Metropolitan News-Enterprise


Wednesday, May 13, 2020


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Argument Heard That a Day in Jail Doesn’t Toll Statute

Ninth Circuit to Decide Whether to Apply the Circuit’s Own View, Expressed in 1994, as to Meaning of A California Statute, Or That of the State Court of Appeal in a 2018 Opinion From This District


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has before it the question of whether a woman who was arrested and jailed on April 5, 2014, and released the following morning, and who brought suit on April 6, 2016, muffed California’s two-year statute of limitations on personal injury actions by one day—as the District Court has ruled—or whether the period for suing was tolled on the day she was in a Sacramento jail.

Electronically linked at Monday’s oral argument session were Circuit Judges Rodney Nelson and Daniel Aaron Bress, District Court Judge James Gwin of the Northern District of Ohio who was sitting by designation, Santa Monica attorney Jeff Dominic Price who represents appellant Sheena Shaw, and Sacramento private practitioner Wendy M. Motooka who acted for her county’s Sheriff’s Department and others.

At issue was whether, under Code of Civil Procedure §352.1(a), the statute of limitation was tolled for a day by virtue of Shaw’s brief confinement. She was arrested for resisting an arrest in connection with impeding officers in taking her son into custody.

Wording of Statute

Sec. 352.1(a) provides that where a person is entitled to bring an action other than for recovery of real property “is, at the time the cause of action accrued, imprisoned on a criminal charge…, the time of that disability is not a part of the time limited for the commencement of the action….”

District Court Judge Troy L. Nunley of the Eastern District of California on Oct. 24, 2018, dismissed with prejudice Shaw’s 11 claims, relying on the March 21, 2018 opinion by Div. Three of this district’s state Court of Appeal in Austin v. Medici’s. There, Justice Luis Lavin said:

“As a matter of first impression, we hold that a plaintiff is ‘imprisoned on a criminal charge’ within the meaning of Code of Civil Procedure section 352.1, subdivision (a) if he is serving a term of imprisonment in the state prison.”

Austin Criticized

Price urged the panel to disregard Austin because it had not yet been handed down at the time Shaw filed her action and, he asserted, it was, in any event, wrongly decided. He urged adherence, instead, to the Ninth Circuit’s contrary interpretation of California law in its 1994 decision in Elliott v. City of Union City.

The lawyer, who is a professor at the online St. Francis School of Law, argued:

“On April 6, 2016, when Ms. Shaw filed this case, the statute of limitation was tolled for one day because she was incarcerated following her arrest and the use of force against her on April 5, 2014, and she was released on April 6, 2014. That was the law on April 6, 2016, and it is still the law now.”

Nelson expressed the understanding that the Ninth Circuit is obliged to apply state Court of Appeal decisions unless it has reason to believe that the California Supreme Court would adopt a contrary stance; Price insisted that the panel’s task is simply to “predict” what the state’s high court would decide. He urged that the Court of Appeal’s decision be ignored given that “no other court of appeal has to follow Austin” and because the opinion is “deeply flawed,” charging that it renders §352.1(a) “virtually meaningless” and defies California’s rules of statutory interpretation.

‘Better Argument’

Gwin commented: “I’m not sure that’s a winning argument,” terming it, “actually, quite uphill.” He queried whether a “better argument” would not be the applicability of Government Code §945.3.

That section provides, in part:

“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.

“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.”

That is a stronger argument, Price agreed, remarking that the statute should have been invoked at the outset. He acknowledged that Shaw’s pro se complaint was “totally conclusory” but maintained that §945.3—which was not mentioned in that pleading, in a subsequent attorney-prepared complaint, or Nunley’s dismissal order—had not been waived because its applicability was argued in connection with a discovery dispute.

Motooka contended that §945.3 does not apply because it provides that “charges pending before a superior court do not include…criminal proceedings diverted” pursuant to any of the specified sections, noting that Shaw obtained a diversion under one of those sections.

Bress posed a question as to whether a claim by Shaw for false arrest would be time-barred under California law. Motooka acknowledged that it would not be, but said that none of the claims in the operative pleading had been construed as stating such a cause of action.

She added that Shaw had pled “no contest” which, the lawyer advised, is in California an equivalent of a guilty plea. Motooka said of Shaw:

“She’s already pled no contest to get the benefit of a diversion program, which she got, and now she’s coming in and taking an opposite factual position in this case, in a federal court, trying to get a different benefit. She should be judicially estopped from bringing that particular claim.”

Motooko scoffed that Shaw’s argument boils down to: “You should never have arrested me for the charge to which I just pled.”

Nelson expressed a concern that it might be unfair to apply Austin retroactively given that Shaw, in suing on April 6, 2016, had been led to believe, by Elliott, that the filing on that date would be timely. Motooko responded that under U.S. Supreme Court decisions, “[r]etroactivity is applied if the court that issued the new rule applied it to the litigant before it,” and said that was done in Austin.

The jurist raised the prospect of certifying questions of state law in the case—Shaw v. Sacramento County Sheriff’s Department, 18-17184—to the California Supreme Court.


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