United States Court of Appeals, Eleventh Circuit.

OFFICIAL CARGO TRANSPORT COMPANY, INC., a Florida corporation, Plaintiff-

Appellant,

CROWLEY LINER SERVICES, INC., Intervenor-Plaintiff-Appellant,

v.

UNDERWRITERS AT LLOYD’S OF LONDON, Defendant-Intervenor-Defendant-Appellee.

No. 04-14314.

D.C. Docket No. 02-21828-CV-FAM.

July 20, 2005.

Non-Argument Calendar

PER CURIAM.

Official Cargo Transport Company, Inc. (“Official Cargo”) and Crowley Liner Services, Inc. (“Crowley”) appeal from the district court’s final judgment, entered pursuant to a jury verdict, in favor of Underwriters at Lloyd’s of London (“Lloyd’s”). After thorough review of the record, as well as careful consideration of the parties’ briefs, we affirm.

Official Cargo sued Lloyd’s for breach of contract, seeking to recover insurance proceeds alleged due under primary and excess insurance policies (Count I), and for a declaratory judgment of coverage under the policies (Count II). After the case was removed from a Florida state court, Crowley, as an intervening plaintiff, filed an intervening complaint against Lloyd’s for breach of contract, seeking recovery as an additional named insured (Intervening Count I) and as a third party beneficiary (Intervening Count II). In the complaint and intervening complaint, Official Cargo and Crowley asserted that Lloyd’s breached its obligations under the insurance contract by refusing coverage for a theft of apparel that occurred on December 1, 2001. The estimated value of the stolen merchandise was $239,185. The primary policy provided $100,000 of coverage and the excess policy $150,000.

After discovery, the parties filed cross-motions for summary judgment. Lloyd’s sought summary judgment as to, inter alia, Crowley’s intervening complaint and the limitation of liability for Official Cargo’s suit. Official Cargo and Crowley argued they were entitled to summary judgment because Lloyd’s failed to effectuate proper delivery of the policies prior to the loss. The district court entered summary judgment on Intervening Count I, in which Crowley sought recovery as an additional insured under the policy. [FN1] The court denied summary judgment as to Official Cargo’s complaint and Intervening Count II (seeking recovery as a third-party beneficiary).

FN1. The district court granted summary judgment on Intervening Count I because Crowley was not a named insured under the policy, nor had Lloyd’s agreed to add Crowley as an insured at the time of the claim. In support of his claim that he was an additional named insured, Crowley relied on a “certificate of insurance” that was issued by D & D Insurance Agency, which was acting as the broker or intermediary for Official Cargo in its procurement of insurance. The district court held, and we agree, that D & D’s “certificate of insurance” did not in any way evidence that Lloyd’s had agreed to the addition of Crowley as a named insured. Indeed, the certificate stated that it “does not amend, extend or alter the coverage afforded by the policies.” Moreover, to the extent Crowley now asserts arguments based on concepts of agency and apparent authority, that he did not raise below, we have found none of the “exceptional circumstances” in which we may exercise appropriately our discretion to hear issues raised for the first time on appeal, and we do not consider these additional arguments. See Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360-61 (11th Cir.1984). Accordingly, we affirm the entry of summary judgment in favor of Lloyd’s on Intervening Count I.

After the close of evidence at the subsequent jury trial, the district court entered judgment as a matter of law, in favor of Lloyd’s, on the issue of delivery of the policies. The court found that Lloyd’s fully executed its delivery and notification duties under the policy and consistent with Florida law. The district court then submitted the following two issues to the jury: (1) whether the trailer (which was stolen, with the merchandise in it) was under constant surveillance at the time of the theft, as required for coverage; and (2) whether Crowley was a third-party beneficiary. [FN2] The jury returned a verdict in favor of Lloyd’s on both of these issues and the district court entered final judgment in favor of Lloyd’s. This appeal followed.

FN2. Appellants do not challenge the judgment in favor of Lloyd’s on Intervening Count II in which Crowley sought recovery as a third-party beneficiary and, thus, we do not consider this issue on appeal.

First, Crowley and Official Cargo challenge the district court’s denial of their pre-trial motion for summary judgment on the question of delivery of the policies. They also assert the district court erred by granting Lloyd’s judgment as a matter of law on the same issue prior to submitting the case to the jury. Lloyd’s responds that the district court correctly found that Exhibits 7, 8, 9, 11 and 12, when considered together, satisfied the delivery requirements of Florida surplus-lines law, which allows Florida insureds to obtain surplus-lines coverage that is unavailable from authorized insurers and thus may be procured from unauthorized insurers, subject to certain conditions of Florida law. See Fla. Stat. § § 626.13 et seq.

