Zina Butler v. Housing Auth. County of La , 766 F.3d 1191 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZINA BUTLER, No. 11-55806
Plaintiff-Appellant,
D.C. No.
v. 5:09-cv-00761-
MMM-E
NATIONAL COMMUNITY
RENAISSANCE OF CALIFORNIA, AKA
National Community Renaissance OPINION
Corp.,
Defendant,
and
HOUSING AUTHORITY OF THE
COUNTY OF LOS ANGELES; CITY OF
PALMDALE; OSCAR BARRAZA; AND
LEE D’ERRICO,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge
Argued and Submitted
June 2, 2014—Pasadena, California
Filed September 12, 2014
2 BUTLER V. NCRC
Before: Stephen S. Trott, Consuelo M. Callahan, Circuit
Judges, and Mark W. Bennett, District Judge.*
Opinion by Judge Bennett
SUMMARY**
Civil Rights/Civil Procedure
The panel affirmed the district court’s dismissal, on
statute of limitations grounds, of claims brought pursuant to
42 U.S.C. § 1983 challenging the constitutionally of a
warrantless search of plaintiff’s apartment by various actors.
The panel held that the district court did not err by
determining that the original complaint did not sufficiently
identify all the proper defendants and that plaintiff’s amended
complaints, adding appellees, did not relate back to the time
that plaintiff filed her original complaint. The panel held that
the amended complaints did not relate back under Cal. Civ.
P. Code § 474 because plaintiff was not ignorant of the
appellees’ names or identities at the time the original
complaint was filed. The panel further held that the amended
complaints did not relate back under Fed. R. Civ. P.
15(c)(1)(C) because plaintiff did not establish that any of the
appellees knew or should have known that her lawsuit would
*
The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BUTLER V. NCRC 3
have been brought against them but for her mistake. The
panel further held that the district court did not err in
rejecting, at the pleading stage, plaintiff’s claim of equitable
tolling under California law.
COUNSEL
Jeremy B. Rosen (argued), Horvitz & Levy, L.L.P., Encino,
California; Andrew Wilhelm and Ashley Cook , certified law
students, Ninth Circuit Appellate Advocacy Clinic,
Pepperdine University School of Law, Malibu, California, for
Plaintiff-Appellant Zina Butler.
Toussaint S. Bailey (argued), Steven R. Orr, and Aaron C.
O’Dell, Richards, Watson & Gershon, P.C., Los Angeles,
California, for Defendants-Appellees City of Palmdale and
Oscar Barraza.
Nicole A. Davis Tinkham and Christian E. Foy Nagy, Collins
Collins Muir + Stewart, L.L.P. , South Pasadena, California,
for Defendants-Appellees Housing Authority of the County
of Los Angeles and Lee D’Errico.
4 BUTLER V. NCRC
OPINION
BENNETT, District Judge:
Plaintiff-appellant Zina Butler appeals from the district
court’s granting appellees’ motions to dismiss her 42 U.S.C.
§ 1983 action challenging the constitutionally of a warrantless
search of her apartment by various actors. The district court
held that Butler’s claims were untimely filed. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s determination of
whether a claim is barred by the statute of limitations. See
Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012), cert.
denied, 134 S. Ct. 76 (2013). Likewise, we review the district
court’s application of the relation-back doctrine under Federal
Rule of Civil Procedure 15(c) de novo. See Williams v.
Boeing Co., 517 F.3d 1120, 1132 (9th Cir. 2008).
I. BACKGROUND
A. The Pleadings
On April 17, 2009, Butler filed a one-page complaint, a
request to proceed in forma pauperis, and a request for an
attorney in federal district court. The caption of the
complaint named only National Community Renaissance
Corporation (“National CORE”) as a defendant. The
complaint alleged:
On April 18th 2007 apartment manager in
absence of a search warrant gave Section 8
investigator and City employee and Sheriff
deputies the keys to my apartment who then
BUTLER V. NCRC 5
entered without search warrant or consent
And began searching my apartment. Sheriff
deputies removed me from My home and
issued me a citation and then released me at
that point. And in that situation they violated
my 4th amendment right.
On April 22, 2009, Butler filed a first amended complaint.
The caption again named National CORE as a defendant and
added the Housing Authority of the County of Los Angeles
(“HACoLA”). The first amended complaint alleged:
On April 18th 2007 apartment manager in
absence of a search warrant gave Section 8
investigator and city employee and Sheriff
deputies the keys to my apartment who then
entered without search warrant or consent
And began searching my apartment. Sheriff
deputies removed me from My home and
issued me a citation and then released me at
that point. And in that situation they violated
my 4th AMENDMENT RIGHT.
I am adding Housing Authority To my
compliant [sic].
On May 15, 2009, the court sua sponte dismissed the first
amended complaint with leave to amend because “it [was]
unclear whom Plaintiff intends to sue.”
