# Robert R. Cervantes v. City of San Diego San Diego Police Department Dennis Sesma Officer Carlos Garcia Les Wardwell Officer Eugene Bojorquez

> Court of Appeals for the Ninth Circuit · September 27, 1993 · 5 F.3d 1273

URL: https://www.frixlaw.com/law-library/cases/9485910

## Case

- **Full name:** Robert R. CERVANTES, Plaintiff-Appellant, v. CITY OF SAN DIEGO; San Diego Police Department; Dennis Sesma; Officer Carlos Garcia; Les Wardwell; Officer Eugene Bojorquez, Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** September 27, 1993
- **Citations:** 5 F.3d 1273; 93 Daily Journal DAR 12270; 93 Cal. Daily Op. Serv. 7207; 1993 U.S. App. LEXIS 24688; 1993 WL 375161
- **Precedential status:** Published
- **Opinion:** Concurrence by Farris
- **Judges:** Farris, Norris, Reinhardt
- **Cited by:** 437 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9485910

## How later opinions describe it (automated extraction)

- explaining the three-pronged test for equitable tolling in California and noting that “[t]he doctrine of equitable tolling focuses on the effect of the prior claim in warning the defendants in the subsequent claim of the need to prepare a defense”
- holding that it was error to dismiss after a “threshold inquiry” that equitable tolling did not apply as a matter of law because the prior administrative and state court proceedings “were not ‘substantially similar’ to this action”
- explaining that "California courts have liberally applied tolling rules or their functional equivalents to situations in which the plaintiff has satisfied the notification purpose of a limitations statute.” (citation omitted)
- stating California’s three-pronged test for equitable tolling and explaining that dismissal may be appropriate when it is evident from the face of the complaint that equitable tolling is unavailable as a matter of law
- stating that dismissal for failure to state a claim based on statute of limitations grounds can be granted only if plaintiff would be unable to prove the limitations period was equitably tolled

## Opinion text

FARRIS, Circuit Judge,
concurring:
I concur. My brothers and I differ in the rationale.
In Arnold v. United States, 816 F.2d 1306, 1812 (9th Cir.1987), we recited the three-pronged test for equitable tolling, but did not inquire as to the satisfaction of any or all of the prongs because the doctrine of “equitable tolling does not apply when a plaintiff has pursued a remedy as to only one of several distinct wrongs.” Thus, contrary to Judge *1278 Reinhardt’s analysis, the question of whether two claims seek to remedy distinct wrongs is a threshold question. If the wrongs are distinct, the three-pronged test is not even implicated. If the wrongs are not distinct, and the plaintiff merely pursues one of several potential legal remedies, tolling applies. We can then reach the issue of whether California’s three-part test is satisfied.
In Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir.1987), we vacated and remanded for a determination of whether the statute of limitations for the plaintiffs § 1983 claim was tolled by her prior state court action. Our remand was to permit the district court to evaluate Donoghue’s several state and federal claims to ascertain whether the wrongs were distinct.
I would hold that the district court erred in dismissing the complaint at this stage of the proceedings because nothing on the face of the complaint is inconsistent with a showing by the plaintiff that the statute should be tolled, i.e., a showing that the wrongs were not distinct and that the three-part test was satisfied. I would remand to permit such a showing.
Perhaps the district court will not be confused by the majority rationale. I offer a substitute to clarify, not to confuse. We all conclude, as we must, that California law controls. I agree that we must reverse and remand.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9485910. Public record. Not legal advice.