Jones v. County of San Diego

Opinion

1 2 3 4 5 6 7 10 11 KENNETH JONES Case No.: 20CV1989-GPC(DEB)

12 Plaintiff, ORDER GRANTING DEFENDANT 13 v. COUNTY OF SAN DIEGO’S MOTION TO DISMISS THE THIRD 14 COUNTY OF SAN DIEGO, a AMENDED COMPLAINT WITH government entity, SAN DIEGO POLICE 15 PREJUDICE AND DENYING DEPARTMENT, a government entity, DEFENDANT COUNTY OF SAN 16 CITY OF SAN DIEGO, a government DIEGO’S MOTION TO DISMISS entity, ALPINE SHERIFF’S 17 DOE DEFENDANTS AS MOOT DEPARTMENT, a government entity and

18 DOES 1 through 50, inclusive, [Dkt. No. 46.] 19 Defendants. 20 21 Before the Court is Defendant County of San Diego’s (“County” or “Defendant”) 22 motion to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) and 23 motion to dismiss Doe Defendants for failure to state a claim under Rule 12(b)(6) and 24 failure to serve under Rule 4(m). (Dkt. No. 46.) Plaintiff filed an opposition. (Dkt. No. 25 48.) Defendant filed a reply. (Dkt. No. 49.) A hearing was held on June 10, 2022. (Dkt. 26 No. 50.) Per the Court’s direction at the hearing, Defendant filed a supplemental brief on 27 June 24, 2022. (Dkt. No. 51.) Plaintiff filed a response and Defendant filed a reply brief. 28 (Dkt. Nos. 52, 53.) Based on the reasoning below, the Court GRANTS Defendant 1 County of San Diego’s motion to dismiss the third amended complaint with prejudice and 2 DENIES the motion to dismiss Doe Defendants as moot. 3 Background 4 On October 8, 2020, Plaintiff Kenneth Jones (“Plaintiff”) filed a “42 U.S.C. § 1983 5 civil rights complaint” but alleged state law claims of negligence, assault, battery, 6 vicarious liability under California Government Code section 815.2, negligent infliction 7 of emotional distress and intentional infliction of emotional distress against the County of 8 San Diego, San Diego Police Department, City of San Diego and Alpine Sheriff’s 9 Department. (Dkt. No. 1, Compl.) After the Court issued an order to show cause why 10 the complaint should not be dismissed for lack of subject matter jurisdiction, Plaintiff 11 filed a first amended complaint (“FAC”) against the same defendants. (Dkt. Nos. 3, 4.) 12 The FAC alleged race discrimination under 42 U.S.C. § 1983 and 42 U.S.C. § 2000(d) as 13 well as state law claims of negligence, assault, battery, vicarious liability under California 14 Government Code section 815.2, negligent infliction of emotional distress, and 15 intentional infliction of emotional distress. (Dkt. No. 4.) On September 29, 2021, the 16 Court granted the County’s motion to dismiss the FAC with leave to amend and denied 17 the motion to strike. (Dkt. No. 17.) Because Plaintiff failed to timely file the second 18 amended complaint, the Court granted his ex parte motion for leave to file a second 19 amended complaint. (Dkt. No. 22.) A second amended complaint was filed on 20 November 10, 2021. (Dkt. No. 23.) On March 10, 2022, the Court granted the County’s 21 motion to dismiss the state law claims with prejudice for failing to timely comply with 22 the California Government Claims Act and the federal 42 U.S.C. § 1983 claim with leave 23 to amend but noted that it would be Plaintiff’s last opportunity to amend. (Dkt. No. 44 at 24 21.) 25 Plaintiff filed the operative third amended complaint (“TAC”) on March 25, 2022 26 alleging one cause of action for race discrimination under 42 U.S.C. § 1983 and 42 27 U.S.C. § 2000d against the County of San Diego, Alpine Sheriff’s Department, San 28 Diego Police Department, the City of San Diego (collectively “Defendants”) and Does 1- 1 20. (Dkt. No. 45, TAC.) According to the TAC, Plaintiff, an African-American male, is 2 a resident of Los Angeles, California. (Id. ¶¶ 8, 36.) Around March 24, 2018, (id. ¶¶ 9, 3 10), or March 28, 2018, (id. ¶ 39), Plaintiff was at Viejas Casino and was granted 4 permission to drive his brother’s girlfriend’s 2017 Dodge Challenger. (Id. ¶ 40.) Eight 5 or nine of Defendants’ officers, who were all