Guerrero v. Gates

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
L. GUERRERO, in his individual 
capacity, and in his capacity as
representative of the classes
described fully below,
Plaintiff-Appellant,
v.
DARYL F. GATES; HONEY A. LEWIS;
WARD G. MCCONNELL; JOHN T.
NEVILLE; JAMES PEARSON; PHILIP
SUGAR; FLORA TROSTLER; G.
DANIEL WOODARD; DON W.
VINCENT, II, all as current or No. 02-56017
former members of the Los
D.C. No.
Angeles City Attorney’s Office;
ROGER ADEZ, #25934; ARMANDO  CV-00-07165-GAF
AMEZCUA, #31399; SALVADOR ORDER AND
APODACA; HERIBERTO ARANGURE, OPINION
#31707; EVANURY AROCHO-
WITMAN, #27267; ROBERT ARROYO,
#25851; FRANK ARUJO, #27101;
JUDITH LYNN BARHAM, #22952;
ANTONIO S. BAUTISTA, #32919;
MAURICIO BAUTISTA; RON BERDIN,
#31958; JOHN BERTINO, #27839;
EDWARD BREHM, #30982; STEVEN
W. BROWN, #25366; MICHAEL
BUCHANAN, #32055; TODD BURNS,
#31549; UNKNOWN BURROLA;
KENNETH BUSCARINO, #20949;

3247
3248 GUERRERO v. GATES
PAUL BYRNES, Sgt., #24578; 
OSBALDO CAMACHO, #33903;
CAMPBELL, #25216; RANDY
CANISTER, #26107; KEVIN CARNEY,
#10983; JAMES D. CARROLL,
#34456; MARTIN CHALUPA, #21890;
DANNY N. CHAU, #30087; MANUEL
CHAVEZ, #30544; THOMAS
CHINAPPI; JOSHUA N. CLOSSON,
#32252; DAVID COCHRANE, #26545;
ETHAN COHAN, #30614; JOHN M.
COLLARD, #27376; CHRISTOPHER
COPPOCK, #31801; ARMANDO
CORONADO, #14710; BOBBY B.
CREES, #32061; JOHN CURIEL,
#17992; ROBERT DONALDSON,
#20848; MICHAEL DONNELLY, 
#31974; RAQUEL DUARTE, #30349;
NINO DURDEN, #31106; BRIAN
ELDRIDGE, #32071; DONALD J.
ELDRIDGE, #31353; JAMES A.
ERWIN, III, #33017; WILLIAM
FERGUSON, #33323; JOHN ROBERT
FLOWERS, #25547; BRAD FOSS;
HERMAN FRANZ FRETTLOHR,
#31420; DAVID M. FRIEDRICH,
#30946; JOHN FUTRELL, #17253;
FRANK GALINDO, #30764; JOE
GARCIA, #32362; RICHARD GINELLI;
TERESA GOLT, #26562; SHAWN
GOMEZ, #30855; JEFFREY L.
GRAHAM, #27201; GREENFIELD,
Detective; PAUL D. HARPER,

GUERRERO v. GATES 3249
#30320; RICHARD HARPER, #14170; 
HARPER, #14710; HARPER, #13228;
HARPER, #30770; HARPER, #16795;
HARPER, #24195; HARPER, #10868;
ROSS Y. HAY, #30771; MARGARITA
HERMOSILLO, #25178; SUSAN E.
