NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 10 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
KRISTIN RUTH HANSON, on behalf of No. 15-56604 herself and her adult child R.M. as her Guardian Ad Litem, D.C. No. 8:14-cv-01823-AG-DFM Plaintiff-Appellant,
BRITTANY HOWARD, MEMORANDUM*
Appellant,
v.
HAROLD LA FLAMME; et al.,
Defendants-Appellees.
KRISTIN RUTH HANSON, on behalf of No. 15-56690 herself and her adult child R.M. as her Guardian Ad Litem, D.C. No. 8:14-cv-01823-AG-DFM Plaintiff-Appellee,
JEREMIAH MORGAN and ANN MORGAN,
Defendants-Appellants.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 7
Appeals from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding
Submitted January 7, 2019** Pasadena, California
Before: TASHIMA and WATFORD, Circuit Judges, and ZOUHARY,*** District Judge.
R.M. appeals from the district court’s grant of several motions to dismiss
disposing of ten claims she brought against numerous defendants. She does not
contest the district court’s decision to dismiss three claims (Claims 5, 6, and 8);
this memorandum disposition deals with the remaining seven. Also, in this
consolidated appeal, Jeremiah and Ann Morgan challenge the district court’s
appointment of Brittany Howard as guardian ad litem for R.M.
1. Claims 1 and 2, which allege violations of 42 U.S.C. § 1985, are not
time-barred. Like § 1983, § 1985 borrows the forum State’s statute of limitations
for personal injury actions. See McDougal v. County of Imperial, 942 F.2d 668,
673–74 (9th Cir. 1991). In California, § 1985 actions must be commenced within
two years of the claim accruing. Cal. Civ. Proc. Code § 335.1. One commences a
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. Page 3 of 7
suit “by filing a complaint with the court.” § 411.10. To that end, R.M. filed her
complaint exactly two years after the period of limitations was no longer tolled
based on her age. See § 352(a).
The district court equated the appointment of the guardian ad litem with the
commencement of the action and concluded that Claims 1 and 2 are time-barred.
That view is incorrect. The guardian ad litem is not a new party to the action but
instead protects the interests of an existing party who cannot represent herself. See
Fed. R. Civ. P. 17(c)(2); cf. Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059
(9th Cir. 2018).
We remand to the district court to decide in the first instance whether Claims
1 and 2 should be dismissed on some other ground. We note, however, that neither
R.M.’s mother nor her guardian ad litem can maintain an action on behalf of R.M.
without the assistance of counsel. See Johns v. County of San Diego, 114 F.3d
874, 877 (9th Cir. 1997). If new counsel is not retained following remand, the
district court should dismiss Claims 1 and 2 without prejudice. See id.
2. Claim 3 alleges a violation of 42 U.S.C. § 1986, which prescribes its own
one-year statute of limitations. The district court determined that this claim, filed
two years after R.M. reached the age of majority, was time-barred. On appeal,
R.M. contends that her developmental disability entitled her to tolling under
California Civil Procedure Code § 352. Because this argument was not raised in Page 4 of 7
the district court, it is forfeited on appeal. See Avila v. Willits Envtl. Remediation
Trust, 633 F.3d 828, 840 (9th Cir. 2011).
3. R.M. “dealt with” Judge Firmat “in his judicial capacity,” entitling Judge
Firmat to absolute immunity from Claims 3 and 4. Stump v. Sparkman, 435 U.S.
349, 362 (1978).
4. As to Claim 4, R.M. fails to state a claim for disability discrimination or
retaliation under the Rehabilitation Act. As noted by the district court, there were
insufficient allegations of federal financial assistance to a state or county program.
See Castle v. Eurofresh, Inc., 731 F.3d 901, 908–09 (9th Cir. 2013). For that same
claim, the district court also determined that R.M. failed to state a claim under the
Americans with Disabilities Act because the complaint merely recites the statutory
language. By not addressing this ground for the district court’s ruling, R.M.
forfeited its consideration on appeal. See Cruz v. Int’l Collection Corp., 673 F.3d
991, 998 (9th Cir. 2012). Claim 4 was deficiently pleaded as to all defendants, so
we need not reach the district court’s defendant-specific grounds for dismissing
this claim.
