NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 15 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONESHIA NEIL, Deceased, through No. 19-16787 successor in interest, Latisha Cyprian; LATISHA CYPRIAN, D.C. No. 1:17-cv-00256-LJO-SKO Plaintiffs-Appellants,

v. MEMORANDUM*

DAN PARK; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted January 13, 2021** San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and WHALEY,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. Latisha Cyprian, as successor in interest for Doneshia Neal,1 appeals the

district court’s grant of summary judgment. As Cyprian’s 42 U.S.C. § 1983 claim

fell outside the statute of limitations and she does not satisfy all the elements for

equitable tolling, we affirm.

We have jurisdiction to review a district court’s final judgment under 28

U.S.C. § 1291. We review de novo a district court’s grant of summary judgment.

Fed. Home Loan Mortg. Corp. v. SFR Invs. Pool 1, LLC, 893 F.3d 1136, 1144 (9th

Cir. 2018), cert. denied, 139 S. Ct. 1618 (2019). Summary judgment is appropriate

when there is “no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

It is undisputed that Cyprian filed her § 1983 civil rights action untimely

under the two-year statute of limitations. See Cal. Civ. Proc. Code § 335.1; Owens

v. Okure, 488 U.S. 235, 250 (1989). However, Cyprian argues that she is entitled

to equitable tolling based on her prior timely filing of a state court action.

In California, equitable tolling applies when a plaintiff can show “three

elements: timely notice to the defendant, lack of prejudice to the defendant, and

reasonable and good faith conduct by the plaintiff.” Saint Francis Mem’l Hosp. v.

State Dep’t of Pub. Health, 467 P.3d 1033, 1041 (Cal. 2020); see also Wallace v.

Kato, 549 U.S. 384, 394 (2007). Cyprian cannot show that the defendants received

1 The district court notes the correct spelling of Doneshia’s last name.

2 timely notice of a potential action against them.

For a prior action to give notice, the defendants in both actions generally

need to be the same. Collier v. City of Pasadena, 191 Cal. Rptr. 681, 685 (Ct.

App. 1983). Here, the two actions do not share any defendants.2 The prior action

also raises claims under different causes of action and does not name Cyprian as a

successor in interest.

A prior action’s failure to name the same defendants of the subsequent

action is not dispositive, however. Timely notice may still exist if “a defendant in

the second claim was alerted to the need to gather and preserve evidence by the

first claim even if not nominally a party to that initial proceeding.” Cervantes v.

City of San Diego, 5 F.3d 1273, 1276 n.3 (9th Cir. 1993). A defendant is alerted,

for example, if there is “evidentiary privity” between an agent and a principal that

“would justify overlooking their nominal absence” from the prior action. Id.

Cyprian contends that defendants’ representation by the same law firm that

represented Modesto City Schools (“Modesto”) in the prior action constitutes

evidentiary privity. However, the state court dismissed the prior action for failure

to state a cause of action, and there is no indication that the law firm gathered

2 The body of the state court complaint does mention “Galace” and “Gillis” as individuals engaged in wrongdoing, which were likely references to defendants Galas and Chilles. Even setting aside this typographical error, however, that complaint did not list them as defendants who could be liable.

3 evidence or conducted an investigation into any alleged wrongdoing by defendants

in the course of litigating the prior action.

The defendants’ association with Modesto did not provide notice either.

First, while an agent’s knowledge is imputed to a principal, it is not a two-way

street. See Restatement (Third) of Agency § 5.03 (2006); see also Salyers v.

Metro. Life Ins. Co., 871 F.3d 934, 939–40 (9th Cir. 2017). Thus, notice provided

to Modesto, the principal, is not imputed to its agents, the school officials, under

agency law. Second, it is undisputed that the defendants were actually unaware of

the prior action within the statute of limitations. “[A]bsent circumstances” where a

defendant is clearly aware of the prior action, “equitable tolling should not apply”

when the first action was not brought against the defendant. See Apple Valley

Unified Sch. Dist. v. Vavrinek, Trine, Day & Co., 120 Cal. Rptr. 2d 629, 645 (Ct.

App. 2002), as modified on denial of reh’g (June 26, 2002). Because the prior

action was dismissed on the pleadings and before the case proceeded to discovery,

these are not circumstances where the defendants would have been aware of the

prior action. See Azer v. Connell, 306 F.3d 930, 937 (9th Cir. 2002) (equitable

tolling may apply during the pendency of a prior action, where there was

“protracted activity” in the prior action that would have alerted the defendants of

their potential liability). While the prior action demonstrates that Modesto knew of

the prior action, Cyprian has not met her burden of showing how that knowledge

4 was imputed to the specific defendants here. See Vaughn v. Teledyne, Inc., 628

F.2d 1214, 1218 (9th Cir. 1980).

In summary, the prior action did not provide the defendants with actual or

constructive notice of potential claims against them within the statute of

limitations. As Cyprian cannot satisfy the first element of equitable tolling, we

decline to consider whether she can prove the other two elements.

AFFIRMED.

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