Opinion
Michael Edward Adams, Counsel for Plaintiff(s).
Mark L. Strombotne, Bronwen E. Lacey, Counsel for Defendant(s).
ORDER DENYING MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM [FRCP 12(b)(6)]
RONALD WHYTE, District Judge.
Defendants City of Santa Clara, Officer Nikolai, and Officer Pilger have moved to dismiss the second, fourth, fifth, sixth causes of action in plaintiff Zoltan Kiss's First Amended Complaint for the reason that said claims are barred by the statute of limitations. The motion was heard on August 20, 2004. For the reasons set forth below, the motion is denied.
I. BACKGROUND
On August 13, 2000 plaintiff was arrested by the Santa Clara Police Department for suspicion of kidnaping. On August 16, 2000 plaintiff was charged with kidnaping and molesting/bothering a child. On August 21, 2000 plaintiff was arraigned, but plaintiff was unable to post bail and remained in custody. On May 3, 2002 the jury returned a not guilty verdict and charges were dismissed. Almost a year later, on May 1, 2003 plaintiff filed his original complaint in Santa Clara County Superior Court, which was subsequently removed to this court.
Defendants contend that the statute of limitations bars plaintiff's second, fourth, fifth, and sixth causes of action. The second cause of action alleges negligent investigation in violation of 42 U.S.C. § 1983. The fourth cause of action alleges disability discrimination in violation of 42 U.S.C. § 1983. The fifth cause of action, brought only against the city, alleges failure to train police officers in violation of 42 U.S.C. § 1983. The sixth cause of action, also brought only against the city, alleges negligent selection of police officers in violation 42 U.S.C. § 1983.
II. ANALYSIS
The settled law for § 1983 actions is that "[t]he length of the limitations period, and closely related questions of tolling and application, are to be governed by state law." Silva v. Crain , 169 F.3d 608, 610 (9th Cir. 1999) (quoting Wilson v. Garcia , 471 U.S. 261, 269 (1985)). "[C]ourts considering § 1983 claims should borrow the general or residual statute for personal injury actions." Id . (quoting Owens v. Okure , 488 U.S. 235, 250 (1989)). The Ninth Circuit has held that in California the general, residual statute of limitations for personal injury actions was the one year period set forth in California Civil Procedure Code § 340(3). Id .; Del Percio v. Thornsley , 877 F.2d 785, 786 (9th Cir. 1989). In 2002, the California Legislature amended the statute of limitation provisions, moving the relevant portions of § 340(3) (now designated § 340(e)) to § 335.1. Under § 335.1, actions "for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another" have a two year statute of limitations. Cal. Civ. Proc. § 335.1. The two year statute of limitations became effective on January 1, 2003. Krupnick v. Duke Energy Morro Bay , 115 Cal.App.4th 1026, 1028 (2004).
"Although state law determines the length of the limitations period, federal law determines when a civil rights claim accrues." Morales v. City of Los Angeles , 214 F.3d 1151, 1153-54 (9th Cir.2000). Under federal law, "a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Tworivers v. Lewis , 174 F.3d 987, 992 (9th Cir.1999). The first injury upon which plaintiff bases his claims of negligent investigation, negligent selection, failure to train, and disability discrimination was his arrest. Therefore, it appears these claims accrued on the day of his arrest which was August 13, 2000.
"In California, the statute of limitations for section 1983 actions is tolled by California Government Code § 945.3 while criminal charges are pending." Trimble v. City of Santa Rosa , 49 F.3d 583, 585 (9th Cir.1995). Plaintiff was arrested on August 13, 2000 but not actually charged until August 16, 2000. The parties dispute whether tolling should begin on the day of plaintiff's arrest or only after he was charged.
Defendants' argue that the statute of limitations began to run on the day of plaintiff's arrest and ran for three days until he was charged. Defendants do not dispute that the statute of limitations was then tolled from August 16, 2003 until the charges were dismissed on May 3, 2002. Under defendants' calculation, plaintiff's complaint filed on May 1, 2003 was filed 366 days after the claim accrued. Thus, under a one year statute of limitations, defendants conclude plaintiff's claims are barred.
Defendants contend the applicable statute of limitations period is one year because that was the period in effect when plaintiff's claims accrued, and the amendment extending the limitations period to two years is not to be applied retroactively. See Krupnick , 115 Cal.App.4th at 1029 (the § 335.1 amendment does not apply retroactively to revive expired claims). However, application of the two year period to plaintiff's claims would not constitute a retroactive application of the amendment. The California Supreme Court, in Mudd v. McColgan , 30 Cal.2d 463, 468 (1947), stated:
It is settled law of this state that an amendment which enlarges a period of limitation applies to pending matters where not otherwise expressly excepted. Such legislation affects the remedy and is applicable to matters not already barred, without retroactive effect. Because the operation is prospective rather than retrospective, there is no impairment of vested rights.
The court also defined what is meant by retroactive application of a statute of limitations amendment: "true retroactive operation of a limitation statute is such as would revive matters that had already been barred by the lapse of time." Id . The principles of statute of limitations application set forth in Mudd are still the controlling law in California today. See, e.g., Gallo v. Superior Court , 200 Cal.App.3d 1375, 1378 (1988); 3 Witkin, Cal. Proc. 4th (1997) Actions, § 431.
Defendants cite Abreu v. Ramirez , 284 F.Supp.2d 1250, 1255 (C.D. Cal. 2003) which held the statute of limitations time period was fixed on the date the claim accrued and that the two year extended period from the amended §335.1 did not apply to the plaintiff's § 1983 claim. However, the analysis in Abreu was premised upon refusing to apply the § 335.1 amendment retroactively, yet the court did not clearly define which claims, if any, had expired. Id . Moreover, the court admitted it could not find case law directly supporting its holding, yet the court failed to cite, expressly or implicitly, the principles of application the California Supreme Court announced in Mudd. Thus, this court does not find Abreu persuasively supports defendants' position.
The critical date in this analysis is January 1, 2003, the date the statute of limitations changed from one year to two years. Under Mudd if the statute of limitations had not expired on plaintiff's claims by January 1, 2003, then the applicable statute of limitations is two years. Plaintiff's claims may have accrued on August 13, 2000 but were certainly tolled from at least August 16, 2000 until May 3, 2002. Accepting arguendo defendants' view, by January 1, 2003 only 246 days had accrued on plaintiff's claims. Thus, they had not expired on the date the extension amendment became effective. Therefore, the applicable statute of limitations period is two years. Under the two year statute of limitations, plaintiff's claims are not barred.
III. ORDER
For the foregoing reasons, the court denies defendants motion to dismiss plaintiff's second, fourth, fifth, and six causes of actions.
No person charged by indictment, information, complaint, or other accusatory pleading charging a criminal offense may bring a civil action for money or damages against a peace officer or the public entity employing a peace officer based upon conduct of the peace officer relating to the offense for which the accused is charged, including an act or omission in investigating or reporting the offense or arresting or detaining the accused, while the charges against the accused are pending before a superior court.
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Any applicable statute of limitations for filing and prosecuting these actions shall be tolled during the period that the charges are pending before a superior court.