On June 17, 2009, Butler filed a second amended
complaint, again identifying National CORE and HACoLA
in the caption. In the “Statement of Facts,” Butler alleged the
following:
6 BUTLER V. NCRC
On April 18th 2007 Section 8 investigator Mr.
Derrico came to my apartment and knocked
on my door. I asked who is it and he said
Housing Authority investigator and I ask him
if he had a search warrant from my upstairs
window he said no and I told him that I was
not going to let him in then. So he came back
with the manager of National Renaissance
Corporation Elizabeth Freeman and Officers
McCormick, and Murphy from Palmdale
Sheriff Department and city employee Oscar
Barrza and then the manager Elizabeth
Freeman took the key and opened my door
and let all of thee [sic] above into my
apartment and they started searching my
apartment AFTER THEY STARTED
S E A R C H IN G M Y A P A R T M E N T
OFFICERS MCCORMICK, and MURPHY
took me to the car and wrote me a ticket for a
[sic] infraction and released me at that point
THEREFORE I WOULD LIKE TO SUE
PALMDALE SHERIFF DEPARTMENT,
NATIONAL RENAISSANCE
C O M M U N IT Y C O R P , H O U S IN G
AUTHORITY OF THE COUNTY OF L.A.
AND THE CITY OF PALMDALE
On July 17, 2009, the district court sua sponte dismissed
the second amended complaint with leave to amend. The
court observed, inter alia, that “[l]ike its predecessor, the
Second Amended Complaint is unclear whom Plaintiff
intends to sue.”
BUTLER V. NCRC 7
On August 12, 2009, Butler filed a third amended
complaint. National CORE, HACoLA, the City of Palmdale
(“Palmdale”), Oscar Barraza, in his individual capacity, and
“Mr Derrico”, in his individual capacity, are identified as
defendants in the caption. In the “Statement of Facts,” Butler
alleged that:
9. On April 18th 2007 Section 8 investigator
Mr Derrico came to my apartment and knock
[sic] on my door. I asked who is it and he
said Housing Authority investigator.
10. And I ask him if he had a search warrant
from my upstairs window. He said no and I
told him that I was not going to let him in.
11. So Mr Derrico went and got the manager
of National Renaissance Community
Corporation Elizabeth Freeman, City
Employee Oscar Barraza, and Sheriff
Deputies McCormick, and Murphy, and
officers from Housing authority whose names
I don’t know (John Doe’s). Mr Derrico then
told Elizabeth Freeman to open the door and
Ms Freeman took the key and opened the
door. Elizabeth Freeman gave me no notice
of entry and was acting in concert with
Housing Authority officers.
12. After opening my front door I was sitting
on the stair inside my apartment and an
officer from housing authority came up the
stairs towards me with his gun in his hand and
told me to go down stairs. The officer from
8 BUTLER V. NCRC
Housing Authority continued upstairs and
proceeded to search.
13. Mr. Derrico and Oscar Barraza, and other
officers from Housing Authority (John Doe’s)
entered and started searching my apartment.
I could see them searching my closet and then
some of the other officers from Housing
Authority sent into my kitchen. I asked why
were they searching my apartment.
14. By that time Palmdale Sheriff Deputies
Murphy, and McCormick entered into my
apartment and cuffed me then walked me to
there [sic] car and detained me in there [sic]
car for about 20 minutes and then cited me out
for an infraction and released me at that point.
15. While I was detained, the Housing
Authority officers Mr. Derrico, and City
Employee inspector Oscar Barraza continued
to search my apartment.
16. It is a custom of the Housing Authority to
illegally enter peoples [sic] homes who have
Section 8 housing vouchers.
17. I made a complaint with the City of
Palmdale on Jun [sic] 11 2007. See Exhibit
A. They denied my complaint.
18. As a result of this I suffered High blood
pressure and emotional Distress. I also had to
BUTLER V. NCRC 9
go to the doctor for my increase [sic] blood
pressure.
On August 20, 2009, Butler filed a proof of service
declaring that the third amended complaint was “personally
served” on HACoLA via a post office box in Santa Fe
Springs, California. That proof of service also indicated that
National CORE and Palmdale were personally served, but did
not indicate that D’Errico was served. On September 17,
2009, Butler filed a proof of service indicating that D’Errico
was personally served on August 18, 2009.
On September 8, 2009, Palmdale and Barraza filed a
Motion to Dismiss the third amended complaint. On
September 10, 2009, National CORE also filed a motion to
dismiss the third amended complaint. On January 13, 2010,
the court denied National CORE’s motion, but granted
Palmdale and Barraza’s motion and dismissed the third
amended complaint with leave to amend. The district court
concluded, inter alia, that Butler’s claims against Palmdale
and Barraza were untimely and did not relate back to any of
Butler’s prior pleadings.