We review the denial of a motion for summary judgment de novo. See Sheth v. Webster, 145 F.3d 1231, 1235 (11th Cir.1998). We likewise review a district court’s decision on a motion for judgment as a matter of law de novo. See Ross v. Rhodes Furniture, Inc., 146 F.3d 1286. 1289 (11th Cir.1998).

In Florida, a surplus-lines agent must provide an insured with, among other things, a document that: is countersigned or executed by the agent; contains a description and location of the subject of the insurance; describes the conditions and terms of coverage; states the premium and rate charged, as well as taxes collected from the insured; and contains the name and address of the insured and insurer. See Fla. Stat. § 626.922(1). Based on our review of the parties’ arguments, the district court did not err by relying on the foregoing exhibits to show compliance with § 626.922(1), insofar as what was required of Lloyd’s, as an surplus-lines insurer. We affirm the entry of judgment as a matter of law on this issue. [FN3]

FN3. In reaching this conclusion, we observe that, irrespective of the delivery issues raised in this appeal, Official Cargo has not appealed the jury’s finding, on the special verdict form, that the stolen trailer was not under constant supervision, as required by the policy for coverage.

We likewise are unpersuaded by Official Cargo’s last argument, that the district court erred by preventing Official Cargo from allowing Norberto Fernandez, an agent at All Risk Insurance Agency, to opine on whether there was a statutory 60-day requirement for delivery of policies to insureds in Florida. The district court did not allow the testimony because Fernandez was a “fact witness” who was not qualified to give opinion testimony on the requirements of Florida law. In overruling Official Cargo’s objection, the district court informed counsel that the court would instruct the jury on the law at the close of the trial.

As Lloyd’s highlights in its brief, it is not disputed that, despite the district court’s ruling, later during the trial, plaintiffs’ counsel elicited testimony about the 60-day requirement from another fact witness. Thus, the error, if any, was harmless because the jury heard about the 60-day statutory period. Moreover, because the only question submitted to the jury concerned the existence of “constant supervision,” within the meaning of the Policy, the testimony about delivery (an issue the district court decided as an matter of law) was irrelevant. In any event, we can find no abuse of discretion in the district court’s evidentiary ruling. Cf. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir.2004) (en banc ), cert. denied, — U.S. —-, 125 S.Ct. 2516, — L.Ed.2d —- (2005). (reviewing district court’s evidentiary rulings for abuse of discretion).

Finally, Lloyd’s has moved for appellate attorneys’ fees and costs, based on Florida’s offer-of-judgment statute, Fla. Stat. § 768.79. We construe the motion as one for appellate attorneys’ fees and non-taxable costs and REMAND to the district court for a determination of entitlement and the reasonable amount of fees, if any, to be awarded under § 768.79.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

United States District Court,

E.D. California.

CROWN EXPRESS, LLC, Plaintiff,

v.

OZARK TRUCKING, INC., Defendant.

No. 1:04CV5981-SMS.

July 7, 2005.

ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. 21)

 

SNYDER, Magistrate J.

Plaintiff is proceeding with a civil action in this Court. The matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73(b), and Local Rule 73-301.

I. Background

On July 16, 2004, Defendant Ozark Trucking, Inc., filed a notice of removal of this action from the Superior Court of Fresno County. The action concerns allegedly damaged goods transported from Henderson, Nevada and delivered to Sacramento, California by Defendant, and thus proceeds pursuant to 28 U.S.C. § 1331, and more particularly 49 U.S.C. § 14706(d)(1) and (2), which permits a civil action against a delivering carrier, or a carrier alleged to have been responsible for a loss, to be brought in a district court and removed to the district in which the loss or damage is alleged to have occurred.

The action was commenced on April 5, 2004, and Defendant was served in June 2004. Contrary to Defendant’s representation in the notice of removal, no copy of the complaint was filed in this court as an exhibit to the notice of removal. However, a copy does appear as an exhibit to the declaration of Ward, the chief financial officer of Defendant. The first claim is for breach of a written contract in the form of refusal to reimburse Plaintiff for a loss associated with a spoiled, refrigerated load of food that Defendant hauled and that was refused by Sam’s, for which Plaintiff had to pay for in its entirety. The second claim is for an account stated within the last four years for goods and merchandise that Defendant promised to deliver but failed to deliver in good and marketable condition. It appears from the answer that the alleged written contract was exhibit A to the complaint (Ans. at 2), but the complaint is not attached as an exhibit to the declaration.

