                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 26 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ESTATE OF THELMA STERN and                      No.   16-55926
THELMA STERN,
                                                D.C. No.
                Plaintiffs-Appellants,          2:14-cv-05155-DSF-AS

 v.
                                                MEMORANDUM*
TUSCAN RETREAT, INC.; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                          Submitted November 6, 2017**
                              Pasadena, California

Before: TASHIMA and BERZON, Circuit Judges, and PAYNE,*** District Judge.

      1. This action involves claims under California and federal law brought by

Thelma Stern (posthumously) and her estate for alleged mistreatment Ms. Stern


      *
             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).
      ***
             The Honorable Robert E. Payne, United States District Judge for the
Eastern District of Virginia, sitting by designation.
experienced while she was a resident at an assisted living facility. The district

court disposed of these claims by granting defendants’ motions under Federal

Rules of Civil Procedure 12(b)(6) and 56. We affirm.

      First, pursuant to Rule 12(b)(6), the district court dismissed with prejudice

plaintiffs’ state Elder Abuse Act claims contained in the Second Amended

Complaint as to all defendants for failure to plead the requisite elements. Second,

also pursuant to Rule 12(b)(6), the district court likewise dismissed with prejudice

plaintiffs’ state Unruh Act claims contained in the Third Amended Complaint as to

all defendants. Third, the district court rejected plaintiffs’ motions under Rule 60

to reinstate the state Elder Abuse Act and Unruh Act claims. Finally, the district

court granted defendants Stephen Weisbarth and Tuscan Retreat, Inc.’s motion for

summary judgment as to plaintiffs’ federal Rehabilitation Act, state constructive

eviction, and state trespass claims on timeliness grounds. The district court also

refused to allow plaintiffs to add a federal Fair Housing Act (FHA) claim by way

of their brief in opposition to summary judgment.1



      Plaintiffs appeal these decisions.       On appeal, plaintiffs additionally


      1
             The Rule 12(b)(6) and Rule 60 opinions also involved claims against
other defendants, but those are not at issue. Most of these defendants have been
voluntarily dismissed. Plaintiffs do not argue on appeal that the rulings in favor of
other defendants were improper, so we need not address them. See Greenwood v.
FAA, 28 F.3d 971, 977 (9th Cir. 1994).

                                         2                                    16-55926
requested, by post-briefing letters pursuant to Federal Rule of Appellate Procedure

28(j), that we treat their Unruh Act claims as claims for nominal damages under

Title III of the federal Americans with Disabilities Act (ADA).2

      2. We first consider the district court’s grant of summary judgment as to

plaintiffs’ Rehabilitation Act, constructive eviction, and trespass claims on the

ground that the statutes of limitations had run. On de novo review, we conclude

that the applicable limitations periods expired before this action was filed and that

there is no genuine dispute of material fact as to tolling. See Merrick v. Hilton

Worldwide, Inc., 867 F.3d 1139, 1145 (9th Cir. 2017).

      We need not conclusively determine the statute of limitations period

applicable to the Rehabilitation Act, but the longest option is California’s three-

year provision for “[a]n action upon a liability created by statute.” See Cal. Civ.

Proc. Code §§ 335.1, 338(a); Sharkey v. O’Neal, 778 F.3d 767, 770–73 (9th Cir.

2015). So we use it. The limitations period applicable to wrongful eviction claims

is somewhat unclear because there is little case law on point and such claims may

sound in tort or contract. See Ginsberg v. Gamson, 141 Cal. Rptr. 3d 62, 80–85

(Ct. App. 2012). As the parties agree, however, at most, the four-year period for

“[a]n action upon any contract” controls. See Cal. Civ. Proc. Code § 337(1).

Trespass claims must be filed within three years. Cal. Civ. Proc. Code § 338(b).


      2
             Plaintiffs’ other Rule 28(j) letters do not affect the analysis herein.

                                           3                                     16-55926
      Here, it is undisputed that Ms. Stern moved out of her assisted living facility

on April 30, 2010. The parties do not contend that any claims accrued after that

date. This action was filed on July 2, 2014. Accordingly, plaintiffs’ Rehabilitation

Act, constructive eviction, and trespass claims are, on the face of the pleadings,

time-barred.

      To avoid dismissal on that ground, plaintiffs assert that the statutes of

limitations were tolled. First, they rely on California Code of Civil Procedure

Section 352(a), which tolls a claim if a plaintiff “lack[ed] the legal capacity to

make decisions” when the claim accrued. See Cal. Civ. Proc. Code § 352(a).

