Del Percio v. Thornsley, 877 F.2d 785 (9th Cir. 1989). · Go Syfert
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Del Percio v. Thornsley, 877 F.2d 785 (9th Cir. 1989). Cases Citing This Book View Copy Cite
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California's one-year residual personal injury limitations period governs § 1983 actions, and a generalized claim that a statute's existence inhibits conduct lacks the immediate injury required for standing.

A former teacher sued a school district and its officials under 42 U.S.C. § 1983 after they sought revocation of her teaching credential, and she also sought declaratory and injunctive relief against a California statute permitting credential suspension. The district court dismissed, holding the damage claims time-barred and the equitable claims unripe. The question is whether the one-year California personal injury limitations period governs § 1983 damage claims and whether a generalized challenge to a statute's existence presents a justiciable controversy. Applying the residual personal injury statute, the court holds the damage claims accrued earlier and are untimely, and that the plaintiff lacked a real and immediate threat of enforcement. The judgment is affirmed.

61 citation events (6 in the last 25 years) across 8 distinct courts.
Strongest positive: King v. Praxair Distrib., Inc., No. 3:20-cv-07817 (N.D. Cal. Aug. 31, 2022)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
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At page 786 Applying state personal injury statute to section 1983 claims35 citing casessection 1983 actions must be brought within time specified by forum state's statute of limitations for personal injury torts; relevant period under Cal.Civ.Proc.Code § 340(3) is one year from date of accrual4 citing courts put it this way
Show 25 more citing cases
  • Siavash Human v. City of Santa Monica, 5 F.3d 537 (9th Cir. 1993).published
    Cal.Civ.Proc.Code Sec. 340(3); Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989). "[F]ederal law determines when a cause of action accrues.
  • Cleveland Lee Harris v. Daryl Gates, 996 F.2d 1224 (9th Cir. 1993).unpublished
    Cal.Civ.Proc.Code § 340(3); Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • John Stanley Steffen Terry Ann Steffen v. Loyace Mauldin Steven Cooley, 995 F.2d 233 (9th Cir. 1993).unpublished
    Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • Taylor v. Regents of Univ. of California, 993 F.2d 710 (9th Cir. 1993).published
    See Wilson v. Garcia, 471 U.S. 261, 275 , 105 S.Ct. 1938, 1946 , 85 L.Ed.2d 254 (1985); (state personal injury limitation statute governs § 1983 claims); Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989) (same); McDougal v. County…
  • Thomas Avdeef v. Cnty. of Orange Michael R. Capizzi, 993 F.2d 881 (9th Cir. 1993).unpublished
    Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • Roy E. Jones v. Cnty. of Inyo, 988 F.2d 119 (9th Cir. 1993).unpublished
    Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • Arnold v. Duchesne Cnty., 810 F. Supp. 1239 (D. Utah 1993).published
    Furthermore, the First Circuit applied a one-year statute of limitations for section 1983 actions brought in Puerto Rico in Ayala Serrano v. Lebron Gonzalez, 909 F.2d 8, 12 (1st Cir.1990), and the Ninth Circuit approved the application of…
  • Julian N. Taman v. Marianas Pub. Land Corp., 967 F.2d 591 (9th Cir. 1992).unpublished
    (California's limit covering "any 'injury to or ... death of one caused by the wrongful act or neglect of another' " is the state's residual personal injury provision.)
  • Niebla v. Cnty. of San Diego, 967 F.2d 589 (9th Cir. 1992).unpublished
    Cal.Civ.Proc.Code § 340(3) (West 1990); Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • No. 90-55774, 942 F.2d 668 (9th Cir. 1991).published
    The McDougals contend that the "general or residual" statute of limitations that applies to their § 1983 claim is Cal.Civ.Proc.Code § 343, which provides that "[a]n action for relief not hereinbefore provided for must be commenced within f…
  • McDougal v. Cnty. of Imperial, 942 F.2d 668 (9th Cir. 1991).published
    The McDou-gals contend that the “general or residual” statute of limitations that applies to their § 1983 claim is Cal.Civ.Proc.Code § 343, which provides that “[a]n action for relief not hereinbefore provided for must be commenced within…
  • Reese v. City of Emeryville Fire Dep't, 746 F. Supp. 987 (N.D. Cal. 1990).published
    Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • Larry L. Hillblom Jose Lifoifoi v. United States Commonwealth of the N. Mariana Islands, 896 F.2d 426 (9th Cir. 1990).published
    See also Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 , 99 S.Ct. 2301, 2308 , 60 L.Ed.2d 895 (1979) (plaintiff “must demonstrate a realistic danger of sustaining a direct injury”); City of Los Angeles v. Lyons, 461 U.S.…
  • Louis Butler O'Neal v. C/o Peterson of 21 Gun Tower of Old Folsom State Prison, 892 F.2d 83 (9th Cir. 1989).unpublished
    Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • Harrison v. Cnty. of Alameda, 720 F. Supp. 783 (N.D. Cal. 1989).published
    Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir. June 9, 1989).
  • Lelaind v. City & Cnty. of San Francisco, 576 F. Supp. 2d 1079 (N.D. Cal. 2008).published
    (statute of limitations for section 1983 action borrows from state statute of limitations for personal injury actions)
  • Mojallali v. Cnty. of Los Angeles, 23 F. App'x 725 (9th Cir. 2001).unpublished
    See Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989) (holding that “Cal.Code Civ.
  • Nat'l Audubon Soc'y v. Davis, 144 F. Supp. 2d 1160 (N.D. Cal. 2000).published
    (a “generalized claim that the statute’s very existence has an inhibiting effect” does not justify injunctive relief)
  • Guerrero v. Gates, 110 F. Supp. 2d 1287 (C.D. Cal. 2000).published
    See Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • David Minton Silva v. Andy Crain Michael Rotkin, 169 F.3d 608 (9th Cir. 1999).published
    See Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • Ordon E. Johnson v. Richard C. Burton, 129 F.3d 126 (1st Cir. 1997).unpublished 2 cites
    See Del Percio v. Thornsley, 877 F.2d 785, 786 (9th Cir.1989).
  • Linville v. State of Hawaii, 874 F. Supp. 1095 (D. Haw. 1994).published
    (California's general personal injury statute applies to § 1983 actions)
  • Robert E. Mitchell v. Ernie Kell, 990 F.2d 1259 (9th Cir. 1993).unpublished
    (section 1983 actions must be brought within time specified by forum state's statute of limitations for personal injury torts; relevant period under Cal.Civ.Proc.Code § 340(3) is one year from date of accrual)
  • Pele Def. Fund v. Paty, 837 P.2d 1247 (Haw. 1992).published 2 cites
    (California’s general personal injury statute applies to § 1983 actions, rather than its “catchall” statute of limitations)
  • Burlington N. R.R. Co. v. Crow Tribal Council, 940 F.2d 1239 (9th Cir. 1991).published
    See Del Percio v. Thornsley, 877 F.2d 785, 786-87 (9th Cir.1989).
At page 787 Determining constitutional standing for potential detention4 citing cases“generalized claim that challenged statute's very existence has an inhibiting effect on her exercise of her rights”2 citing courts quote it · passage not found verbatim in the opinion (93%) · 3 listed here
  • Samuel J. Tuccio v. Snohomish Cnty. Anthony C. Harvey D.M. Munday, 990 F.2d 1261 (9th Cir. 1993).unpublished
    (teacher did not establish she would be subject to disciplinary proceedings under a California statute "in the immediate or near future" and therefore lacked standing to pursue declaratory relief)
  • Associated Gen. Contractors of California, Inc. v. Coalition for Econ. Equity, 950 F.2d 1401 (9th Cir. 1991).published
    (plaintiff's "generalized claim that [challenged] statute's very existence has an inhibiting effect on her exercise of her right[s]", in absence of likelihood that statute will be applied to plaintiff, insufficient to co…)
  • Ronald O. Nelsen Michael Bullene v. King Cnty., 895 F.2d 1248 (9th Cir. 1990).published 2 cites
    See, e.g., Rizzo v. Goode, 423 U.S. 362, 371-73 , 96 S.Ct. 598, 604-05 , 46 L.Ed.2d 561 (1976) (claim of standing for injunctive relief against officers for constitutional violations held too speculative where "the individual respondents'…
Other citing cases4 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Paula DEL PERCIO, a/k/a Paula Spadaro
v.
Jerome R. THORNSLEY, individually and in his official capacity as Superintendent of the Capistrano Unified School District Linda A. Kroner, individually and in her official capacity as Director of Employee Relations of the Capistrano Unified School District Kristin Stewart, in her official capacity as Personnel Manager of the Capistrano Unified School District E.G. "Ted" Kopp, in his official capacity as President of the Board of Trustees of the Capistrano Unified School District Jan Overton, and in her official capacity as Vice-President of the Board of Trustees of the Capistrano Unified School District Brian Demsley, Paul B. Haseman, Charles H. Ward, A. Edward Westberg, D.D.S., in their official capacities as Members of the Board of Trustees of the Capistrano Unified School District Capistrano Unified School District
No. 88-5753.
Court of Appeals for the Ninth Circuit.
Jun 9, 1989.
Published opinion
877 F.2d 785
1989 WL 60258
1989 U.S. App. LEXIS 8214
Meir J. Westreich, Santa Ana, Cal., for plaintiff-appellant., Richard L. Hamilton and Christian M. Keiner, Biddle & Hamilton, Sacramento, Cal., for defendants-appellees.
Fletcher, Nelson, Norris.
Cited by 40 opinions  |  Published
WILLIAM A. NORRIS, Circuit Judge:

Appellant Paula Del Percio appeals from the district court’s dismissal of her § 1983 action against the Capistrano Unified School District and several of its officials for attempting to have her teaching credential revoked. The district court held that Del Percio’s damage claims were barred by the statute of limitations and her claim for declaratory and injunctive relief was not ripe for adjudication. We affirm.

In Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir.1987), we held that Cal.Civ.Proc.Code § 340(3) (West Supp.1987) establishes the relevant statute of limitations period for § 1983 actions-one year from the date of accrual. Id. at 558 (applying Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), which held that § 1983 actions must be brought within the time specified by the forum state’s statute of limitations for personal injury torts). Thus, unless the Supreme Court’s recent decision in Owens v. Okure, — U.S. -, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), has overruled Usher, the relevant statute of limitations period is one year. If the one-year limitations period applies, then Del Percio’s damage claims are barred; she did not file suit until September 26, 1986, even though her cause of action against the defendants accrued no later than March 22, 1984.[1]

We believe that Owens in no way undermines our decision in Usher. Owens establishes that when a state has one or more statutes of limitations for certain enumerated intentional torts, as is the case in California, the statute of limitations for § 1983 actions is “the residual or general personal injury statute of limitations.” 109 S.Ct. at 574. There can be no question that § 340(3) is California’s residual or general personal injury statute since the section contains an express “catchall” provision, covering any “injury to or ... death of one caused by the wrongful act or neglect of another.”[2] Thus, Owens only reinforces our decision in Usher that § 340(3) is the applicable statute of limitations for § 1983 actions in California.[3] Since Del Percio’s complaint was filed more than one year after her cause of action accrued, her claims for damages are time-barred.

With respect to Del Percio’s claim for declaratory and injunctive relief from future enforcement of Cal. Educ.Code § 44420, we note that a plaintiff

must show that [she] ‘has sustained or is immediately in danger of sustaining[*787] some direct injury’ as the result of the challenged official conduct and the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’

City of Los Angeles v. Lyons, 461 U.S. 95, 101-02,103 S.Ct. 1660,1664-65, 75 L.Ed.2d 675 (1983) (citations omitted).[4] Del Percio has not established that it is likely that she will be subjected to disciplinary proceedings under § 44420 in the immediate or near future. Her generalized claim that the statute’s very existence has an inhibiting effect on her exercise of her right to seek and enter into employment contracts with the California school system fails to satisfy the requirements of Lyons.

The judgment of the district court is AFFIRMED.

1

Del Percio argues that her cause of action did not accrue on March 22, 1984, but rather on November 22, 1985, because until that date she was pursuing administrative remedies. Specifically, Del Percio argues that California’s doctrine of equitable tolling operates to toll the statute of limitations during the pendency of those proceedings. While equitable tolling does apply in § 1983 cases, Donoghue v. County of Orange, 848 F.2d 926, 930 (9th Cir.1987), the doctrine is not available to Del Percio here because the claims she raised in the administrative proceedings are separate and distinct from the claims she raises against defendants in this case. See Arnold v. United States, 816 F.2d 1306, 1312-13 (9th Cir.1987). In her administrative proceedings, Del Percio simply resisted the efforts of the California Commission on Teacher Preparation and Licensing to suspend her teaching credential, which efforts the Commission undertook after the defendants filed their complaints. In these proceedings, Del Per-cio only sought to challenge the recommendation of the Commission's Committee of Credentials; she did not raise any claim of unconstitutional conduct by the officials of the local Capistrano School District — the defendants in this case.

2

Section 340(3) provides that the following actions must be brought within one year:

An action for libel, slander, assault, battery, false imprisonment, seduction of a person below the age of legal consent, or for injury to or for the death of one caused by the wrongful act or neglect of another....
3

While Cal.Civ.Proc.Code § 343 (West 1982 and Supp.1984) is nominally California’s "catchall’’ statute of limitations, covering any action "not hereinbefore provided for," § 343 cannot be construed as the residual personal injury statute for the purposes of Owens since all personal injury actions are expressly covered by the "catchall’’ language in § 340(3) cited in the text. Counsel for Del Percio conceded with admirable candor at oral argument that § 343 has not been and cannot be interpreted as California’s residual personal injury statute of limitations.

4

Section 44420 provides in relevant part:

Should any person employed by a school district in a position requiring certification qualifications refuse, without good cause, to fulfill a valid contract of employment with such district ..., the Commission for Teacher Preparation and Licensing shall, after proof of such fact is made to it, suspend the credentials theretofore issued to him by the commission for not more than one year.