NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRYCE DIXON, No. 23-55079
Plaintiff-Appellant, D.C. No. 2:21-cv-05286
v. MEMORANDUM*
UNIVERSITY OF SOUTHERN CALIFORNIA, a California corporation,
Defendant-Appellee,
and
DOES, 1 to 50 inclusive,
Defendant.
Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding
Submitted February 15, 2024** Pasadena, California
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Before: BOGGS,* NGUYEN, and LEE, Circuit Judges.
Following a Title IX investigation, the University of Southern California
expelled Bryce Dixon for sexual misconduct in May 2015. Dixon filed a mandamus
petition against USC in California state court challenging the Title IX investigation,
and he ultimately had his expulsion set aside in October 2019. In April 2016, while
his mandamus petition was still pending, Dixon was sentenced to state prison for his
involvement in a carjacking. Nearly two years after the conclusion of his state
mandamus proceedings, Dixon in June 2021 sued USC, alleging that his Title IX
proceeding was tainted by anti-male bias and that USC deprived him of a fair
hearing.
The district court granted summary judgment for USC, ruling that all of
Dixon’s claims were time-barred by the applicable two-year and four-year statutes
of limitations. On appeal, Dixon argues that his claims are not time-barred owing to
the interplay between statute-of-limitations law and California’s doctrine of judicial
exhaustion. We review the district court’s grant of summary judgment de novo.
Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021). We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
* The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 1. Dixon’s claim accrued in May 2015 when he was expelled. Under
California’s doctrine of judicial exhaustion, “unless a party to a quasi-judicial
proceeding challenges the agency’s adverse findings made in that proceeding, by
means of a mandate action in superior court, those findings are binding in later civil
actions.” Johnson v. City of Loma Linda, 24 Cal. 4th 61, 69–70 (2000). This doctrine
applies to Dixon’s claims. Gupta v. Stanford Univ., 124 Cal. App. 4th 407, 411
(2004). Dixon was thus required to “first succeed in overturning the quasi-judicial
action”—his Title IX proceeding at USC—via a petition for writ of administrative
mandate before he could pursue his damages claims against USC. Johnson, 24 Cal.
4th at 70 (citing Westlake Cmty. Hosp. v. Super. Ct., 17 Cal. 3d 465, 484 (1976)).
Dixon asserts that—because judicial exhaustion was required—his claims did
not accrue until October 2019, when the state trial court granted his mandamus
petition. Dixon offers no authority for that proposition. And, in fact, the California
Supreme Court has stated that a claim’s limitations period can run concurrently with
mandamus proceedings. McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th
88, 114 (2008). That statement indicates that the requirement of judicial exhaustion
does not defer a claim’s accrual. Because Dixon does not otherwise dispute the
district court’s determination that he “was fully aware of [his] injury” when USC
expelled him in May 2015, we affirm the district court’s determination that Dixon’s
claims accrued at that time.
3 2. The judicial-exhaustion doctrine does not toll the statute of limitations.
Dixon next argues that the mandatory requirement of judicial exhaustion
automatically equitably tolled his claims until October 2019. But California law
does not provide for automatic equitable tolling during judicial exhaustion. Dixon
attempts to rely on McDonald, but McDonald examined automatic equitable tolling
for claims requiring administrative exhaustion. 45 Cal. 4th at 101. Administrative
exhaustion is a separate doctrine—“a jurisdictional prerequisite to resort to the
courts”—that “is to be distinguished” from judicial exhaustion. Johnson, 24 Cal.
4th at 70. For judicial exhaustion, McDonald merely stated that “issues of judicial[]
exhaustion and equitable tolling are distinct”; indeed, “a complainant may exhaust
available judicial review procedures only to find a subsequent complaint time-
barred.” 45 Cal. 4th at 114.
The lack of automatic equitable tolling under California law can, as Dixon
points out, create practical difficulties for plaintiffs required to judicially exhaust. A
plaintiff who has not litigated his mandamus petition to completion but approaches
the end of his limitations period has two choices: He can either (1) wait until the
completion of his mandamus proceedings to file suit and risk running afoul of the
statutes of limitations on his damages claims (like Dixon); or (2) file suit before his
mandamus petition is resolved and risk his premature damages case being stayed or
dismissed for failure to judicially exhaust. California courts have acknowledged this
4 dilemma but have concluded that discretionary—not automatic—equitable tolling
may be the appropriate solution. See, e.g., Page v. L.A. Cnty. Prob. Dep’t, 123 Cal.
