                                                                        FILED
                           NOT FOR PUBLICATION
                                                                        DEC 30 2015
                    UNITED STATES COURT OF APPEALS                   MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


JODI A. BOURG,                                   No. 13-16682
             Plaintiff - Appellant,
 v.                                              D.C. No. 1:13-cv-00955-LJO-
AETNA INC.; AETNA GLOBAL                         BAM
BENEFITS; AETNA INTERNATIONAL
INC; and DOES 1-100,
                                                 MEMORANDUM*
             Defendants – Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Lawrence J. O’Neill, District Judge Presiding
                    Argued and Submitted November 17, 2015
                             San Francisco, California


Before: FERNANDEZ and M. SMITH, Circuit Judges and MORRIS,** District
Judge.




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

**
       The Honorable Brian M. Morris, District Judge for the U.S. District Court
for the District of Montana, sitting by designation.
      Plaintiff Jodi Bourg (“Bourg”) brought an action on February 22, 2011, for

wrongful termination in violation of public policy and breach of contract against

Defendants Aetna Inc., Aetna Global Benefits, Aetna International and Does 1-100

(collectively “Aetna”). Aetna brought a motion for summary judgment, and, in the

alternative, sought enforcement of the arbitration agreement signed by both parties.

The district court granted Aetna’s summary judgment motion based on Bourg’s

failure to file her complaint within the two-year statute of limitations set forth

under California law. The district court also denied as moot the motion to compel

arbitration. Bourg appeals the district court decision. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

                                           I.

      We review de novo a grant of summary judgment. Devereaux v. Abbey, 263

F.3d 1070, 1074 (9th Cir. 2001). The district court properly determined that

Bourg’s cause of action accrued on February 6, 2011. A cause of action accrues

when “the last element essential to the cause of action” occurs. Howard Jarvis

Taxpayers Ass’n v. City of La Habra, 23 P.3d 601, 604 (Cal. 2001). The California

Supreme Court has determined that a cause of action for wrongful discharge in

violation of public policy accrues at the termination of employment. Romano v.

Rockwell International, Inc., 926 P.2d 1114, 1128 (Cal. 1996). The cause of action




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does not accrue when the employee simply has been notified of inevitable

termination. Id.

      Aetna told Bourg on February 2, 2011, that Aetna would terminate Bourg

from her position as AGB Account Manager. Bourg also received, on the same

day, a written memorandum (“the memo”) from Aetna. The memo explains that

February 6, 2011, would be Bourg’s “last day of service.” The memo stated that

Aetna intended this action to be permanent. The memo explains Bourg’s right to

salary continuation and severance pay. The memo provides that Bourg’s salary

continuation period would end on April 10, 2011. The memo finally lists Bourg’s

“Employment Termination Date” as April 11, 2011, the day after Bourg’s salary

continuation period had expired.


      The memo, coupled with Bourg’s actions, indicates that Bourg understood

that Aenta had terminated her position before April 11, 2011. Bourg filed a

discrimination complaint with the California Department of Fair Employment and

Housing (“DFEH”) on March 15, 2011. Bourg’s DFEH complaint stated that “on

or about or before 2/04/2011" she was laid off, denied employment, and denied

accommodation by Aetna, Inc. because of age, disability and medical condition.

Bourg further stated that she believed Aetna “let [her] go in a veiled attempt to

hide behind a ‘company layoff.’” Bourg’s admission in the DFEH claim and the

fact that Bourg did not return to work after having received the memo demonstrate


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that Bourg had received notice of her termination and understood that she no

longer had a position with Aetna.


                                         II.


      We review for abuse of discretion a trial court’s decision regarding docket

management. See Preminger v. Peake, 552 F.3d 757, 769 n.11 (9th Cir. 2008).

Bourg relies on judicial estoppel to argue that the district court wrongly granted

summary judgment to Aetna. Courts should limit the doctrine’s application to

“egregious circumstances” where the positions seem “totally inconsistent.” Minish

v. Hanuman Fellowship, 154 Cal. Rptr. 3d 87, 96-97 (Cal. App. 6th Dist. 2013).

Aetna requested that the district court consider the motion to compel arbitration

only if the court denied summary judgment. The district court granted summary

judgment. The district court did not abuse its discretion when it addressed

summary judgment before considering Aetna’s alternative motion.


      AFFIRMED.




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