HEROLD, #24732; HERRERA,
Detective; BRIAN K. HEWITT,
#27602; DANIEL HILLS, #17826;
GEORGE HOOPES, Sgt., #26967;
CONNIE HOWELL, #23994; CESAR
HUEZZO, #33787; ALFRED
HITCHINGS, #25970; ALEX
IZQUIERDO, #26873; ROBB JOHNSON,
#25362; RONALD KITZMILLER,
#31907; ARTURO KOENIG, #30289;
KLOTZ; ANDREW LASSAK, #30835; 
BRIAN LIDDY, #27515; LIDDY,
#27315; DANIEL LUJAN, JR.,
#26973; FRANK LYGA, #25051;
DAVID MACK; CHARLES MARKEL,
#21866; JOHN PATRICK MARQUEZ,
#2667 #26670; MARIO MARQUEZ,
#32875; SAMUEL T. MARTIN,
#26058; LAWRENCE MARTINEZ,
#27319; THOMAS MARTINEZ,
#31746; PATRICK MCCARTY,
#30182; SHANDS MCCOY, #25578;
WILLIAM S. MCGEE, #21277;
SCOTT F. MCNEIL, #31438;
UNKNOWN MEJIA; RUBEN MENDOZA,
Ofcr. #31360;

3250 GUERRERO v. GATES
RICHARD MERAZ, #12052; 
CAMERINO MESINA, #30907; JOHN
MUMMA, #26492; JAMES MUNIZ,
#30963; DAVID NAVARRO, Sgt.,
#23155; DAVID NEGRETE, #26682;
HOWARD NG, #30405; THOMAS
O’GRADY, #30328; STEVEN
O’NEAL, #33740; ERNEST ORONA,
#25243; EDWARD ORTIZ, Sgt.,
#23230; DENNIS O’SULLIVAN,
#27237; OWENS, Officer, #27878
(no such number); KULIN PATEL,
#27150; ARTHUR PELT, #15790;
ARMANDO PEREZ, #25581; RAFAEL
A. PEREZ, #26905; JOHN PETERS, 
Sgt., #25750; ROBERT PIONOWSKI,
#15722; JILL POE, #27438; DIANE
PONCE, #26413; ROBERT PULLEY,
#17805; UNKNOWN QUIRK, #33352;
MANUEL REDRUELLO, #25667;
PETER REPOVICH, #23078; DONNA
REYES, #34432; MARK RICHARDSON,
#26995; MICHAEL RICHARDSON,
Sgt., #26159; ARTURO RICO,
#27811; MARIO RIOS, #32123;
JEFFREY ROBB, #33804; TERRANCE
ROCHON, #26696; ARTHUR
RODRIGUEZ, #26255; ROSSELLO;
EDWARD RUIZ, #27158;

GUERRERO v. GATES 3251
JASMINE SAADE, #22635; NICK 
SALICOS, Captain; JOHNNY SANCHEZ,
#26513; RUPERTO SANCHEZ,
#13953; DUSTIN SCLATER, #31933;
MATTHEW SIBAYAN, #30196; ADDIS
SIMPSON, 330011; CHRISTOPHER
SOLDO, #26003; DAVID SOLIS,
#32315; DOYLE STEPP, #31143;
JEFFREY STEWART, #25593;
STEPHANIE SUTHERLAND, #30571;
JON TAYLOR, #30974; ANDREW
TEAGUE, #21972; UNKNOWN TOMEO,
#33087; HUMBERTO TOVAR,
#30492; MELISSA TOWN, #30305;
MICHAEL TYUS, #23886; ROBERT
VALDEZ, #27352; ROGER 
VANOVERSTRACTEN, #30860; OMAR
VELOZ, #30740; DAVID VINTON,
#31085; VOELTZ, #33292; MICHAEL
WANG, #30805; TERRY WESSEL,
#14680; MARK ANDREW WILBUR,
#30636; MELISSA ZAK, #30305;
ZAMORA, #27267; MIKE ZYCH,
#23892 all as current or former
members of the LAPD; CHRISTIAN
ABDELKERIM, #33542; WILLIE L.
WILLIAMS; BERNARD C. PARKS;
RICHARD ALARCON; RICHARD
ALATORRE; HAL BERNSON; MARVIN
BRAUDE; LAURA CHICK; JOHN
FERRARO; MICHAEL FEUER;

3252 GUERRERO v. GATES
RUTH GALANTER; MIKE HERNANDEZ; 
NATE HOLDEN; MARK RIDLEY-
THOMAS; JOEL WACHS; ERNANI
BERNARDI; JOAN FLORES; GLORIA
MOLINA; JOY PICUS; ARTHUR
SNYDER; MICHAEL WOO; ZEV
YAROLSLAVSKY, all as present or
former Los Angeles City Council
members; HERBERT F. BOECKMANN,
II; GERALD CHALEFF; ROCHELLE DE
LA ROCHA; RAYMOND C. FISHER;
JAMES G. FISK; STEPHEN GAVIN;
MAXWELL E. GREENBERG; DEAN
HANSELL; DEIRDRE HUGHES HILL;

WARREN JACKSON; MELANIE LOMAX;
ART MATTOX; EDITH PEREZ;
ENRIQUE HERNANDEZ; BARBARA
SCHLEI; ROBERT TALCOTT; REVA
TOOLEY; ROBERT I. WEIL; STANLEY
SCHEINBAUM; MICHAEL YAMAKI;
STEPHEN YSLAS; MARY BURWELL
COOPER; ELLEN M. FAWLS; JEFFREY
GALLAGHER; JAMES KENNETH HAHN;
KATHERINE J. HAMILTON; RICHARD
HELGESON; THOMAS HOKINSON;
STUART D. HOTCHKISS; HELEN
ANNETTE KELLER,
Defendants-Appellees.