App. 4th 1135, 1143 (2004); Ruiz v. Dep’t of Corr., 77 Cal. App. 4th 891, 899 (2000).
3. Cal. Civ. Proc. Code § 352.1 does not apply. Dixon argues that Cal. Civ.
Proc. Code § 352.1 should toll his claims. Under § 352.1, “[i]f a person entitled to
bring an action . . . 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, not to exceed two years.” Cal. Civ. Proc. Code
§ 352.1(a).
Section 352.1, by its plain text, applies only to causes of action that “accrued”
during Dixon’s incarceration. Dixon’s § 352.1 argument thus rises or falls with his
accrual argument. Because Dixon’s claims accrued in May 2015—before his April
2016 incarceration—§ 352.1 does not toll his claims.
4. The district court did not err in denying equitable tolling. Finally, Dixon
asserts that he is entitled to equitable tolling. Under California statute-of-limitations
law, the filing of one action may equitably toll another action if three conditions are
satisfied: “(1) timely notice to the defendant in filing the first claim; (2) lack of
prejudice to defendant in gathering evidence to defend against the second claim; and
(3) good faith and reasonable conduct by the plaintiff in filing the second claim.”
Collier v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRYCE DIXON, No. 23-55079
Plaintiff-Appellant, D.C. No. 2:21-cv-05286
v. MEMORANDUM*
UNIVERSITY OF SOUTHERN CALIFORNIA, a California corporation,
Defendant-Appellee,
and
DOES, 1 to 50 inclusive,
Defendant.
Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding
Submitted February 15, 2024** Pasadena, California
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Before: BOGGS,* NGUYEN, and LEE, Circuit Judges.
Following a Title IX investigation, the University of Southern California
expelled Bryce Dixon for sexual misconduct in May 2015. Dixon filed a mandamus
petition against USC in California state court challenging the Title IX investigation,
and he ultimately had his expulsion set aside in October 2019. In April 2016, while
his mandamus petition was still pending, Dixon was sentenced to state prison for his
involvement in a carjacking. Nearly two years after the conclusion of his state
mandamus proceedings, Dixon in June 2021 sued USC, alleging that his Title IX
proceeding was tainted by anti-male bias and that USC deprived him of a fair
hearing.
The district court granted summary judgment for USC, ruling that all of
Dixon’s claims were time-barred by the applicable two-year and four-year statutes
of limitations. On appeal, Dixon argues that his claims are not time-barred owing to
the interplay between statute-of-limitations law and California’s doctrine of judicial
exhaustion. We review the district court’s grant of summary judgment de novo.
Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir. 2021). We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
* The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 1. Dixon’s claim accrued in May 2015 when he was expelled. Under
California’s doctrine of judicial exhaustion, “unless a party to a quasi-judicial
proceeding challenges the agency’s adverse findings made in that proceeding, by
means of a mandate action in superior court, those findings are binding in later civil
actions.” Johnson v. City of Loma Linda, 24 Cal. 4th 61, 69–70 (2000). This doctrine
applies to Dixon’s claims. Gupta v. Stanford Univ., 124 Cal. App. 4th 407, 411
(2004). Dixon was thus required to “first succeed in overturning the quasi-judicial
action”—his Title IX proceeding at USC—via a petition for writ of administrative
mandate before he could pursue his damages claims against USC. Johnson, 24 Cal.
4th at 70 (citing Westlake Cmty. Hosp. v. Super. Ct., 17 Cal. 3d 465, 484 (1976)).
Dixon asserts that—because judicial exhaustion was required—his claims did
not accrue until October 2019, when the state trial court granted his mandamus
petition. Dixon offers no authority for that proposition. And, in fact, the California
Supreme Court has stated that a claim’s limitations period can run concurrently with
mandamus proceedings. McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th
88, 114 (2008). That statement indicates that the requirement of judicial exhaustion
does not defer a claim’s accrual. Because Dixon does not otherwise dispute the
district court’s determination that he “was fully aware of [his] injury” when USC
expelled him in May 2015, we affirm the district court’s determination that Dixon’s
claims accrued at that time.
3 2. The judicial-exhaustion doctrine does not toll the statute of limitations.
