159 F.3d 374 (9th Cir. 1998), 96-55268, Cabrera v. City of Huntington Park

Docket Nº:96-55268, 97-55431.
Citation:159 F.3d 374
Party Name:98 Daily Journal D.A.R. 10,864 Jose E. CABRERA, Plaintiff-Appellant, v. CITY OF HUNTINGTON PARK; Frank Sullivan, Chief of Police sued as an individual & in an official capacity; Unknown Sanford, Police Officer; A. Luna, Police Officer; N. Mongan, Police Officer; Unknown Deers, Sergeant, Defendants-Appellees. Jose E. CABRERA, Plaintiff-Appellant, v.
Case Date:October 16, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 374

159 F.3d 374 (9th Cir. 1998)

98 Daily Journal D.A.R. 10,864

Jose E. CABRERA, Plaintiff-Appellant,

v.

CITY OF HUNTINGTON PARK; Frank Sullivan, Chief of Police

sued as an individual & in an official capacity; Unknown

Sanford, Police Officer; A. Luna, Police Officer; N.

Mongan, Police Officer; Unknown Deers, Sergeant,

Defendants-Appellees.

Jose E. CABRERA, Plaintiff-Appellant,

v.

CITY OF HUNTINGTON PARK; David Sanford, Police Officer;

Antonio Luna; James Fimbres; Robert Valencia;

Neal Mongan; William Diers, Defendants-Appellees.

Nos. 96-55268, 97-55431.

United States Court of Appeals, Ninth Circuit

October 16, 1998

Argued and Submitted Nov. 4, 1997.

Page 375

[Copyrighted Material Omitted]

Page 376

James S. Muller, Law Offices of James S. Muller, Los Angeles, California, for plaintiff-appellant.

Steven N. Skolnick, Bonnie Yates, and Jonathan Bailey Lappen, Steven N. Skolnick Law Offices, Santa Monica, California, for defendants-appellees.

Appeals from the United States District Court for the Central District of California; James M. Ideman, District Judge, Presiding. D.C. No. CV-95-02359-JMI. D.C. No. CV-96-05993-JMI-RNB.

Page 377

Before: KOZINSKI, TROTT and SILVERMAN, [*] Circuit Judges.

PER CURIAM:

Jose E. Cabrera appeals the dismissal of his § 1983 action, see 42 U.S.C. § 1983 (1994), against the City of Huntington Park and several of its police officers (collectively, "Huntington Park"). 1 The district court held that Cabrera's malicious prosecution claim was barred by res judicata because it constituted the same cause of action as a prior suit and that the rest of his § 1983 claims were barred by California's one-year statute of limitations, see Cal. Civ. Proc. Code § 340.3 (West 1998). For the reasons set forth below, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 7, 1992, Huntington Park police officers went to Salt Lake Park, in the City of Huntington Park, in response to a call concerning a fight between Cabrera's brother and his brother's girlfriend. Cabrera claims that, even though his only role was as a peacemaker, the police officers assaulted and battered him, breaking his legs in the process. Cabrera further alleges that the police officers used excessive force against him while he was in their custody at the arrest scene. In addition, Cabrera contends that he was then falsely arrested and later prosecuted on charges of disturbing the peace and resisting, delaying, and obstructing a peace officer in the discharge of his duty.

On August 8, 1992, Cabrera was released from police custody pursuant to a notice to appear. See Cal. Penal Code § 853.6 (West 1985). On August 25, 1992, criminal charges were filed against Cabrera for resisting arrest and disturbing the peace.

On April 12, 1995, Cabrera filed suit ("Cabrera I") against Huntington Park alleging that Huntington Park violated his constitutional rights, protected under § 1983, by detaining him without reasonable suspicion, subjecting him to excessive force, arresting him without probable cause, failing to prevent misconduct by other police officers, falsely imprisoning him, and interfering with his right to seek redress from his injuries by covering up the officer misconduct.

The prosecutor dismissed the resisting arrest charge prior to trial, and Cabrera was convicted of disturbing the peace and sentenced on April 27, 1994. While Cabrera I was pending, Cabrera's conviction was overturned, and Cabrera was acquitted of the disturbing the peace charge, on retrial, on September 14, 1995.

On June 16, 1995, Huntington Park, including police officers, Sanford, Luna, Mongan, and Diers, filed a motion to dismiss Cabrera's complaint contending that the complaint was barred by California's one-year statute of limitations. See Cal. Civ. Proc. Code § 340.3. According to Huntington Park, the statute of limitations ran for sixteen days in 1992, from August 9 through August 24. Then, Cal. Gov't Code § 945.3 (West 1995) tolled the statute of limitations from August 25, 1992 through April 27, 1994, while the criminal charge was pending before a court. Thus, the seventeenth day of the one-year period commenced running on April 28, 1994 with the three hundred and sixty-fifth day ending on April 11, 1995. Because Cabrera filed suit on April 12, 1995, his complaint was filed one day late and was barred by the statute of limitations.

