United States v. 2020-08-14 | 19-55560 | GAYLE FOWLER V. THE UNIVERSITY OF PHOENIX, INC | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GAYLE M. FOWLER,

Plaintiff-Appellant,

v.

THE UNIVERSITY OF PHOENIX, INC.,
an AZ corporation; et al.,

Defendants-Appellees.

No. 19-55560

D.C. No.
3:18-cv-01544-WQH-MSB

MEMORANDUM
*

Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding

Submitted August 14, 2020
**

San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.

Gayle M. Fowler appeals pro se from the district court’s dismissal of her
claims against the University of Phoenix (“the University”) and others without
leave to amend. The parties are familiar with the facts, so we do not repeat them

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

AUG 14 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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here. We affirm.
Under California law, a cause of action accrues when “the wrongful act is
done and the obligation or liability arises.” Wind Dancer Prod. Grp. v. Walt
Disney Pictures, 10 Cal. App. 5th 56, 73 (Ct. App. 2017) (internal quotation marks
omitted). The gravamen of Gayle’s various causes of action is the University’s
failure to confer her a degree until 2015, even though she had earned it in 2002 or
“prior to 2005.” See Hensler v. City of Glendale, 8 Cal. 4th 1, 22 (1994) (In Bank)
(“To determine the statute of limitations which applies to a cause of action it is
necessary to identify the nature of the cause of action, i.e., the ‘gravamen’ of the
cause of action.”). The statutes of limitations—between two to four years for the
asserted causes of action—began to accrue no later than 2005 and barred all her
claims by 2009. See Cal. Civ. Proc. Code §§ 335.1, 337, 338, 339, 343. Thus,
when Gayle filed her complaint on July 9, 2018, all of her claims were barred.
No exception applies to delay the accrual of or toll the statutes of limitations.
The discovery rule is not applicable because Gayle knew, or reasonable
investigation would have revealed, the factual basis for her claim by, at the latest,
2012, when, according to the Complaint, Gayle suspected that the University tried
to get her to sign up for more classes instead of awarding her a degree. See Fox v.
Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807–08 (2005); Alexander v. Exxon
Mobil, 219 Cal. App. 4th 1236, 1251 (Ct. App. 2013). Gayle’s assertion that she

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did not actually discover until 2016 that she had fulfilled her degree requirements
by 2005 is belied by her frequent assertions of the purported right to her degree
starting in 2003 and the University’s repeated rejections of her requests. Neither
equitable tolling nor equitable estoppel apply. See McDonald v. Antelope Valley
Cmty. Coll. Dist., 45 Cal. 4th 88, 100 (2008); Lantzy v. Centex Homes, 31 Cal. 4th
363, 383 (2003). Thus, the district court correctly dismissed Gayle’s claims as
time-barred.
The district court also did not abuse its discretion in denying leave to amend.
See Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1103 (9th Cir. 2018) (“leave to
amend need not be granted when any amendment would be an exercise in futility,
such as when the claims are barred by the applicable statute of limitations”
(internal quotations and citations omitted)).
AFFIRMED.