FILED
NOT FOR PUBLICATION OCT 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAMILLE ZAMORANO; JOE ALEX No. 12-57112
ZAMORANO,
D.C. No. 5:12-cv-00965-GAF-
Plaintiffs - Appellants, DTB
v.
MEMORANDUM*
CITY OF SAN JACINTO, JIM AYRES,
JOHN MANSPERGER, JIMMIE DALE
STUBBLEFIELD, JAMES POTTS,
Defendants - Appellees,
and
DOES 1 to 100, inclusive,
Defendants.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted October 7, 2014**
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. Fed. R. App. P. 34(a)(2).
Before: HAWKINS and GRABER, Circuit Judges, and SEDWICK,*** District
Judge.
Plaintiffs Camille and Joe Alex Zamorano appeal from the district court’s
order dismissing their complaint, under Federal Rule of Civil Procedure 12(b)(6),
for failure to state a claim. The district court dismissed Plaintiffs’ federal claims,
brought under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, as time-barred, and
remanded their remaining claims to state court.1 We affirm.
1. We review de novo "the district court’s dismissal of the complaint for
failure to state a claim and the legal issues it presents," including whether the
statute of limitations has expired. Seven Arts Filmed Entm’t Ltd. v. Content Media
Corp. PLC, 733 F.3d 1251, 1253–54 (9th Cir. 2013). A civil rights "claim accrues
under federal law when the plaintiff knows or has reason to know of the actual
injury." Lukovsky v. City of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008).
The "actual injury" is the alleged harm underlying the complaint, not the "legal
wrong" of discrimination that makes the injury actionable. Id. at 1048. Contrary
to Plaintiffs’ contention that Lukovsky applies only in the employment context, the
***
The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
1
Plaintiffs do not separately challenge the remand of their state claims, in
the event that their other arguments do not succeed.
2
"actual injury" rule applies equally to all cases brought under 42 U.S.C. §§ 1981,
1983, 1985, and 1986. See, e.g., Bonneau v. Centennial Sch. Dist. No. 28J, 666
F.3d 577, 581 (9th Cir. 2012) (applying Lukovsky’s accrual rule to a § 1983 case
involving a school district’s failure to report suspected child abuse); see also
Lukovsky, 535 F.3d at 1050 (discussing the statute of limitations rule under the
Federal Tort Claims Act and noting that the rule for federal civil rights plaintiffs is
precisely the same as the rule for other tort plaintiffs).
Plaintiffs knew or had reason to know of all the delays that had occurred
with respect to their application for a building permit by May 2009, when the
application was approved. Their claim under 42 U.S.C. § 1986 was governed by a
one-year statute of limitations. Their claims under §§ 1981, 1983, and 1985 were
governed by a two-year statute of limitations, borrowed from California law. Cal.
Civ. Proc. Code § 335.1; see Lukovsky, 535 F.3d at 1048 (applying the forum
state’s statute of limitations when the federal statute does not otherwise provide a
limitations period). Plaintiffs therefore had until May 2010, at the latest, to bring
their § 1981 claim, and they had until May 2011, at the latest, to file all their other
federal claims. But they did not file this action until February 2012. All their
federal claims, therefore, are time-barred.
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2. Because the district court dismissed the action for failure to state a claim,
Fed. R. Civ. P. 12(b)(6), we treat the facts alleged in Plaintiffs’ first amended
complaint as true, Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012). The facts being undisputed for present purposes, we review de novo the
legal question whether equitable remedies apply. Jones v. Blanas, 393 F.3d 918,
926 (9th Cir. 2004).
Plaintiffs do not plead facts to show either "due diligence" or "excusable
delay," so equitable tolling does not apply. Santa Maria v. Pac. Bell, 202 F.3d
1170, 1178 (9th Cir. 2000), overruled on other grounds by Socop-Gonzalez v. INS,
272 F.3d 1176, 1194–96 (9th Cir. 2001) (en banc). Similarly, Plaintiffs do not
allege that Defendants prevented them from filing in time through "some active
conduct by the defendant above and beyond the wrongdoing" underpinning their
claim, so equitable estoppel does not apply. Lukovsky, 535 F.3d at 1052 (internal
quotation marks omitted). Finally, the discovery rule does not toll Plaintiffs’ claim
because that rule "is already incorporated into federal accrual law," id. at 1048, and
Plaintiffs’ complaint shows that they had already discovered their
injuries—repeated denials of the permit application—by May 2009.
AFFIRMED.
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