecos was aware of each of the elements of her fraud-based claims as of 1994, when-Nicholas-Applegate disavowed the contract and refused to pay her.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3,