                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        APR 11 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOSEPH WEINBERG,                                No.    17-56359

                Plaintiff-Appellant,            D.C. No. 8:15-cv-01260-KES

 v.
                                                MEMORANDUM*
VALEANT PHARMACEUTICALS
NORTH AMERICA, LLC,

                Defendant-Appellee.

                   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.
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
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.




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