In Feliz v. County of Orange, published May 19, 2023, the Fourth District Court of Appeal, Division 3 affirmed the dismissal, after demurrer, of the plaintiff's lawsuit. In August 2010, the plaintiff's decedent committed suicide in a county jail. The plaintiff presented a timely claim to the county, which was denied by operation of law. In November 2010, the plaintiff sued the county in federal district court, alleging federal claims and a state law wrongful death claim. The district court granted summary judgment on the federal claim, and declined to exercise supplemental jurisdiction over the state law claim, dismissing it. The plaintiff appealed, and the 9th Circuit reversed and remanded the ruling. On remand, the district court again granted summary judgment on the federal claim, and dismissed the state law claim without prejudice, declining to exercise supplemental jurisdiction. The plaintiff appealed the summary judgment, but did not independently challenge the court's decision to decline supplemental jurisdiction. The 9th Circuit affirmed the judgment, and issued its mandate in January 2017. The plaintiff then moved to vacate the judgment under Federal Rules of Civil Procedure rule 60(b)(6), seeking to resurrect the federal claim and asking the court to exercise supplemental jurisdiction over the state law claim. The district court denied the motion. The plaintiff appealed the motion's denial. The 9th Circuit affirmed. It issued its mandate in December 2018. Later the same month, the plaintiff filed suit in state court for wrongful death, violation of the Bane Act, and unsafe condition of public property. She contended her lawsuit was timely under 28 U.S.C. 1367(d) and equitable tolling. The state trial court sustained the county's demurrer on the ground that the action was untimely.
The appellate court agreed. The plaintiff's statute of limitations under Government Code section 945.6(a) barred the lawsuit unless the running of the limitations was tolled until the 9th Circuit issued its mandate in the rule 60(b)(6) proceeding. 28 U.S.C. 1367(d) tolls a plaintiff's statute of limitations for filing suit in state court while a claim is pending in federal court, and for 30 days after dismissal, unless state law provides for a longer tolling period. Although the statute does not define "pending," there is consensus in case law that for purposes of the statute a claim remains pending in the federal system through the appeal of the judgment to the federal court of appeals, but not during a period when the plaintiff pursues a petition for writ of certiorari to the Supreme Court. As a matter of first impression, the appellate court determined that the section 1367(d) tolling period does not extend to proceedings under rule 60(b)(6). Rule 60(b)(6) allows a court to grant relief from a judgment or order under extraordinary, exceptional circumstances. Like a petition for certiorari, a 60(b)(6) motion does not affect the finality of the claim's dismissal. Further, the denial of a 60(b)(6) motion does not affect the finality of a claim's dismissal. It instead seeks to reopen a matter that is no longer pending. A plaintiff who has prosecuted an unsuccessful appeal or who chooses not to appeal dismissal of a state law claim has received a full opportunity to seek a federal forum. The rationale for tolling the plaintiff's time to sue in state court while the federal action is pending no longer applies. And because rule 60(b)(6) imposes no specific time limit, and does not forbid multiple motions, allowing tolling would leave state statutes of limitation at the mercies of plaintiffs. The appellate court also affirmed the trial court's decision that equitable tolling did not apply. Equitable tolling while a plaintiff pursues an alternative remedy requires that the party's effort must be objectively reasonable--fair, proper, and sensible in light of the circumstances. Reviewing the decision de novo, the appellate court concluded that the plaintiff's pursuit of the rule 60(b)(6) motion and appeal were not reasonable under the circumstances.
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