On March 15, 2010, Butler filed a nineteen-page fourth
amended complaint. Butler again named as defendants
National CORE, HACoLA, Palmdale, as well as Oscar
Barraza and “Mr. Derrico” in their individual capacities.1
The core of Butler’s factual allegations were again the
warrantless search of her apartment on April 18, 2007. Butler
added details concerning the relationship between National
CORE, HACoLA, Palmdale, as well as her rental history with
1
This complaint, for the first time, listed “Lee D’Errico” as a defendant
rather than just “Mr. Derrico.”
10 BUTLER V. NCRC
HACoLA. Butler alleged that, “[i]n the week after the
search, [she] contacted HACoLA on approximately seven
different occasions and was informed that D’Errico had led
the investigation of her apartment.” Butler alleged that on
June 11, 2007, she filed a claim with Palmdale in which she
“accused Barazza [sic] of entering her apartment on April 18,
2007.” On June 28, 2007, Palmdale allegedly denied Butler’s
claim. The fourth amended complaint contained three claims
for relief: (1) a civil rights violation claim under 42 U.S.C.
§ 1983 against all defendants; (2) a breach of contract claim
against National CORE; and (3) a claim for declaratory relief
against all defendants.
Palmdale, Barraza, HACoLA and D’Errico filed motions
to dismiss asserting that Butler’s claims against them were
barred by the statute of limitations.
B. The District Court’s Decisions
The district court granted appellees’ motions and
dismissed Butler’s claims against Palmdale, Barraza,
HACoLA, and D’Errico with prejudice. The district court
first considered the timeliness of Butler’s claims against
HACoLA and D’Errico. The court found that the original
complaint did not sufficiently identify either HACoLA or
D’Errico as defendants. The court also found that Butler “did
not make any ‘mistake concerning the proper party’s identity’
of which Defendants were or should have been aware.”
Rather, the court concluded that Butler knew of HACoLA
and D’Errico’s existence, status, and roles at the time she
filed her original complaint, and that HACoLA and D’Errico
were aware, shortly after the search of Butler’s apartment,
that Butler knew of their existence and roles. Thus, the court
determined that Butler’s claims against HACoLA and
BUTLER V. NCRC 11
D’Errico did not relate back, under Federal Rule of Civil
Procedure 15(c)(1), to the time Butler filed her original
complaint. The court further concluded that Butler’s claims
against HACoLA and D’Errico did not relate back under
California law because Butler did not name any fictitious
defendants in her original complaint.
The court then turned its attention to the timeliness of
Butler’s claims against Palmdale and Barraza. The court first
noted that it had previously ruled, in its Memorandum and
Order of January 13, 2010, that Butler’s claims against
Palmdale and Barraza in her third amended complaint were
untimely and did not relate back to the date of the filing of
any of Butler’s earlier pleadings. The court found that
Butler’s claims against Palmdale and Barraza in her fourth
amended complaint were based on the same allegations
Butler made in her third amended complaint. The court
explained that neither the original complaint nor the first
amended complaint sufficiently identified Palmdale or
Barraza as defendants. The court also found that Butler knew
of Palmdale or Barraza’s existence, status, and roles in the
search of her apartment at the time she filed her tort claim
with Palmdale on June 11, 2007, and that, in light of that tort
claim, Palmdale and Barraza could not have believed that
Butler’s failure to name them in her original complaint was
the product of any “mistake” regarding their identities. The
court also determined that Butler’s claims against Palmdale
and Barraza did not relate back under California law because
Butler did not name any fictitious defendants in her original
complaint and Butler was not “plainly ignorant” of Palmdale
and Barraza’s identities at the time she filed her original
complaint.
12 BUTLER V. NCRC
Finally, the court addressed the issue of equitable tolling.
The court concluded that California’s equitable tolling
doctrine did not “rescue” Butler’s claims against Palmdale,
Barraza, HACoLA, and D’Errico. The court explained that,
at most, Butler’s tort claim with Palmdale tolled the statute of
limitations for the ten days it was pending. However, since
Butler did not name Palmdale or Barraza until the second
amended complaint, and did not name D’Errico until the third
amended complaint, tolling based on Butler’s tort claim did
not save her claims because both of those filings occurred
after the extended statute of limitations had expired. The
court further explained that because Butler had never filed a
tort claim against HACoLA, equitable tolling against
HACoLA was unwarranted. The court also determined that
Butler was not entitled to equitable tolling based on
“technical error” in her original complaint where she never
named Palmdale, Barraza, HACoLA, or D’Errico in that
pleading. Finally, the court rejected Butler’s argument that
she should be allowed to proceed with her claims because the
policy of deciding pro se federal civil rights cases on their
merits outweighed the policy underlying the statute of
limitations. The court found that, under California law, the
policy underlying the statute of limitations in favor of repose
and the policy favoring disposition of cases on their merits
were of equal merit.
The court concluded that Butler had failed to show that
California’s equitable tolling doctrine permitted her to amend
her lawsuit to add time-barred claims against new defendants.
Thus, the court held that Butler was not entitled to equitable
tolling and that the statute of limitations barred her claims
against Palmdale, Barraza, HACoLA, and D’Errico. The
court ordered that Butler’s case would proceed against
National CORE as the sole defendant.
