Russell Johnson, Iii v. Lucent Technologies Inc. , 653 F.3d 1000 ( 2011 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL H. JOHNSON, III, 
Plaintiff-Appellant,
No. 09-55203
v.
D.C. No.
LUCENT TECHNOLOGIES INC.;  2:08-cv-06002-CAS-
CONNECTICUT GENERAL LIFE CT
INSURANCE COMPANY, Erroneously
OPINION
Sued As CIGNA Healthcare,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
March 7, 2011—Pasadena, California
Filed August 4, 2011
Before: Betty B. Fletcher, Stephen Reinhardt, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge B. Fletcher
10209
10212 JOHNSON v. LUCENT TECHNOLOGIES
COUNSEL
William J. Kelley, III, and Pamela A. Kelley, Kelley & Kel-
ley, Irvine, California, for the plaintiff-appellant.
Adrienne C. Publicover, Russell H. Birner, and Lawrence J.
Rose, Wilson Elser Moskowitz Edelman & Dicker LLP, San
Francisco, California, for the defendants-appellees.
JOHNSON v. LUCENT TECHNOLOGIES 10213
OPINION
B. FLETCHER, Circuit Judge:
This case requires us to decide whether 42 U.S.C. § 1981retaliation claims are governed by the four-year statute of lim-
itations applicable to claims “arising under an Act of Con-
gress enacted” after December 1, 1990, 28 U.S.C. § 1658, or
by the personal injury statute of limitations of the forum state.
Section 1981 retaliation claims were foreclosed by Patterson
v. McLean Credit Union, 491 U.S. 164 (1989), and then made
again possible by the Civil Rights Act of 1991. Because they
arise under a post-December 1, 1990 Act of Congress, section
1981 retaliation claims are governed by the four-year statute
of limitations under § 1658. We have jurisdiction under 28
U.S.C. § 1291. We affirm in part, reverse in part, and remand.
BACKGROUND
I. Employment Relationship and Prior Litigation
Prior to 1986, Johnson, an African American, was
employed by Lucent’s predecessor, AT&T Bell Laboratories,
in Pennsylvania.1 In 1986, Johnson took disability leave on
grounds of mental disability. In 1987, Johnson was termi-
nated.
In 1989, Johnson, pro se, sued Lucent for disability benefits
in the District Court for the Eastern District of Pennsylvania.
The court found Johnson eligible for long-term disability ben-
efits under Lucent’s benefit plan. Johnson was directed to
place himself under the care of one of three recommended
psychiatrists or under the care of a psychiatrist of his own
choosing, if approved by Lucent or its plan administrator, and
to provide proof, on a monthly basis, that he was engaged in
1
For convenience, Johnson’s former employer, regardless of the time
frame, will be referred to as “Lucent.”
10214 JOHNSON v. LUCENT TECHNOLOGIES
an ongoing satisfactory treatment program. Lucent and its
plan administrator retained the right to petition the court to
terminate the benefits upon Johnson’s failure to adhere to the
terms of the order or upon any other just and sufficient cause.
Lucent did not comply with the order. In 1990, Johnson
sued Lucent again. The Pennsylvania district court again
found Johnson eligible for long-term disability benefits and
ordered Lucent to pay Johnson disability benefits retroac-
tively. Lucent was also ordered to pay the bills of Johnson’s
then-psychiatrist or such other psychiatrist as selected by
Johnson. The court directed that the treating psychiatrist
notify Lucent quarterly that Johnson was undergoing psychi-
atric treatment and that he was participating meaningfully in
the treatment. Lucent retained the right to petition to terminate
the benefits if such notice was not provided. The court’s pre-
vious order otherwise remained in full force and effect except
as amended by its current order.
In 2005, Johnson, pro se, sued Lucent and several individu-
als in Los Angeles County Superior Court for, inter alia,
assault, battery, intentional infliction of emotional distress,
and violations of the California Fair Employment and Hous-
ing Act, related to events that allegedly occurred in 1986.
Lucent removed the case to the District Court for the Central
District of California and moved to dismiss it for failure to
state claims upon which relief can be granted. See Fed. R.