Caucasian, refused “to believe [Plaintiff’s] 6 assertion regarding the vehicle” and immediately “engaged in violent arresting 7 procedures.” (Id. ¶¶ 37, 41, 42.) Plaintiff pulled into the Viejas Casino parking lot, he 8 put his hands out the window, and with permission unlocked the door with his left hand. 9 (Id. ¶¶ 43, 44.) He then exited the vehicle with both hands raised walking backward 10 away from the vehicle. (Id. ¶ 45.) He complied and went down to his knees on the 11 ground. (Id. ¶ 46.) Initially, the officers aggressively twisted Plaintiff’s wrists to 12 handcuff him. (Id. ¶ 48.) Once handcuffed, the officers started to aggressively “wail, 13 beat, kick and punch” Plaintiff. (Id. ¶ 49.) One officer kicked Plaintiff in the eye causing 14 severe injury. (Id. ¶ 50.) After the beating, one officer smirked telling Plaintiff to file a 15 complaint “as if he was absolved for committing these violent, inhumane and purely 16 discriminatory acts.” (Id. ¶ 51.) After being arrested, the charges for the stolen vehicle 17 were dropped. (Id. ¶ 53.) 18 The TAC alleges that the statute of limitations accrued on March 24, 2018 and 19 expired on March 24, 2020. (Id. ¶¶ 9, 10.) But Plaintiff alleges equitable tolling applies 20 to his incarceration for a separate incident from May 28, 2018 to June 1, 2020. (Id. ¶¶ 11, 21 19.) He also asserts that he suffered a stroke while incarcerated on June 23, 2018 which 22 rendered him permanently disabled with the inability to walk or talk, was hospitalized 23 until August 1, 2018 and received rehabilitative treatment until December 31, 2018. (Id.) 24 Thus, he alleges tolling from June 23, 2018 until December 31, 2018 when his 25 rehabilitative treatment was completed. (Id. ¶¶ 14, 15.) Plaintiff then maintains he 26 mistakenly presumed he had 24 months to file a complaint starting on January 1, 2019 27 and seeks equitable tolling for the 24 month period. (Id. ¶¶ 16, 17, 18.) Plaintiff 28 additionally alleges he lacked the ability to communicate due to his stroke during his 1 incarceration as well as upon release. (Id. ¶ 21.) He claims that his stroke caused his 2 Government Claims Act claims and this complaint to be untimely but alleges tolling 3 makes the complaint timely. (Id. ¶ 22.) 4 Defendant County of San Diego moves to dismiss the TAC arguing that the federal 5 claim is time barred and fails to state a claim and moves to dismiss the Doe Defendants 6 for failure to state a complaint and for failure to serve. (Dkt. No. 46.) The motion is 7 fully briefed along with supplemental briefing to clarify facts alleged in the TAC. (Dkt. 8 Nos. 48, 49, 51-53.) 9 Discussion 10 A. Legal Standard as to Federal Rule of Civil Procedure 12(b)(6) 11 Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a 12 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under Rule 13 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient 14 facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t., 901 15 F.2d 696, 699 (9th Cir. 1990). Under Federal Rule of Civil Procedure 8(a)(2), the 16 plaintiff is required only to set forth a “short and plain statement of the claim showing 17 that the pleader is entitled to relief,” and “give the defendant fair notice of what the . . . 18 claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 19 544, 555 (2007). 20 A complaint may survive a motion to dismiss only if, taking all well-pleaded 21 factual allegations as true, it contains enough facts to “state a claim to relief that is 22 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 23 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 24 content that allows the court to draw the reasonable inference that the defendant is liable 25 for the misconduct alleged.” Id. “Threadbare recitals of the elements of a cause of 26 action, supported by mere conclusory statements, do not suffice.” Id. “In sum, for a 27 complaint to survive a motion to dismiss, the non-conclusory factual content, and 28 reasonable inferences from that content, must be plausibly suggestive of a claim entitling 1 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) 2 (quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all 3 facts alleged in the complaint, and draws all reasonable inferences in favor of the 4 plaintiff. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). 5 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless 6 the court determines that the allegation of other facts consistent with the challenged 7 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 8 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture 9 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would 10 be futile, the Court may deny leave to amend. See DeSoto, 957 F.2d at 658; Schreiber, 11 806 F.2d at 1401. 12 B. 42 U.S.C. § 1983/42 U.S.C. § 2000d – Statute of Limitations 13 Defendant County of San Diego argues the race discrimination claim raised under 14 42 U.S.C. § 1983 (“§ 1983”) through 42 U.S.C. § 2000d is barred by the two-year statute 15 of limitations because Plaintiff filed the complaint on October 8, 2020, over two years 16 after the alleged incident, and equitable tolling is not sufficiently alleged. (Dkt. No. 46-1 17 at 10-12.) Plaintiff argues that statutory and equitable tolling makes his complaint 18 timely. (Dkt. No. 48 at 12-13.) 19 “For actions under 42 U.S.C. § 1983, courts apply the forum state’s statute of 20 limitations for personal injury actions, along with the forum state’s law regarding tolling, 21 including equitable tolling, except to the extent any of these laws is inconsistent with 22 federal law.” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (citation omitted); see 23 also Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). The statute of 24 limitations for personal injury actions under California law is two years. See Cal. Code 25 Civ. P. § 335.1; see also Jones, 393 F.3d at 927. That statute also applies to claims under 26 Title VI of the Civil Rights Act of 1964. See Taylor v. Regents of the Univ. of Cal., 993 27 F.2d 710, 712 (9th Cir. 1993) (“we now hold that claims brought under 42 U.S.C. § 28 1 2000d are governed by the same state limitations period applicable to claims brought 2 under § 1983.”). 3 Although state statute of limitations and tolling principles apply, federal law 4 determines when a cause of action accrues for a § 1983 claim. Belanus v. Clark, 796 5 F.3d 1021, 1025 (9th Cir. 2015). Under federal law, a cause of action accrues when the 6 plaintiff knows or has reason to know of the injury that is the basis of the action. 7 Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004); Kimes v. Stone, 84 F.3d 1121, 8 1128 (9th Cir. 1996). Thus, “[a]n action ordinarily accrues on the date of the injury.” Id. 9 Here, the parties do not dispute that the cause of action accrued on the date of the 10 alleged incident in March 2018. Even though the Court, in its prior order, directed 11 Plaintiff to indicate the specific date of the alleged incident for purposes of the statute of 12 limitations because it was a close call, the TAC does not clarify the accrual date but 13 instead creates more confusion. First, the TAC alleges the incident occurred on March 14 24, 2018 or March 28, 2018. (Dkt. No. 45, TAC ¶¶ 10, 39.) Second, Defendant points 15 out that Plaintiff’s government claim dated January 14, 2019, which was signed under 16 penalty of perjury by Plaintiff’s counsel, and the related petition for leave to submit a late 17 government claim dated January 15, 2019 submitted by Plaintiff’s counsel, listed March 18 8, 2018 as the alleged date of the incident. (Dkt. No. 8-3, Osborn Decl., Ex. A at 5, 7.1) 19 In opposition, Plaintiff does not address the discrepancy of the incident date alleged in 20 21 1 Defendant seeks judicial notice of the date asserted by Plaintiff in his Government Claim form and 22 related petition to submit a late claim under the