Filed 4/19/18 Koch v. Estrella CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



JACK R. KOCH,

Plaintiff and Appellant,

v.

A. ESTRELLA et al.,

Defendants and Respondents.
D072560



(Super. Ct. No.
37-2016-00038660-CU-PT-CTL)


APPEAL from a judgment and order of the Superior Court of San Diego County, Lisa C. Schall, Judge. Affirmed.
Jack R. Koch, in pro. per., for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General, Misha D. Igra, Neal Huynh and Christopher H. Findley, Deputy Attorneys General, for Defendants and Respondents.

In 2003, plaintiff Jack Koch sued several state prison officials in federal court, alleging they violated his federal civil rights by wrongfully taking a DNA sample from him while he was an inmate. The federal lawsuit concluded in August 2009. In November 2016, Koch filed this action asserting state-law claims against the same prison officials arising from the same 2003 DNA-sample incident. Several of these defendants (Demurring Defendants) demurred on the bases of res judicata and statute of limitations. The trial court sustained their demurrer without leave to amend on untimeliness grounds, and denied Koch's motion for reconsideration. He appeals both rulings. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Federal Lawsuit
On October 17, 2003, Koch filed the federal lawsuit against state prison officials, alleging they violated his federal civil rights about two months earlier (on August 21, 2003) by forcibly taking a DNA sample from him without a warrant or his consent. Koch alleged the statute that authorizes authorities to take DNA samples from certain offenders (Pen. Code, § 296) did not apply to the offense of which he had been convicted. Koch sought monetary damages and injunctive relief in the form of expungement and destruction of his DNA sample.
The district court granted summary judgment in the defendants' favor, finding the defendants (1) had not violated Koch's civil rights, and (2) would, in any event, be entitled to qualified immunity against Koch's damages claims. The district court entered a judgment of dismissal.
Koch appealed to the United States Court of Appeals for the Ninth Circuit (Ninth Circuit). On July 15, 2009, that court issued an unpublished memorandum opinion affirming the judgment in part, and reversing it in part. The Ninth Circuit concluded the sampling of Koch's DNA violated his Fourth Amendment rights because his offense was not subject to the DNA-sample statute. However, "[g]iven the complexity and novelty of the issues presented," the court agreed with the district court that the defendants were entitled to qualified immunity against Koch's damages claims. As to Koch's request for injunctive relief, the Ninth Circuit reversed the judgment and ordered the state to (1) permanently destroy Koch's DNA sample within 30 days, and (2) file an affidavit attesting to compliance with the court's order. The defendants timely complied with the order on August 11, 2009.
Koch petitioned the United States Supreme Court for a writ of certiorari, but the court denied his petition on May 28, 2013. (See Koch v. Estrella (2013) 569 U.S. 1009, 133 S.Ct. 2745.) The court also denied his subsequent petition for rehearing on August 12, 2013. (See Koch v. Estrella (2013) 570 U.S. 942, 134 S.Ct. 37.)
Following proceedings on remand to the district court, in February 2012 Koch moved for leave to file a fourth amended complaint to assert a variety of state-law claims arising from the same 2003 DNA-sample incident. The following month, the district court denied Koch's motion. The court's order states: "Plaintiff's case is closed, and the Court will not accept any further filings from Plaintiff in this closed case."
Koch appealed the district court's order denying leave to amend. In January 2013, the Ninth Circuit "summarily affirm[ed] the district court's judgment."
No further substantive proceedings occurred in the federal lawsuit. However, the docket report indicates the district court repeatedly denied leave for Koch to file any more documents because the case was closed. Similarly, the Ninth Circuit repeatedly advised Koch that "[n]o further filings will be entertained in this closed case."
This Lawsuit
In November 2016, Koch filed his complaint in this action asserting substantially the same state-law claims he sought to assert in the federal lawsuit, against the same prison officials, arising from the same 2003 DNA-sample incident. Demurring Defendants demurred on the basis of res judicata and statute of limitations.
Koch opposed the demurrer, arguing his lawsuit was timely inasmuch as (1) he filed the federal lawsuit well within the applicable limitations period; (2) the limitations period was tolled the entire time the federal lawsuit was pending; and (3) the federal lawsuit was pending as late as 2015, as evidenced by a November 5, 2015 order issued by the federal court. This order states: "Case closed, no further documents to be filed. Koch must not file or attempt to file any more documents in this case."
The trial court sustained the demurrer without leave to amend, finding "[t]he dates alleged in the Complaint show the action is barred by the [applicable] two-year statute of limitations . . . ." The court signed and filed an order dismissing the lawsuit as to the Demurring Defendants.
Koch moved for reconsideration, asking the trial court to invoke its "inherent power to correct errors" and to "stri[ke], vacate[], set-aside and nullif[y]" its demurrer ruling. He reasoned the Ninth Circuit's 2009 opinion partially reversed the judgment, and the district court's November 5, 2015 order—both of which were before the trial court when it ruled on the demurrer—show he timely filed this lawsuit. The trial court denied Koch's motion, explaining: "Plaintiff has not presented any new facts or law warranting reconsideration."
DISCUSSION
I. The Trial Court Properly Sustained the Demurrer on Statute-of-limitations Grounds
A. Standard of Review
"A demurrer challenges the sufficiency of the complaint by raising questions of law. [Citations.] Where the complaint discloses on its face that the statute of limitations has run on the causes of action stated in the complaint, it fails to state facts sufficient to constitute a cause of action." (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) "For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law. We may also consider matters subject to judicial notice." (Yvanova, supra, 62 Cal.4th at p. 924.)
B. Tolling Principles
A plaintiff must bring a cause of action within the applicable limitations period. (Code Civ. Proc., § 312.) The limitations period applicable to state-law claims may be tolled while they are pending in federal court. (See 28 U.S.C.A. § 1367(d); Artis v. District of Columbia (2018) __U.S.__, 138 S.Ct. 594 (Artis).) The federal statute that governs tolling in this circumstance states:
"The period of limitations for any claim asserted under subsection (a) [regarding supplemental jurisdiction over state-law claims], and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." (28 U.S.C.A. § 1367(d), italics added.)