Civ. P. 12(b)(6). The district court granted the motion to dis-
miss, but twice granted Johnson leave to amend. Johnson took
the opportunity to add numerous new claims. The district
court dismissed all claims as time-barred. This court affirmed.
On June 13, 2006, while Johnson’s case was pending
before the California district court, Lucent filed a petition in
Pennsylvania to terminate Johnson’s disability benefits.
Lucent alleged that since 2003, Johnson had failed to provide,
in violation of the 1990 court order, quarterly documentation
that he was receiving ongoing treatment. Lucent further
JOHNSON v. LUCENT TECHNOLOGIES 10215
alleged that since 2002, Johnson failed to provide medical
evidence that he was under a physician’s care and that he fol-
lowed the recommended course of treatment, in violation of
Lucent’s long-term benefit plan.
In response, Johnson, again pro se, stated that he had been
seeing a new doctor, Dr. Shamie, since 2003, but he had been
having difficulty paying for treatment because the doctor was
not an in-network provider under Lucent’s health plan. John-
son provided, among other exhibits, a letter from Dr. Shamie,
dated May 8, 2006, stating that Johnson had been under his
care since August 2003. Also attached was a form completed
by Dr. Shamie on June 21, 2006, describing Johnson’s current
condition as “still under the influence of thoughts of not trust-
ing others,” his diagnosis as “paranoid psychosis (NOS),” and
his subjective symptoms as “being paranoid not trusting oth-
ers. Thinking that there was a conspiracy from AT&T against
him.”2 Johnson also provided a June 19, 2006, letter from the
then-administrator of Lucent’s plan informing him that it
could not authorize reimbursement for Dr. Shamie’s bills
because the plan did not allow reimbursement for outpatient
treatment with an out-of-network provider when in-network
providers were available.
In September 2006, following a telephone conference with
the parties, the Pennsylvania district court ordered Lucent to
send Johnson the documents he and his psychiatrist needed to
complete in order to comply with the court’s 1989 and 1990
orders. It also ordered Johnson to complete and return the
paperwork by November 6, 2006. Johnson failed to return the
paperwork. On December 19, 2006, the court granted
Lucent’s petition to terminate Johnson’s long-term disability
benefits. In January 2007, Lucent stopped paying benefits.
Johnson appealed. In his notice of appeal, he stated that in
July 2006, Dr. Shamie sent a form to Lucent’s plan “which
2
The form has no rubric for current treatment or medication.
10216 JOHNSON v. LUCENT TECHNOLOGIES
completed [his] file,” and that Dr. Shamie refused to complete
the new forms because he had already done so in July 2006.
Johnson also stated that after the district court’s September
2006 order, he saw two doctors, both of whom refused to
complete the required forms.
On July 8, 2008, the Third Circuit denied Johnson’s appeal.
As relevant here, the Third Circuit noted that although John-
son contended that he provided forms to the plan in July 2006,
he did not provide that information during the telephone con-
ference preceding the district court’s September 2006 order or
at any time before the court entered its order terminating ben-
efits.
Meanwhile, on June 6, 2008, Johnson filed a charge of dis-
crimination against Lucent with the Equal Employment
Opportunity Commission (“EEOC”), which dismissed the
case as untimely.
II. The Instant Action
On August 11, 2008, Johnson, pro se, filed the instant
action in the Los Angeles County Superior Court against
Lucent and the current administrator of his disability insur-
ance benefits, Connecticut General, alleging retaliation in vio-
lation of Title VII3 and Section 19814 and intentional
infliction of emotional distress (“IIED”). Johnson alleged that,
“[i]n retaliation for [his] filing suit against Lucent in 2005,
Alcatel-Lucent stopped disability payments December 19,
2006 alleging that plaintiff did not provide a current disability
form in 2006.” Johnson claimed that a proper form had been
in fact on file with the plan administrator.
Lucent and Connecticut General removed the case to the
District Court for the Central District of California, then filed
3
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3.
4
Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981.
