Papenthien v. Papenthien
| Decision Date | 25 July 1997 |
| Docket Number | No. 95-56802,95-56802 |
| Citation | 120 F.3d 1025 |
| Parties | 97 Cal. Daily Op. Serv. 5905, 97 Daily Journal D.A.R. 9503 Barbara Falgoust PAPENTHIEN, Plaintiff-Appellant, v. Michael R. PAPENTHIEN, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas D. Schaefer, Lightner, Castro, Schaefer & Hunter, San Diego, CA, for plaintiff-appellant.
Janice R. Mazur, El Cajon, CA, for defendant-appellee.
Appeal from the United States District Court for the Southern District of California; John S. Rhoades, District Judge, Presiding. D.C. No. CV-94-00291-JR.
Before: FLETCHER and PREGERSON, Circuit Judges, and WEXLER, * District Judge.
Barbara Papenthien appeals the dismissal of her diversity action for personal injuries arising out of alleged acts of domestic violence by her husband in the course of a ten-year marriage. The district court dismissed the action after determining that Cal.Civ.Proc.Code § 351 (West 1982), which tolls a statute of limitations during a defendant's absence from the state, was unconstitutional as applied under the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. After striking the tolling provision, the district court concluded that eight of the acts were barred by California's one-year statute of limitations for personal injury and that venue was lacking in the district court for the only remaining viable acts, which allegedly occurred in Hong Kong, on February 25, 1993, and New York City, in July 1993. We have jurisdiction, 28 U.S.C. § 1291, and we reverse on the grounds that under Cal.Civ.Proc.Code § 340.15, which became effective on January 1, 1996, appellant's claims of domestic violence within the Southern District of California are no longer time-barred. 1
The parties married in July 1983 and separated in August 1993. A dissolution action was filed by appellant in 1993 and is currently pending in San Diego Superior Court. During most of the marriage the parties resided in Carlsbad, California. After the separation, Michael Papenthien moved to Illinois. Barbara Papenthien filed her original complaint on February 25, 1994. In it, she set forth causes of action for intentional infliction of emotional distress and assault and battery. She alleged one specific act, which purportedly occurred in Hong Kong on February 25, 1993, one year prior to filing the action.
On July 7, 1994, the district court dismissed her complaint without prejudice, finding that because defendant was not a resident of California and the only incident identified by location in the complaint was in Hong Kong, venue was improper.
On November 4, 1994, appellant filed a First Amended Complaint for damages alleging assault, battery, and intentional infliction of emotional distress. This complaint specified 13 incidents of domestic violence. Eight of the alleged 13 acts occurred in California, the last alleged incident occurred in July 1993, during a visit to New York.
On November 7, 1995, the district court dismissed the case. It held that the Cal.Civ.Proc.Code § 351 was unconstitutional as applied and that absent tolling, only two incidents alleged fell within the limitations period, one in New York, in July 1993, and one in Hong Kong, on February 25, 1993. Accordingly, it dismissed for improper venue under 28 U.S.C. § 1406(a). This appeal followed.
We review a district court's dismissal on statute of limitations grounds de novo. Grimmett v. Brown, 75 F.3d 506, 510 (9th Cir.1996). A district court's interpretation of state law is reviewed under the same independent de novo standard as are questions of federal law. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991).
Cal.Code Civ. Proc. § 340.15 provides:
(a) In any civil action for recovery of damages suffered as a result of domestic violence, the time for commencement of the action shall be within three years from the date of the last act of domestic violence by the defendant against the plaintiff that gave rise to the cause of action. 2
The last act of alleged domestic violence occurred in July 1993. Appellant's First Amended Complaint relates back to the date of filing of the original complaint for purposes of compliance with the statute of limitations. Fed.R.Civ.P. 15(c)(2). SEC v. Seaboard Corp., 677 F.2d 1301, 1314 (9th Cir.1982). The original Complaint was filed on February 25, 1994, alleging an incident of domestic violence on February 25, 1993. This complaint was timely pursuant to then existing law, which prescribed a one-year statute of limitations. 3
The district court did not have an opportunity to rule on whether or not § 340.15(a) applies because the statute became effective after the court had issued its order of dismissal, on the basis of improper venue, on November 7, 1995. 4 Appellees argue that § 340.15(a) does not apply retroactively. Because we must apply the law as it exists when we are deciding an action on appeal, this is not a case that calls for a retroactivity analysis. See Rush v. Obledo, 756 F.2d 713, 725 (9th Cir.1985) (); Driscoll v. Gebert, 458 F.2d 421, 423 (9th Cir.1972) ().
California law permits the legislative enlargement of a limitation period to cases, like this one, that have been timely filed.
It is the settled law of this state that an amendment which enlarges a period of limitation...
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