Second, plaintiffs aver that Ms. Stern’s filing of a state suit on March 14, 2013 on

similar grounds tolled their claims.

      To invoke tolling under Section 352(a), plaintiffs must show that Ms. Stern

was “incapable of caring for [her] property or transacting business or

understanding the nature or effects of [her] acts.” See Alcott Rehab. Hosp. v.

Superior Court, 112 Cal. Rptr. 2d 807, 812 (Ct. App. 2001) (citations omitted).

“[T]he basic question . . . is whether [Ms. Stern was] sufficiently aware of the

nature or effects of h[er] acts to be able to comprehend such business transactions

as the hiring of an attorney and the instigation of a legal action.” See Hsu v. Mt.

Zion Hosp., 66 Cal. Rptr. 659, 666 (Ct. App. 1968). Plaintiffs erroneously assert

that the key inquiry “is whether the person can take care of her property, or


                                         4                                    16-55926
business, by herself.” But, plaintiffs offer as support only Alcott and Tzolov v.

International Jet Leasing, Inc., which did not so hold. See Alcott, 112 Cal. Rptr.

2d at 812; Tzolov v. Int’l Jet Leasing, Inc., 283 Cal. Rptr. 314, 315–18 (Ct. App.

1991). No other authority validates that position either.3

      Under Section 352(a), even “a person who is adjudged mentally ill [for

commitment purposes] may nevertheless be capable of transacting business and

carrying out h[er] affairs, either during occasional lucid intervals or throughout

h[er] hospitalization.” See Hsu, 66 Cal. Rptr. at 665. Moreover, incapacity must

exist at the time the claims accrue, and tolling lasts only until the plaintiff regains

capacity. Cal. Civ. Proc. Code § 352(a); Feeley v. S. Pac. Transp. Co., 285 Cal.

Rptr. 666, 667 (Ct. App. 1991); Larsson v. Cedars of Lebanon Hosp., 218 P.2d

604, 606 (Cal. Dist. Ct. App. 1950).

      Plaintiffs rely on three sources of evidence to support the application of

tolling here: (1) Ms. Stern’s 2007 medical records; (2) Ms. Stern’s deposition in

the state court case she filed in 2013; and (3) a portion of the declaration of

Kenneth Stern, Ms. Stern’s attorney and son. As the district court correctly held,



      3
            Plaintiffs also claim that there is a legal difference between the current
Section 352(a), which employs the phrase “legal capacity,” and the version in
effect when the claims here accrued, which used the term “insane.” See Cal. Civ.
Proc. Code § 352, amended by 2014 Cal. Stat. c. 144, § 4. There is none. This
amendment simply replaced “offensive and outdated terms.” Concurrence in
Senate Amendments: A.B. 1847, 2013–2014 Assemb., Reg. Sess. (Cal. 2014).

                                          5                                    16-55926
none raises a triable issue.4

        Before evaluating these sources of evidence, however, the Court notes, as

did the district court, that, in 2013, Ms. Stern filed, in her own name, a state court

action that involved some of the state claims asserted in this case. This filing

constitutes evidence that Ms. Stern possessed capacity at that time, as it shows her

ability “to comprehend . . . the hiring of an attorney and the instigation of a legal

action.” See Hsu, 66 Cal. Rptr. at 666. That conclusion is underscored by the fact

that California law requires “a person who lacks legal capacity to make decisions”

to appear in court by guardian, conservator, or guardian ad litem. See Cal. Civ.

Proc. Code § 372(a)(1).5 Only a person who has capacity may proceed in her own

name.

        Ms. Stern’s 2007 medical records do not defeat summary judgment. They

show that Ms. Stern had an Alzheimer’s diagnosis, but this diagnosis alone does


        4
              The district court rejected the declaration because Mr. Stern is not a
medical expert. The parties dispute whether this basis for rejecting the declaration
is valid. They also contest the admissibility of the medical records. Affording
plaintiffs the benefit of the doubt, we consider these documents. Plaintiffs have
waived review of the other evidentiary decisions below, however, because they
challenge them in their opening brief with only a single conclusory sentence. See
Greenwood, 28 F.3d at 977.
        5
             Before 2015, Section 372(a)(1) used the term “incompetent person,”
but the same “non-substantive” statute that amended Section 352(a) altered this
term to “a person who lacks legal capacity to make decisions.” See Cal. Civ. Proc.
Code § 372, amended by 2014 Cal. Stat. c. 144, § 5; Concurrence in Senate
Amendments: A.B. 1847.

