Saul Mendoza v. LEHIGH SOUTHWEST CEMENT COMPANY, AKA Lehigh Hanson Heidelberg Cement Group

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAUL MENDOZA,
Plaintiff - Appellant,
v.
LEHIGH SOUTHWEST CEMENT
COMPANY, AKA Lehigh Hanson
Heidelberg Cement Group,
Defendant - Appellee.
No. 12-16254
D.C. No. 5:11-cv-01286-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted September 24, 2013**
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Saul Mendoza appeals pro se from the district court’s judgment in his
employment action alleging, among other things, harassment based on his
disability, race and national origin. We have jurisdiction under 28 U.S.C. § 1291.
FILED
OCT 04 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

12-16254 2
We review de novo the district court’s dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), Wood v. City of San Diego, 678 F.3d
1075, 1080 (9th Cir. 2012), and for an abuse of discretion its decision whether to
apply equitable estoppel or tolling, Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir.
2003). We affirm.
The district court properly dismissed Mendoza’s federal claims because
Mendoza failed to file a timely complaint with the Equal Employment Opportunity
Commission (“EEOC”), and he failed to demonstrate a basis for equitable estoppel
or tolling. See 42 U.S.C. § 2000e-5(e) (setting forth the time for filing a complaint
with EEOC under Title VII); Leong, 347 F.3d at 1123 (discussing the requirements
for equitable estoppel and tolling); see also 42 U.S.C. § 12117(a) (adopting 42
U.S.C. § 2000e-5 procedures for claims under the Americans with Disabilities
Act). Moreover, the district court did not abuse its discretion by denying
Mendoza’s request for leave to amend these claims. See Abagninin v. AMVAC
Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008) (setting forth standard of review
and explaining that leave to amend may be denied if amendment would be futile or
if previous amendment failed to cure deficiencies).
The district court did not abuse its discretion by dismissing Mendoza’s new
claims for “Punishment, Mislead, Accomplishment, and Negligence” because

-- 2 of 3 --

12-16254 3
Mendoza failed to seek leave to add these claims. See Fed. R. Civ. P. 15(a)(2)
(other than amending “as a matter of course,” a plaintiff may amend his complaint
“only with the opposing party’s written consent or the court’s leave”). Moreover,
Mendoza failed to state cognizable claims. See Johnson v. Riverside Healthcare
Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008) (explaining that “a Rule 12(b)(6)
dismissal may be based on either a ‘lack of a cognizable legal theory’ or ‘the
absence of sufficient facts alleged under a cognizable legal theory’” (citation
omitted)); Ladd v. County of San Mateo, 911 P.2d 496, 498 (Cal. 1996) (elements
of a negligence claim under California law).
Mendoza’s contention that the district court did not consider his work-
related injuries or pro se status is unpersuasive.
AFFIRMED.

-- 3 of 3 --