Dimick

MEMORANDUM **

Delbert R. Dimick appeals the judgment in his action for breach of fiduciary duty and conversion against Joseph P. Donahue, arguing that the district court erred in calculating damages. Donahue cross-appeals on the footing that Dimick’s claims were asserted too late. We affirm.

*555 I

None of Donahue’s arguments for why Dimick’s claims are untimely is persuasive. The court did not clearly err in finding that Dimick’s claims did not accrue on January 30, 1996, or that he should have known of his cause of action by then. See Erlin v. United States, 364 F.3d 1127, 1130 (9th Cir.2004) (noting that whether a reasonable person should have known that he had been harmed is reviewed for clear error). Nor did the court abuse its discretion in declining to bar Dimick’s action on equitable grounds: by leaving Polyscan, Dimick did not breach a duty of loyalty that affected Donahue’s duty to him as a shareholder, and Dimick did not unduly delay in bringing suit once he learned about the Etec transaction. Finally, Donahue’s waiver theory fails because Dimick did nothing to secrete himself and Donahue knew where he was. Cf. Washington ex rel. Burton v. Leyser, 196 Cal.App.3d 451…

concurring in part and dissenting in part.

I concur in the conclusions of Part I of the memorandum disposition affirming the timeliness of Dimick’s suit.

However, as to Part II, I question whether the amount of damages awarded by the district court adequately compensates Dimick for the wrongs he suffered from Donahue’s breach of fiduciary duty, and I respectfully dissent from the majority. I conclude that the district court misapplied the law involving damages calculations, the choice of which we review de novo. See Gayle Mfg. Co., Inc., v. Fed. Sav. & Loan Ins. Corp., 910 F.2d 574, 578 (9th Cir.1990). Furthermore, because the district court misapplied the law, the district court’s calculation of damages presents clear error and its decision not to impose a constructive trust constitutes an abuse of discretion.

The district court stated that it chose to not base its damages calculation on the time of filing because doing so would have required “impermissible speculation and conjecture” as to when Dimick would have actually sold his stock and what the resulting amount would be. This statement indicates a misapplication of the doctrine of speculation. As stated by the California…