                                          6                                   16-55926
not raise a triable issue. Even a person “adjudged mentally ill” for commitment by

a court “may nevertheless be capable of transacting business and carrying out h[er]

affairs.” Hsu, 66 Cal. Rptr. at 665. And, the records do not otherwise do so.

Rather, they list Ms. Stern’s Alzheimer’s as “stable,” her neurological status as

“alert,” and her psychiatric status as “display[ing] a normal affect”; and they show

that she could follow instructions and communicate needs. At most, the records

indicate that Ms. Stern needed assistance with certain matters and was

“occasionally” disoriented.    But again, the standard is whether a person is

“incapable of caring for [her] property,” etc., not whether she can operate entirely

by herself.   See Alcott, 112 Cal. Rptr. 2d at 812 (emphasis added) (citations

omitted). Thus, the 2007 records fail to establish that Ms. Stern ever lacked

capacity, let alone that she did so several years later when her claims accrued.

      Ms. Stern’s deposition in her 2013 state suit likewise does not help

plaintiffs’ case. Ms. Stern testified that she was aware that she was bringing a

lawsuit; that she attends to her finances with her son’s help; that, since 2000, she

has had “control” over her finances and “take[s] care of them when [she has] to”;

and that, around 2010, she was capable of deciding whether to change rooms

herself. Mr. Stern also represented on the record, as an officer of the court and Ms.




                                          7                                   16-55926
Stern’s attorney, that Ms. Stern’s “cognitive function is very high.”6

      The portion of Mr. Stern’s declaration on which plaintiffs rely in support of

their tolling argument similarly raises no issues of fact triable to a jury. The

declaration states that Ms. Stern had dementia since at least 2006. But, again, the

mere fact that a person is determined to have a mental illness or limitation,

standing alone, does not establish incapacity. See Hsu, 66 Cal. Rptr. at 664–65.

      Mr. Stern also avers in his declaration that: (1) “because of the problems

with [Ms. Stern’s] short term memory, she, from at least 2006 to her death, was

unable to, by herself, take care of much of her affairs, including her business

affairs”; and (2) Ms. Stern “would not remember days of the week, when to pay

bills, what she would have done with bills had they been given to her, what she

needed to remember in terms of problems with [her living facility] to communicate

and try an [sic] resolve such, and a myriad of other matters that would have

required her attention. As such, I had to do those for her.” These statements

cannot defeat summary judgment, however, for two reasons.

      First, much in these statements is “blatantly contradicted by the record.” See

      6
             Plaintiffs indicate that Ms. Stern exhibited confusion during her
deposition. A reading of the deposition reveals that Ms. Stern’s confusion was
attributable to her hearing impairment and the rather extensive interjection of
comments and objections by her lawyer (who is her son) that made it difficult to
follow the questioning. Even if the deposition were sufficient to raise a triable
issue of incapacity, the deposition was held years after the claims accrued. Post-
hoc incapacity cannot trigger tolling. See Cal. Civ. Proc. Code § 352(a); Larsson,
218 P.2d at 606.

                                          8                                  16-55926
Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that a court need not adopt a

non-moving party’s version of the facts if “blatantly contradicted by the record”).

As noted above, the record shows that Ms. Stern had sufficient capacity to file a

lawsuit in her own name in 2013. Furthermore, Mr. Stern was Ms. Stern’s counsel

in the state court action, and, despite the assertion in his declaration that Ms. Stern

lacked capacity “from at least 2006 to her death,” there is nothing in the record

showing that Mr. Stern arranged to have a guardian appointed for Ms. Stern, as

would have been required if she truly were incompetent. See Cal. Civ. Proc. Code

§ 372(a)(1); see also Cal. Civ. Proc. Code § 373(c) (“If the person lacking legal

competence to make decisions is a party . . . [a guardian ad litem shall be

appointed] upon the application of a relative or friend of the person . . . or of any

other party . . . or by the court on its own motion.”).7 Cf. In re Sara D., 104 Cal.

