NOT FOR PUBLICATION FILED

JUL 13 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GRIFFIN BURKE, No. 20-56124

Plaintiff-Appellant, D.C. No. 8:20-cv-00635-JVS-JDE

v.

MEMORANDUM*

TREVOR BASIL; et al.,

Defendants,

and

SEAN BOULTON; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Submitted June 21, 2021**

Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.

Griffin Burke appeals pro se from the district court’s judgment dismissing as

* 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). time-barred Burke’s claims against defendants Newport-Mesa Unified School

District, Boss, Boulton, and Hays alleging federal and state law violations.

Because the district court certified its interlocutory order pursuant to Federal Rule

of Civil Procedure 54(b), we have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s dismissal on statute of limitations grounds. Lukovsky v.

City & County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008). We affirm.

The district court properly dismissed Burke’s § 1983, California Education

Code § 220 and fraud claims against defendants Boss, Boulton, and Hays because

they are barred by the applicable statute of limitations, even with the benefit of

statutory tolling until Burke turned eighteen on March 6, 2016. See Cal. Civ. Proc.

Code § 335.1 (setting forth two-year statute of limitations for personal injury

claims); Cal. Civ. Proc. Code § 338(d) (setting forth three-year limitations period

for fraud claims). Cal. Civ. Proc. Code § 352(a) (tolling the statute of limitations if

person is under the age of majority at the time the claims accrued); Lukovsky, 535

F.3d at 1048-49 (applying the forum state’s statute of limitations for personal

injury actions to 1983 claim; “the [1983] claim accrues upon awareness of the

actual injury . . . and not when the plaintiff suspects a legal wrong”); Fox v.

Ethicon Endo-Surgery, Inc., 110 P.3d 914, 917 (Cal. 2005) (outlining California’s

delayed discovery rule; a cause of action accrues and the statute of limitations

begins to run “when the plaintiff has reason to suspect an injury and some

2 20-56124 wrongful cause, unless the plaintiff pleads and proves that a reasonable

investigation at that time would not have revealed a factual basis for [the] cause of

action”).

Contrary to Burke’s contention, the district court properly concluded that

Burke’s amended complaints did not relate back to his original complaint. See

Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1200-02 (9th Cir. 2014)

(applying California’s relation back doctrine; if the limitations period derives from

state law, a court is required to consider both federal and state law and employ

whichever affords the more permissive relation back standard).

The district court did not err in finding that Burke failed to plead with

particularity that the relevant defendants engaged in “some fraudulent concealment

. . . above and beyond the wrongdoing upon which the plaintiff’s claims [are] filed,

to prevent the plaintiff from suing in time.” Lukovsky, 535 F.3d at 1052 (internal

citation, quotation marks, and emphasis omitted); see id. at 1051-52 (explaining

doctrine of equitable estoppel under California and federal law).

The district court did not abuse its discretion in denying leave to amend

because amendment would have been futile. See Cervantes v. Countrywide Home

Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review

and explaining that dismissal without leave to amend is proper when amendment

would be futile).

3 20-56124 We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

4 20-56124