JOHNSON v. LUCENT TECHNOLOGIES 10217
separate motions to dismiss for failure to state a claim pursu-
ant to Rule 12(b)(6) and on statute of limitations grounds. The
district court granted Lucent’s motion to dismiss on the
grounds that Johnson’s Title VII claim was barred by his fail-
ure to file a timely charge with the EEOC, and that his § 1981
and IIED claims were time-barred under the relevant Califor-
nia statute of limitations, having been filed more than two
years after the day when the petition to terminate benefits was
filed. The court rejected Johnson’s argument that the four-
year statute of limitations in 28 U.S.C. § 1658(a) applies to
his § 1981 claim. The court granted Johnson 30 days’ leave
to amend his complaint to plead fraud and medical malprac-
tice and allege any grounds for equitable tolling or equitable
estoppel.
Johnson filed an amended complaint. He added the Los
Angeles Police Department (“LAPD”) as a defendant and
added claims for “medical benefits malpractice,” “RICO
charges,” extortion, “psychiatric coercion,” “malicious use of
process,” “discriminatory failure to rehire,” and fraudulent
concealment.
Defendants again moved to dismiss for failure to state a
claim. The district court struck the claims against the LAPD
and dismissed all of Johnson’s other claims with prejudice.
The court ruled that Johnson failed to state claims for abuse
of process and fraudulent concealment because Johnson per-
sonally filed the allegedly concealed June 2006 medical form
from Dr. Shamie with the Pennsylvania district court. As it
concerns Johnson’s Title VII, § 1981, and IIED claims, the
court ruled that: (1) Johnson was not entitled to equitable
estoppel based on Lucent’s allegedly persuading him in 1986
that a discrimination suit was unnecessary; (2) Johnson was
not entitled to equitable tolling during the pendency of his
appeal before the Third Circuit; and (2) Johnson was not enti-
tled to equitable tolling because his mental disability did not
rise to the level of mental incompetence.
10218 JOHNSON v. LUCENT TECHNOLOGIES
Johnson, through counsel, appeals.
ANALYSIS
A. 42 U.S.C. § 1981 Retaliation Claim
A dismissal on statute of limitations grounds is reviewed de
novo. Ventura Mobilehome Cmtys. Owners Ass’n v. City of
San Buenaventura, 371 F.3d 1046, 1050 (9th Cir. 2004). A
ruling on the appropriate statute of limitations is a question of
law also reviewed de novo. Northwest Airlines, Inc. v. Cama-
cho, 296 F.3d 787, 789 (9th Cir. 2002).
[1] Section 1981 of the Civil Rights Act of 1866 provides
that “[a]ll persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make
and enforce contracts . . . as is enjoyed by white citizens.” 42
U.S.C. § 1981(a). Like many other federal statutes, § 1981
does not contain a statute of limitations. Jones v. R.R. Donnel-
ley & Sons Co., 541 U.S. 369, 371 (2004). In Goodman v.
Lukens Steel Co., 482 U.S. 656 (1987), the Supreme Court
held that federal courts should apply “the most appropriate or
analogous state statute of limitations” to claims based on
asserted violations of § 1981. Id. at 660. Three years later,
Congress enacted a catchall four-year statute of limitations for
actions “arising under an Act of Congress enacted after the
date of the enactment of this section.” 28 U.S.C. § 1658 (a).5
Section 1865 was enacted on December 1, 1990. Thus, John-
son’s retaliation claim is subject to the four-year statute of
limitations if it arose under an Act of Congress enacted after
that date.
5
Initially, § 1865 had only one section. In 2002, Congress amended
§ 1865 to add a separate provision (subsection (b)) specifying the statute
of limitations for certain securities claims. Corporate and Criminal Fraud
Accountability Act of 2002, Pub. L. No. 107-204, § 804(a), 116 Stat. 801.
The original language of § 1865 was left unchanged and is now set forth
in subsection (a). See 28 U.S.C. § 1865(a) (2000 ed., Supp. III).
