Metropolitan News-Enterprise


Thursday, March 28, 2019


Page 1


Court of Appeal:

Action by Man Shot at Candlestick Park Time-Barred

Time for Bringing Action in State Court Not Equitably Tolled During Period When Case Was in Federal Court; U.S. District Court Filing Came Just as Case Was About to Be Tried in San Francisco Superior Court


By a MetNews Staff Writer


A man who was shot four times in the parking lot of San Francisco’s Candlestick Park following a professional football game in 2011 has lost his bid in the First District Court of Appeal for resuscitation of his action against the San Francisco 49ers which the trial court dismissed as time-barred, declining, under the facts, to equitably toll the period for suing in state court during the time the man was litigating in federal court.

Plaintiff Daniel Long was injured by an unknown assailant on Aug. 20, 2011, following a game between the 49ers and the Oakland Raiders, suing Forty Niners, Ltd. and others—in the first of three lawsuits against the team—on Nov. 30, 2011. In June 2013, he learned that Forty Niners, Ltd. had become a Delaware limited liability company, the Forty Niners Football Company, LLC, and on June 25, 2013, brought an action against that entity in the U.S. District Court for the Northern District of California (and added its general partner, John York, as a defendant).

Long dismissed his Superior Court action on July 22, 2013, less than a month before trial. However, the federal court on Oct. 23, 2013 dismissed his action, without leave to amend, based on lack of diversity jurisdiction, and Long filed a new lawsuit against the Forty Niners on Nov. 12, 2013.

Although the third lawsuit was filed more than two years after the shooting, Long insisted that, under equitable tolling, it was not time-barred. However, San Francisco Superior Court Judge Ernest L. Goldsmith rejected that view and sustained a demurrer without leave to amend.

Brown’s Opinion

The ensuing judgment of dismissal was affirmed Tuesday in an opinion by Justice Tracie L. Brown of Div. Four.

“We find that the doctrine of equitable tolling does not apply as a matter of law here where Long alleged that he voluntarily dismissed his first lawsuit, weeks before trial, to re-file in federal court, and he fails to allege facts that would support the inference that he did so reasonably and in good faith,” Brown wrote.

The Superior Court, she said, clearly had jurisdiction. The jurist observed:

“[A]lthough defendant was on notice of Long’s claims from the beginning of the first state court action, the doctrine of equitable tolling was not intended to burden a defendant or the courts with having to repeatedly re-start litigation of a case that was almost fully adjudicated, simply because the plaintiff had a last-minute change of mind about the forum. Long was free to take a chance and re-file his claims in federal court, but to apply equitable tolling, in these circumstances, to Long’s untimely third lawsuit would undermine the doctrine’s purposes of preventing parties from having to seek redress in separate forums and reducing the costs associated with duplicative filings.”

The case is Long v. Forty Niners Football Company, LLC, 19 S.O.S. 1368.

Earlier Decision

Long on Jan. 22, 2014, moved for an order setting aside the voluntary dismissal of his 2011 action, relying on Code of Civil Procedure §473. He placed blame on his lawyer, Geoffrey Becker, but did not produce an affidavit of fault from Becker, precluding mandatory relief, and Goldsmith on March 7, 2014, denied discretionary relief, and later denied reconsideration.

Contra Costa Superior Court Judge John W. Kennedy, sitting on assignment to Div. Four, said in a Dec. 11, 2017 opinion that was not certified for publication that Goldsmith “properly determined that Becker’s mistaken belief in diversity jurisdiction was not reasonable, justifiable, or excusable,” giving rise to relief. He quoted Goldsmith as declaring that the error resulted from “professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law.”

Kennedy said:

“This conclusion is no abuse of discretion.”


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