Robert R. Cervantes v. City of San Diego San Diego Police Department Dennis Sesma Officer Carlos Garcia Les Wardwell Officer Eugene Bojorquez

5 F.3d 1273 Robert R. CERVANTES, Plaintiff-Appellant, v. CITY OF SAN DIEGO; San Diego Police Department; Dennis Sesma; Officer Carlos Garcia; Les Wardwell; Officer Eugene Bojorquez, Defendants-Appellees. No. 91-56305. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 7, 1993. Decided Sept. 27, 1993. Richard R. Castillo, Castillo and Guevara, San Diego, CA, for plaintiff-appellant. James M. Chapin, Deputy City Atty., San Diego, CA, for defendants-appellees. Appeal from the United States District Court for the Southern District of California. Before: FARRIS, NORRIS, and REINHARDT, Circuit Judges. REINHARDT, Circuit Judge: 1 Robert R. Cervantes appeals the dismissal, under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, of his First Amended Complaint. The district court concluded that the action, brought under 42 U.S.C. Sec. 1983 , was barred by the applicable statute of limitations. Because we conclude that Cervantes' amended complaint adequately alleges facts supporting equitable tolling of the limitations period, we reverse and remand. 2 * Cervantes' First Amended Complaint alleges that defendants Sesma, Garcia, Bojorquez, and Wardwell conspired to…

Robert R. Cervantes appeals the dismissal, under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, of his First Amended Complaint. The district court concluded that the action, brought under 42 U.S.C. § 1983 , was barred by the applicable statute of limitations. Because we conclude that Cervantes’ amended complaint adequately alleges facts supporting equitable tolling of the limitations period, we reverse and remand.

I

Cervantes’ First Amended Complaint alleges that defendants Sesma, Garcia, Bojor-quez, and Wardwell conspired to violate his civil rights by unlawfully detaining and arresting him, illegally searching his residence, falsifying evidence against him, falsely accusing him of involvement in illegal drug use and drug sales, and presenting perjured testimony against him. The complaint alleges that the defendants’ lengthy conspiracy resulted in the wrongful termination of Cervantes’ employment with the San Diego Fire Department. Cervantes’ complaint further avers that the City and police department were aware of and furthered the conspiracy, ultimately allowing his wrongful termination to stand on administrative appeal. Loss of employment is the major component of…

concurring:

I concur. My brothers and I differ in the rationale.

In Arnold v. United States, 816 F.2d 1306, 1812 (9th Cir.1987), we recited the three-pronged test for equitable tolling, but did not inquire as to the satisfaction of any or all of the prongs because the doctrine of “equitable tolling does not apply when a plaintiff has pursued a remedy as to only one of several distinct wrongs.” Thus, contrary to Judge *1278 Reinhardt’s analysis, the question of whether two claims seek to remedy distinct wrongs is a threshold question. If the wrongs are distinct, the three-pronged test is not even implicated. If the wrongs are not distinct, and the plaintiff merely pursues one of several potential legal remedies, tolling applies. We can then reach the issue of whether California’s three-part test is satisfied.

In Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir.1987), we vacated and remanded for a determination of whether the statute of limitations for the plaintiffs § 1983 claim was tolled by her prior state court action. Our remand was to permit the district court to evaluate Donoghue’s several state and federal claims to ascertain whether the wrongs were distinct.

I…