BUTLER V. NCRC 13
II. LEGAL ANALYSIS
A. Applicable Standards
Section 1983 does not contain its own statute of
limitations. Without a federal limitations period, the federal
courts “‘apply the forum state’s statute of limitations for
personal injury actions, along with the forum state’s law
regarding tolling, including equitable tolling, except to the
extent any of these laws is inconsistent with federal law.’”
Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir.
2007) (quoting Jones v. Blanas, 393 F.3d 918, 927 (9th Cir.
2004)); see Wilson v. Garcia, 471 U.S. 261, 279–80 (1985),
superceded by statute on other grounds, Judicial
Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat.
5114, as recognized in Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 377–80 (2004); see also Douglas v. Noelle, 567 F.3d
1103, 1109 (9th Cir. 2009) (“State law governs the statute of
limitations period for § 1983 suits and closely related
questions of tolling.”). California’s statute of limitations for
personal injury claims is two years. See CAL. CIV. P. CODE
§ 335.1; Cantella, 486 F.3d at 1132. But, in borrowing a
state statute of limitations for a federal cause of action, we
follow the Supreme Court’s direction to “borrow no more
than necessary.” West v. Conrail, 481 U.S. 35, 39 (1987).
B. Identification Of Defendants
Initially, Butler challenges the court’s determination that
she failed to properly name Palmdale, Barraza, HACoLA,
and D’Errico in her original complaint. Butler argues that she
sufficiently identified Palmdale, Barraza, HACoLA, and
D’Errico as defendants in the body of her original complaint
through her use of misnomers. The appellees dispute Butler’s
14 BUTLER V. NCRC
argument and contend that the court did not err in its
determination.
The court correctly rejected Butler’s argument. “[A]
party may be properly in a case if the allegations in the body
of the complaint make it plain that the party is intended as a
defendant.” Rice v. Hamilton Air Force Base Commissary,
720 F.2d 1082, 1085 (9th Cir. 1983). The allegations in the
body of Butler’s original complaint do not plainly indicate
that she intended any party, other than National Community
Renaissance Corporation (“National CORE”), to be a
defendant. Neither Palmdale nor HACoLA are mentioned
whatsoever in the body of the original complaint. Butler’s
allegations regarding her complaints to HACoLA and the
City in 2007 show that she knew Palmdale, HACoLA,
Barraza, and D’Errico’s identities by the time she filed her
original complaint. Thus, if Butler intended to name
Palmdale, HACoLA, Barraza, and D’Errico as defendants,
she could have done so with far more specificity. Yet, the
body of the original complaint contains no names whatsoever
of any individual or organization involved in the search of
Butler’s apartment. Under such circumstances, Butler did not
identify Palmdale, HACoLA, Barraza, or D’Errico as
defendants in her original complaint.
C. Governing Law On The Relation Back Of Claims
Butler argues that the court erred in concluding that her
amended complaints, naming Palmdale, HACoLA, Barraza,
and D’Errico as defendants, did not relate back to the date of
her original complaint. This issue requires us to determine
the controlling law—state or federal. Prior to the 1991
amendments to Federal Rule of Civil Procedure 15(c), this
court held that the relation back provisions of state law, rather
BUTLER V. NCRC 15
than Rule 15(c), govern a federal cause of action pursuant to
§ 1983. See Merritt v. Cnty. of L.A., 875 F.2d 765, 768 (9th
Cir. 1989); Cabrales v. Cnty. of L.A., 864 F.2d 1454, 1462–64
(9th Cir. 1988), vacated on other grounds, 490 U.S. 1087
(1989), decision reinstated on remand, 886 F.2d 235 (9th Cir.
1989). In Cabrales, this court held the relation back
provisions of state law, rather than Rule 15(c), govern a
federal cause of action pursuant to 42 U.S.C. § 1983.2 This
court concluded that California’s relation back provisions
constitute a substantive state policy that is applicable in
federal civil rights actions in which a state statute of
limitations governs. Id. at 1464; see Merritt, 875 F.2d at 768
n.5. As this court recognized in Merritt, “We reached this
determination despite the fact that substitution of the
additional defendants would have violated the notice
requirements of the federal rule. Under California relation
back rules, there is no notice-to-defendants requirement as in
the federal rule.” Merritt, 875 F.2d at 768 (citing Cabrales,
864 F.2d at 1463).
2
At the time, other federal circuit courts of appeals held that Rule 15(c)
applied in § 1983 cases. See, e.g., Hernandez Jimenez v. Calero Toledo,
604 F.2d 99, 100 (1st Cir. 1979); Gleason v. McBride, 869 F.2d 688, 693
(2d Cir. 1989); Berndt v. Tennessee, 796 F.2d 879, 883 (6th Cir. 1986);
Wood v. Worachek, 618 F.2d 1225, 1229 (7th Cir. 1980); McCurry v.
