NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 23 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHEENA SHAW, No. 18-17184

Plaintiff-Appellant, D.C. No. 2:16-cv-00729-TLN-CKD v.

SACRAMENTO COUNTY SHERIFF'S MEMORANDUM* DEPARTMENT; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Argued and Submitted May 11, 2020 San Francisco, California

Before: R. NELSON and BRESS, Circuit Judges, and GWIN,** District Judge.

Sheena Shaw was arrested by deputies from the Sacramento County

Sheriff’s Department on April 5, 2014, detained overnight, and released the next

day. Two years and one day after the arrest, she filed a complaint under 42 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation. § 1983 against the Sheriff’s Department, as well several deputies, based on the

events surrounding the arrest. The district court granted a motion to dismiss the

complaint as time barred, a decision we review de novo. Gregg v. Haw., Dep’t of

Pub. Safety, 870 F.3d 883, 886–87 (9th Cir. 2017). We have jurisdiction under 28

U.S.C. § 1291 and affirm in part and reverse in part.1

1. The district court correctly held that tolling was not available under

California Code of Civil Procedure section 352.1, which tolls the statute of

limitations during the time “a person” is “imprisoned on a criminal charge.” Under

the California Court of Appeal’s decision in Austin v. Medicis—which we are

“obligated to follow” in the absence of evidence that the California Supreme Court

would rule to the contrary, Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 995 (9th

Cir. 2007) (internal quotation marks omitted)—the phrase “imprisoned on a

criminal charge” means “serving a term of imprisonment in the state prison.” 230

Cal. Rptr. 3d 528, 542 (Ct. App. 2018), review denied (June 13, 2018). Shaw has

not alleged that she was serving a term of imprisonment, nor that she was detained

in a state prison. So the district court was correct to hold that her one-day

detention in a county jail did not entitle her to tolling under California Code of

Civil Procedure section 352.1. Id. at 543; see also Bd. of Regents of Univ. of N.Y.

1 We deny as moot Shaw’s Motion to Stay Setting Case for Oral Argument. That motion was premised upon Shaw’s filing of a supplemental opening brief, which she did before oral argument.

2 v. Tomanio, 446 U.S. 478, 484 (1980) (explaining that “a state statute of

limitations and the coordinate tolling rules” are “binding rules of law” in a § 1983

case).2

2. Shaw also argues she is entitled to tolling of the statute of limitations

under California Government Code section 945.3, which tolls the statute of

limitations in certain cases for the period during which “charges are pending before

a superior court.” But she did not raise this argument in her opposition to the

County’s motion to dismiss. Instead, she raised it for the first time in a motion for

reconsideration of a magistrate judge order staying discovery pending a ruling on

the motion to dismiss. The issue was therefore waived, and we decline to exercise

our discretion to consider it for the first time on appeal. See Janes v. Wal-Mart

Stores Inc., 279 F.3d 883, 888 n.4 (9th Cir. 2002).

3. Having decided Shaw is not entitled to tolling, we now decide

whether her claims are barred by the two-year statute of limitations. Jones v.

Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Cal. Code Civ. Proc. § 335.1. All but

one of Shaw’s claims accrued on April 5, 2014, because that was the day she knew

or had “reason to know of the injury which is the basis” for her claims. Kimes v.

2 Shaw argued in a supplemental brief that the Medicis decision should not be applied retroactively. We decline to consider this argument because it was not raised in Shaw’s opening brief. See Brown v. Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1148–49 (9th Cir. 2016).

3 Stone, 84 F.3d 1121, 1128 (9th Cir. 1996) (internal quotation marks omitted).

Those claims—brought in the April 6, 2016 complaint—were therefore asserted

one day late and are barred by the two-year statute of limitations. Shaw’s false

arrest claim, however, did not accrue until “the alleged false imprisonment

end[ed]” on April 6, 2014. Wallace v. Kato, 549 U.S. 384, 389 (2007). Thus, that

claim is not barred by the two-year statute of limitations. We therefore affirm the

district court’s dismissal of all causes of action other than Shaw’s claim for false

arrest. As to that claim, we reverse and remand with instructions to consider, in

the first instance, whether the false arrest claim is adequately pled or barred by

Shaw’s nolo contendere plea. Each party will bear its own costs.

AFFIRMED IN PART; REVERSED IN PART.

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