FILED
NOT FOR PUBLICATION
FEB 8 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHLEEN RAVE, No. 19-16065
Plaintiff-Appellant, D.C. No. 3:17-cv-06574-EDL
v.
MEMORANDUM*
L’OREAL USA, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Submitted February 4, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and IKUTA and NGUYEN, Circuit Judges.
Kathleen Rave appeals the district court’s dismissal of her breach of contract
claim as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 1291, and 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).
affirm. Because the parties are familiar with the history of this case, we need not
recount it here.
I
The district court correctly concluded that Rave was not entitled to equitable
tolling of the statute of limitations for her breach of contract claim. Under
California law, “[a] plaintiff’s pursuit of a remedy in another forum” can entitle her
to tolling of the statute of limitations. Cervantes v. City of San Diego, 5 F.3d 1273,
1275 (9th Cir. 1993).1 On appeal, Rave argues that the statute of limitations should
be tolled until she receives an adverse determination on her entitlement to the
insurance premium subsidy through an administrative review process. However,
because Rave does not allege that she ever filed a claim for administrative review
1
The district court declined to determine whether California or New York
law applies to this suit in diversity jurisdiction, concluding that Rave’s claim was
untimely under either state’s statute of limitations. When a federal court applies a
state statute of limitations it also applies that state’s rules of tolling and estoppel.
See Bd. of Regents of the Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478,
485–86 (1980). Here, we examine the California law that the parties exclusively
invoke in their briefs. However, we note that no material difference would result
were we to apply New York law. See, e.g., Doe v. Holy See (State of Vatican City),
793 N.Y.S.2d 565, 568 (N.Y. App. Div. 2005) (noting equitable estoppel applies
“when the plaintiff was induced by fraud, misrepresentations or deception to
refrain from filing a timely action” (quotation omitted)); Marshall v. Hyundai
Motor Am., 51 F. Supp. 3d 451, 462 (S.D.N.Y. 2014) (“Equitable tolling applies
where a defendant’s fraudulent conduct results in a plaintiff’s lack of knowledge of
a cause of action.”).
2
of the denial of this benefit, she cannot invoke this doctrine. To do so would be, as
the district court put it, to allow a plaintiff to “indefinitely toll the statute of
limitations by never filing a claim for benefits.” Rave cites no case law that
supports the establishment of such a rule.
II
The district court correctly concluded that Rave could not invoke the
doctrine of equitable estoppel to prevent L’Oreal from raising a statute of
limitations defense. “A defendant will be estopped to invoke the statute of
limitations where there has been some conduct by the defendant, relied upon by the
plaintiff, which induces the belated filing of the action.” Holdgrafer v. Unocal
Corp., 73 Cal. Rptr. 3d 216, 231–32 (Cal. Ct. App. 2008) (quotation omitted).
First, Rave argues that L’Oreal’s concealment of whether she was entitled to
the benefit induced her belated filing. This argument may have been applicable
between 2006 and 2009, when L’Oreal had not clearly conveyed to Rave whether
she was entitled to the subsidy. But once L’Oreal informed Rave in 2009 that the
subsidy had been terminated and she would not be receiving the benefit, Rave
knew unequivocally that she was not entitled to the subsidy. Rave could not
invoke equitable estoppel on this ground after 2009. Therefore, receipt of this
notice in 2009 shows that both the four-year statute of limitations under California
3
law and the six-year statute of limitations under New York law would have run by
the time Rave brought suit in 2017.
Second, Rave argues that L’Oreal’s concealment of the fact that no
underlying plan documents existed with regard to the subsidy induced her belated
filing, since she did not know whether the subsidy was governed by the Employee
Retirement Income Security Act (“ERISA”) or common law. Yet that
“concealment,” did not, in fact, prevent Rave from filing suit in 2017. At that time,
not knowing whether the subsidy was an ERISA benefit, she filed her first
complaint bringing only ERISA claims. Rave cannot claim that this alleged
concealment prevented her from filing within the limitations period when she filed
suit armed with the same information eleven years after the alleged breach.
AFFIRMED.
4