Allen, 688 F.2d 581, 584–85 (8th Cir. 1982).
16 BUTLER V. NCRC
The Supreme Court amended Rule 15(c) in 1991.3 We
conclude that the 1991 amendment superseded Cabrales and
Merritt to the extent that they hold that state law exclusively
governs the relation back of amendments in § 1983 cases. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc). As amended, Rule 15(c)(1) currently provides:
(1) When an Amendment Relates Back. An
amendment to a pleading relates back to
the date of the original pleading when:
(A) the law that provides the
applicable statute of limitations
allows relation back;
3
Prior to the 1991 amendments, Rule 15(c) provided in pertinent part:
(c) Relation Back of Amendments. Whenever
the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of the
original pleading. An amendment changing the party
against whom a claim is asserted relates back if the
foregoing provision is satisfied and, within the period
provided by law for commencing the action against the
party to be brought in by amendment, that party (1) has
received such notice of the institution of the action that
the party will not be prejudiced in maintaining a
defense on the merits, and (2) knew or should have
known that, but for a mistake concerning the identity of
the proper party, the action would have been brought
against the party.
FED. R. CIV. P. 15(c) (1987); see Martell v. Trilogy Ltd., 872 F.2d 322,
323–24 (9th Cir. 1989).
BUTLER V. NCRC 17
(B) the amendment asserts a claim or
defense that arose out of the
conduct, transaction, or
occurrence set out—or attempted
to be set out—in the original
pleading; or
(C) the amendment changes the party
or the naming of the party against
whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if,
within the period provided by
Rule 4(m) for serving the
summons and complaint, the party
to be brought in by amendment:
(i) received such notice of the
action that it will not be
prejudiced in defending on the
merits; and
(ii) knew or should have known
that the action would have
been brought against it, but for
a mistake concerning the
proper party’s identity.
FED. R. CIV. P. 15(c)(1) (2014).
The advisory committee notes accompanying this
paragraph state that the provision “is intended to make it clear
that the rule does not apply to preclude any relation back that
may be permitted under the applicable limitations law.” FED.
18 BUTLER V. NCRC
R. CIV. P. 15(c)(1) advisory committee notes (1991). The
committee notes further provide:
Generally, the applicable limitations law will
be state law. If federal jurisdiction is based
on the citizenship of the parties, the primary
reference is the law of the state in which the
district court sits. Whatever may be the
controlling body of limitations law, if that law
affords a more forgiving principle of relation
back than the one provided in this rule, it
should be available to save the claim.
Id. Thus, Rule 15(c)(1) incorporates the relation back rules
of the law of a state when that state’s law provides the
applicable statute of limitations and is more lenient. As a
result, if an amendment relates back under the state law that
provides the applicable statute of limitations, that amendment
relates back under Rule 15(c)(1) even if the amendment
would not otherwise relate back under the federal rules. See
6A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND
PROCEDURE § 1503 (2d ed. Supp. 2001) (noting that “[i]n
1991, Rule 15(c) was amended to clarify that relation back
may be permitted even if it does not meet the standards of the
federal rule if it would be permitted under the applicable
limitations law”).4 Applying Rule 15(c) to relation back
4
The 1991 amendment to Rule 15(c) also changed the time in which a
new defendant must have notice of the action and have knowledge that the
action would have been brought against that defendant but for the
plaintiff’s mistake. The prior version of Rule 15(c) required notice and
knowledge “within the period provided by law for commencing the action
against the party to be brought in by amendment. . . .” FED. R. CIV. P.
15(c) (1987). As amended, the notice time was extended to the 120 days
provided by Rule 4(m). See FED. R. CIV. P. 15(c) advisory committee
BUTLER V. NCRC 19
issues in § 1983 actions comports with the results in Cabrales
and Merritt, namely, that in some circumstances a plaintiff
may be entitled to the benefit of state law relation back rules
if those are more generous than Rule 15(c). See Merritt,
875 F.2d at 768; Cabrales, 864 F.2d at 1463. Furthermore,
the general purpose of the Federal Rules of Civil Procedure
is “to minimize technical obstacles to a determination of the
controversy on its merits.’” G. F. Co. v. Pan Ocean Shipping
Co., 23 F.3d 1498, 1502 (9th Cir. 1994) (quoting United
States ex rel. Atkins v. Reiten, 313 F.2d 673, 675 (9th Cir.
1963)). This purpose is served by deferring to the more
permissive law, state or federal, which allows an amendment
to relate back.
Finally, applying Rule 15(c) brings the law of this circuit
into conformity with (1) the Supreme Court’s order that Rule
15(c) “shall take effect on December 1, 1991, and shall
govern all proceedings in civil actions thereafter
commenced,” 134 F.R.D. 525 (1991) (emphasis added), and
(2) the law of our sister circuits on this issue. Currently,
other federal circuit courts of appeals uniformly hold that the
relation back provision of Rule 15(c) applies in federal civil
cases.5 See Hogan v. Fischer, 738 F.3d 509, 517 (2nd Cir.
