Alonzo v. ACF Property Management, Inc., No. 79-3002

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before WALLACE and ALARCON; WALLACE
• Citation: 643 F.2d 578
• Parties: Joaquin ALONZO, Plaintiff-Appellant, v. ACF PROPERTY MANAGEMENT, INC., a Corporation, Defendant-Appellee.
• Decision Date: 22 April 1981
• Docket Number: No. 79-3002

Page 578

643 F.2d 578 Joaquin ALONZO, Plaintiff-Appellant,
v.
ACF PROPERTY MANAGEMENT, INC., a Corporation, Defendant-Appellee. No. 79-3002. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Nov. 7, 1980.
Decided March 9, 1981.
Rehearing Denied April 22, 1981.

Page 579

Jesse L. Halpern, Halpern & Halpern, Encino, Cal., for plaintiff-appellant.

Robert S. Stearns, Hollywood, Cal., for defendant-appellee.

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

Before WALLACE and ALARCON, Circuit Judges, and COPPLE, ^* District Judge.

WALLACE, Circuit Judge:

This is an appeal from a final order, entered by the district court, granting a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The motion was granted on the grounds that the action was barred by the California statute of limitations. The action was brought by Alonzo, a citizen of the Republic of Mexico, against ACF Property Management, Inc. (ACF), a California corporation, for damages Alonzo sustained while on the property owned by ACF. Jurisdiction was invoked pursuant to 28 U.S.C. § 1332, there being diversity of citizenship and damages alleged in excess of $10,000. We affirm in part and reverse and remand in part for reconsideration.

I

Alonzo sustained bodily injuries on October 23, 1976, as a result of falling from the second story of an apartment owned, maintained, controlled and operated by ACF. Alonzo alleges that his injuries were a result of ACF's negligence.

Alonzo filed a complaint in the district court on October 25, 1977. California Code of Civil Procedure § 340(3) provided that the statute of limitations for personal injuries due to negligence was one year. The final day for filing, October 23, 1977, was a Sunday, and both federal and state courthouses were closed. Monday, October 24, 1977, was a federal holiday (Veterans Day) and as a result federal courthouse offices were closed. State offices, however, were open for business because the State of California observed Veterans Day on November 11, 1977, pursuant to statute. See Cal. Government Code § 6700. ACF was served with the summons and complaint and subsequently successfully moved to dismiss the action with prejudice for failure to state a claim upon which relief can be granted.

II

A ruling on a motion to dismiss for failure to state a claim upon which relief can be granted is a ruling on a question of law. Yuba Consol. Gold Fields v. Kilkeary, 206 F.2d 884, 889 (9th Cir. 1953). As a question of law, the district court's decision is freely reviewable by the court of appeals. United States v. Rosales, 584 F.2d 870, 872 (9th Cir. 1978). We recognize that a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that plaintiff would be entitled to no relief under any state of facts which could be proven. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).

Alonzo alleges that in a federal diversity action, the statute is tolled when, as here, the last day for filing falls on a Saturday, Sunday or holiday. Fed.R.Civ.P. 6(a). Because the federal courts observed the day in question as a holiday and were closed, Alonzo claims he is entitled to one more day within which to file in the federal court. The district court disagreed, relying upon

Page 580

Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949).

Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), teaches that "(e)xcept in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State." Id. at 78, 58 S.Ct. at 822. Guaranty Trust Co. v. York, 326 U.S. 99 (1945), applied Erie to statutes of limitations, holding that the state statute governed. In Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), the Court held applicable the tolling provision of the state statute of limitations, requiring service of summons within the statutory period. Broad language in Ragan suggests that any provision "integral to" the state statute of limitations must be applied in a diversity case. Id. at 533-34, 69 S.Ct. at 1234-35.

The validity of the Ragan decision had been seriously questioned as a result of the Supreme Court decision in Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). In Hanna, the issue was whether in a Federal diversity of citizenship suit, Rule 4(d)(1) of the Federal Rules of Civil Procedure rather than state law...