5. Claim 7 does not allege that an employee of the County of Orange
violated R.M.’s rights. Thus, the district court correctly concluded that R.M. failed
to plead an adequate theory of liability under Monell v. Dep’t of Social Services of
the City of New York, 436 U.S. 658 (1978). Page 5 of 7
6. R.M. filed a motion for reconsideration of the denial of her ex parte
motion to extend the time to file a second amended complaint. The district court
found that R.M.’s motion did not comply with Local Rule 7-18, which enumerates
the grounds on which a litigant may advance a motion for reconsideration. See
C.D. Cal. Loc. R. 7-18. In light of the repeated late filings and improper ex parte
requests made by R.M.’s attorney during the course of litigation, the district court
did not abuse its discretion by denying the motion on this ground. See Tri-Valley
CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1131 (9th Cir. 2012).
7. R.M. does not contest the district court’s decision to decline supplemental
jurisdiction over the remaining state-law claims, Claims 9 and 10. Because we are
reversing the district court’s dismissal of Claims 1 and 2, however, “the reason for
dismissing the remaining supplemental claims no longer exists.” Fang v. United
States, 140 F.3d 1238, 1244 (9th Cir. 1998). We therefore vacate the dismissal of
Claims 9 and 10. If Claims 1 and 2 are subject to dismissal on some other ground,
the district court may once again consider whether to decline supplemental
jurisdiction. 28 U.S.C.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 10 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
KRISTIN RUTH HANSON, on behalf of No. 15-56604 herself and her adult child R.M. as her Guardian Ad Litem, D.C. No. 8:14-cv-01823-AG-DFM Plaintiff-Appellant,
BRITTANY HOWARD, MEMORANDUM*
Appellant,
v.
HAROLD LA FLAMME; et al.,
Defendants-Appellees.
KRISTIN RUTH HANSON, on behalf of No. 15-56690 herself and her adult child R.M. as her Guardian Ad Litem, D.C. No. 8:14-cv-01823-AG-DFM Plaintiff-Appellee,
JEREMIAH MORGAN and ANN MORGAN,
Defendants-Appellants.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 7
Appeals from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding
Submitted January 7, 2019** Pasadena, California
Before: TASHIMA and WATFORD, Circuit Judges, and ZOUHARY,*** District Judge.
R.M. appeals from the district court’s grant of several motions to dismiss
disposing of ten claims she brought against numerous defendants. She does not
contest the district court’s decision to dismiss three claims (Claims 5, 6, and 8);
this memorandum disposition deals with the remaining seven. Also, in this
consolidated appeal, Jeremiah and Ann Morgan challenge the district court’s
appointment of Brittany Howard as guardian ad litem for R.M.
1. Claims 1 and 2, which allege violations of 42 U.S.C. § 1985, are not
time-barred. Like § 1983, § 1985 borrows the forum State’s statute of limitations
for personal injury actions. See McDougal v. County of Imperial, 942 F.2d 668,
673–74 (9th Cir. 1991). In California, § 1985 actions must be commenced within
two years of the claim accruing. Cal. Civ. Proc. Code § 335.1. One commences a
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. Page 3 of 7
suit “by filing a complaint with the court.” § 411.10. To that end, R.M. filed her
complaint exactly two years after the period of limitations was no longer tolled
based on her age. See § 352(a).
The district court equated the appointment of the guardian ad litem with the
commencement of the action and concluded that Claims 1 and 2 are time-barred.
That view is incorrect. The guardian ad litem is not a new party to the action but
instead protects the interests of an existing party who cannot represent herself. See
Fed. R. Civ. P. 17(c)(2); cf. Wheeler v. City of Santa Clara, 894 F.3d 1046, 1059
(9th Cir. 2018).
We remand to the district court to decide in the first instance whether Claims
1 and 2 should be dismissed on some other ground. We note, however, that neither
R.M.’s mother nor her guardian ad litem can maintain an action on behalf of R.M.
without the assistance of counsel. See Johns v. County of San Diego, 114 F.3d
874, 877 (9th Cir. 1997). If new counsel is not retained following remand, the
district court should dismiss Claims 1 and 2 without prejudice. See id.