incorporation by reference doctrine. (Dkt. No. 46-1 at 10-11.) The “incorporation by reference” doctrine allows a court, on a Rule 12(b)(6) motion, to take 23 into account documents if the complaint “necessarily relies” on it and “(1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity 24 of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). “The 25 court may treat such a document as “part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Id. (quoting United States v. Ritchie, 342 F.3d 26 903, 908 (9th Cir. 2003)). Here, because the complaint references Plaintiff’s Government Claims Act form, the form is key to Plaintiff’s claim for purposes of the statute of limitations, and he does not 27 challenge its authenticity; the Court incorporates by reference Exhibits A and B of the Osborn Declaration. (Dkt. No. 8-3, Osborn Decl., Exs. A, B.) 28 1 the TAC, March 24 or 28, 2018, and does not reconcile those dates with the March 8, 2 2018 incident date on the Government Claim form. Further, even though the incident 3 date discrepancy was raised at the hearing, Plaintiff still did not clarify the date of the 4 alleged incident in his supplemental brief. (See Dkt. No. 52.) Therefore, the Court relies 5 on March 8, 2018 as the alleged date of the incident as that is the date identified in the 6 judicially noticed Government Claim form and petition to file a late petition filed by 7 Plaintiff. Thus, the complaint is untimely unless a theory of tolling applies. 8 1. Statutory Tolling - California Code of Civil Procedure section 352.1 9 Plaintiff alleges, for the third unsuccessful time, that he is entitled to equitable 10 tolling for the period of incarceration from May 28, 2018 to June 1, 2020 because he was 11 prevented from filing suit. (Dkt. No. 45, TAC ¶¶ 11, 19.) Yet, as before, he fails to 12 provide any legal authority under California law to support his argument and his 13 equitable tolling argument fails. To the extent Plaintiff is relying on statutory tolling 14 pursuant to California Code of Civil Procedure section 352.1(a), the Court already ruled 15 in two prior orders that section 352.1 does not apply because Plaintiff did not allege he 16 was incarcerated when his claims accrued. (See Dkt. No. 17 at 7; Dkt. No. 44 at 11.) 17 Section 352.1 provides, “[i]f a person entitled to bring an action . . . is, at the time 18 the cause of action accrued, imprisoned on a criminal charge . . . for a term less than for 19 life, the time of that disability is not a part of the time limited for the commencement of 20 the action, not to exceed two years.” Cal. Civ. Proc. § 352.1 (emphasis added). 21 At the hearing, Plaintiff’s counsel suggested that on the day of the alleged incident, 22 Plaintiff was taken into custody and then transferred to Riverside County and then 23 prosecuted on unrelated drug charges. Defense counsel explained it was her 24 understanding that Plaintiff was released shortly after being arrested. Because it was not 25 clear whether Plaintiff was in continuous custody after his arrest on the alleged incident 26 at issue, the Court asked the parties address whether Plaintiff was in continuous custody 27 after his arrest on the alleged incident, and if so, whether section 352.1 applies to pre-trial 28 detainees. 1 In his response, Plaintiff does not address whether he continued to remain 2 incarcerated after his initial arrest arising out of the alleged incident in March 2018 but 3 argues, as he did before, that he was incarcerated in May 2018 and released in June 2020; 4 therefore section 352.1 applies to toll the statute of limitations during his time period. 5 (Dkt. No. 52 at 5.) In reply, Defendant provides court records of his criminal arrest and 6 booking record on the alleged incident which shows that Plaintiff was arrested on March 7 8, 2018 and released on bond on March 10, 2018. (Dkt. No. 53-1, D’s RJN2, Exs. A, B.) 8 Plaintiff was not in continuous custody upon his arrest on March 8, 2018 through June 9 2020. 