Anthony Brown, Sr. v. County of Los Angeles ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 25 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY BROWN, Sr., No. 19-55218
Plaintiff-Appellant, D.C. No.
2:15-cv-02162-DDP-FFM
v.
COUNTY OF LOS ANGELES; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted November 9, 2020
Pasadena, California
Before: PARKER,** WATFORD, and BUMATAY, Circuit Judges.
Anthony Brown, Sr., appeals the district court’s order dismissing his lawsuit
because it was filed outside the applicable California limitations period. We review
de novo a dismissal on the pleadings for untimeliness. Jones v. Blanas, 393 F.3d
918, 926 (9th Cir. 2004). Additionally, we must apply California tolling law as
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
interpreted by the California courts. Martinez v. Gomez, 137 F.3d 1124, 1126 (9th
Cir. 1998). We reverse and remand.
California law allows prisoners sentenced “for a term less than for life” to
toll their limitations period. Cal. Civ. Proc. Code § 352.1(a). When considering the
applicability of California law, we apply the controlling decisions of California’s
highest court or, without “a controlling decision from a state supreme court, [we]
interpret state law as [we] believe[] the state’s highest court would.” Dias v. Elique,
436 F.3d 1125, 1129 (9th Cir. 2006). A state appellate court decision is “datum for
ascertaining state law” which we will not disregard unless we are “convinced by
other persuasive data that the highest court of the state would decide otherwise.” See
Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1266 (9th Cir. 2017) (simplified).
Because Brown was not sentenced to life without the possibility of parole
(“LWOP”),1 we hold that he may toll under California law.
In Grasso v. McDonough Power Equipment, Inc., 70 Cal. Rptr. 458 (Ct. App.
1968), a California appellate court considered the “for a term less than for life”
language in § 352(a)—the predecessor statute to § 352.1—and concluded that it only
barred prisoners serving LWOP sentences from tolling. Id. at 460–61. In coming
to its conclusion, the Grasso court emphasized that, when the statute was enacted in
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Brown is serving a sentence of 423 years to life with the possibility of
parole after 145 years.
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1872, life-term prisoners could not be paroled and their civil rights were permanently
suspended. Id. at 459–61. Consequently, allowing tolling for prisoners sentenced
to life would have been a “sardonic favor.” Id. at 460. Nevertheless, by 1968,
prisoners could be sentenced to life with the possibility of parole and even petition
to have their civil rights restored. Id. at 459–61. Against this historical backdrop,
the court held that only the “very limited class of prisoners serving life terms without
possibility of parole” were barred from tolling. Id. at 461 (emphasis added). The
court further justified its narrow reading by emphasizing that, if the provision were
read to exclude “all life termers,” it would defeat some otherwise “meritorious
actions” and wrongfully grant civil defendants a benefit deriving from the type of
offense committed by the injured prisoner. Id.
When the current prisoner tolling statute, § 352.1, was passed in 1994, the
California Legislature used the same “for a term less than for life” language from
§ 352(a) to limit tolling. In 2016, a California appellate court, in Brooks v. Mercy
Hospital, 204 Cal. Rptr. 3d 289 (Ct. App. 2016), considered whether § 352.1 barred
tolling for prisoners serving life sentences with the possibility of parole. The court
applied the well-worn canon that “where the language of a statute uses terms that
have been judicially construed,” replication of the language indicates legislative
approval of the judicial interpretation attached to the terms. Id. at 293. Accordingly,
the court concluded that Grasso was applicable to § 352.1 and “only those sentenced
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to life without possibility of parole should be excluded from the tolling provision.”
Id. at 292.
Thus, the only two California decisions construing § 352.1’s tolling language,
“a term less than for life,” establish a categorical rule: a prisoner sentenced to life
with the possibility of parole may toll his limitations period. We adopt this
interpretation of § 352.1. This conclusion matches Grasso’s discussion of the
historical context and emphasis on the limited class of prisoners excluded from
tolling. It accords with the California courts’ lack of inquiry into the anticipated life
expectancy of the prisoner or other circumstances which may bear on that question.
And it comports with how California’s broader regulatory and statutory scheme
categorically differentiates between prisoners sentenced to life with the possibility
of parole and those sentenced to LWOP. See, e.g., 15 Cal. Code Regs tit. 15,
§ 3043.2(b) (allowing a prisoner to earn good conduct credits if he is serving a
sentence of life with the possibility of parole while barring an LWOP prisoner from
doing the same); id. § 3375.2 (setting minimum security standards for institutions
housing prisoners sentenced to life with the possibility of parole that differ from the
standards for LWOP prisoners).
The County of Los Angeles argues, and the district court accepted, that the
California Supreme Court’s decision in People v. Caballero demonstrates that the
California Supreme Court would apply a functional test to determine LWOP status
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in this case. See 145 Cal. Rptr. 3d 286, 295 (2012) (concluding that a life sentence
with the possibility of parole after 110 years was the “functional equivalent” of an
LWOP sentence). Nevertheless, Caballero merely involved a narrow application of
United States Supreme Court precedent in the Eighth Amendment context. We are
unpersuaded that the court’s reasoning there, constrained by Supreme Court
precedent and focused on the individualized assessment applicable in the Eighth
Amendment sphere, would be applied in the tolling context.
Accordingly, because Brown was sentenced to “a term less than for life,” he
may toll.
REVERSED AND REMANDED.
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