Joseph Weinberg v. Valeant Pharmaceuticals North America, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH WEINBERG,
Plaintiff-Appellant,
v.
VALEANT PHARMACEUTICALS
NORTH AMERICA, LLC,
Defendant-Appellee.
No. 17-56359
D.C. No. 8:15-cv-01260-KES
MEMORANDUM*
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.
FILED
APR 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
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 of 3 --

3
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.

-- 3 of 3 --