Parker v. Dolan CA4/1

Filed 9/1/23 Parker v. Dolan CA4/1

NOT TO BE PULISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ROBERT PARKER, D081180

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2020-00016417- CU-DF-CTL) JOSEPH DOLAN,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, John S. Meyer, Judge. Affirmed. Robert Parker, in pro. per., for Plaintiff and Appellant. Konoske Akiyama & Brust, Gregory P. Konoske and Megan K. Hawkins for Defendant and Respondent.

Robert Parker sued Joseph Dolan for battery more than two years after Dolan allegedly pushed his handkerchief in Parker’s face during a fight over a treadmill in a gym. The trial court sustained Dolan’s demurrer without leave to amend on statute of limitations grounds. Parker contends he should be able to invoke the discovery rule to extend the applicable statute of limitations based on his claim that the stress of the event suppressed his memory of the alleged battery. We agree with the trial court that the discovery rule has no application to the facts of this case, nor can Parker save his action through amendment. Accordingly, we affirm the judgment of dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

On March 4, 2019, Parker hopped on a treadmill at his gym, part of a recreation center associated with San Diego State University. There was a small white courtesy towel in the treadmill’s cupholder, but the treadmill did not otherwise appear to be occupied or in use. Moments later, Dolan approached and declared that he had reserved the treadmill with the hand towel. According to Parker, Dolan became “incensed and irrational,” unplugging Parker’s headphones from the treadmill and verbally berating him. Police were called, and the gym later revoked Parker’s membership. Representing himself, Parker sued the university gym and “Does 1-9” in May 2020 for defamation, breach of contract, breach of the covenant of good faith and fair dealing, and sex discrimination in connection with these events. His complaint identified “Doe 1” as the adult male with whom he had the dispute over the treadmill, but claimed to be “truly ignorant” of his name. The university filed an answer and the parties engaged in discovery.