Rptr. 2d 909, 918 (Ct. App. 2001) (“If, in [counsel’s] opinion, [the party] did not

understand the process or she was unable to assist him in protecting her interests

[such that counsel believed that a guardian ad litem should be appointed], [counsel]

had an obligation to bring the question of competency to the court’s attention.”); In

re Lisa M., 225 Cal. Rptr. 7, 9 (Ct. App. 1986). And, Mr. Stern represented on the


      7
            This provision was also amended by the statute that amended Sections
352(a) and 372(a)(1) to change the phrase “an insane or incompetent person” to
“the person lacking legal competence to make decisions.” See Cal. Civ. Proc.
Code § 373, amended by 2014 Cal. Stat. c. 144, § 6; Concurrence in Senate
Amendments: A.B. 1847.

                                          9                                    16-55926
record in that case, during Ms. Stern’s deposition (taken December 11, 2013), that

Ms. Stern’s “cognitive function is very high,” which, as an officer of the state court

and Ms. Stern’s counsel, he could not have done if he actually thought that she

lacked capacity at that time. Moreover, Ms. Stern testified, during that deposition,

that, since 2000, she had been able to attend to her finances and that, around 2010,

she could make decisions concerning her living arrangements. Finally, defendants

point to a separate portion of Mr. Stern’s declaration showing that Ms. Stern

participated in a “joint decision” to move out of her facility in April 2010.

      Second, these statements are “too vague, conclusory and speculative to

create a triable issue.” See Angle v. Miller, 673 F.3d 1122, 1134 (9th Cir. 2012);

see also id. at 1134 n.6. The first is no more than a conclusory legal assertion (and

an erroneous one at that). Furthermore, both are bereft of essential details as to her

memory challenges, such as those concerning their frequency and severity. That

absence is critical given that: (1) plaintiffs point to no other evidence that Ms.

Stern lacked capacity at the time her claims accrued; (2) Mr. Stern also represented

in his declaration that Ms. Stern “was relatively high functioning” and that her

“ability to think and reason” “remained good”; and (3) the record otherwise shows

that Ms. Stern often attended to her affairs during the period in question.

      Plaintiffs’ second argument, that the state suit tolled the claims, is without

merit. As we have observed, “California courts have concluded that absent express


                                          10                                    16-55926
statutory language, a plaintiff’s voluntary dismissal will not entitle him to toll the

statute of limitations.” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,

1127 (9th Cir. 2008).     Ms. Stern’s state suit was voluntarily dismissed, and

therefore the limitations periods continued to run.

      On this record, we conclude that the district court correctly granted summary

judgment on the Rehabilitation Act, constructive eviction, and trespass claims.

      3. We now turn to the dismissals under Rule 12(b)(6) of the state Elder

Abuse Act claims in the Second Amended Complaint and of the state Unruh Act

claims in the Third Amended Complaint. These dismissals were granted because

the district court held that plaintiffs had failed plausibly to plead “recklessness,

oppression, fraud, or malice” as required by the Elder Abuse Act and had not

plausibly alleged an “independent ADA claim” or “intentional discrimination” as

required by the Unruh Act.

      The district court was likely correct on each score. But, we note that the

voluminous complaints (130 and 57 pages, respectively) could be construed to

supply the missing elements (although, like the district court, we could not find

them). Nonetheless, in light of the analysis on summary judgment, we need not

reach whether these dismissals were proper under Rule 12(b)(6). It is a “well

established rule that we may affirm the district court’s judgment on any basis

supported by the record.” Zadrozny v. Bank of N.Y. Mellon, 720 F.3d 1163, 1172


                                         11                                   16-55926
n.3 (9th Cir. 2013) (citations omitted). Further, we may grant summary judgment

nostra sponte in an appropriate case. See Nozzi v. Housing Auth. of L.A., 806 F.3d

1178, 1199 (9th Cir. 2015). Here, we hold that summary judgment as to the Elder

Abuse Act and Unruh Act claims should be granted on timeliness grounds and for

the same reasons that summary judgment was affirmed as to plaintiffs’

Rehabilitation Act, constructive eviction, and trespass claims.

      As an initial matter, a nostra sponte grant of summary judgment by this

Court is proper in this case. For such action to be authorized, plaintiffs must be on

“‘reasonable notice that the sufficiency of [their] claim will be in issue’ and

[therefore have] ‘adequate time to develop the facts on which [they would] depend

to oppose summary judgment.’” See id. (citations omitted); see also Albino v.