10 The case of Shaw is on point. There, the plaintiff was arrested by Sheriff’s on 11 April 5, 2014, detained overnight, and released the next day. Shaw v. Sacramento County 12 Sheriff's Dep’t., 810 Fed. App’x 553 (9th Cir. 2020). The Ninth Circuit found that the 13 “district court correctly held that tolling was not available under California Code of Civil 14 Procedure section 352.1, which tolls the statute of limitations during the time ‘a person’ 15 is ‘imprisoned on a criminal charge.’” Id. at 554. Similarly, in this case, Plaintiff was 16 arrested on March 8, 2018 and released two days later on March 10, 2022. Therefore, 17 Plaintiff has failed to allege statutory tolling under section 352.1. 18 2. Equitable Tolling 19 Next, Plaintiff alleges “tolling” from June 23, 2018 to December 31, 2018 during 20 the period he suffered a stroke, was hospitalized and received rehabilitative treatment. 21 (Id. ¶¶ 12-15.) Defendant does not directly challenge tolling during this period but 22 instead argues that, even if this period was tolled, the complaint is still untimely. Using 23 the alleged incident of March 8, 2018 stated in Plaintiff’s Government Claims Act claim, 24

25 26 2The Court grants Defendant’s request for judicial notice of the court records of Plaintiff’s criminal case and the booking record for Plaintiff’s arrest by the San Diego Sheriff’s Department, (Dkt. Nos. 53-1; 53- 27 2). See Hunt v. Check Recovery Sys. Inc., 478 F. Supp. 2d 1157, 1160–61 (N.D. Cal. 2007) (“Judicial notice may be taken of ‘adjudicative facts’ such as court records, pleadings.”); Serrano v. Hill, No. CV 28 1 107 days passed until Plaintiff’s stroke occurred on June 23, 2018. Then the statute of 2 limitations began running on January 1, 2019 and 646 days passed until he filed his 3 complaint on October 8, 2020. Therefore, a total of 753 days passed, which is a period of 4 2 years and 23 days making Plaintiff’s complaint untimely. 5 Finally, Plaintiff alleges that the twenty-four months he mistakenly believed he had 6 to file a complaint from January 1, 2019 should be equitably tolled. (Dkt. No. 45, TAC 7 ¶¶ 16-18.) Plaintiff also claims that that it was not until after his release in July 2020 that 8 he was able to sit and meet, presumably with counsel, to provide the necessary 9 information to file a complaint. (Id. ¶ 108.) 10 Equitable tolling is a judge-made doctrine that permits tolling of the limitations 11 period “to prevent the unjust technical forfeiture of causes of action, where the defendant 12 would suffer no prejudice.” Lantzy v. Centex Homes, 31 Cal. 4th 363, 270 (2003). Under 13 California law, equitable tolling “relieves a plaintiff from the bar of a limitations statute 14 when, possessing several legal remedies he, reasonably and in good faith, pursues one 15 designed to lessen the extent of his injuries or damage.” Addison v. State of California, 16 21 Cal. 3d 313, 317 (1978) (filing of a federal district court action equitably tolled the 17 running of the six-month statute of limitations within which to bring suit against the 18 public entity in state court for same injuries). The “long settled rule [in California is] that 19 whenever exhaustion of administrative remedies is a prerequisite to a civil action the 20 running of the limitations period is suspended during the administrative proceedings.” Id. 21 at 318. 