Makenzie Pauly v. Stanford Health Care ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAKENZIE PAULY; FAIZA MARIE No. 19-16823
PAULY,
D.C. No. 3:18-cv-05387-SI
Plaintiffs-Appellants,
v. MEMORANDUM*
STANFORD HEALTH CARE, FKA
Stanford Hospital and Clinics,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted March 3, 2020**
Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.
Makenzie Pauly and Faiza Marie Pauly appeal pro se from the district
court’s interlocutory order dismissing certain claims alleging violations of the
Emergency Medical Treatment and Labor Act (“EMTALA”) and state law. We
*
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).
have jurisdiction under 28 U.S.C. § 1292(b). We review de novo. Hebbe v. Pliler,
627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P. 12(b)(6)); Jones
v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004) (dismissal under the applicable statute
of limitations). We may affirm on any basis supported by the record. Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
Dismissal without leave to amend of Faiza Marie Pauly’s EMTALA claims
was proper because plaintiff failed to bring these claims within the applicable two-
year statute of limitations or establish any basis for equitable tolling, to the extent
applicable. See 42 U.S.C. § 1395dd(d)(2)(C) (establishing two-year statute of
limitations for EMTALA claims); Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir.
2013) (en banc) (setting forth elements of equitable tolling under federal law).
Dismissal without leave to amend of Faiza Marie Pauly’s negligent infliction
of emotional distress, intentional infliction of emotional distress, and abuse of
process claims was proper because plaintiff failed to bring these claims within the
applicable statutes of limitations or establish any basis for equitable tolling. See
Cal. Civ. Proc. Code § 335.1 (two-year statute of limitations for personal injury
claims), § 340.5 (limitations period for professional negligence claim commences
three years after date of injury or one year after plaintiff’s discovery of injury,
whichever occurs first); Cervantes v. City of San Diego, 5 F.3d 1273, 1275-77 (9th
Cir. 1993) (California’s “definitive three-pronged test” for equitable tolling);
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Estate of Yool, 60 Cal. Rptr. 3d 526, 533 (Ct. App. 2007) (explaining general rule
for accrual of a cause of action); Cantu v. Resolution Tr. Corp., 6 Cal. Rptr. 2d
151, 168 (Ct. App. 1992) (statute of limitations for personal injury applies to abuse
of process claim).
The district court properly dismissed without leave to amend Makenzie
Pauly’s negligent infliction of emotional distress claim as time-barred. See Cal.
Civ. Proc. Code § 340.5; Flores v. Presbyterian Intercommunity Hosp., 369 P.3d
229, 234 (Cal. 2016) (elements of professional negligence claim under § 340.5).
We reject as without merit plaintiffs’ contentions regarding the applicability
of Federal Rules of Civil Procedure 15 and 54(b).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Plaintiffs’ request for reassignment of the district judge, set forth in the
opening brief, is denied without prejudice to raising it before the district court.
AFFIRMED.
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