RICHARD RIORDAN,
Appellee.

Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
GUERRERO v. GATES 3253
Argued October 8, 2003
Submitted March 27, 2006
Pasadena, California
Filed March 27, 2006
Before: Melvin Brunetti, Thomas G. Nelson, and
Barry G. Silverman, Circuit Judges.
Opinion by Judge Thomas G. Nelson
3256 GUERRERO v. GATES
COUNSEL
Stephen Yagman, Yagman & Yagman & Reichmann &
Bloomfield, Venice, California, for the appellant.
Janet G. Bogigian, Deputy City Attorney, Los Angeles, Cali-
fornia, for the appellee.
ORDER
This case is hereby resubmitted effective the date of this
order.
The opinion filed on January 29, 2004, is withdrawn and
replaced by the attached opinion.
With this withdrawal and replacement, the petition for
panel rehearing and the petition for rehearing en banc are
DENIED.
OPINION
T.G. NELSON, Circuit Judge:
Louie Guerrero pleaded guilty to two separate charges of
possession of narcotics. Years later, he brought claims under
42 U.S.C. § 1983 stemming from allegations of wrongful
arrest, malicious prosecution, and a general conspiracy of
GUERRERO v. GATES 3257
“bad behavior” among Los Angeles officials in connection
with his arrests, prosecutions, and incarceration. Heck v. Hum-
phrey1 bars all but one of his § 1983 claims. The statute of
limitations bars half of the one remaining § 1983 claim. Thus,
the other half of that one § 1983 claim remains. Additionally,
Guerrero brings claims under the Racketeer Influenced and
Corrupt Organizations Act (“RICO”).2 The district court
granted Defendants’ motions to dismiss under Federal Rule of
Civil Procedure 12(b)(6), and Guerrero appeals. We affirm in
part and reverse in part the district court’s dismissal as to his
§ 1983 claims, reverse as to his RICO claims, and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Guerrero’s claims arise from two separate encounters with
members of the Los Angeles Police Department (“LAPD”).
On November 29, 1995, Officer Zamora and another unidenti-
fied officer of the LAPD stopped and searched Guerrero.
Guerrero alleges that the officers planted narcotics on him
during the course of the search. Charged with possession of
the narcotics, Guerrero pleaded guilty, and the court placed
him on probation.
Two years later, on November 14, 1997, Officer Martinez
and two unidentified LAPD officers stopped and searched
Guerrero a second time. According to Guerrero, the officers
“grabbed him, punched him, choked him, and kicked him”
and again “caused false narcotics charges to be made against”
him. Guerrero pleaded guilty to these second narcotics
charges. He was incarcerated from the date of his arrest in
1997 until August 1999.
Nearly three years after his second encounter, on June 30,
2000, Guerrero filed this lawsuit. Alleging violations of 42
U.S.C. § 1983 and RICO, his complaint named approximately
1
512 U.S. 477 (1994).
2
18 U.S.C. §§ 1961-68.
3258 GUERRERO v. GATES
231 defendants, including former LAPD police chiefs, numer-
ous police officers, several city attorneys, the mayor of Los
Angeles, and a former district attorney. Although Guerrero’s
claims are somewhat amorphous, they can be characterized as
claims of excessive force, wrongful arrest, and malicious
prosecution. He also avers that a conspiracy of “bad behavior”
existed among the defendants. Prior to June 2000, Guerrero
had never contested his arrests, convictions, or sentences.
The district court initially denied a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) brought by one of
the 231 defendants, Bernard Parks. Shortly thereafter, the case
was transferred to a new judge along with other similarly situ-
ated cases that arose out of the LAPD Rampart scandal.3
Defendants, including Parks, filed further Rule 12(b)(6)
motions to dismiss. The court granted these motions, properly
treating Parks’ second Rule 12(b)(6) motion as a request for
reconsideration.4 Guerrero timely appealed.
