NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 27 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE ESTATE OF ISABELLA “BELLA” No. 22-15260 HERNDON; et al., D.C. No. 4:21-cv-06561-YGR Plaintiffs-Appellants,

v. MEMORANDUM*

NETFLIX, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding

Argued and Submitted February 15, 2024 San Francisco, California

Before: MILLER, BADE, and VANDYKE, Circuit Judges.

Plaintiffs-Appellants (Plaintiffs) appeal from the district court’s order

granting Defendant-Appellee Netflix, Inc.’s motion to dismiss the First Amended

Complaint (FAC) and granting Netflix’s motion to strike under California’s anti-

SLAPP statute. In March 2017, Netflix released the show 13 Reasons Why, which

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. portrayed the suicide of the main character. After watching the show in April

2017, minor Isabella Herndon (Bella) committed suicide.

Four years after her death, Bella’s father, John Herndon, and brothers, J.H.

and T.H., sued Netflix in a putative class action. In the FAC, John Herndon, as the

successor in interest to Bella, brought a survival action against Netflix for (1) strict

liability based on its failure to warn about the show’s alleged risks to mental health

and (2) negligence. J.H. and T.H. brought a claim against Netflix for wrongful

death. The district court dismissed these claims with prejudice under Federal Rule

of Civil Procedure 12(b)(6). The district court also struck the FAC under

California’s anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16(b).

We review de novo the district court’s order granting the motion to dismiss

and granting the motion to strike under California’s anti-SLAPP statute. Holt v.

County of Orange, 91 F.4th 1013, 1017 (9th Cir. 2024); Makaeff v. Trump Univ.,

LLC, 715 F.3d 254, 261 (9th Cir. 2013). We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

1. The district court did not err by dismissing John Herndon’s survival

claims as time-barred. California Code of Civil Procedure section 366.1 provides

that a survival action may be commenced before the expiration of the later of two

terms: (a) “[s]ix months after the person’s death” or (b) “[t]he limitations period

that would have been applicable if the person had not died.” Cal. Code Civ. Proc.

2 § 366.1. Plaintiffs contend that, had Bella not died, the limitations period for her

claims would not have begun until her eighteenth birthday, pursuant to the minor

tolling provision in California Code of Civil Procedure section 352. Id. § 352(a).

In answering questions of statutory interpretation, California courts first

consider the ordinary meaning of the language in question, the text of related

provisions, and the overall statutory structure, and, if the language is unambiguous

after considering these sources, need not look further. See Larkin v. Workers’

Comp. Appeals Bd., 358 P.3d 552, 555 (Cal. 2015). Plaintiffs’ argument fails

because the ordinary meaning of the phrase “limitations period” is distinct from the

ordinary meaning of the phrase “tolling period.” “Limitations period” ordinarily

means the statutorily-defined time limit for bringing a claim based on the nature of

the claim and the date of accrual. See Norgart v. Upjohn Co., 981 P.2d 79, 92

(Cal. 1999) (“Under the statute of limitations, a plaintiff must bring a cause of

action for wrongful death within one year of accrual . . . . The limitations period is

thus defined by the Legislature.”); see also Limitation, Black’s Law Dictionary

(11th ed. 2019). In contrast, a “tolling statute” suspends or interrupts the

limitations period in various situations. Mitchell v. State Dep’t of Pub. Health, 205

Cal. Rptr. 3d 261, 269 (Ct. App. 2016) (“The term ‘tolled’ in the context of the

statute of limitations is commonly understood to mean ‘suspended’ or ‘stopped.’”);

see also Tolling Statute, Black’s Law Dictionary (11th ed. 2019). Moreover,

3 interpreting the phrase “limitations period” as being distinct from a “tolling period”

is consistent with the overall statutory scheme, which places the sections providing

for limitations periods in a separate chapter from the sections providing for tolling

periods. Compare Cal. Code Civ. Proc. Part 2, Title 2, Ch. 3 § 335 (listing the

“periods of limitation,” which are the “periods prescribed for the commencement

of actions”), with Cal. Code Civ. Proc. Part 2, Title 2, Ch. 4 (separately listing

tolling statutes). Furthermore, California courts have explained that “minority

does not toll a limitations period or excuse noncompliance unless a statute

specifically says so.” Blankenship v. Allstate Ins. Co., 111 Cal. Rptr. 3d 528, 535

(Ct. App. 2010).

We therefore predict that the California Supreme Court would interpret the

phrase “limitations period” to mean the statutorily-defined time limit for bringing a

claim based on the nature of the claim and the date of accrual, without inclusion of

a tolling period. See Larkin, 358 P.3d at 555. And because actions for the death of

an individual caused by a wrongful act or neglect of another must be brought

“[w]ithin two years,” Shalabi v. City of Fontana, 489 P.3d 714, 717 (Cal. 2021),

John Herndon’s claims, which were brought over four years after Bella died, were

appropriately dismissed as time-barred.

2. The district court also did not err by dismissing the claims brought by

Bella’s siblings for lack of standing under the wrongful death statute. When a

4 decedent has no spouse, domestic partner, issue, or grandchild, only immediate

successors under California’s probate code may bring a wrongful death action. See

Scott v. Thompson, 109 Cal. Rptr. 3d 846, 848–49 (Ct. App. 2010). Under

California’s probate code, the immediate successor if a decedent lacks a spouse,

domestic partner, or issue, is “the decedent’s parent or parents equally,” if alive,

not the decedent’s siblings. Id. (quoting Cal. Prob. Code § 6402). Therefore,

because Bella’s father is still alive, the district court correctly held that J.H. and

T.H. lacked standing to bring a wrongful death action.

3. Netflix has not sought, and agrees it will not seek, attorney’s fees

against Plaintiffs if we affirm the district court’s order dismissing Plaintiffs’

claims. Plaintiffs concede that if we affirm the district court on statute of

limitations and standing grounds, Netflix’s agreement not to seek attorney’s fees

moots their argument that the district court erred in its application of the anti-

SLAPP statute. Given this concession, and the overlap between the standards

governing the Rule 12(b)(6) motion and the anti-SLAPP motion, we do not

separately address the district court’s motion to strike. See Planned Parenthood

Fed’n of Am., Inc v. Ctr. for Med. Progress, 890 F.3d 828, 833–35 (9th Cir. 2018).

4. Plaintiffs requested leave to amend if we reverse on either the statute

of limitations issue or the wrongful death standing issue. Because we affirm on

both procedural issues, any amendment would be futile. See Newland v. Dalton,

5 81 F.3d 904, 907 (9th Cir. 1996) (courts “need not accommodate futile

amendments”).

AFFIRMED.

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