Defendant answered on August 3, 2004, admitting that the complaint was four pages with attachments and exhibits, the state action was filed in Fresno County Superior Court (action number 04CECG01141), and Defendant Ozark did not honor Plaintiff’s claim; denying that the contract was entered into in Fresno County, that Exhibit A to the complaint was the contract, that any damage or injury to Plaintiff occurred, that an account was stated, or that there was an indebtedness; and asserting affirmative defenses, including lack of causation, statute of limitations (both Cal. Civ Proc.Code § 339 and 49 U.S.C. § 14706), assumption of the risk, unspecified defenses, limitation of damages to agreed or released rate, comparative fault, failure to mitigate, unclean hands, unjust enrichment, estoppel, waiver, laches, failure of consideration, and release.

The case was scheduled on November 17, 2004, and the order indicates that the major claim is for breach of contract between Crown and Ozark. Plaintiff Crown, a refrigerated trucking company, had a contract with P & O Cold Logistics (P & O), and used Defendant Ozark as a subhauler. On June 4 or 5, 2000, Plaintiff asked Defendant to haul a load of refrigerated food from P & O’s Henderson, Nevada, facility to Sam’s Club in Sacramento; upon delivery to Sam’s, Sam’s refused the load because of unacceptable food damage due to faulty temperature control. Plaintiff contends that it paid P & O $52,306.75 for the load, but Defendant has refused reimbursement. Plaintiff asserts that Defendant failed to maintain food temperature; Defendant maintains that the load, which was loaded into the truck and fitted with a bulkhead to separate refrigerated and frozen foods and sealed by P & O, was properly maintained by it and thus not damaged by its conduct; rather, the rejected refrigerated products were possibly loaded in a warm condition by P & O. Defendant contends that the temperature records of its refrigeration unit show that the temperature was properly maintained by it. P & O is not a party to this action.

Pursuant to the amended scheduling order filed on January 21, 2005, the Plaintiff timely filed a motion for summary judgment, supporting memorandum, statement of undisputed facts, and declarations of Gary Todd and Michael Ward on June 10, 2005. [FN1] There has been no response to the motion. Although the matter was set for hearing on July 14, 2004, by separate order the Court has vacated the hearing, and the matter has been submitted for decision.

FN1. The Court has received a courtesy copy of the exhibits to the Ward declaration, but it is not clear that paper copies were actually filed with the clerk, although a notice of inability to file electronically was filed with the clerk.

Counsel for both parties filed consent to Magistrate Judge jurisdiction to conduct all proceedings, including trial and judgment, on January 21, 2005, and Judge Coyle ordered the case assigned to the undersigned Magistrate Judge on January 27, 2005.

II. Summary Judgment

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is the moving party’s burden to establish that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978).

Where a party with the ultimate burden of persuasion at trial as to a matter moves for summary judgment, it must demonstrate affirmatively by evidence each essential element of its claim or affirmative defense and must establish that there is no triable issue of fact as to each essential element such that a rational trier of fact could render a judgment in its favor. Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003).

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11. In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., 809 F.2d at 630. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” ‘ Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(e) advisory committee’s note on 1963 amendments). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)).

The showings must consist of admissible evidence, Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 n. 9 (9th Cir.1980), or pleadings, depositions, answers to interrogatories, admissions, and affidavits or declarations, Fed.R.Civ.P. 56(c). Affidavits shall be based on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Fed.R.Civ.P. 56(e). Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. Id. Declarations pursuant to 28 U.S.C. § 1746 may be used with the same force and effect as affidavits. Pollock v. Pollock, 154 F.3d 601, 611, n. 20 (6th Cir.1998). Personal knowledge may be inferred from declarations themselves, such as from facts concerning a declarant’s position and participation, Barthelemy v. Air Line Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir.1990); however, a court cannot draw an inference about facts not specifically put in the record by a party, and a court will not assume that general averments embrace specific facts needed to sustain a complaint, Lujan v. National Wildlife Federation, 497 U.S. 871, 887, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). An admission in a pleading, including a defendant’s failure to deny an allegation in a complaint, constitutes an admission. Fed.R.Civ.P. 8(d); Lockwood v. Wolf. Corp., 629 F.2d 603, 611 (9th Cir.1980). Unauthenticated documents cannot be considered on a motion for summary judgment. Hal Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir.1990). Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978).