2013); Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 777 (3d
Cir. 2000); Robison v. Clipse, 602 F.3d 605, 607 (4th Cir.
2010); Crostley v. Lamar Cnty., Tex., 717 F.3d 410, 421 (5th
Cir. 2013); Hall v. Spencer Cnty., Ky., 583 F.3d 930, 934 (6th
notes (1991) (stating that the intent of the change was to overrule
Schiavone v. Fortune, 477 U.S. 21 (1986)).
5
In one post-1991 decision, this court has already applied Rule 15(c) in
a § 1983 action. See Eaglesmith v. Ward, 73 F.3d 857, 860 (9th Cir.
1995).
20 BUTLER V. NCRC
Cir. 2009); Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir.
2008); Foulk v. Charrier, 262 F.3d 687, 696 (8th Cir. 2001);
Focus on the Family v. Pinellas Suncoast Transit Auth.,
344 F.3d 1263, 1275–76 (11th Cir. 2003).
We, therefore, will review Butler’s amendments under
Rule 15(c). In this case, because the limitations period
derives from state law, Rule 15(c)(1) requires us to consider
both federal and state law and employ whichever affords the
“more permissive” relation back standard. See Coons v.
Indus. Knife Co., 620 F.3d 38, 42 (1st Cir. 2010) (“We have
described the choice between these two provisions as ‘a one-
way ratchet,’ meaning that a party is entitled to invoke the
more permissive relation back rule, whether that is the state
rule or the federal rule set out in Rule 15(c)(1)(C).”); Hogan,
738 F.3d at 518 (“Rule 15(c)(1)(A) instructs courts, then, to
look to the entire body of limitations law that provides the
applicable statute of limitations. . . . Thus, under Rule
15(c)(1)(A), we must determine if New York state law
provides a ‘more forgiving principle of relation back’ in the
John Doe context, compared to the federal relation back
doctrine under Rule 15(c)(1)(C).” ).
D. Application Of Relation Back Laws
1. Relation back under California law
California law provides the applicable statute of
limitations here. Amendments of pleadings under California
law are generally governed by California Civil Procedure
BUTLER V. NCRC 21
Code § 473(a)(1).6 See Bd. of Trs. of Leland Stanford Jr.
Univ. v. Superior Ct., 57 Cal. Rptr. 3d 755, 761–62 (Cal. Ct.
App. 2007). Section 473(a)(1) does not contain any express
provision for relation back of amendments, and California
courts have held that it “does not authorize the addition of a
party for the first time whom the plaintiff failed to name in
the first instance.” Kerr-McGee Chem. Corp. v. Superior Ct.,
206 Cal. Rptr. 654, 656 (Cal. Ct. App. 1984). Under
California Civil Procedure Code § 474, however, California
courts have recognized that “where an amendment does not
add a ‘new’ defendant, but simply corrects a misnomer by
which an ‘old’ defendant was sued, case law recognizes an
exception to the general rule of no relation back.”7 Hawkins
v. Pac. Coast Bldg. Prods., Inc., 22 Cal. Rptr. 3d 453, 457
6
Section 473(a)(1) provides in relevant part that:
The court may, in furtherance of justice, and on any
terms as may be proper, allow a party to amend any
pleading or proceeding by adding or striking out the
name of any party, or by correcting a mistake in the
name of a party, or a mistake in any other respect. . . .
CAL. CIV. P. CODE § 473(a)(1).
7
Section 474 provides in pertinent part that:
When the plaintiff is ignorant of the name of a
defendant, he must state that fact in the complaint, or
the affidavit if the action is commenced by affidavit,
and such defendant may be designated in any pleading
or proceeding by any name, and when his true name is
discovered, the pleading or proceeding must be
amended accordingly. . . .
CAL. CIV. P. CODE § 474.
22 BUTLER V. NCRC
(Cal. Ct. App. 2004). The explanation for this exception is
that:
“[T]he general rule supplies no litmus to
differentiate between erroneous description
and change of identity. It ignores the
difference between a plaintiff who has
committed an excusable mistake and one who
seeks a free option among potential liability
targets after the statute has run; neither does it
consider modern business practices, which
often divide integrated business operations—
if only for tax purposes—among a group of
artificial legal entities. To accommodate the
latter factors, an ‘exception to the general
rule’ has been formulated, which permits
correction where the plaintiff has committed
an excusable mistake attributable to dual
entities with strikingly similar business names
or to the use of fictitious names.”
Id. (quoting Mayberry v. Coca Cola Bottling Co. of
Sacramento, 53 Cal. Rptr. 317, 319–20 (Cal. Ct. App. 1966)).
For § 474 to apply, however, the plaintiff must be “genuinely
ignorant” of the defendant’s identity at the time the original
complaint is filed. Woo v. Superior Court, 89 Cal. Rptr. 2d
20, 25 (Cal. Ct. App. 1999).