JOHNSON v. LUCENT TECHNOLOGIES 10219
[2] The Supreme Court interpreted § 1865’s “arising
under” requirement in Jones. Jones and others filed a class
action alleging hostile work environment, wrongful discharge,
and refusal to transfer under § 1981. Jones, 541 U.S. at 372-
73. Although § 1981, as originally enacted, had been inter-
preted quite expansively, the Supreme Court held in Patterson
v. McLean Credit Union, 491 U.S. 164 (1989), that the statu-
tory right “to make . . . contracts” did not protect against post-
contract formation conduct, and the right “to . . . enforce con-
tracts” did not extend beyond conduct by an employer which
impairs an employee’s ability to enforce through legal process
his or her established contract rights. Id. at 176-78. Under
Patterson, Jones’s claims did not state violations of § 1981 as
originally enacted. Jones, 541 U.S. at 373. In 1991, however,
Congress responded to Patterson by adding a new subsection
to § 1981 that defines the term “make and enforce contracts”
to include the “making, performance, modification, and termi-
nation of contracts, and the enjoyment of all benefits, privi-
leges, terms, and conditions of the contractual relationship.”
See Civil Rights Act of 1991, Pub. L. No. 102-166 § 101, 105
Stat. 1071, 1071-72 (1991). It was undisputed that Jones
alleged violations of the amended statute. Jones, 541 U.S. at
373. The critical question, therefore, was whether the claims
“ar[ose] under” the 1991 Act or under § 1981 as originally
enacted for purposes of § 1865. Id.
[3] The Supreme Court concluded that a cause of action
“aris[es] under an Act of Congress enacted” after December
1, 1990—and therefore is governed by § 1865’s four-year
statute of limitations—if the plaintiff’s claim against the
defendant was made possible by a post-1990 enactment. Id. at
382. Jones’s claims “ar[ose] under” the amended § 1981
because the Civil Rights Act of 1991 overturned Patterson by
defining the key “make and enforce contracts” language in
§ 1981 to include the “termination of contracts, and the enjoy-
ment of all benefits, privileges, terms, and conditions of the
contractual relationship.” Id. at 383 (quoting 42 U.S.C.
§ 1981(b)).
10220 JOHNSON v. LUCENT TECHNOLOGIES
Johnson alleges retaliation in violation of § 1981. Prior to
Patterson, federal appeals courts (but not the Supreme Court)
held, by analogizing § 1981 to § 1982 and relying on Sullivan
v. Little Hunting Park, Inc., 396 U.S. 229 (1969) (holding that
§ 1982 covers retaliation claims), that § 1981 encompassed
retaliation claims. See CBOCS West, Inc. v. Humphries, 553
U.S. 442, 448 (2008). Patterson, however, “seems in practice
to have foreclosed retaliation claims”—a result consistent
with the fact that victims of an employer’s retaliation often
have opposed discriminatory conduct taking place after the
formation of the employment contract. Id. at 449. After the
enactment of § 1981(b) in 1991, federal appellate courts
“again reached a broad consensus that § 1981, as amended,
encompasses retaliation claims.” Id. at 451. The Supreme
Court agreed with this last proposition. Id. at 451. To so hold,
the Court rejected, among others, the argument that the 1991
amendment did not include an explicit antiretaliation provi-
sion or the word “retaliation” in the new statutory language,
although Congress has included explicit antiretaliation lan-
guage in other civil rights statutes. See id. at 453-54. In that
context, the Court said:
We believe, however, that the circumstances to
which CBOCS points find a far more plausible
explanation in the fact that, given Sullivan and the
new statutory language nullifying Patterson, there
was no need for Congress to include explicit lan-
guage about retaliation. After all, the 1991 amend-
ments themselves make clear that Congress intended
to supersede the result in Patterson and embrace pre-
Patterson law. And pre-Patterson law included Sul-
livan. . . . Nothing in the statute’s text or in the sur-
rounding circumstances suggests any congressional
effort to supersede Sullivan or the interpretation that
courts have subsequently given that case. To the
contrary, the amendments’ history indicates that
Congress intended to restore that interpretation.
JOHNSON v. LUCENT TECHNOLOGIES 10221
Id. at 454.
Seizing on this language, Lucent argues that, in Humphries,
the Supreme Court found the source of a retaliation claim in
the original § 1981, and not in the amended version. There-
fore, Lucent argues, § 1658’s four-year statute of limitations
does not apply to retaliation claims.
[4] We disagree. Regardless of whether § 1981 encom-
passed retaliation claims before Patterson, it certainly did not
do so post-Patterson. See id. at 451, 454. The Civil Rights
Act of 1991 made retaliation claims once again possible.