22 Equitable tolling is appropriate where the record shows “(1) timely notice to the 23 defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence 24 to defend against the second claim; and, (3) good faith and reasonable conduct by the 25 plaintiff in filing the second claim.” Daviton v. Columbia/HCA Healthcare Corp., 241 26 F.3d 1131, 1137-38 (9th Cir. 2001) (quoting Collier v. City of Pasadena, 142 Cal. App. 27 3d 917 (1983)). “Application of California's equitable tolling doctrine requires a 28 balancing of the injustice to the plaintiff occasioned by the bar of his claim against the 1 effect upon the important public interest or policy expressed by the . . . limitations 2 statute.” Jones, 393 F.3d at 928 (internal quotations omitted). “The burden of alleging 3 facts which would give rise to tolling falls upon the plaintiff.” Hinton v. Pac. Enters., 5 4 F.3d 391, 395 (9th Cir. 1993) 5 On the first factor, a plaintiff must provide “timely notice to the defendant in filing 6 the first claim.” Collier, 142 Cal. App. 3d at 924. “The timely notice requirement 7 essentially means that the first claim must have been filed within the statutory period.” 8 Id.; see Addison, 21 Cal. 3d at 321 (“As we have noted, plaintiffs filed their state court 9 action within nine months after their right to sue arose and by reason of the federal suit, 10 defendants were fully notified within the six-month statutory period of plaintiffs' claims 11 and their intent to litigate.”). “When considering whether a plaintiff provided timely 12 notice, courts focus on whether the party's actions caused the defendant to be ‘fully 13 notified within the [statute of limitations] of plaintiffs’ claims and their intent to 14 litigate.’” Saint Francis Mem’l Hosp. v. State Dep’t of Public Health, 9 Cal. 5th 710, 726 15 (2020) (quoting Addison, 21 Cal. 3d at 321). “Federal and California courts have 16 uniformly held, as the court does so here, that the element of timely notice is not satisfied 17 when the same claim brought previously in another proceeding was deemed to be 18 untimely.” Honchariw v. Cnty. of Stanislaus, 530 F. Supp. 3d 939, 950 (E.D. Cal. 2021) 19 (emphasis in original) (citing cases). 20 Plaintiff alleges in the TAC and summarily argues in his opposition, that the 21 County had timely notice of this suit when his claim was denied in January 2019. (Dkt. 22 No. 45, TAC ¶¶ 23, 24; Dkt. No. 48 at 15.) However, that is not sufficient; he must also 23 allege that “the first claim must have been filed within the statutory period.” See Collier, 24 142 Cal. App. 3d at 924. 25 26 27 28 1 Here, on January 18, 2019 , Plaintiff filed a Government Claims Act claim and a 2 related petition for leave to submit a late claim under Government Code section 911.4. 3 (Dkt. No. 8-3, Osborn Decl., Ex. A.) On January 25, 2019, the claim was denied as 4 untimely because it was not presented within six months of the alleged accrual date and 5 the application to submit a late claim was denied because the reasons for the late request 6 were not justified. (Id., Ex. B.) Because the first claim was deemed to be untimely, 7 Plaintiff has not alleged the first factor to support equitable tolling of “timely notice” to 8 the defendant. See Honchariw, 530 F. Supp. 3d at 950. 9 On the second factor, Plaintiff asserts that the County will not be prejudiced 10 because it had sufficient notice that this case would be filed when the Government Claim 11 was denied on January 25, 2019. (Dkt. No. 45, TAC ¶ 24.) Defendant contends that it 12 would be prejudiced to defend against a claim now over four years after the alleged 13 incident. (Dkt. No. 46-1 at 12.) 14 The second prejudice factor asks “whether application of equitable tolling would 15 prevent the defendant from defending a claim on the merits.” Saint Francis Mem’l 16 Hosp., 9 Cal. 5th at 728. “It is fundamental that the primary purpose of statutes of 17 limitation is to prevent the assertion of stale claims by plaintiffs who have failed to file 18 their action until evidence is no longer fresh and witnesses are no longer available.” 19 Addison, 21 Cal. 3d at 317, 319 (no prejudice shown because the state court action was 20 filed within one week of the dismissal of the federal case). In Saint Francis, the court 21 found that the defendant was not prejudiced because it had defended the claim during the 22 administrative proceedings. Saint Francis Mem’l Hosp., 9 Cal. 5th at 728. Here, unlike 23 the defendant in Saint Francis, Defendant has not yet defended against Plaintiff’s claims 24 and not engaged in any discovery related to any administrative proceeding. Therefore, 25 26