3
This scandal involved:
a wide variety of misconduct by LAPD officers including the
shooting of unarmed suspects, the planting of evidence to justify
those shootings, the preparation of false police reports to cover
up the misconduct and the presentation of perjured testimony
resulting in the false convictions and imprisonment of a number
of innocent citizens.
Ovando v. City of Los Angeles, 92 F. Supp. 2d 1011, 1014 (C.D. Cal.
2000).
4
We note that the district court did not abuse its discretion in departing
from the law of the case although it had earlier denied Parks’ motion to
dismiss. Rebel Oil Co. v. Atlantic Richfield Co., 146 F.3d 1088, 1093 (9th
Cir. 1998) (applying abuse of discretion standard to the court’s decision
whether to apply the law of the case doctrine). The court has the discretion
not to apply the law of the case doctrine under certain circumstances,
including situations in which “a manifest injustice would otherwise
result.” Thomas v. Bible, 983 F.2d 152, 155 (9th Cir. 1993). Allowing dis-
missal for the remaining 230 defendants but not for Parks, or treating
Guerrero’s case differently from similarly situated Rampart cases, would
have resulted in manifest injustice.
GUERRERO v. GATES 3259
II. STANDARD OF REVIEW
We review de novo a dismissal under Federal Rule of Civil
Procedure 12(b)(6).5 Dismissal is appropriate only when the
plaintiff can prove no set of facts in support of his claims that
would entitle him to relief.6 We must take as true all allega-
tions of material fact and construe them in the light most
favorable to the nonmoving party.7 We generally limit our
review to the contents of the complaint, but if support exists
in the record, we may affirm a dismissal on any proper ground.8
III. DISCUSSION
A. Heck v. Humphrey Bars the Majority of Guerrero’s
§ 1983 Claims
[1] Under Heck v. Humphrey,9 a state prisoner cannot
recover damages in a § 1983 suit if a judgment in favor of the
plaintiff “would necessarily imply the invalidity of his convic-
tion or sentence . . . unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.”10
Heck bars almost all of Guerrero’s § 1983 claims because: a
judgment in favor of Guerrero on those claims “would neces-
sarily imply the invalidity of his conviction;” he cannot show
that his conviction has already been invalidated; and no
exception to Heck’s bar applies.11 However, Heck does not bar
Guerrero’s § 1983 excessive force claim, discussed below,
because this claim does not “necessarily imply the invalidity
5
See Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035 (9th Cir. 2002).
6
See No. 84 Employer-Teamster Joint Council Pension Trust Fund v.
Am. W. Holding Corp., 320 F.3d 920, 931 (9th Cir. 2003).
7
See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003).
8
See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001);
Papa v. United States, 281 F.3d 1004, 1011 (9th Cir. 2002).
9
512 U.S. 477 (1994).
10
Id. at 487.
11
Id.
3260 GUERRERO v. GATES
of his conviction or sentence.”12 The officers’ alleged use of
excessive force during Guerrero’s arrest does not preclude the
possibility that Guerrero was still guilty of possession of nar-
cotics.
[2] Guerrero’s success on the majority of his § 1983 claims
would necessarily imply the invalidity of his two convictions
for possession of narcotics. Wrongful arrest, malicious prose-
cution, and a conspiracy among Los Angeles officials to bring
false charges against Guerrero could not have occurred unless
he were innocent of the crimes for which he was convicted.
[3] With regard to the invalidation of the conviction or sen-
tence, the Heck Court required that:
a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a
state tribunal authorized to make such determination,
or called into question by a federal court’s issuance
of a writ of habeas corpus.13
The Court also emphasized that “termination of the prior
criminal proceeding in favor of the accused” is a necessary
element for a successful § 1983 malicious prosecution claim.14
12
Id. Compare Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996)
(holding that Heck did not bar Smithart’s excessive force claim because
even though Smithart had been convicted of assaulting his arresting offi-
cers by driving a truck toward them, the officers’ alleged excessive force
took place after he had exited his truck, and thus did not necessarily invali-
date his conviction), with Cunningham v. Gates, 312 F.3d 1148, 1152,
1154-55 (9th Cir. 2002) (holding that Heck barred Cunningham’s exces-
sive force claim because the jury, in convicting Cunningham of felony
murder, necessarily found that he had “intentionally provoked the deadly
police response,” and therefore a finding of excessive force on the part of
the police would have invalidated the jury finding and his conviction).
13
Heck, 512 U.S. at 486-87 (internal citation omitted).
14
Id. at 484.