Under Jones, then, retaliation claims now “ar[ise] under an
Act of Congress” enacted after 1990, and the four-year statute
of limitations in § 1685(a) applies.
Taylor v. Regents of University of California, 993 F.2d 710(9th Cir. 1993), on which Lucent relies, is not to the contrary.
Taylor held that California’s then-one-year statute of limita-
tions for personal injury actions governed claims brought
under § 1981. Id. at 711. Although it was decided three years
after § 1658 was enacted, Taylor does not mention that stat-
ute. Moreover, Taylor does not specify what kind of § 1981
claims were at issue there and it is incontestable that some
§ 1981 claims continue to be subject to the most analogous
state statute of limitations. See Lukovsky v. City and County
of San Francisco, 535 F.3d 1044, 1048 n.2 (9th Cir. 2008)
(§ 1981 failure-to-hire claim not subject to four-year statute of
limitations in § 1658 because it was cognizable under the pre-
1990 version of § 1981). Taylor, therefore, does not provide
precedent for the applicability of § 1658 to § 1981 retaliation
claims.
[5] We hold that Johnson’s § 1981 retaliation claim is sub-
ject to the four-year statute of limitations in § 1658,6 and not
6
In so holding, we join the Eleventh and the Seventh Circuits, the only
circuits that have had the opportunity to consider the issue. See Baker v.
10222 JOHNSON v. LUCENT TECHNOLOGIES
the two-year statute of limitations applicable to personal
injury actions pursuant to Cal. Code Civ. Pro. § 335.1. John-
son’s retaliation claim is therefore timely.
B. Intentional Infliction of Emotional Distress Claim
Although Johnson did not specify whether his IIED claim
was brought under California law or Pennsylvania law, the
district court noted that the statute of limitations under either
is two years. The court then held that the claim was time-
barred because it accrued on the date when Lucent filed its
petition to terminate benefits (June 13, 2006), whereas John-
son filed his suit on August 11, 2008.
[6] Because we sit in diversity as to the IIED claim, we
must apply California’s choice of law rules to determine the
controlling substantive law, including the applicable statute of
limitations. See Patton v. Cox, 276 F.3d 493, 495 (9th Cir.
2002) (holding that federal courts sitting in diversity must
apply the forum state’s choice of law rules to determine the
controlling substantive law); Nevada Power Co. v. Monsanto
Co., 955 F.2d 1304, 1306 (9th Cir. 1992) (holding that a fed-
eral court sitting in diversity applies the substantive law of the
state, including the state’s statute of limitations).
[7] Where, as here, parties do not address choice-of-law
issues, California courts presumptively apply California law.
Wash. Mut. Bank, FA v. Superior Court, 15 P.3d 1071, 1080
(Cal. 2001). Under California law, an IIED claim accrues
“when the harm is inflicted.” Eisenberg v. Ins. Co. of N. Am.,
815 F.2d 1285, 1292 (9th Cir. 1987) (citing Murphy v. All-
Birmingham Bd. of Educ., 531 F.3d 1336, 1338 (11th Cir. 2008) (retalia-
tion claim was made possible by a post-1990 enactment, therefore it is
governed by § 1658’s four-year statute of limitations); Dandy v. United
Parcel Serv., Inc., 388 F.3d 263, 269 (7th Cir. 2004) (retaliation claim was
subject to § 1658 because it was premised on conduct which took place
after the formation of plaintiff’s employment contract).
JOHNSON v. LUCENT TECHNOLOGIES 10223
state Ins. Co., 147 Cal. Rptr. 565, 575 (App. Div. 1978)).
Such harm must be “severe.” Id. Johnson claims that Lucent’s
cessation of benefits constituted an intentional infliction of
emotional distress.
[8] Johnson could have experienced severe harm when
Lucent filed its petition to terminate benefits, when the Penn-
sylvania district court granted the petition, or when Lucent
actually stopped payment. The question of when a continuing
harm grows severe enough to constitute intentional infliction
of emotional distress is one of fact. Id. In this case the alleged
harm could have become acutely severe in December 2006,
when the Pennsylvania district court granted Lucent’s peti-
tion, or in January 2007, when Lucent stopped paying disabil-
ity benefits. Because both these events occurred less than two
years before Johnson filed his complaint, we cannot conclude
that as a matter of law Johnson’s claim for intentional inflic-
tion of emotional distress is time-barred.
