Kendrick v. City of Eureka

26 Citing cases

  1. Feliz v. The Cnty. of Orange

    91 Cal.App.5th 927 (Cal. Ct. App. 2023)   Cited 2 times

    Where a complaint shows on its face that the action is barred by the statute of limitations, a general demurrer for failure to state a cause of action will lie." ( Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 367, 98 Cal.Rptr.2d 153 ( Kendrick ).) We review the trial court's sustaining of a demurrer de novo and apply the abuse of discretion standard in reviewing the court's denial of leave to amend.

  2. Cross v. City of San Francisco

    386 F. Supp. 3d 1132 (N.D. Cal. 2019)   Cited 5 times
    Noting /// that with regard to section 946.6 "because of federalism concerns, only a state court (and not a federal court) should be allowed to waive the sovereign immunity of the state"

    As an initial matter, the Court notes that, contrary to what Defendants suggest, it is not clear that equitable tolling is applicable only where there are "extraordinary circumstances" underlying the plaintiff's delay in filing suit. Although some cases refer to extraordinary circumstances, see, e.g. , Kendrick v. City of Eureka , 82 Cal. App. 4th 364, 369 n.2, 98 Cal.Rptr.2d 153 (2000) (stating that "California decisional law does provide for equitable tolling, which, in extraordinary circumstances, might arguably be used to extend the tolling period"), not all do. See, e.g. , McDonald , 45 Cal. 4th at 102, 84 Cal.Rptr.3d 734, 194 P.3d 1026 (evaluating whether there has been "reasonable and good faith conduct on the part of the plaintiff").

  3. Turner v. Kight

    406 Md. 167 (Md. 2008)   Cited 51 times
    Holding that "upon dismissal of the pendent claims, the plaintiff would have whatever time was left under the State statute of limitations when the action was filed in Federal court plus 30 days."

    So far as we can tell, that issue has been considered in only two cases, both in California. In Kendrick v. City of Eureka, 82 Cal.App.4th 364, 98 Cal.Rptr.2d 153 (2000), the plaintiff's filed suit in U.S. District Court in February, 1995, based on events that occurred a month earlier. In June, 1997, the court, having granted summary judgment on the Federal claims, declined to exercise jurisdiction over the pendent State-law claims and dismissed them.

  4. Zhang Gui Juan v. Commonwealth of the N. Mariana Islands

    6 N. Mar. I. 322 (N. Mar. I. 2001)   Cited 8 times
    In Zhang v. Commonwealth, 2001 MP 18 P 18, 6 N. Mar. I. 322, we determined that a plaintiff "should not be expected to commence simultaneously two separate actions, premised on the same facts, in both state and federal courts, since duplicate proceedings are inefficient, awkward and laborious."

    One commentator explains the background of subdivision (d) and how Congress intended it to work:See, e.g., Kendrick v. City of Eureka, 82 Cal. App. 4th 364, 98 Cal. Rptr. 2d 153, 156 (Cal Ct. App. 2000) (claims untimely where party failed to refile them in state court before the 30-day grace period specified by § 1367(d) expired); Roden v. Wright, 611 So. 2d 333 (Ala. 1992) (refiling conformed with § 1367(d) where party reasserted claims within 17 days after dismissal); Estate of Fennell v. Stephenson, 137 N.C. App. 430, 528 S.E.2d 911, 914 (N.C. Ct. App. 2000) (where plaintiff filed within 30 days subsequent to federal court of appeals decision affirming district court's dismissal, refiling was timely for purposes of § 1367(d)). Although these cases do not directly examine the issue of "tacking," the discussions on how § 1367(d) operates are consistent with the holding of Kolani and Huang.

  5. Merritt v. Countrywide Fin. Corp.

    H041560 (Cal. Ct. App. Sep. 17, 2019)   Cited 3 times

    Accordingly, the three-year statute of limitations had expired on March 28, 2009, which was before plaintiffs filed their state law claims against Bear Stearns. Relying on Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364 (Kendrick), Okoro v. City of Oakland (2006) 142 Cal.App.4th 306 (Okoro), and Bodine v. Graco, Inc. (9th Cir. 2008) 533 F.3d 1145 (Bodine), plaintiffs contend that 28 United States Code section 1367, subdivision (d) tolled the statute of limitations of their state law claims until 30 days after their appeal in federal court was final. In Kendrick, the plaintiffs filed federal and state claims in federal court. (Kendrick, supra, 82 Cal.App.4th at p. 366.)

