Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Applicant brought suit against insurer, alleging age discrimination and other claims arising out of insurer's terms for issuing him aviation insurance. The United States District Court for the Northern District of California, Maxine M. Chesney, J., entered summary judgment for insurer. Applicant appealed. The Court of Appeals held that injury to business stemming from insurer's refusal to issue policy with desired terms did not involve anti-trust injury under California's Cartwright Act.
Affirmed in part, vacated in part, and remanded.
Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, District Judge, Presiding.
Before CANBY, O'SCANNLAIN, and T.G. NELSON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Claude J. Wilson, a commercial pilot, appeals pro se the district court's summary judgment in his diversity action alleging age discrimination in Avemco Insurance Company's ("Avemco") terms for issuing him aviation insurance. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Pool Water Prods. v. Olin Corp., 258 F.3d 1024, 1034 (9th Cir.2001), and we affirm in part, vacate in part, and remand.
The district court properly granted summary judgment on Wilson's claims under California's Cartwright Act, Cal. Bus. & Prof.Code §§ 16721 & 16750, and his claim for restraint of trade, because he failed to state an anti-trust injury. See Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 985-91 (9th Cir.2000) (discussing requirements for anti-trust claim under California law). Wilson neither alleged, nor submitted evidence of, an injury to competition but merely an injury to his business stemming from Avemco's rejection of his desired policy terms. See id. at 985 (stating purpose of Cartwright Act is to promote competition and prevent monopolies or other agreements that restrain free trade) (citation omitted); Quelimane Co. v. Stewart Title Guar. Co., 19 Cal.4th 26, 77 Cal.Rptr.2d 709, 960 P.2d 513, 526 (1998) (stating that an insurer's refusal to sell a product to a consumer only violates the Cartwright Act "when that refusal is the result of a combination, agreement, or conspiracy to make that product unavailable in a given market").
Although Wilson has never clarified whether he brought his restraint of trade claim pursuant to the Cartwright Act or common law, the distinction does not affect our analysis. See Quelimane Co. v. Stewart Title Guar. Co., 19 Cal.4th 26, 77 Cal.Rptr.2d 709, 960 P.2d 513, 526 (1998) ("A cause of action for restraint of trade under the Cartwright Act or common law principles must allege both a purpose to restrain trade and injury to the business of the plaintiff traceable to actions in furtherance of that purpose.").
The district court found untimely Wilson's claims under California's Unruh Civil Rights Act, Cal. Civ.Code §§ 51-52, in reliance on West Shield Investigations v. Superior Court, 82 Cal.App.4th 935, 98 Cal.Rptr.2d 612, 623 (2000). After the district court's decision, the California Court of Appeals ruled that the one-year statute of limitations utilized in West Shield applies only to Unruh Act provisions which derive from common law and a three-year statute of limitations applies to all other provisions. Gatto v. County of Sonoma, 98 Cal.App.4th 744, 120 Cal.Rptr.2d 550, 560 (2002). Since the Unruh Act provisions were made applicable to insurance pursuant to statute, see Cal. Ins.Code § 1861.03(a); Wilson v. FEHC, 46 Cal.App.4th 1213, 54 Cal.Rptr.2d 419, 423-24 (1996), we vacate summary judgment on these claims and remand to the district court for further consideration of the statute of limitations issue.
In light of this disposition, we do not reach Wilson's contentions regarding equitable tolling.
We therefore affirm the district court's summary judgment on the third and fourth causes of action and vacate on the first and second causes of action. Because Wilson did not appeal the district court's summary judgment on the fifth cause of action, we have not considered this issue. See Brookfield Communications, Inc. v. W. Coast Entm't Corp., 174 F.3d 1036,
Page 930.
1046 n. 7 (9th Cir.1999). We remand to the district court for proceedings consistent with this decision.
Each side shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.