2. Claim 3 alleges a violation of 42 U.S.C. § 1986, which prescribes its own
one-year statute of limitations. The district court determined that this claim, filed
two years after R.M. reached the age of majority, was time-barred. On appeal,
R.M. contends that her developmental disability entitled her to tolling under
California Civil Procedure Code § 352. Because this argument was not raised in Page 4 of 7
the district court, it is forfeited on appeal. See Avila v. Willits Envtl. Remediation
Trust, 633 F.3d 828, 840 (9th Cir. 2011).
3. R.M. “dealt with” Judge Firmat “in his judicial capacity,” entitling Judge
Firmat to absolute immunity from Claims 3 and 4. Stump v. Sparkman, 435 U.S.
349, 362 (1978).
4. As to Claim 4, R.M. fails to state a claim for disability discrimination or
retaliation under the Rehabilitation Act. As noted by the district court, there were
insufficient allegations of federal financial assistance to a state or county program.
See Castle v. Eurofresh, Inc., 731 F.3d 901, 908–09 (9th Cir. 2013). For that same
claim, the district court also determined that R.M. failed to state a claim under the
Americans with Disabilities Act because the complaint merely recites the statutory
language. By not addressing this ground for the district court’s ruling, R.M.
forfeited its consideration on appeal. See Cruz v. Int’l Collection Corp., 673 F.3d
991, 998 (9th Cir. 2012). Claim 4 was deficiently pleaded as to all defendants, so
we need not reach the district court’s defendant-specific grounds for dismissing
this claim.
5. Claim 7 does not allege that an employee of the County of Orange
violated R.M.’s rights. Thus, the district court correctly concluded that R.M. failed
to plead an adequate theory of liability under Monell v. Dep’t of Social Services of
the City of New York, 436 U.S. 658 (1978). Page 5 of 7
6. R.M. filed a motion for reconsideration of the denial of her ex parte
motion to extend the time to file a second amended complaint. The district court
found that R.M.’s motion did not comply with Local Rule 7-18, which enumerates
the grounds on which a litigant may advance a motion for reconsideration. See
C.D. Cal. Loc. R. 7-18. In light of the repeated late filings and improper ex parte
requests made by R.M.’s attorney during the course of litigation, the district court
did not abuse its discretion by denying the motion on this ground. See Tri-Valley
CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1131 (9th Cir. 2012).
7. R.M. does not contest the district court’s decision to decline supplemental
jurisdiction over the remaining state-law claims, Claims 9 and 10. Because we are
reversing the district court’s dismissal of Claims 1 and 2, however, “the reason for
dismissing the remaining supplemental claims no longer exists.” Fang v. United
States, 140 F.3d 1238, 1244 (9th Cir. 1998). We therefore vacate the dismissal of
Claims 9 and 10. If Claims 1 and 2 are subject to dismissal on some other ground,
the district court may once again consider whether to decline supplemental
jurisdiction. 28 U.S.C. § 1367(c)(3). As noted above, R.M. must be represented
by counsel to proceed on Claims 9 and 10. See Johns, 114 F.3d at 877.
8. The district court appointed Brittany Howard as guardian ad litem for
R.M. because both Kristin Hanson (her mother) and Jeremiah Morgan (her father)
have a conflict of interest with R.M.’s suit. We review this decision for an abuse Page 6 of 7
of discretion. See United States v. 30.64 Acres of Land, 795 F.2d 796, 804 (9th
Cir. 1986). The district court reasonably concluded that Howard has “some
significant relationship with, and is truly dedicated to the best interests of,” her
former neighbor R.M. Naruto v. Slater, 888 F.3d 418, 421 (9th Cir. 2018). We
find no abuse of discretion.
9. We do not consider the Morgans’ contention, raised for the first time on
appeal, that R.M. has a constitutional right to appointed counsel. For one, it is far
from clear that they have standing to raise this contention on behalf of an opposing
party. In any event, the Morgans may seek to present this argument to the district
court, which has statutory authority to appoint counsel upon a showing of
“exceptional circumstances.” 30.64 Acres of Land, 795 F.2d at 799; see 28 U.S.C.
§ 1915(e)(1).
* * *
In Case No. 15-56604, we affirm the district court’s dismissal of Claims 3
through 8. We reverse the dismissal of Claims 1 and 2, vacate the dismissal of
Claims 9 and 10, and remand for further proceedings as to these four claims.
In Case No. 15-56690, we affirm the district court’s appointment of Howard
as guardian ad litem for R.M.
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED. Page 7 of 7
Each party shall bear its own costs on appeal.