The Court is not obligated to consider matters that are in the record but are not specifically brought to its attention; the parties must designate and refer to specific triable facts. Even in the absence of a local rule, for evidence to be considered, the party seeking to rely on it must specify the fact by indicating what the evidence is or says and must indicate where it is located in the file. Although the Court has discretion in appropriate circumstances to consider other material, it has no duty to search the record for evidence establishing a material fact. Carmen v. San Francisco United School Dist., 237 F.3d 1026, 1029 (9th Cir.2001).

III. Undisputed Facts

A. Delivery, Claim, Denial, and Filing Suit

The declaration of Gary Todd, the driver who delivered the load of freight to Sam’s Club in Sacramento on or about June 5, 2000, establishes that he delivered the load on that date, and the dock manager refused to accept the load because it was too warm; however, Todd’s declaration indicates that during the time he had the load on the truck, the temperature alarm did not sound, and thus he observed the temperatures to be acceptable.

The declaration of Michael Ward, chief financial officer of Defendant, establishes that he had personal knowledge of the facts which he related, and further establishes the following: 1) that on July 30, 2001, Roger Houston, Defendant’s president, received a letter from Plaintiff’s attorney, William L. Cowin, dated July 27, 2001, demanding payment of $52,306.75 for the load, (Decl. of Ward at 2, Ex. B); 2) on or about August 8, 2001, Houston replied and denied the claim, (id., Ex. C); 3) on or about September 10, 2001, counsel for Defendant wrote to Crown’s counsel and denied the claim, (id. at 2, Ex. D); and 4) on or about June 26, 2004, Defendant was served with this action, which was filed on April 5, 2004, more than two years and one month after the claim was disallowed, (id., Ex. E.)

B. Bill of Lading

The Ward’s declaration states that Ozark, pursuant to its custom and practice, treated the bill of lading for the freight as a contract of carriage between Plaintiff and Defendant. In 2000 it was Ozark’s custom and practice of carry loads under a Uniform Straight Bill of Lading (Decl. at 2), that such a bill of lading required written claims for loss or damage to be filed with the carrier within nine months after delivery of the property, (id., Ex. A, § 3(b)), and that such a bill of lading required that suits for loss, damage, injury, or delay should be instituted against any carrier no later than two years and one day from the day when written notice is given by the carrier to the claimant that the carrier has disallowed the claim, (id., § 3(c)).

The declarations do not establish, however, the terms of the bill of lading governing the shipment in question.

III. Analysis

A. Governing Law and Application

The Carmack Amendment (here 49 U.S.C. § 14706) established a uniform national liability policy for interstate carriers and preempts state remedies for the liability for loss or injury to property subject to it. Hughes Aircraft Co. v. North American Van Lines, 970 F.2d 609, 613 (9th Cir.1992) (holding that a state negligence action for damage to goods carried interstate was preempted where carrier conducted itself pursuant to contract); Pietro Culotta Grapes Ltd. v. Southern Pacific Transport Company, 917 F.Supp. 713, 715-17 (E.D.Cal.1996) (determining that state contract and tort claims were preempted, citing authorities, and noting the preemptive scope and intent of the amendment [then codified at 49 U.S.C. § 11707, 10730, and 10103, and later recodified at 49 U.S.C. § 14706] ).

The amendment applies, inter alia, to transportation by a motor carrier of property or passengers between a place in a state and a place in another state. 49 U.S.C. § 13501(1)(a). A “motor carrier” includes a person providing motor vehicle transportation for compensation, and “transportation” includes a vehicle, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, regardless of ownership or an agreement concerning use. 49 U.S.C. § 13102(12), (19). Under the statute, the essential basis for liability is the bill of lading, and the liability is for the actual loss or injury to property caused by the receiving or delivering carrier. 49 U.S.C. § 14706(a).

It thus appears that the statute applies to the transaction in question in the case before the Court, and that it preempts the state law claims based on the transportation of the load in question.

B. Statute of Limitations

Section 14706(e) provides:

(e) Minimum period for filing claims.–

(1) In general.–A carrier may not provide by rule, contract, or otherwise, a period of less than 9 months for filing a claim against it under this section and a period of less than 2 years for bringing a civil action against it under this section. The period for bringing a civil action is computed from the date the carrier gives a person written notice that the carrier has disallowed any part of the claim specified in the notice.

