United States District Court, N.D. California
ORDER TO SHOW CAUSE RE. CONTEMPLATED DISMISSAL RE:
DKT. NO. 1
ILLSTON UNITED STATES DISTRICT JUDGE
Hotton, an inmate currently incarcerated at the Federal
Correctional Institution - Fort Dix in New Jersey, filed this
pro se civil action and applied to proceed in
forma pauperis. The complaint is now before the court
for review pursuant to 28 U.S.C. § 1915.
complaint is dated October 9, 2018, and was sent to the court
in an envelope in which there also was a certificate of
service and enclosure letter dated August 12, 2019. The
complaint was stamped filed on August 30, 2019. Under the
prisoner mailbox rule, the complaint is deemed filed as of
the date a pro se prisoner gives a document to
prison officials to mail to the court. Douglas v.
Noelle, 567 F.3d 1103, 1108-09 (9th Cir. 2009). The
court assumes for present purposes that Hotton gave the
envelope to prison officials to mail to the court on the day
he signed the certificate of service and enclosure letter,
and deems the complaint to have been filed on August 12,
complaint alleges a breach of contract. Hotton allegedly
loaned to defendants $100, 000 at 10% interest on May 5,
2005, with the loan being due and payable at the expiration
of a 12-month period. Docket No. 1 at 2. (A promissory note
dated May 5, 2005, apparently bearing the signature of
Defendant Scardigli on behalf of L & S Land Co., a
California Partnership, and with a blank signature line for
Defendant Albert Laudel is attached to the complaint. Docket
No. 1 at 4.) Defendants allegedly “continuously
promised to satisfy the promissory note, misleading Plaintiff
that note would be satisfied up & through October 12,
2012 and again in 2013.” Id. at 2-3.
Defendants allegedly have made no payments of principal or
interest on the note and therefore are in default.
Id. at 3.
invokes the court's diversity jurisdiction because he is
a resident of New York and the other defendants reside in
California. See 28 U.S.C. § 1332(a) (court has
jurisdiction over a civil action where the matter in
controversy exceeds $75, 000 and the action is between
citizens of different States).
action in which a plaintiff seeks to proceed in forma
pauperis, a district court may screen the complaint to
fulfill its duty under 28 U.S.C. § 1915(e)(2)(B), which
requires the court to dismiss a case if the court determines
that the action is frivolous or malicious, fails to state a
claim, or seeks monetary relief against a defendant who is
immune from such relief. Pro se pleadings must be
liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
state a breach of contract cause of action in California, a
plaintiff must allege “(1) the existence of the
contract, (2) plaintiff's performance or excuse for
nonperformance, (3) defendant's breach, and (4) the
resulting damages to the plaintiff.” Oasis West
Realty, LLC v. Goldman, 51 Cal.4th 811, 821 (Cal. 2011).
are required to file their claims within certain time limits,
or forever lose the right to enforce the right to assert the
claims. Those time limits are set out in statutes of
limitations, such as California's four-year statute of
limitations for actions for breach of contract. There appears
to be a statute of limitations problem for Hotton.
California law, an action upon a “contract, obligation
or liability founded upon an instrument in writing”
must be brought within four years. Cal. Code Civ. Proc.
§ 337(a). Generally, the limitations period “runs
from the moment a claim accrues.” Aryeh v. Canon
Business Solutions, Inc., 55 Cal.4th 1185, 1191 (Cal.
2013). California follows the “‘last
element'” accrual rule, which provides that the
statute of limitations period starts upon the occurrence of
the last element essential to the cause of action. See
Id. at 1191. The essential elements for purposes of
determining the accrual date are “‘wrongdoing,
harm, and causation.'” See id.
events can cause a delay in the start of the limitations
period or in the deadline to get to court. Incarceration of
the plaintiff is a disability that may toll the statute for a
maximum of two years, but only for a plaintiff who is in
prison “for a term less than for life” and is
under the disability at the time the cause of action accrues.
See Cal. Civ. Proc. Code § 352.1.
commencement of the limitation period also may be delayed
under the discovery rule which, when applicable,
“‘postpones accrual of a cause of action until
the plaintiff discovers, or has reason to discover, the cause
of action.'” Aryeh, 55 Cal.4th at 1192.
limitations period also is subject to equitable tolling,
which “‘reliev[es] plaintiff from the bar of a
limitations statute when, possessing several legal remedies
he, reasonably and in good faith, pursues one designed to
lessen the extent of his injuries or damage.'”
Cervantes v. City of San Diego, 5 F.3d 1273, 1275
(9th Cir. 1993) (quoting Addison v. California, 21
Cal.3d 313, 317 (1978)). Thus, in an appropriate case, the