Long v. Forty Niners Football Co.
33 Cal. App. 5th 550
Cal. Ct. App. 5th2019Background
- On Aug. 20, 2011 Daniel Long was shot in the Candlestick Park parking lot after a 49ers game and sued for negligence and related claims.
- Long first sued San Francisco Forty Niners, Ltd. in state court on Nov. 30, 2011; that entity later converted to Forty Niners Football Company, LLC (a Delaware LLC).
- After learning of the conversion, Long filed an identical diversity suit in federal court (June 25, 2013) against the Delaware LLC and voluntarily dismissed the pending state action less than a month before trial.
- The federal court dismissed Long's federal case sua sponte for lack of diversity jurisdiction (Oct. 23, 2013).
- Long refiled in state court on Nov. 12, 2013, more than two years after the shooting; the defendant demurred on statute-of-limitations grounds and the trial court sustained the demurrer without leave to amend.
- Long appealed; the appellate court affirmed, holding equitable tolling did not apply and § 1367(d) did not rescue his untimely claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling suspends the two-year limitations period during pendency of the federal suit | Long: tolling applies because he pursued a federal action and thus should not be time-barred when refiling in state court | Defendant: tolling improper because Long voluntarily abandoned a nearly fully litigated state case to pursue federal forum; conduct not reasonable or in good faith | Tolling does not apply; plaintiff's conduct was not reasonable and in good faith |
| Whether the first suit (against the converting LP) should be treated as separate from the later suit against the LLC | Long: federal action treated as first suit against defendant | Defendant: statutory conversion treated as same entity; the state suit was against the same defendant in substance | Conversion statutes deem the LLC same entity; this was Long's third suit against the same defendant |
| Whether 28 U.S.C. § 1367(d) tolls limitations here | Long: §1367(d) tolls limitations when federal court dismisses state claims | Defendant: §1367(d) inapplicable because Long filed a diversity action and the federal court did not decline supplemental jurisdiction under §1367(c) | §1367(d) does not apply; no supplemental-jurisdiction dismissal occurred |
| Whether demurrer should have been sustained without leave to amend | Long: could amend to allege tolling or §1367(d) basis | Defendant: plaintiff failed to plead facts supporting tolling; no reasonable probability amendment would cure defects | Demurrer without leave to amend affirmed; plaintiff waived §1367(d) argument and could not plausibly cure defects |
Key Cases Cited
- Addison v. State of California, 21 Cal.3d 313 (Cal. 1978) (equitable tolling where plaintiff in good faith pursued federal claims and state claims tolled)
- McDonald v. Antelope Valley Community College Dist., 45 Cal.4th 88 (Cal. 2008) (sets three-element test for equitable tolling: timely notice, lack of prejudice, reasonable and good-faith conduct)
- Mojica v. 4311 Wilshire, LLC, 131 Cal.App.4th 1069 (Cal. Ct. App. 2005) (equitable tolling applied where plaintiff first sued in federal court then refiled in state court after dismissal for lack of diversity)
- Litwin v. Estate of Formela, 186 Cal.App.4th 607 (Cal. Ct. App. 2010) (personal-injury limitations measured from date of accident)
- Schifando v. City of Los Angeles, 31 Cal.4th 1074 (Cal. 2003) (plaintiff seeking leave to amend must show a reasonable probability of curing pleading defects)