 GUERRERO v. GATES 3261
Guerrero’s prior convictions have never been invalidated. We
therefore hold that, with the exception of his excessive force
claim, Heck bars Guerrero’s § 1983 claims.
[4] The fact that Guerrero is no longer in custody and thus
cannot overturn his prior convictions by means of habeas cor-
pus does not lift Heck’s bar. Although exceptions to Heck’s
bar for plaintiffs no longer in custody may exist, as suggested
by concurring members of the Supreme Court in Spencer v.
Kemna15 and adopted by this court in Nonnette v. Small,16 any
such exceptions would not apply here.
The Spencer concurrence suggests that a plaintiff’s inabil-
ity to pursue habeas relief after release from incarceration
should create an exception to Heck’s bar.17 The plaintiff in
Spencer had diligently sought relief for his claim of invalid
revocation of parole.18 After appealing the denial of his state
habeas petition all the way to the state supreme court, he filed
a federal habeas petition. His prison term ended, however,
before the court could render a decision.19 Justice Souter, writ-
ing for the concurring justices, stated, “Heck did not hold that
a released prisoner in Spencer’s circumstances is out of court
on a § 1983 claim.”20 If that were the case, he explained,
“[t]he convict given a fine alone . . . or sentenced to a term
too short to permit even expeditious litigation without contin-
uances before expiration of the sentence, would always be
ineligible for § 1983 relief.”21 Thus, Justice Souter’s concur-
15
523 U.S. 1, 19, 21 (1998).
16
316 F.3d 872, 876-77 (9th Cir. 2002).
17
Spencer, 523 U.S. at 18-21 (Souter, J., concurring); see id. at 25 n.8
(Stevens, J., dissenting) (stating that “[g]iven the Court’s holding that peti-
tioner does not have a remedy under the habeas statute, it is perfectly
clear, as Justice S[outer] explains, that he may bring an action under 42
U.S.C. § 1983”).
18
See id. at 5-6.
19
Id. at 6.
20
Id. at 19 (emphasis added).
21
Id. at 21 n.*.
3262 GUERRERO v. GATES
rence suggested that a prisoner who was no longer in custody
and therefore unable to obtain habeas relief could pursue
§ 1983 claims.
[5] In following the reasoning of the concurrence in Spen-
cer, we have emphasized the importance of timely pursuit of
available remedies in two cases. In Cunningham v. Gates,22
we held that Heck barred the plaintiff’s § 1983 claims despite
the fact that habeas relief was unavailable.23 Habeas relief was
“impossible as a matter of law” in Cunningham’s case
because he failed timely to pursue it.24 We “decline[d] to hold
that Cunningham’s failure timely to pursue habeas remedies
[took] his § 1983 claim out of Heck’s purview.”25
Although we held in Nonnette that the plaintiff could bring
§ 1983 claims despite the Heck bar because habeas relief was
unavailable, we did so because Nonnette, unlike Cunningham,
timely pursued appropriate relief from prior convictions.26
Nonnette was founded on the unfairness of barring a plain-
tiff’s potentially legitimate constitutional claims when the
individual immediately pursued relief after the incident giving
rise to those claims and could not seek habeas relief only
because of the shortness of his prison sentence.27 In reversing
the district court’s dismissal of Nonnette’s § 1983 claims, we
stated:
22
312 F.3d 1148.
23
Id. at 1153 n.3.
24
Id. (internal quotation marks and citation omitted).
25
Id.
26
Nonnette, 316 F.3d at 877 n.6.
27
See id. at 874-77. Following exhaustion of his administrative reme-
dies, Nonnette brought § 1983 claims while incarcerated, alleging miscal-
culation of his prison sentence and improper revocation of good-time
credits and imposition of disciplinary proceedings. Id. at 874. The district
court dismissed his § 1983 claims as barred by Heck. Shortly after the
court’s dismissal, Nonnette was released on parole and therefore could not
overturn his disciplinary conviction by means of habeas corpus. Id. at 875.
 GUERRERO v. GATES 3263
The fact that Nonnette has been released from the
incarceration that his civil suit, if successful, would
impugn, and that a habeas petition would be moot
for that reason, differentiates this case from our
recent decision in Cunningham v. Gates. In Cun-
ningham, the plaintiff brought a civil suit that would
have impugned the conviction for which he was still
incarcerated; habeas corpus was unavailable only
because he had let the time for such a petition expire.
