Ito v. Tokio Marine & Fire Insurance

MEMORANDUM *** Appellant Yumi Ito appeals from a grant of summary judgment in favor of Appellee The Tokio Marine and Fire Insurance Company, Ltd. (“Tokio Marine”). Ito’s claims are barred by the relevant statutes of limitations. The “discovery rule” does not render Ito’s claims timely because Ito’s July 1998 letter to the California Insurance Commissioner demonstrates that, at that time, she suspected wrongdoing on the part of Tokio Marine, was aware of the factual basis for her claims and had an incentive to file suit. See Jolly v. Eli Lilly & Co., 44 Cal.3d 1103 , 245 Cal.Rptr. 658 , 751 P.2d 923, 927-928 (1988). Because Ito has not pleaded a civil conspiracy, the last overt act rule cannot save her claims. See Wyatt v. Union Mortgage Co., 24 Cal.3d 773 , 157 Cal.Rptr. 392 , 598 P.2d 45, 53 (1979). Additionally, because Ito’s reliance on alleged promises of reimbursement made by Tokio Marine was not reasonable, the doctrine of equitable estoppel does not prevent Tokio Marine from asserting that Ito’s claims are barred by the relevant statutes of limitations. See Mills v. Forestex Co., 108 Cal.App.4th 625 , 134 Cal.Rptr.2d 273, 298 (2003). The District Court did not abuse its discretion in refusing to grant Ito’s request for a continuance of the summary judgment hearing pursuant to Rule 56(f), Federal Rules of Civil Procedure, because the evidence Ito sought would not have created an issue of material fact. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.