NOT FOR PUBLICATION FILED
JUL 13 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRIFFIN BURKE, No. 20-56124
Plaintiff-Appellant, D.C. No. 8:20-cv-00635-JVS-JDE
v.
MEMORANDUM*
TREVOR BASIL; et al.,
Defendants,
and
SEAN BOULTON; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted June 21, 2021**
Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.
Griffin Burke appeals pro se from the district court’s judgment dismissing as
*
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).
time-barred Burke’s claims against defendants Newport-Mesa Unified School
District, Boss, Boulton, and Hays alleging federal and state law violations.
Because the district court certified its interlocutory order pursuant to Federal Rule
of Civil Procedure 54(b), we have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s dismissal on statute of limitations grounds. Lukovsky v.
City & County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We affirm.
The district court properly dismissed Burke’s § 1983, California Education
Code § 220 and fraud claims against defendants Boss, Boulton, and Hays because
they are barred by the applicable statute of limitations, even with the benefit of
statutory tolling until Burke turned eighteen on March 6, 2016. See Cal. Civ. Proc.
Code § 335.1 (setting forth two-year statute of limitations for personal injury
claims); Cal. Civ. Proc. Code § 338(d) (setting forth three-year limitations period
for fraud claims). Cal. Civ. Proc. Code § 352(a) (tolling the statute of limitations if
person is under the age of majority at the time the claims accrued); Lukovsky, 535
F.3d at 1048-49 (applying the forum state’s statute of limitations for personal
injury actions to 1983 claim; “the [1983] claim accrues upon awareness of the
actual injury . . . and not when the plaintiff suspects a legal wrong”); Fox v.
Ethicon Endo-Surgery, Inc., 110 P.3d 914, 917 (Cal. 2005) (outlining California’s
delayed discovery rule; a cause of action accrues and the statute of limitations
begins to run “when the plaintiff has reason to suspect an injury and some
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wrongful cause, unless the plaintiff pleads and proves that a reasonable
investigation at that time would not have revealed a factual basis for [the] cause of
action”).
Contrary to Burke’s contention, the district court properly concluded that
Burke’s amended complaints did not relate back to his original complaint. See
Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1200-02 (9th Cir. 2014)
(applying California’s relation back doctrine; if the limitations period derives from
state law, a court is required to consider both federal and state law and employ
whichever affords the more permissive relation back standard).
The district court did not err in finding that Burke failed to plead with
particularity that the relevant defendants engaged in “some fraudulent concealment
. . . above and beyond the wrongdoing upon which the plaintiff’s claims [are] filed,
to prevent the plaintiff from suing in time.” Lukovsky, 535 F.3d at 1052 (internal
citation, quotation marks, and emphasis omitted); see id. at 1051-52 (explaining
doctrine of equitable estoppel under California and federal law).
The district court did not abuse its discretion in denying leave to amend
because amendment would have been futile. See Cervantes v. Countrywide Home
Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review
and explaining that dismissal without leave to amend is proper when amendment
would be futile).
3 20-56124
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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