Under those circumstances, we declined to take the
case out of the rule of Heck.28
Thus, a § 1983 plaintiff’s timely pursuit of available habeas
relief is important. Even so, we emphasized that Nonnette’s
relief from Heck “affects only former prisoners challenging
loss of good-time credits, revocation of parole or similar mat-
ters,” not challenges to an underlying conviction such as those
Guerrero brought.29
[6] We find Guerrero’s situation to resemble Cunningham
more closely than Nonnette. Guerrero never challenged his
convictions by any means prior to filing this lawsuit. Nearly
three years passed from his last encounter with the LAPD
before he took any action at all. His failure timely to achieve
habeas relief is self-imposed. Thus, as in Cunningham, though
habeas relief for Guerrero may be “impossible as a matter of
law,” we decline to extend the relaxation of Heck’s require-
ments.30 Guerrero cannot now use his “failure timely to pursue
habeas remedies” as a shield against the implications of Heck.31
Accordingly, we hold that Heck bars Guerrero’s § 1983
claims of wrongful arrest, malicious prosecution, and conspir-
acy.
28
Id. at 877 n.6 (internal citations omitted).
29
Id. at 878 n.7.
30
See Cunningham, 312 F.3d at 1154 n.3.
31
Id.
3264 GUERRERO v. GATES
B. The Statute of Limitations Bars Part of Guerrero’s
Excessive Force Claim
Guerrero’s remaining § 1983 claim, for excessive force,
rests on allegations surrounding his 1995 and 1997 arrests.
The applicable one-year statute of limitations bars the part of
his claim resting on the 1995 arrest.32 However, due to statu-
tory tolling, the limitations period does not bar the remainder
of his claim, based on the 1997 arrest.
[7] Guerrero was in prison from the date of his arrest in
1997 until August 1999. The limitations period for claims
based on the 1997 incident thus began running upon his release,33
and ended in August of 2000. Because he filed this lawsuit in
June of 2000, then, the part of his claim resting on the 1997
incident is timely. Accordingly, we reverse the district court’s
dismissal of the part of Guerrero’s § 1983 claim resting on the
1997 incident.
[8] The part of Guerrero’s claim that rests on the 1995 inci-
dent is not timely. Thus, we affirm the district court’s dis-
missal of that portion. Guerrero does not assert that he was
imprisoned at any time during the year after that incident.
Accordingly, § 352.1 does not apply. Moreover, neither equi-
table tolling nor equitable estoppel apply. California allows
equitable tolling of the statute of limitations when a plaintiff,
“possessing several legal remedies . . . , reasonably and in
good faith, pursues one designed to lessen the extent of his
injuries or damage,” thereby allowing the statutory period to
run.34 A plaintiff whose ignorance of the statutory period is
32
See CAL. CIV. PROC. CODE § 340(3) (2000). The applicable statute of
limitations for civil claims under § 1983 is that of the forum state. See Wil-
son v. Garcia, 471 U.S. 261, 279-80 (1985), superseded by statute as
stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377-78
(2004).
33
See CAL. CIV. PROC. CODE § 352.1.
34
Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1137
(9th Cir. 2001) (internal quotation marks and citation omitted). In civil
rights suits, this court applies state tolling rules as long as they “are not
inconsistent with federal law.” Azer v. Connell, 306 F.3d 930, 936 (9th
Cir. 2002) (internal quotation marks and citation omitted).
GUERRERO v. GATES 3265
excusable may file a lawsuit outside that period as long as he
causes no prejudice to the defendants by doing so.35
[9] In this case, Guerrero did not pursue his claims in any
manner until he filed this lawsuit in June 2000. Neither did he
provide advance notice of his claims to the 231 defendants
prior to filing this suit. Thus, Defendants had no timely warn-
ing of Guerrero’s allegations, and allowing this part of his
lawsuit to proceed would prejudice the defendants.36 Further,
Guerrero does not claim to have been ignorant of the applica-
ble statute of limitations period.37 Accordingly, California’s
equitable tolling principles do not apply.
[10] Similarly, equitable estoppel does not apply. Equitable
estoppel, also termed fraudulent concealment, halts the statute
of limitations when there is “active conduct by a defendant,
above and beyond the wrongdoing upon which the plaintiff’s
claim is filed, to prevent the plaintiff from suing in time.”38
The plaintiff must demonstrate that he relied on the defen-
dant’s misconduct in failing to file in a timely manner and
“must plead with particularity the facts which give rise to the
claim of fraudulent concealment.”39
35
See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000);
Lantzy v. Centex Homes, 73 P.3d 517, 523 (Cal. 2003) (collecting cases
in which the court “has applied equitable tolling in carefully considered
situations to prevent the unjust technical forfeiture of causes of action,
where the defendant would suffer no prejudice”).