Dixon next argues that the mandatory requirement of judicial exhaustion
automatically equitably tolled his claims until October 2019. But California law
does not provide for automatic equitable tolling during judicial exhaustion. Dixon
attempts to rely on McDonald, but McDonald examined automatic equitable tolling
for claims requiring administrative exhaustion. 45 Cal. 4th at 101. Administrative
exhaustion is a separate doctrine—“a jurisdictional prerequisite to resort to the
courts”—that “is to be distinguished” from judicial exhaustion. Johnson, 24 Cal.
4th at 70. For judicial exhaustion, McDonald merely stated that “issues of judicial[]
exhaustion and equitable tolling are distinct”; indeed, “a complainant may exhaust
available judicial review procedures only to find a subsequent complaint time-
barred.” 45 Cal. 4th at 114.
The lack of automatic equitable tolling under California law can, as Dixon
points out, create practical difficulties for plaintiffs required to judicially exhaust. A
plaintiff who has not litigated his mandamus petition to completion but approaches
the end of his limitations period has two choices: He can either (1) wait until the
completion of his mandamus proceedings to file suit and risk running afoul of the
statutes of limitations on his damages claims (like Dixon); or (2) file suit before his
mandamus petition is resolved and risk his premature damages case being stayed or
dismissed for failure to judicially exhaust. California courts have acknowledged this
4 dilemma but have concluded that discretionary—not automatic—equitable tolling
may be the appropriate solution. See, e.g., Page v. L.A. Cnty. Prob. Dep’t, 123 Cal.
App. 4th 1135, 1143 (2004); Ruiz v. Dep’t of Corr., 77 Cal. App. 4th 891, 899 (2000).
3. Cal. Civ. Proc. Code § 352.1 does not apply. Dixon argues that Cal. Civ.
Proc. Code § 352.1 should toll his claims. Under § 352.1, “[i]f a person entitled to
bring an action . . . 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, not to exceed two years.” Cal. Civ. Proc. Code
§ 352.1(a).
Section 352.1, by its plain text, applies only to causes of action that “accrued”
during Dixon’s incarceration. Dixon’s § 352.1 argument thus rises or falls with his
accrual argument. Because Dixon’s claims accrued in May 2015—before his April
2016 incarceration—§ 352.1 does not toll his claims.
4. The district court did not err in denying equitable tolling. Finally, Dixon
asserts that he is entitled to equitable tolling. Under California statute-of-limitations
law, the filing of one action may equitably toll another action if three conditions are
satisfied: “(1) timely notice to the defendant in filing the first claim; (2) lack of
prejudice to defendant in gathering evidence to defend against the second claim; and
(3) good faith and reasonable conduct by the plaintiff in filing the second claim.”
Collier v. City of Pasadena, 142 Cal. App. 3d 917, 924 (1983) (citing Addison v.
5 State, 21 Cal. 3d 313, 319 (1978)). Dixon has the burden of demonstrating these
factors. In re Marriage of Zimmerman, 183 Cal. App. 4th 900, 912 (2010).
Dixon did not carry his burden of satisfying the third factor. When analyzing
a plaintiff’s reasonable conduct, his timeliness in filing his second action is an
important consideration. See, e.g., McDonald, 45 Cal. 4th at 102 n.2; Addison, 21
Cal. 3d at 319 (noting that plaintiffs “promptly” filed their second action). Dixon’s
mandamus proceedings concluded in October 2019, but he did not file his damages
action until June 2021. Even if we accept Dixon’s argument that it was reasonable
to wait until the conclusion of his mandamus proceedings before filing this damages
action, a 20-month delay is too long to be deemed reasonable. Cf. Mitchell v. Frank
R. Howard Mem’l Hosp., 6 Cal. App. 4th 1396, 1407 (1992) (equitable tolling was
not warranted given nine-month delay); Ervin v. L.A. Cnty., 848 F.2d 1018, 1020 (9th
Cir. 1988) (delay of “perhaps as much as a year and a half” was unreasonable). And
while we may consider a plaintiff’s stated circumstances, Dixon proffers no
justification for his inordinate delay. Cf. Brome v. Cal. Hwy. Patrol, 44 Cal. App.
5th 786, 798 (2020).
Because Dixon is not entitled to equitable tolling, all of his claims are time-
barred. Accordingly, the district court’s order is AFFIRMED.