Baca, 747 F.3d 1162, 1176–77 (9th Cir. 2014).            The only material factual

questions respecting whether plaintiffs’ Elder Abuse Act and Unruh Act claims are

timely involve the accrual date and the applicability of tolling. Precisely the same

factual issues were resolved in the district court’s order granting the motion for

summary judgment as to plaintiffs’ Rehabilitation Act, constructive eviction, and

trespass claims. Also, defendants argued the timeliness of plaintiffs’ Elder Abuse

Act and Unruh Act claims on appeal by asserting that tolling is inapplicable to

these claims for the same reasons it is inapplicable to the Rehabilitation Act,

constructive eviction, and trespass claims. Plaintiffs therefore had reasonable


                                         12                                   16-55926
notice and an adequate opportunity to develop facts and argument as to the relevant

issues both below and before this Court. See Nozzi, 806 F.3d at 1199; Albino, 747

F.3d at 1177. Thus, we turn to plaintiffs’ claims and analyze them under the same

standards and based on the same evidence described in Part 2 above.

      The Elder Abuse Act is governed by the two-year statute of limitations for

personal injury actions. Cal. Civ. Proc. Code § 335.1; Benun v. Superior Court, 20

Cal. Rptr. 3d 26, 37 (Ct. App. 2004). Unruh Act suits that, as here, allege

discrimination in public accommodations are likewise subject to this two-year

period. See Cal. Civ. Proc. Code § 335.1; Gatto v. Cty. of Sonoma, 120 Cal. Rptr.

2d 550, 557, 560–61 (Ct. App. 2002). Again, it is undisputed that the latest date on

which these claims could have accrued is April 30, 2010. Given that this action

was filed on July 2, 2014, plaintiffs’ claims are unquestionably time-barred on the

face of the pleadings.

      The claims could only be saved, therefore, if the statutes of limitations were

tolled. As we previously held, however, there is no triable issue on this point.

Thus, summary judgment is proper and, accordingly, we affirm the judgment of the

district court as to these claims.

      4. The remaining issues are plaintiffs’ motions under Rule 60, their attempt

to add an FHA claim in their brief in opposition to summary judgment, and their

request that we treat their Unruh Act claims as claims under Title III of the ADA.


                                        13                                   16-55926
      Denial of a Rule 60 motion is reviewed for abuse of discretion, and “appeal

from a denial of a Rule 60(b) motion brings up only the denial of the motion for

review, not the merits of the underlying judgment.” Molloy v. Wilson, 878 F.2d

313, 315 (9th Cir. 1989). Here, plaintiffs dispute just the underlying judgment.

And, they do so only by way of a conclusory footnote stating that “[f]or the same

reasons the Motions to Dismiss should not have been granted, the Rule 60 motions

should have been granted.” Consequently, any challenge to the district court’s

Rule 60 rulings is waived. See Greenwood, 28 F.3d at 977.

      Denial of leave to amend under Rule 15(a)(2) is also subject to an abuse of

discretion standard, and a district court “has ‘wide discretion in granting or

refusing leave to amend after the first amendment.’” See Rich v. Shrader, 823 F.3d

1205, 1208–09 (9th Cir. 2016) (citations omitted). Here, plaintiffs’ opening brief

fails to explain how the district court abused its discretion in refusing to allow the

addition of an FHA claim at the summary judgment stage, nearly two years into the

case, and after four complaints had been filed. Plaintiffs have therefore again

waived review of the district court’s decision. See Greenwood, 28 F.3d at 977.8

      Finally, even if we were to treat plaintiffs’ Unruh Act claims as claims under

Title III of the ADA, we would, as with the Unruh Act claims, grant summary


      8
             Plaintiffs’ reply brief attempts to correct this deficiency, but “[w]e
review only issues which are argued specifically and distinctly in a party’s opening
brief.” See Greenwood, 28 F.3d at 977 (emphasis added).

                                         14                                   16-55926
judgment on statute of limitations grounds. We have not decided the limitations

period for Title III claims, but the only conceivable options are California’s two-

year personal injury provision and its three-year period for “[a]n action upon a

liability created by statute.” See Cal. Civ. Proc. Code §§ 335.1, 338(a); Sharkey,

778 F.3d at 770–73; Hartline v. Nat’l Univ., 2:14-cv-0635, 2015 WL 4716491, at

*3–4 (E.D. Cal. Aug. 7, 2015), adopted, 2016 WL 426643 (E.D. Cal. Feb. 4,

2016). Neither renders plaintiffs’ claims timely, and tolling is unavailable.

      AFFIRMED.




                                         15                                     16-55926
