Cervantes v. City of San Diego, No. 91-56305

Decision Date27 September 1993
Docket NumberNo. 91-56305
Citation5 F.3d 1273
PartiesRobert R. CERVANTES, Plaintiff-Appellant, v. CITY OF SAN DIEGO; San Diego Police Department; Dennis Sesma; Officer Carlos Garcia; Les Wardwell; Officer Eugene Bojorquez, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Richard R. Castillo, Castillo and Guevara, San Diego, CA, for plaintiff-appellant.

James M. Chapin, Deputy City Atty., San Diego, CA, for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before: FARRIS, NORRIS, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Robert R. Cervantes appeals the dismissal, under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, of his First Amended Complaint. The district court concluded that the action, brought under 42 U.S.C. Sec. 1983, was barred by the applicable statute of limitations. Because we conclude that Cervantes' amended complaint adequately alleges facts supporting equitable tolling of the limitations period, we reverse and remand.

I

Cervantes' First Amended Complaint alleges that defendants Sesma, Garcia, Bojorquez, and Wardwell conspired to violate his civil rights by unlawfully detaining and arresting him, illegally searching his residence, falsifying evidence against him, falsely accusing him of involvement in illegal drug use and drug sales, and presenting perjured testimony against him. The complaint alleges that the defendants' lengthy conspiracy resulted in the wrongful termination of Cervantes' employment with the San Diego Fire Department. Cervantes' complaint further avers that the City and police department were aware of and furthered the conspiracy, ultimately allowing his wrongful termination to stand on administrative appeal. Loss of employment is the major component of Cervantes' alleged injury and damages.

The First Amended Complaint also describes Cervantes' efforts to be reinstated by the City. Cervantes pursued administrative remedies before the state Civil Service Commission from his termination in November 1988 until September 7, 1989. He sought review of the Commission's adverse determination by filing a petition for a writ of mandate with the Superior Court in May 1990. The state court denied the writ on August 31, 1990, and Cervantes filed this action on March 21, 1991.

Contending that the statute of limitations bars Cervantes' claim, the City and police department moved to dismiss the original complaint under Fed.R.Civ.P. 12(b)(6). After the district court granted the motion with leave to amend, Cervantes filed his amended complaint, incorporating the allegations relating to his pursuit of administrative remedies. The defendants again moved to dismiss for failure to state a claim, arguing that the statute of limitations or, alternatively, res judicata bars the action. On September 10, 1991, concluding that the statute was not tolled by the administrative and state court proceedings, the district court dismissed the action without leave to amend on the ground that it was time-barred.

Cervantes appeals, arguing that equitable tolling saves his otherwise untimely claim.

II

In federal court, dismissal for failure to state a claim is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Review is limited to the complaint; "evidence outside the pleadings ... cannot normally be considered in deciding a 12(b)(6) motion." Farr v. United States, 990 F.2d 451, 454 (9th Cir.1993). "The issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (emphasis added). Thus, "[w]hen a motion to dismiss is based on the running of the statute of limitations, it can be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980).

California's one-year statute of limitations for personal injury actions applies to Cervantes' section 1983 claim. See Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985); Usher v. City of Los Angeles, 828 F.2d 556, 558 (9th Cir.1987). Cervantes concedes that, absent equitable tolling, his claim would be time-barred. As with the limitations period itself, we borrow our rules for equitable tolling of the period from the forum state, California. See Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989); Harding v. Galceran, 889 F.2d 906, 907 (9th Cir.1989).

California courts "have liberally applied tolling rules or their functional equivalents to situations in which the plaintiff has satisfied the notification purpose of a limitations statute." Elkins v. Derby, 12 Cal.3d 410, 418, 115 Cal.Rptr. 641, 647, 525 P.2d 81, 87 (1974). Consistent with this tradition, the doctrine of equitable tolling rests upon the reasoning that a claim should not be barred "unless the defendant would be unfairly prejudiced if the plaintiff were allowed to proceed." Collier v. City of Pasadena, 142 Cal.App.3d 917, 923, 191 Cal.Rptr. 681, 684 (1983). Under California law, equitable tolling "reliev[es] plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage." Addison v. California, 21 Cal.3d 313, 317, 146 Cal.Rptr. 224, 226, 578 P.2d 941, 943 (1978).

To this end, California courts have developed a "definitive three-pronged test for invocation of the doctrine" of equitable tolling. Loehr v. Ventura County Community College Dist., 147 Cal.App.3d 1071, 1085, 195 Cal.Rptr. 576, 584 (1983). A plaintiff's pursuit of a remedy in another forum equitably tolls the limitations period if the plaintiff's actions satisfy these factors: 1) timely notice to the defendants in filing the first claim; 2) lack of prejudice to the defendants in gathering evidence for the second claim; and 3) good faith and reasonable conduct in filing the second claim. See Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir.1987); Collier 142 Cal.App.3d at 924, 191 Cal.Rptr. at 685. The doctrine of equitable tolling focuses on the effect of the prior claim in warning the defendants in the subsequent claim of the need to prepare a defense.

Here, the district court granted dismissal after a "threshold inquiry" into the similarity of the two claims. The court apparently concluded, without employing the three-part test, that equitable tolling did not apply, as a matter of law, because Cervantes' administrative and state court proceedings were not "substantially similar" to this action. However, "similarity" of the prior and current claims is a matter best determined following, and on the basis of, the application of the three-part equitable tolling test established by California law. Although we have previously stated that "equitable tolling is not applicable when a plaintiff has pursued a remedy as to only one of several distinct wrongs," Donoghue, 848 F.2d at 931, we have never suggested that in reaching that determination the district court may bypass the traditional method for determining California equitable tolling issues. 1 It is the application of California's equitable tolling test itself that yields the "final" conclusion as to whether two claims are "similar" enough that the pendency of the one should toll the limitations period for the other. Although "similarity" often serves as a shorthand designation of the outcome of the test, it is neither separable from nor a "threshold" to the requisite three-part inquiry. Application of the three-part test is mandatory. 2

Nonetheless, "similarity" of the prior and subsequent claims is a significant consideration when applying the second test factor, prejudice to the defendant. However, unlike a "threshold" inquiry determinable as a matter of law, the focus of this factor is whether the facts of the two claims are "at least so similar that the defendant's investigation of the first claim will put him in a position to fairly defend the second." Collier, 142 Cal.App.3d at 925, 191 Cal.Rptr. at 685-86. "The critical question is whether notice of the first claim affords the defendant an opportunity to identify the sources of evidence which might be needed to defend against the second claim." Id. This inquiry--the appropriate "similarity" inquiry under California law--is far more fact-specific and evidence-bound than the "threshold" determination apparently envisioned by the district court. Under California's equitable tolling test, "similarity" is less a legal conclusion and more a factual exploration of the contentions and evidence relevant to each claim. As such, "similarity" is not easily resolved as a matter of law, without receiving evidence.

Indeed, each of the three factors in California's test for equitable tolling requires a practical inquiry. 3 At a minimum, determining the applicability of equitable tolling necessitates resort to the specific circumstances of the prior claim: parties involved, issues raised, evidence considered, and discovery conducted. Thus, the question ordinarily requires reference to matters outside the pleadings, and is not generally amenable to resolution on a Rule 12(b)(6) motion, where review is limited to the complaint alone. Cf. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1199 (9th Cir.1988) (reversing dismissal because to decide equitable tolling "district court would have had to resolve certain disputed factual matters"); Donoghue, 848 F.2d at 931 (vacating dismissal because equitable tolling "rule necessitates a careful evaluation of the wrongs...

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