Hillary Falconer v. County of Santa Cruz , 367 F. App'x 791 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HILLARY L. FALCONER; D.W. No. 08-17661
FALCONER, INC., DBA Briarcliff Farm,
D.C. No. 5:06-cv-04240-JW
Plaintiffs - Appellants,
v. MEMORANDUM *
COUNTY OF SANTA CRUZ; COUNTY
OF SANTA CRUZ BOARD OF
SUPERVISORS; JANET K. BEAUTZ;
DAVID LAUGHLIN; RICHARD
NIEWSTAD; NANCY COLE,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted February 10, 2010
San Francisco, California
Before: GOODWIN, BERZON and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The harm alleged by Falconer is the reduction of property value due to the
recording of the notice of violation in the real property records without
constitutionally adequate procedure. Falconer’s due process claim became ripe
when the County’s decision became final, see Del Monte Dunes at Monterey, Ltd.
v. City of Monterey, 920 F.2d 1496, 1507 (9th Cir. 1990), which occurred at the
time the County recorded notices of violation in 1998 and 2002, Santa Cruz
County, Cal., Code § 19.01.080 (2009). The statute of limitations for challenging
this alleged due process violation accrued when Falconer knew or “ha[d] reason to
know of the injury that is the basis of [her] action.” RK Ventures, Inc. v. City of
Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002). Falconer knew that the County had
recorded the notice of violation against her property on September 19, 2002, which
is when the County sent notice of the recording to Falconer’s attorney. That notice
also referred Falconer to Santa Cruz County Code § 19.01.080, which states that
“[t]he Planning Director’s decision is final and not subject to further appeal.”
Thus, Falconer knew that the County took value from her property by recording
the notice of violation and would not give her a post-deprivation hearing as of
September 19, 2002. Because Falconer did not file suit against the County until
2006, the claim is barred by the applicable one-year statute of limitations. Cal.
Civ. Proc. Code § 340(3) (2002).
2
Contrary to Falconer’s argument, the continuing wrongs doctrine does not
apply because the alleged illegal act, which was the recording of the notice of
violation without adequate hearing, was a discrete event that led to the present
dispute. See Nesovic v. United States, 71 F.3d 776, 778 (9th Cir. 1995) (explaining
when the continuing wrongs doctrine applies). In addition, Falconer’s assertion
that the running of the statute of limitations must be tolled by equitable estoppel
fails because Falconer was not “ignorant of the true state of facts” and could have
pursued her judicial remedies after she was notified of her injury in 2002. See
Javor v. Taggart, 120 Cal. Rptr. 2d 174, 179–80 (Cal. Ct. App. 2002). Finally,
Falconer is not entitled to equitable tolling because she does not allege that the
County made a false representation or engaged in a misleading silence that
prevented her from pursuing her claim related to the recording of the notice of
violation. See Schoenberg v. County of L.A. Assessment Appeals Bd., 102 Cal.
Rptr. 3d 86, 93 (Cal. Ct. App. 2009).
AFFIRMED.
3