27 3 The Government Claim form was signed by counsel on January 14, 2019 but filed with the County on 28 1 the Court concludes that the County has been prejudiced since over four years have 2 passed since the alleged incident and evidence is no longer fresh. 3 Finally, in the TAC, Plaintiff alleges he acted reasonably and in good faith because 4 he was mistaken on how to calculate the statute of limitation and he filed the complaint 5 shortly upon his release from incarceration when he was able to sit and meet, presumably 6 with counsel, and provide the necessary information to file a complaint. (Dkt. No. 45, 7 TAC ¶¶ 18, 24, 107-08.) Defendant, relying primarily on federal law, argues these 8 reasons are not extraordinary circumstances justifying equitable tolling because attorney 9 negligence and legal errors concerning deadlines are not a basis for equitable tolling. 10 (Dkt. No. 49 at 3-4.) However, equitable tolling under federal law and California state 11 law is distinct, Saint Francis Mem’l Hosp. v. State Dep’t of Public Health, 59 Cal. App. 12 5th 965, 980 (2021) (“equitable tolling under federal common law has different elements 13 than that under California common law”), and “extraordinary circumstance” is not an 14 element of equitable tolling under California law.4 15 Neither party has addressed the relevant legal standard on the third factor. The 16 California Supreme Court recently held that the third factor, whether the plaintiff acted 17 reasonably and good faith, involves two distinct inquiries. Saint Francis Mem’l Hosp., 9 18 Cal. 5th at 729. “A plaintiff's conduct must be objectively reasonable and subjectively in 19 good faith.” Id. “An analysis of reasonableness focuses not on a party's intentions or the 20 motives behind a party’s actions, but instead on whether that party’s actions were fair, 21 proper, and sensible in light of the circumstances.” Id. Second, whether a party’s late 22 filing was subjectively in good faith requires an inquiring into “whether it was the result 23 of an honest mistake or was instead motivated by a dishonest purpose.” Id. 24 On subjective good faith, there is no indication, and Defendant has not argued, that 25 the delay in filing the complaint was due to bad faith; therefore, this element has been 26

27 4 The Court notes that Plaintiff also improperly relies on federal law arguing “extraordinary 28 1 met. The Court now looks at whether plaintiff or his counsel’s conduct was objectively 2 unreasonable. 3 In Saint Francis Mem’l Hosp, the California Supreme Court remanded the case to 4 the court of appeal to determine whether plaintiff’s actions were reasonable and in good 5 faith. See 9 Cal. 5th at 730. On remand, the defendant conceded that the plaintiff acted 6 in subjective good faith, Saint Francis Mem’l Hosp., 59 Cal. App. 5th at 975, and the 7 court of appeal, applying the standard articulated by the California Supreme Court, found 8 that that plaintiff’s counsel’s legal mistake in calculating the statute of limitations was not 9 objectively reasonable. Id. at 981 (“Counsel's mistake here was different, because it lay 10 in missing the significance of the decision's statement that the decision was effective 11 immediately, missing the statutory language saying that reconsideration is unavailable for 12 decisions that are effective immediately, and not extrapolating from these circumstances 13 that the deadline to seek judicial review began running immediately.”). 