C. Title VII Claim
[9] Title VII requires aggrieved persons to file a complaint
with the EEOC “within one hundred and eighty days after the
alleged unlawful employment practice occurred.”7 42 U.S.C.
§ 2000e-5(e); see Delaware State College v. Ricks, 449 U.S.
250, 256 (1980). Filing a timely charge of discrimination with
the EEOC is a requirement that, like a statute of limitations,
is subject to waiver, estoppel, and equitable tolling. Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).
Johnson filed his charge with EEOC on June 6, 2008, more
than 180 days from the date when Lucent filed its petition to
7
The filing period is extended to 300 days if proceedings are initially
instituted with a state or local government agency having the authority to
grant or seek the requested relief. 42 U.S.C. § 2000e-5(e); see Delaware
State College v. Ricks, 449 U.S. 250, 257 (1980). Johnson does not allege
in his pleadings that state proceedings were instituted.
10224 JOHNSON v. LUCENT TECHNOLOGIES
terminate benefits, the date of the Pennsylvania district
court’s order granting the petition, or the date when Lucent
stopped paying benefits. The EEOC consequently dismissed
Johnson’s case as untimely. Before the district court, Johnson
argued unsuccessfully that the 180-day period was equitably
tolled during the pendency of his appeal before the Third Cir-
cuit and for the period of his alleged mental incompetence. He
further argued that Lucent’s allegedly fraudulent concealment
of Dr. Shamie’s form during the pendency of its petition
before the Pennsylvania district court requires equitable
estoppel of the 180-day filing period. Where the facts are
undisputed, the district court’s determination of whether equi-
table estoppel or equitable tolling applies is reviewed for
abuse of discretion. Hensley v. United States, 531 F.3d 1052,
1056 (9th Cir. 2008).
Equitable Estoppel. This doctrine “focuses primarily on the
actions taken by the defendant in preventing a plaintiff from
filing suit.” Johnson v. Henderson, 314 F.3d 409, 414 (9th
Cir. 2002) (internal quotations and emphasis omitted).
[10] Johnson’s equitable estoppel theory is that Lucent
failed to bring to the Pennsylvania district court’s attention
Dr. Shamie’s June 2006 form, which allegedly satisfied the
requirements of the 1989 and 1990 court orders. The form,
however, was in Johnson’s possession and was submitted to
the court by Johnson himself. Lucent did not prevent Johnson
from bringing the form to the court’s attention. The district
court did not abuse its discretion in holding that Lucent is not
equitably estopped from relying on Johnson’s failure to file
his charge of discrimination in the 180-day period.
Equitable Tolling; Pursuit of Alternative Remedies. The
Supreme Court’s decision in Ricks offers guidance on when
equitable tolling applies. Ricks, a black Liberian, challenged
his denial of tenure by the defendant college as discriminatory
pursuant to Title VII. 449 U.S. at 252. On the date that Ricks
was formally notified of the denial of tenure, he was offered
JOHNSON v. LUCENT TECHNOLOGIES 10225
a “terminal” contract to teach an additional year in a non-
tenured capacity. Id. at 253. Meanwhile, Ricks filed a griev-
ance, which was denied shortly after the formal notification
of denial of tenure. Id. at 253-54.
Relying on the allegations of the complaint, the Court
determined that the challenged employment practice was the
decision to deny tenure. Id. at 257. The EEOC, in an amicus
brief, contended that Ricks’ claim accrued not when he was
notified that he was denied tenure, but when he was notified
that his grievance had been denied. Id. at 260. The Court
rejected the argument. First, it held that the decision to deny
Ricks tenure was not in any respect tentative, as “[t]he griev-
ance procedure, by its nature, is a remedy for a prior decision,
not an opportunity to influence that decision before it is
made.” Id. at 261. Second,
the pendency of a grievance, or some other method
of collateral review of an employment decision, does
not toll the running of the limitations periods. . . .
The existence of careful procedures to assure fair-
ness in the tenure decision should not obscure the
principle that limitations periods normally com-
mence when the employer’s decision is made.