Butler argues that the court erred in determining that her
amendments did not relate back. She contends that her
amendments should have related back because the
amendments merely corrected misnomers she used in lieu of
the appellees’ names in her original complaint. The appellees
contend that the court correctly looked to California Civil
BUTLER V. NCRC 23
Procedure Code § 474 in determining whether Butler’s
amended complaints related back and in concluding that
Butler’s amendments did not relate back because Butler was
not “ignorant” of their identities when she filed her original
complaint.
The record supports the district court’s finding that Butler
was not “generally ignorant” of the identities of Palmdale,
Barraza, HACoLA, or D’Errico when she filed her original
complaint. Butler alleged that she had contacted HACoLA
within a week of the search, learned D’Errico’s name, and
subsequently spoke to him twice. Likewise, Butler alleged
that she submitted a tort claim to Palmdale on June 11, 2007,
in which she accused Barraza of wrongfully entering her
apartment on April 18, 2007. Accordingly, because Butler
was not ignorant of the appellees’ names or identities at the
time the original complaint was filed, those amendments do
not relate back under § 474. See Woo, 89 Cal. Rptr. 2d at 25.
Accordingly, the court correctly concluded that Butler’s
amended complaints adding appellees did not relate back
under § 474. See id.
2. Relation back under Federal Rule of Civil
Procedure 15
Rule 15(c)(1)(C) provides the federal standard for
whether a pleading relates back. See Krupski v. Costa
Crociere S.p.A., 560 U.S. 538, 541 (2010) (“Rule 15(c) of the
Federal Rules of Civil Procedure governs when an amended
pleading ‘relates back’ to the date of a timely filed original
pleading and is thus itself timely even though it was filed
outside an applicable statute of limitations.”). In order for an
amended complaint to relate back under Rule 15(c)(1)(C), the
following conditions must be met: “(1) the basic claim must
24 BUTLER V. NCRC
have arisen out of the conduct set forth in the original
pleading; (2) the party to be brought in must have received
such notice that it will not be prejudiced in maintaining its
defense; (3) that party must or should have known that, but
for a mistake concerning identity, the action would have been
brought against it.” Schiavone v. Fortune, 477 U.S. 21, 29
(1986). Additionally, the second and third requirements must
have been fulfilled within 120 days after the original
complaint is filed, as prescribed by Federal Rule of Civil
Procedure 4(m). See Hogan, 738 F.3d at 517 (indicating that
the fourth requirement is met when “‘the second and third
criteria are fulfilled within 120 days of the filing of the
original complaint, and . . . the original complaint [was] filed
within the limitations period.’”) (quoting Barrow v.
Wethersfield Police Dept., 66 F.3d 466, 468–69 (2d Cir.
1995)).
There is no dispute that the first two requirements were
met. The dispute lies with the third requirement, that the
appellees “knew or should have known that the action would
have been brought against [them], but for a mistake
concerning the proper party’s identity.” FED. R. CIV. P.
15(c)(1)(C)(ii) (emphasis added). The United States Supreme
Court construed Rule 15(c)(1) (C)(ii) in Krupski, 560 U.S.
538. In Krupski, a cruise ship passenger sued for injuries
suffered on the ship. Id. at 541–42. The complaint named
the marketing agent for the carrier as the defendant, rather
than the carrier. Id. at 543. After the statute of limitations
had run, she sought to amend her complaint under Rule
15(c)(1)(C) to state her claim against the carrier. Id. at 544.
The Eleventh Circuit Court of Appeals ruled that the
proposed amendment did not relate back because the plaintiff
was made aware of the existence of the correct entity prior to
the expiration of the statute of limitations. Id. at 546. In
BUTLER V. NCRC 25
reversing, the Court held: “relation back under Rule
15(c)(1)(C) depends on what the party to be added knew or
should have known, not on the amending party’s knowledge.”
Id. at 541. The Court went on to explain that:
[b]y focusing on [plaintiff’s] knowledge, the
Court of Appeals chose the wrong starting
point. The question under Rule
15(c)(1)(C)(ii) is not whether [plaintiff] knew
or should have known the identity of [the
carrier] as the proper defendant, but whether
[the carrier] knew or should have known that
it would have been named as a defendant but
for an error. Rule 15(c)(1)(C)(ii) asks what
the prospective defendant knew or should
have known during the Rule 4(m) period, not
what the plaintiff knew or should have known
at the time of filing her original complaint.
Id. at 548.
We conclude that the district court correctly held that
Butler did not establish that any of the appellees knew or
should have known that her lawsuit would have been brought
against them but for her mistake. Butler points to her timely
original complaint and tort claim she made with Palmdale
regarding the search of her apartment in which she named
Barraza. Butler argues that her actions sufficiently alerted
appellees that she intended to sue them. Butler’s argument is
flawed. First, the text of her original complaint, in which she
identified National CORE as the sole defendant, would not
have alerted any of the appellees that Butler intended to sue
them. As discussed above, the body of the complaint
contains no names whatsoever of any individual or
26 BUTLER V. NCRC
organization involved in the search of Butler’s apartment. In
addition, other than identifying the date of the search, the
body of the original complaint offers no clues as to the
location of Butler’s apartment. The address of Butler’s
apartment is not mentioned, nor is the city, county, or even
state where that apartment is located. This is significant.