14 Similar to the facts in Saint Francis Mem’l Hosp, because Plaintiff was represented 15 by counsel, the Court looks at whether Plaintiff’s counsel acted reasonably and in good 16 faith. See Saint Francis Mem’l Hosp., 59 Cal. App. 5th 965, 977 (2021) (“in assessing 17 whether Saint Francis acted reasonably, we take into account that it was represented by 18 counsel throughout the proceedings”) (citing Collier, 142 Cal. App. 3d at 931 (“By 19 implication it likewise requires that Collier's lawyers have acted reasonably and in good 20 faith since they made most of the decisions about whether and what to file.”)). The court 21 of appeal emphasized that excusable neglect, when attorney mistakenly calculated the 22 deadline, does render the mistake objectively reasonable sufficient to justify equitable 23 tolling. Id. at 982. 24 First, a mistake in determining the statute of limitations deadline is not objectively 25 reasonable. See id. Next, on the argument that Plaintiff was not able to assist counsel 26 due to his “disability” until after he was released from incarceration is in conflict with the 27 Government Claim form filed by his counsel on January 18, 2019. (See Dkt. No. 8-3, 28 Osborn Decl., Ex. A.) In January 2019, Plaintiff’s counsel filed a Government Claim 1 form and asserted that Plaintiff planned to pursue causes of action for “assault, battery, 2 unfair business practices, harassment, discrimination and various violations against San 3 Diego County including but not limited to negligent hiring and negligent supervision.” 4 (Id., Ex. A at 7.) Plaintiff’s counsel was apprised of the causes of action no later than 5 January 18, 2019 but did not file a complaint in this Court until October 8, 2020. 6 Therefore, Plaintiff’s alleged disability did not prevent him from informing counsel about 7 the facts underlying his causes of action in January 2019. Thus, the Court concludes that 8 Plaintiff’s counsel’s actions were not proper and sensible in light of the circumstances 9 and his conduct in the filing of a late complaint on October 8, 2020 was not objectively 10 reasonable. See Saint Francis Mem’l Hosp., 9 Cal. 5th at 729. Therefore, Plaintiff has 11 not shown that his or his counsel’s conduct was objectively reasonable. 12 On all three of the relevant factors considered above, Plaintiff has failed to show or 13 allege equitable tolling sufficient to make his complaint timely. See Fanucci v. Allstate 14 Ins. Co., 638 F. Supp. 2d 1125, 1137 (N.D. Cal. 2009) (the plaintiff must allege and show 15 that equitable tolling is appropriate). 16 Accordingly, the Court GRANTS Defendant’s motion to dismiss the federal claim 17 for race discrimination under 42 U.S.C. § 1983/42 U.S.C. § 2000d as time barred. As 18 such, the Court need not consider whether Plaintiff has stated a claim under Rule 19 12(b)(6). Further, the Court DENIES the County’s motion to dismiss the Doe 20 Defendants as moot. 21 C. Leave to Amend 22 Plaintiff seeks leave to amend in the event the Court dismisses the TAC. (Dkt. No. 23 48 at 20.) However, the Court has already provided Plaintiff with guidance on how to 24 cure the deficiencies in his prior complaints on two occasions as well as permitted 25 supplemental briefing on the instant motion. In its prior order, the Court granted him one 26 final opportunity to amend. (Dkt. No. 44 at 21.) Therefore, because Plaintiff was not 27 able to cure the deficiencies, the Court DENIES Plaintiffs’ request for leave to amend. 28 / / / 1 Conclusion 2 Based on the above, the Court GRANTS Defendant’s motion to dismiss the third 3 |}amended complaint solely as to County of San Diego without leave to amend and 4 || DENIES the County’s motion to dismiss Doe Defendants as moot. The hearing set on 5 || August 15, 2022 shall be vacated. 6 The Court also sets an ORDER TO SHOW CAUSE why the case should not be 7 || dismissed as to Defendants San Diego Police Department, City of San Diego and Alpine 8 Sheriff's Department for failing to serve under Rule 4(m) and failure to prosecute on 9 || August 26, 2022 at 1:30 p.m. in Courtroom 2D. Plaintiff shall file a response on or 10 || before August 19, 2022. 12 Dated: August 2, 2022 13 Hon. athe Cae 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28