  6. Koch v. Estrella

    D072560 (Cal. Ct. App. Apr. 19, 2018)

    We will apply this more lenient approach. Under the federal tolling statute, the tolling period "includes the time during which a federal appeal with the Court of Appeals is pursued . . . ." (Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 369 (Kendrick); Okoro v. City of Oakland (2006) 142 Cal.App.4th 306, 311-312.) However, "[t]his tolling is not extended by the later filing of a petition for writ of certiorari with the United States Supreme Court."

  7. Okoro v. City of Oakland

    142 Cal.App.4th 306 (Cal. Ct. App. 2006)   Cited 17 times
    Applying the six-month limitations period provided by section 945.6 to suits against public entities and public employees acting in the scope of their employment

    In Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 370 [ 98 Cal.Rptr.2d 153], Division Two of this court wrote that, for purposes of section 1367(d), "a matter remains 'pending' in the federal court system, at least arguably through appeal to the courts of appeals afforded as a matter of statutory right." However, the court's holding was that such matters do not remain "'pending'" during the time for the filing of a petition for writ of certiorari or for the consideration of such a petition.

  8. Hawkins v. Pacific Coast Bldg. Products, Inc.

    124 Cal.App.4th 1497 (Cal. Ct. App. 2004)   Cited 61 times   1 Legal Analyses
    Explaining general rule

    (2) If a complaint shows on its face (or from matters of which the court must or may take judicial notice (Code Civ. Proc., § 430.30)) that a cause of action is barred by the statute of limitations, a general demurrer for failure to state a cause of action will be sustained. (3) ( Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 367 [ 98 Cal.Rptr.2d 153].) "A trial court's decision to dismiss a case after sustaining a general demurrer is based predominantly on a question of law. [Citation.] The trial court's ruling is, therefore, subject to de novo review, meaning that we independently exercise our judgment about whether the complaint properly states a cause of action."

  9. Brooks-Hamilton v. Oakland

    271 F. App'x 654 (9th Cir. 2008)   Cited 22 times
    Stating that " dismissal for lack of subject matter jurisdiction is not a final judgment on the merits, Fed. R. Civ. P. 41(b)" and concluding that such a dismissal precludes a subsequent determination of the issue of jurisdiction but not a subsequent determination of any merits issue

    Under California law, however, a general demurrer for "failure to state a claim" also lies when a cause of action is barred by the statute of limitations. Kendrick v. City of Eureka, 82 Cal.App.4th 364, 98 Cal.Rptr.2d 153, 155 (2000). Although California law requires the trial court to specify the ground upon which a demurrer is sustained, Cal. Civ.Proc. Code § 472d, the trial court failed to do so.

  10. DeForte v. Borough of Worthington

    Civil Action No. 2:13-cv-356-MRH (W.D. Pa. May. 14, 2020)   Cited 1 times

    Turner v. Kight, 957 A.2d 984, 996-97 (Md. 2008). See Okoro v. City of Oakland, 48 Cal. Rptr. 3d 260, 264 (Cal. Ct. App. 2006) (citing Kendrick v. City of Eureka, 98 Cal. Rptr. 2d 153, 157 (Cal. Ct. App. 2000)); Berke v. Buckley Broad. Corp., 821 A.2d 118, 124 (N.J. Super. Ct. App. Div. 2003); Harter v. Vernon, 532 S.E.2d 836, 839 (N.C. Ct. App. 2000), abrogated on other grounds by Artis, 138 S. Ct. at 598; Fennell v. Stephenson, 528 S.E.2d 911, 914 (N.C. Ct. App. 2000), rev'd in part on other grounds, 554 S.E.2d 629, 634 (N.C. 2001); Huang v. Ziko, 511 S.E.2d 305, 308 (N.C. Ct. App. 1999), abrogated on other grounds by Artis, 138 S. Ct. at 598; Lucas v. Muro Pharm. Inc., No. 944052, 1994 WL 878820, at *2-3 (Mass. Super. Dec. 2, 1994).