Without Palmdale, HACoLA, or any of the individual actors
being identified by name, the complaint’s bare references to
“City employee” is meaningless. Butler could be referring to
any city employee in any city where National CORE
maintains an apartment. Similarly, the vague references to
“Section 8 investigator” did nothing to apprise either
HACoLA or D’Errico that Butler intended to sue them.
Again, Butler could be referring to a “Section 8 investigator”
in any county where National CORE maintains an apartment.
Butler’s 2007 tort claim against Palmdale did next to nothing
to apprise either Palmdale or Barraza that Butler’s 2009
lawsuit would have been brought against them but for
Butler’s mistake. The short answer here is that there is no
nexus between the two events that would have alerted
Palmdale or Barraza about Butler’s intent to sue them in
2009. Therefore, the court correctly concluded that Butler’s
amended complaints, adding Appellees, did not relate back
under Rule 15(c)(1)(C).8
8
Butler also contends that the court should have tolled the 120-day
period for service of the summons and complaint, under Federal Rule of
Civil Procedure 4(m), while it screened her in forma pauperis complaints.
Other federal circuit courts of appeals have held that the 120-day service
period is tolled until the court screens a plaintiff’s in forma pauperis
complaint and authorizes service of process. See Robinson v. Clipse,
602 F.3d 605, 608 (4th Cir. 2010); Urrutia v. Harrisburg Cnty. Police
Dep’t, 91 F.3d 451, 459 (3d Cir. 1996); see also Paulk v. Dep’t of the Air
Force, 830 F.2d 79, 83 (7th Cir. 1987) (holding that a motion to proceed
in forma pauperis tolled the statute of limitations during the pendency of
BUTLER V. NCRC 27
E. Equitable Tolling
Butler also contends that the court improperly resolved
her claim of equitable tolling on the pleadings. We conclude
that the court could determine equitable tolling at the
pleading stage here since Butler did not alert the court to the
existence of a claim form she filed with the County of Los
Angeles or the county’s denial of such a claim. As a result,
nothing prevented the court from ruling on the applicability
of California’s equitable tolling at the pleading stage.
The court also did not err in rejecting Butler’s claim of
equitable tolling under California law. We borrow our rules
for equitable tolling from the forum state, California. See
Hardin v. Straub, 490 U.S. 536, 539 (1989). Under
California law, equitable tolling “reliev[es] plaintiff from the
bar of a limitations statute when, possessing several legal
remedies he, reasonably and in good faith, pursues one
designed to lessen the extent of his injuries or damage.”
Addison v. State, 578 P.2d 941, 943 (Cal. 1978). The
California Supreme Court has reasoned that the primary
purpose of a limitations statute is to “‘(prevent) surprises
through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded,
and witnesses have disappeared.’” Elkins v. Derby, 525 P.2d
81, 86 (Cal. 1974) (footnote omitted and quoting Order of
R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342,
348–49 (1942)). This primary purpose is “normally satisfied
the § 1915 motion). Because Butler did not raise this issue before the
court, we consider the argument forfeited. See Art Attacks Ink, LLC v.
MGA Entm’t Inc., 581 F.3d 1138, 1143 (9th Cir. 2009); Allen v. Ornoski,
435 F.3d 946, 960 (9th Cir. 2006).
28 BUTLER V. NCRC
when the defendant receives timely notification of the first of
two proceedings.” Elkins, 525 P.2d at 85 n.3.
The district court correctly noted that under California’s
test for equitable tolling, a plaintiff must establish “‘timely
notice, and lack of prejudice, to the defendant, and reasonable
and good faith conduct on the part of the plaintiff.’”
McDonald v. Antelope Valley Cmty. Coll. Dist., 194 P.3d
1026, 1033 (Cal. 2008) (quoting Addison v. California,
578 P.2d 941, 943–44 (Cal. 1978)). The record supports the
district court’s finding that, at most, Butler’s tort claims
against Palmdale and Barraza were tolled for the ten days her
tort claim was pending with Palmdale, but, even with this
tolling, Butler’s amended complaints were untimely.
HACoLA and D’Errico are on different footing. As we
noted above, Butler never asserted before the court that she
had filed a civil complaint with HACoLA. Thus, the court
correctly concluded that because Butler had never filed a tort
claim against HACoLA, equitable tolling against HACoLA
was unwarranted. See McDonald, 194 P.3d at 102 n.2
(pointing out that the timely notice requirement looks to
whether a first claim was filed within the statutory period).
III. CONCLUSION
Because the district court committed no error in its
determination that Butler’s claims are time-barred, we affirm.
AFFIRMED.