                                                                               FILED
                           NOT FOR PUBLICATION                                 APR 05 2016

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



                            FOR THE NINTH CIRCUIT


MICHEL HENDRIX,                                  No. 13-56867

              Plaintiff - Appellant,             D.C. No. 2:13-cv-02402-MWF-
                                                 PLA
 v.

NOVARTIS PHARMACEUTICALS                         MEMORANDUM*
CORPORATION,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  Michael W. Fitzgerald, District Judge, Presiding

                     Argued and Submitted December 11, 2015
                               Pasadena, California

Before: PREGERSON, TASHIMA, and CALLAHAN, Circuit Judges.

      Michael Hendrix (“Hendrix”) brought suit against Novartis Pharmaceuticals

Corporation (“Novartis”), alleging that Novartis’s prescription drug, Zometa,

caused his osteonecrosis of the jaw. Hendrix appeals the district court’s summary

judgment in favor of Novartis, as well as the district court’s order denying


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Hendrix’s motion for leave to file an amended complaint for punitive damages. We

have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district court’s grant

of summary judgment de novo, Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859

(9th Cir. 2011), we affirm. Accordingly, we dismiss as moot the appeal from denial

of leave to amend.

      1.     The district court did not err in holding that Hendrix’s claim was time

barred under California’s two-year statute of limitations for personal injury. See

Cal. Code Civ. Proc. § 335.1. There are no genuine issues of material fact as to

when Hendrix discovered, or had reason to discover, his injury. See Jolly v. Eli

Lilly & Co., 44 Cal. 3d 1103, 1110–11 (1988) (noting that the limitations period

begins to run when a plaintiff suspects, or through reasonable diligence should

suspect, that the injury was caused by wrongdoing). By late 2003, Hendrix had

been given a working diagnosis and was taken off Zometa, because it was believed

to have caused his osteonecrosis of the jaw. This belief was communicated to both

Hendrix and his wife. Any reasonable jury would conclude that Hendrix knew or

should have suspected that Zometa had caused his injuries more than two years

before his January 17, 2006 filing. We affirm the district court’s grant of summary

judgment.




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      2.        Because we have affirmed the district court’s grant of summary

judgment, whether leave to amend was properly denied is now moot. Thus, there

no longer is any live, substantive claim to which a prayer for punitive damages

could attach.

      The district court’s grant of summary judgment is AFFIRMED. The appeal

from the denial of leave to amend is DISMISSED.




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