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 2020-07

Esther De La Fuente v. Roosevelt School Dist. No. 66 ( 2020 )


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  •                                                                               FILED
NOT FOR PUBLICATION
JUL 14 2020
UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTHER DE LA FUENTE, on her own                  No.   19-16509
behalf and on behalf of A.D.,
D.C. No. 2:17-cv-04732-DWL
Plaintiff-Appellant,
v.                                              MEMORANDUM*
ROOSEVELT ELEMENTARY SCHOOL
DISTRICT NO. 66, a political subdivision
of the State of Arizona; JEANNE N.
KOBA, an individual; JONATHAN
MOORE, an individual; FREDDY
MONTOYA, an individual; CYNTHIA
BERNACKI, an individual,
Defendants-Appellees,
and
BRENT RUSSELL, an individual;
KELLY SERVICES, INC., a foreign
corporation,
Defendants.
Appeal from the United States District Court
for the District of Arizona
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Dominic Lanza, District Judge, Presiding
Submitted July 10, 2020**
Seattle, Washington
Before: CLIFTON, D.M. FISHER,*** and M. SMITH, Circuit Judges.
Plaintiff-Appellant Esther De La Fuente filed this action for damages on
behalf of her son, A.D., and on her own behalf under Section 504 of the
Rehabilitation Act,
    29 U.S.C. § 794
    , and Title II of the Americans with Disabilities
Act,
    42 U.S.C. § 12131
     et seq. She alleged that Defendant-Appellees Roosevelt
Elementary School District No. 66, et al., violated these laws by failing to
implement A.D.’s Section 504 Plan from March 2013 to May 2015. The district
court granted summary judgment for Roosevelt based on the applicable two-year
statute of limitations, and De La Fuente appeals. Reviewing the decision de novo,
Gordon v. Cnty. of Orange,
    888 F.3d 1118
    , 1122 (9th Cir. 2018), we affirm.
De La Fuente’s cause of action accrued no later than June 16, 2015, the day
she filed a complaint with the United States Office of Civil Rights (“OCR”)
alleging that Roosevelt failed to implement A.D.’s Section 504 Plan from March
2013 to May 2015. See Stanley v. Trustees of Cal. State Univ.,
    433 F.3d 1129
    ,
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
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1136 (9th Cir. 2006) (holding that a cause of action accrued no later than the date
the plaintiff “filed a complaint alleging virtually identical claims” with the state
board). Although De La Fuente could have then filed a parallel civil action for
damages in federal court, she filed her complaint two and a half years later, on
December 21, 2017. By then, the claims had become stale.
De La Fuente is not entitled to equitable tolling for fraudulent concealment.
Roosevelt’s assertions denying the existence of A.D.’s Section 504 Plan were not
“affirmative acts of fraud or concealment” that misled De La Fuente from
reasonably discovering the injury or legal wrong. Porter v. Spader,
    239 P.3d 743
    ,
747 (Ariz. Ct. App. 2010); see Volk v. D.A. Davidson & Co.,
    816 F.2d 1406
    , 1415
(9th Cir. 1987). To the contrary, Roosevelt’s assertions supported De La Fuente’s
claim of injury by confirming that the Plan had not been implemented.
Meanwhile, De La Fuente had no reason to believe Roosevelt’s assertions,
considering she had a written copy of the Section 504 Plan and was present when it
was developed.
This case is not analogous to Lasley v. Helms,
    880 P.2d 1135
     (Ariz. Ct. App.
1994), which involved a viable theory of equitable tolling based on constructive
fraud. Here, constructive fraud was not established. Cf.
    id. at 1137-38
    . Among
other things, De La Fuente failed to offer any authority to show that she was
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entitled to rely on Roosevelt’s assertions because of a “fiduciary or confidential
relationship” between them.
    Id. at 1138
    ; see McCloud v. Ariz. Dep’t of Pub.
Safety,
    170 P.3d 691
    , 694 (Ariz. Ct. App. 2007) (“It is the plaintiff’s burden to
demonstrate why he or she is entitled to equitable tolling of the statute of
limitations.” (citation omitted)).
Finally, because De La Fuente did not establish a viable theory of fraudulent
concealment, a jury question regarding when De La Fuente knew or should have
known of the “fraud” never arose. Summary judgment was proper.
AFFIRMED.
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