Thus, the statute provides that a carrier may not provide for a period of less than nine months for filing a claim, or less than a period of two years for bringing a civil action against it under this section. Likewise, 49 C.F.R. § 370.3 (2000) requires that before a carrier pay a claim for loss or damage to cargo, a claim be filed “within the specific time limits applicable thereto and as otherwise may be required by law, the terms of the bill of lading or other contract of carriage….” It also sets forth minimum filing requirements for a claim that is “filed with a proper carrier within the time limits specified in the bill of lading or contract of carriage of transportation….” Id.

In the present case, the actual contract alleged to have existed and to have been breached is not before the Court; Defendant did not include a copy of the contract in the notice of removal of the state court action to this Court or in the exhibits to the declarations. Likewise, Defendant admits the following:

Despite numerous requests for Crown to produce the terms and conditions section of the bill of lading, Crown has not complied. There is no reason to assume that this particular load was carried under any other terms and conditions than those contained in a standard Uniform Straight Bill of Lading.

(Deft.’s Memo. at 3.) Ward declares that it was Defendant’s custom to treat a bill of lading as a contract of carriage, (Decl. at 1), and that it was its custom to carry loads under a Uniform Straight Bill of Lading.” Defendant also argues that “it can be assumed that the standard bill of lading terms applied to carriage of the load in question.” (Deft.’s Memo. at 2.)

It is clear that neither the bill of lading itself nor the contract alleged to have been violated is before the Court. There is no proof before the court sufficient to establish by a preponderance of evidence the pertinent terms of the bill of lading or contract relating to the maximum period of time within which claims could be made and denied and actions could thereafter be filed. [FN2] Although the statute refers to times that cannot be shortened, it does not by its terms purport to state a maximum period of time after which either presenting a claim to the party, or filing a law suit, is no longer permitted. The cases cited by Defendant all involve situations in which the bill of lading stated a specific time within which a claim had to be made or action had to be filed. Cherkis v. Atlas Van Lines, Inc., 59 F.Supp.2d 203, 208 (D.Mass.1999) (nine-month period established in the bill of lading); Delphax Systems, Inc. v. Mayflower Transit, Inc. 54 F.Supp.2d 60, 61 (D.Mass.1999) (bill of lading required a claim within nine months of a reasonable time for delivery). Likewise, Defendant’s citation to Burtman Iron Works v. Con-Way Transportation Servies, 97 F.Supp.2d 122 (D.Mass.2000) is not helpful; although that case stands for the principle that when a claim is timely denied, the requisite time period for filing a lawsuit under the Uniform Straight Bill of Lading applies, in that case evidence was submitted that such a uniform bill of lading, requiring a claim within nine months and a lawsuit within two years of denial of the claim, had issued in the case, and the terms of the bill were clear. 97 F.Supp.2d at 124, 126.

FN2. The Court notes that no discovery motions were filed.

Here, the burden of establishing the affirmative defense of statute of limitations is on the moving Defendant. California Sansome Co. v. U.S. Gypsum, 55 F.3d 1402, 1406 (9th Cir.1995). Further, all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam)). No basis for concluding that a Uniform Straight Bill of Lading was actually used is set forth other than Ward’s statement regarding Defendant’s custom at the time and that of “other motor carriers,” (Decl. of Ward at 2). However, Defendant did not have the bill of lading; further, counsel states in the Memorandum (at 3) that the load in question was carried pursuant to a bill of lading which was apparently generated by P & O in Nevada. Defendant has not met its burden of establishing each essential element of a defense of the statute of limitations.

Further, no basis is given for a conclusion regarding the terms of the parties’ contract. Although it is possible that the parties’s contract and bill of lading provided for claims within nine months and suit two years thereafter, it is likewise possible that other provisions were made. Drawing a reasonable inference in favor of the opposing party, the Court concludes that Defendant has not established that it is entitled to judgment as a matter of law on a statute of limitations defense. Defendant has not shown that no rational trier of fact could find for Plaintiff on this issue.

Finally, the Court notes that Defendant has not briefed the applicability any statute of limitations. It does not appear that any state or federal statute (such as Cal.Civ.Proc.Code § 337, four years, or 28 U.S.C. § 1658, four years) would apply, but even if it were assumed that it did, Defendant has not established entitlement to judgment as a matter of law.

IV. Disposition

Accordingly, Defendant’s motion for summary judgment IS DENIED.

IT IS SO ORDERED.