In the past, courts interpreting this italicized language fell into "two near-equal camps." (City of Los Angeles v. County of Kern (2014) 59 Cal.4th 618, 622 (City of Los Angeles).) Some applied the "grace period" approach, under which "the statute of limitations continues to run while the claim is pending in another forum. But the risk of a time bar is averted by according the plaintiff a fixed period in which to refile." (Artis, supra, __U.S.__, 138 S.Ct. 594, 602; see City of Los Angeles, at p. 622.) Others applied the "stop-the-clock" approach, under which "the limitations period is suspended (stops running) while the claim is sub judice elsewhere, then starts running again when the tolling period ends, picking up where it left off." (Artis, at p. 601; City of Los Angeles, at p. 622.)
When this case was pending in the trial court, California followed the grace period approach. (City of Los Angeles, supra, 59 Cal.4th at p. 622.) However, after the parties completed their briefing in this appeal, the United States Supreme Court construed the federal tolling statute as adopting the stop-the-clock approach. (Artis, supra, __U.S.__, 138 S.Ct. 594, at p. 598.) We will apply this more lenient approach.
Under the federal tolling statute, the tolling period "includes the time during which a federal appeal with the Court of Appeals is pursued . . . ." (Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 369 (Kendrick); Okoro v. City of Oakland (2006) 142 Cal.App.4th 306, 311-312.) However, "[t]his tolling is not extended by the later filing of a petition for writ of certiorari with the United States Supreme Court." (Kendrick, at p. 369.)
C. Analysis
Even under the more lenient stop-the-clock approach, Koch's complaint discloses on its face that his claims are time-barred. It is undisputed that the events giving rise to his claims occurred in August 2003. It is also undisputed that the two-year limitation period set forth in Code of Civil Procedure section 335.1 applies to Koch's claims. Thus, Koch had until August 2005 to sue on his claims.
Koch timely filed his federal lawsuit in October 2003, two months after his claims accrued. Under the stop-the-clock approach, this suspended the running of the two-year limitations period, leaving 22 months in which to refile following the conclusion of the federal lawsuit. The federal lawsuit concluded in August 2009, when the defendants fully complied with the Ninth Circuit's order to expunge and destroy Koch's DNA sample. (See Kendrick, supra, 82 Cal.App.4th at p. 369.) The Ninth Circuit had affirmed the judgment in all other respects. Thus, Koch had until approximately June 2011 to refile in state court. He did not do so until November 2016—more than five years later. Thus, the trial court properly concluded Koch's claims were time-barred.
Koch contends his November 2016 refiling was timely because the federal case was still pending as of November 5, 2015, as evidenced by the district court's order of that date. That order, however, merely reiterated the district court's many earlier admonitions to Koch that the case was "closed," and he "must not file or attempt to file any more documents in this case." It would be patently unreasonable to construe this order as reviving the expired limitations period.
II. The Trial Court Did Not Err by Denying Koch's Motion to Reconsider
Koch's reconsideration motion was based on the contention the trial court erroneously concluded his claims were time-barred. We have already rejected this contention. Accordingly, the trial court did not err in denying this motion.
DISPOSITION
Affirmed. Koch to pay respondents' costs on appeal.




HALLER, J.

WE CONCUR:



McCONNELL, P. J.



IRION, J.