Id.Similar to the denial of tenure decision in Ricks, the Penn-
sylvania district court’s order terminating benefits was not
tentative—as confirmed by the fact that Lucent stopped pay-
ment soon afterward—and the appeal before the Third Circuit
was to provide a remedy for that decision. See id. Johnson
was also not required to exhaust the appeal before filing his
charge of discrimination with the EEOC. See id. In fact,
despite arguing that the appeal should toll the statute of limi-
tations, Johnson did not wait for his appeal to conclude before
filing with the EEOC and the filing of his complaint.
10226 JOHNSON v. LUCENT TECHNOLOGIES
[11] The district court did not abuse its discretion in hold-
ing that Johnson’s pursuit of the appeal before the Third Cir-
cuit did not toll the 180-day period for filing a charge of
discrimination with the EEOC.
Equitable Tolling; Mental Incompetence. Mental incompe-
tence may equitably toll administrative deadlines if a plaintiff
meets a two-part test. Bills v. Clark, 628 F.3d 1092, 1099 (9th
Cir. 2010); Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir.
1999). First, a plaintiff “must show his mental impairment
was an ‘extraordinary circumstance’ beyond his control” by
demonstrating the impairment was so severe that either “(a)
plaintiff was unable rationally or factually to personally
understand the need to timely file, or (b) plaintiff’s mental
state rendered him unable personally to prepare [a complaint]
and effectuate its filing.” Bills, 628 F.3d at 1099-1110. Sec-
ond, the plaintiff “must show diligence in pursuing the claims
to the extent he could understand them, but that the mental
impairment made it impossible to meet the filing deadline
under the totality of the circumstances . . . .” Id. at 1110.
The district court rejected Johnson’s allegations of mental
impairment in light of his actions, including his involvement
in the Pennsylvania district court action and the appeal before
the Third Circuit. Johnson contends, however, that his allega-
tions, at the pleading stage, should be taken as true and that
he should be given the opportunity to prove them.
On a motion to dismiss, all allegations of material fact are
taken as true and construed in the light most favorable to the
nonmoving party. See Knievel v. ESPN, 393 F.3d 1068, 1072
(9th Cir. 2005). Conclusory allegations and unwarranted
inferences, however, are insufficient to defeat a motion to dis-
miss. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007).
Here, Johnson alleged that he was “forced” on mental disabil-
ity for twenty years, that he is “unable to manage his day-to-
day affairs and, therefore, [is] of unsound mind.” Before this
suit was filed, however, Johnson actively participated in liti-
JOHNSON v. LUCENT TECHNOLOGIES 10227
gation before the Pennsylvania district court and the Third
Circuit, and sued Lucent, most recently in 2005. Whatever
inferences might otherwise be allowable based on Johnson’s
receiving of disability benefits, they are not warranted in light
of Johnson’s proven ability to advance and protect his legal
interests.
[12] The district court did not abuse its discretion in reject-
ing Johnson’s argument for equitable tolling premised on
mental incompetence.
D. Fraudulent Concealment and Abuse of Process
Claims
The district court dismissed Johnson’s fraudulent conceal-
ment and abuse of process claims without leave to amend
because Johnson’s allegations could not, as a matter of law,
support claims of fraudulent concealment and abuse of pro-
cess, and amendment would have been futile. Both dismissals
for failure to state a claim and dismissals without leave to
amend are reviewed de novo. See id.; Ctr. for Biological
Diversity v. Veneman, 394 F.3d 1108, 1110 (9th Cir. 2005).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, ___ U.S.
___, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Because
Johnson proceeded pro se before the district court, we must
construe his complaints liberally even when evaluating it
under the Iqbal standard. Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010). Furthermore, “[l]eave to amend should be
granted unless the pleading could not possibly be cured by the
allegation of other facts, and should be granted more liberally
10228 JOHNSON v. LUCENT TECHNOLOGIES
to pro se plaintiffs.” McQuillion v. Schwarzenegger, 369 F.3d
1091, 1099 (9th Cir. 2004) (internal quotation marks omitted).
Abuse of Process. “To succeed in an action for abuse of
process, a litigant must establish that the defendant (1) con-
templated an ulterior motive in using the process, and (2)
committed a willful act in the use of the process not proper
in the regular conduct of the proceedings.” Booker v. Roun-
tree, 66 Cal. Rptr. 3d 733, 736 (2007) (quoting Rusheen v.