However, the district court found that Cal.Civ. Proc. Code § 12 (West 1982) excludes the first day of a limitations period from the computation of a statute of limitations; therefore, Cabrera's complaint was timely filed because August 9, 1992 should be excluded from the limitations period.

Subsequently, police officers Valencia and Dimas moved for dismissal on identical

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grounds but, in addition, asserted that Ganahl v. Soher, 5 P. 80, 80-81 (Cal.1884), controlled the issue of counting. The officers argued that, under Ganahl, the first day after a tolling period ends should be included in counting the limitations period. The district court agreed and dismissed Cabrera's entire action as to all defendants.

On August 28, 1996, Cabrera filed a § 1983 action against Huntington Park claiming malicious prosecution ("Cabrera II"). 2 These claims were related to the same series of events which were the subject matter of Cabrera I. Huntington Park moved to dismiss this complaint on the ground of claim preclusion and also moved for sanctions under Fed. R. Civ. P. 11. Huntington Park argued that either the malicious prosecution claim had been raised in Cabrera I or, alternatively, that the malicious prosecution claim should have been brought in the prior action.

On March 21, 1997, the district court dismissed with prejudice Cabrera II as barred by res judicata. The district court also awarded sanctions against Cabrera's attorney in the amount of $4000. Cabrera appeals these decisions.

II. DISCUSSION

  1. The Issues Raised in Cabrera I Regarding the Dismissal of the § 1983 claims

    Cabrera argues that the district court erred in dismissing his § 1983 claims on statute of limitations grounds. We review de novo a district court's dismissal of a plaintiff's claims on statute of limitations grounds. See Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir.1996). Similarly, the district court's interpretation of California state law is subject to our de novo review. See Huey v. Honeywell, Inc., 82 F.3d 327, 329 (9th Cir.1996). However, this Court's duty is "to ascertain and apply the existing California law, not to predict that California may change its law and then to apply [our] notion of what that change might or ought to be." Klingebiel v. Lockheed Aircraft Corp., 494 F.2d 345, 346 (9th Cir.1974).

    To support this claim of error, Cabrera first contends that the first day after the tolling of the statute of limitations ends is excluded pursuant to Cal. Civ. Proc. Code § 12. Under section 12, "[t]he time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded." Cabrera advocates that section 12's counting method should apply whether or not the statute of limitations begins to run immediately or after a tolling period ends. Accordingly, Cabrera submits that, in the instant case, because he was under the disability of imprisonment on August 7 and 8, the district court should not have counted August 9 as part of the one-year limitations period. We disagree.

    In 1884, the California Supreme Court addressed whether the day after the plaintiff's disability ceased should be included or excluded in the computation of the statute of limitations period. See Ganahl, 5 P. at 81. The California Supreme Court held that the statute of limitations begins to run immediately after a disability period ends. See id.; 3 see also N.J. Marini, Annotation, Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R.2d 1249, 1255 (1951) ("[T]he first day after the

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    disability ceases is to be included in the computation of the period of time limited by statute in which to bring the action after the disability ceases.").

    Despite its age, the Ganahl holding is still good law. 4 See In re Harris, 5 Cal.4th 813, 21 Cal.Rptr.2d 373, 855 P.2d 391, 412 n. 18 (1993) (the California Supreme Court rejects challenges to Ganahl 's status as precedent). Absent an overruling decision or a subsequent legislative change, this court is bound by the California Supreme Court's interpretation of California's statute of limitations. See Moore v. Illinois Central R.R. Co., 312 U.S. 630, 633, 61 S.Ct. 754, 85 L.Ed. 1089 (1941), overruled on an unrelated point by Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 326, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972).

    In addition, citing Alferitz v. Borgwardt, 126 Cal. 201, 58 P. 460, 461-62 (1899), Cabrera contends that Ganahl lacks precedential value because it fails to discuss and consider § 12. However, Alferitz speaks to the California Supreme Court's ability to overrule its own erroneous decisions. See id. Section 12 was enacted in 1872, twelve years before the Ganahl decision. Once again, absent a subsequent legislative change or an overruling decision, this court is bound by the California Supreme Court's interpretation of California limitation statutes. See Moore, 312 U.S. at 633, 61 S.Ct. 754.

    As his second point of error, Cabrera argues that the district court erred by counting August 9-24, 1992 as part of the one-year limitations period. Cabrera contends that a notice to appear constitutes an "accusatory pleading," and the issuance of the notice to appear on August 8, 1992 was sufficient to commence tolling of the statute of limitations under Cal. Gov't Code §...

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