36
See Gordon v. Law Offices of Aguirre & Meyer, 83 Cal. Rptr. 2d 119,
123 (Cal. Ct. App. 1999) (holding that defendants were not prejudiced
when “defendants were [timely] notified of the action and had the oppor-
tunity to begin gathering their evidence and preparing their defense”).
37
See Santa Maria, 202 F.3d at 1176 (stating that “equitable tolling
focuses on the plaintiff’s excusable ignorance of the limitations period”).
38
Id. at 1176-77.
39
Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 120 (9th Cir.
1980); see Santa Maria, 202 F.3d at 1176.
3266 GUERRERO v. GATES
[11] The facts of this case do not justify equitable estoppel.
Even assuming that Guerrero’s allegations of a conspiracy are
true, the defendants did not engage in any fraudulent conduct
“above and beyond the wrongdoing upon which the plaintiff’s
claim is filed.”40 Guerrero has failed to plead with particular-
ity any additional fraudulent behavior on the part of the defen-
dants that would excuse his delay in bringing this suit.
Equitable estoppel therefore does not save that portion of
Guerrero’s excessive force claim based on the 1995 arrest
from the statute of limitations. Accordingly, because Guerrero
failed to file this lawsuit within the statute of limitations and
has not offered a valid excuse for this failure, the statute of
limitations bars half of his § 1983 excessive force claim.
C. Guerrero Has Standing to Bring RICO Claims
[12] Guerrero asserts claims under RICO, alleging injury
due to lost employment prospects during his alleged wrongful
incarceration. RICO forbids enterprises from engaging in
“racketeering activity,” including “any act or threat involving
murder, kidnapping, gambling, arson, robbery, bribery, extor-
tion, dealing in obscene matter, or dealing in a controlled sub-
stance.”41 An individual may bring a civil claim under RICO
if he has been “injured in his business or property by reason
of a violation” of the statute.42 To recover under RICO, the
individual “must show proof of concrete financial loss”43 and
must demonstrate that the racketeering activity proximately
caused the loss.44
[13] Recently, in Diaz v. Gates,45 we held that a plaintiff
40
Santa Maria, 202 F.3d at 1177 (emphasis added).
41
18 U.S.C. §§ 1961(1), 1962.
42
18 U.S.C. § 1964(c).
43
Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083, 1087 (9th Cir. 2002).
44
Id.
45
Diaz v. Gates, 420 F.3d 897 (9th Cir.), cert. denied, 126 S. Ct. 1069
(2005), reh’g denied, 2006 WL 452577 (Feb. 27, 2006).
GUERRERO v. GATES 3267
who claimed that he was “rendered unable to pursue gainful
employment while defending himself against unjust charges
and while unjustly incarcerated,”46 adequately alleged an
injury to business or property under RICO.47 Guerrero’s com-
plaint mirrors that of the complaint in Diaz. Guerrero alleged
that he was “unable to pursue gainful employment while
defending [himself] against unjust charges and/or while
unjustly incarcerated” and that he “suffered a material dimin-
ishment of [his] employment prospects by virtue of the unjust
and unconstitutional conviction[ ].” Under Diaz, Guerrero’s
alleged harm amounts to intentional interference with contract
and interference with prospective business relations, which
are torts under California law that constitute injury to business
or property under RICO.48 Therefore, Guerrero adequately
pleaded the injury to business or property required to establish
standing under RICO. Thus, we reverse and remand the dis-
trict court’s dismissal of Guerrero’s RICO claims for lack of
standing.
IV. CONCLUSION
We affirm the district court’s grant of the defendants’
motions to dismiss under Federal Rule of Civil Proce-
dure 12(b)(6) as to all but one half of one of Guerrero’s
§ 1983 claims. We reverse as to that part of Guerrero’s claim
for excessive force resting on the 1997 incident. We also
reverse the district court’s dismissal of Guerrero’s RICO
claims for lack of standing. We remand for further proceed-
ings consistent with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED
IN PART.
No costs allowed.
46
Id. at 898 (internal quotation marks and citation omitted).
47
Id. at 900.
48
See id.