Cohen, 128 P.3d 713, 718 (Cal. 2006)). “ ‘Process,’ as used
in the tort of ‘abuse of process,’ has never been limited to the
strict sense of the term, but instead has been interpreted
broadly to encompass the entire range of ‘procedures’ inci-
dent to litigation.” Id. (quoting Barquis v. Merchants Collec-
tion Assn., 496 P.2d 817, 824 n.4 (Cal. 1972)).
In his complaint, Johnson alleged that Lucent allowed the
Pennsylvania district court and the Third Circuit to believe
that he had never provided the plan administrator with a
proper medical form. In fact, Johnson alleged, Dr. Shamie had
completed the form and Lucent indicated to Johnson in Sep-
tember 2006 that the form satisfied its requirements. Johnson
concedes that he himself submitted Dr. Shamie’s form to the
court, but contends that Lucent allowed it to remain buried in
the record and never disclosed to the court that the form satis-
fied Johnson’s obligations.
First, Johnson’s own submission of Dr. Shamie’s form to
the court forecloses his claim of abuse of process premised on
Lucent’s failure to emphasize the importance of this docu-
ment. Second, even taking as true Johnson’s allegations that
Lucent told him in September 2006 that Dr. Shamie’s form
satisfied Johnson’s obligations, the fact remains that Lucent
moved forward with the termination petition, thus giving
Johnson clear notice of its position in the litigation. Further-
more, Johnson had the opportunity to inform the Pennsylvania
court about Lucent’s alleged misrepresentations before the
court ordered, in September 26, 2006, that Johnson fill out
JOHNSON v. LUCENT TECHNOLOGIES 10229
certain paperwork, or at any other time before the court issued
its order terminating benefits because of Johnson’s failure to
comply with its earlier order.
[13] Johnson cannot show, as a matter of law, that he suf-
fered any injury from Lucent’s alleged misrepresentations
(and not from his own failure to inform the court about them).
Fraudulent Concealment. This claim is also premised on
the alleged misrepresentations by Lucent regarding the suffi-
ciency of Dr. Shamie’s form. Under California law, the ele-
ments of a cause of action for fraudulent concealment are:
“(1) the defendant concealed a material fact; (2) the defendant
was under a duty to disclose the fact to the plaintiff; (3) the
defendant concealed or suppressed the fact with an intent to
defraud; (4) the plaintiff was unaware of the fact and would
have acted if he or she had known about it; and (5) the con-
cealment caused the plaintiff to sustain damage.” Williamson
v. General Dynamics Corp., 208 F.3d 1144, 1156 n.3 (9th Cir.
2000).
[14] Johnson cannot, as a matter of law, prevail on this
claim. If his argument is that Dr. Shamie’s form was indeed
sufficient, then Lucent disclosed this to him (although not to
the court). If, on the other hand, his argument is that Dr. Sha-
mie’s form was insufficient, but Lucent let him believe it was,
Lucent’s proceeding with the termination petition following
the alleged misrepresentations means that Johnson cannot
meet the requirement that he be unaware of the material fact.
The district court correctly held that Johnson failed to state
claims for abuse of process and fraudulent concealment.
Although Johnson argues that he should have been granted
leave to amend these claims, he failed to alert the court as to
what new facts he would have alleged. We fail to see how
Johnson could have amended his pleadings to cure their defi-
ciencies without contradicting the factual allegations in his
complaint. Leave to amend would have therefore been futile.
10230 JOHNSON v. LUCENT TECHNOLOGIES
See Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir.
1990).
CONCLUSION
In light of the foregoing, we hold that the district court
erred in applying to Johnson’s § 1981 retaliation claim the
two-year statute of limitations governing personal injury
claims under California law, and not the four-year statute of
limitations under § 1658. Under the proper statute of limita-
tions, the claim is timely. The district court also erred in rul-
ing that, as a matter of law, Johnson’s IIED claim is time-
barred. The district court, however, correctly dismissed the
Title VII, abuse of process, and fraudulent concealment
claims.
AFFIRMED IN PART, REVERSED IN PART,
REMANDED.