Opinion
No. C 01-1268 MMC (BZ), (Docket No. 22)
October 30, 2001
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; VACATING HEARING
Before the Court is defendant Bay Valley Pizza, Inc.'s motion to dismiss for failure to state a claim or, alternatively, to transfer venue to the Eastern District of Michigan. Plaintiff Ivan Dimcheff filed opposition, to which defendant replied. Having reviewed the papers filed in support of and in opposition to the motion, the Court deems the motion appropriate for decision on the papers, hereby VACATES the hearing scheduled for October 26, 2001, and rules as follows.
1. Plaintiff's contract claims are barred by the four-year statute of limitations for "[a]n action brought upon any contract, obligation or liability founded upon an instrument in writing." See Cal. Code Civ. Proc. § 337, subd. 1. Plaintiff's tort claim is barred by the two-year statute of limitations for "[a]n action upon a contract, obligation or liability not founded upon an instrument in writing." See Cal. Code Civ. Proc. § 339, subd. 1; see Murphy v. Hartford Accident Indemnity Co., 177 Cal.App.2d 539, 543-44 (1960) (holding tort of interference with contractual relations is subject to limitations period set forth in § 339, subd. 1).
2. Plaintiff is not entitled to equitable tolling of the statutes of limitations under Bollinger v. National Fire Ins. Co., 25 Cal.2d 399 (1944). In Bollinger, the California Supreme Court held that equitable tolling was appropriate where the trial court had erroneously dismissed the first action, defendant's dilatory tactics prevented timely disposition of the first action, and the plaintiff had proceeded diligently. See id. at 403-07. Here, by contrast, plaintiff has not pleaded that defendant engaged in dilatory tactics, and although plaintiff asserts defendant engaged in deceptive tactics, the record does not support this contention. See Order Granting Defendant's Motion to Dismiss, Dimcheff v. Bay Valley Pizza, Inc., C99-3450 MMC (N.D. Cal. 2000). Accordingly, Bollinger is inapplicable. See Wood v. Elling Corp., 20 Cal.3d 353, 361 (1977) (holding "concurrence of the three factors present in Bollinger is essential to an application of the rule stated therein"); Neff v. New York Life Ins. Co., 30 Cal.2d 165, 174 (1947) (declining to apply Bollinger where defendant had not engaged in dilatory or deceptive tactics).
Defendant requests that the Court take judicial notice of this Court's order. The Court may properly take judicial notice of its own records in other cases. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). Accordingly, defendant's request is hereby GRANTED.
Plaintiff is not entitled to equitable tolling under Addison v. State of California, 21 Cal.3d 313 (1978), and cases recognizing a basis for equitable tolling on similar grounds. See, e.g., Stalberg v. Western Title Ins. Co., 27 Cal.App.4th 925, 932-34 (1994). In that line of cases, the plaintiff had reasonably pursued one legal remedy, albeit unsuccessfully, prior to filing a time-barred action seeking a different remedy. See Addison, 21 Cal.3d at 317 (holding plaintiff is not barred by statute of limitations "when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage"). Here, in contrast, plaintiff has filed the identical action on three separate occasions.
Accordingly, defendant's motion to dismiss is hereby GRANTED, and plaintiff's First Amended Complaint is hereby DISMISSED without leave to amend.
In light of its order dismissing the action, the Court need not address defendants alternative request to transfer the action to the Eastern District of Michigan.
The Clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED defendant's motion to dismiss is hereby GRANTED, and Plaintiff's First Amended Complaint is hereby DISMISSED without leave to amend.