The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING IN PART AND DENYING IN PART VISTA DEFENDANTS' MOTION TO DISMISS
Plaintiff filed a complaint alleging violations of his constitutional and statutory rights under federal and California law while he was a student at Guayome Park Academy Charter School and Vista Unified School District.*fn1 Defendants Board of Trustees of the Vista Unified School District, Vista Unified School District, Jim Gibson, David Hubbard, Dave Cowles and Chuck Cowles (collectively "Vista Defendants") filed a motion to dismiss the amended complaint. Plaintiff opposed the motion. For the reasons which follow, the motion is GRANTED IN PART AND DENIED IN PART.
Plaintiff alleged six causes of action: (1) violation of his constitutional rights under 42 U.S.C. § 1983; (2) violation of California Government Code Section 44807; (3) violation of California Constitution, Article I, Section 28; (4) violation of state and federal law based on racial and disability harassment and retaliation; (5) discrimination and retaliation based on disability; and (6) discrimination and retaliation based on race. It appears that Plaintiff's fourth, fifth and sixth causes of action are based on the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. ("ADA"), Rehabilitation Act, 29 U.S.C. § 701 et seq., and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d et seq. Plaintiff alleged that while he was a student at Guayome Park Academy Charter School and Vista Unified School District he was harassed based on his race and disability, retaliated against for complaining about harassment, and was not provided with a safe learning environment. Plaintiff requested compensatory and punitive damages.
Vista Defendants' motion is based in part on Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007) (internal quotation marks, brackets and citations omitted). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998.)
Vista Defendants argue, inter alia, that Plaintiff's claims are time-barred. "A motion to dismiss based on the running of the statute of limitations period may be granted only 'if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove the statute was tolled.'" Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995), quoting Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). The untimeliness must appear beyond doubt on the face of the complaint before a claim will be dismissed as time-barred. See Supermail Cargo, 68 F.3d at 1206-07.
According to the allegations in the amended complaint, the events giving rise to this action started before February 2000 and continued until April 22, 2002, when Plaintiff's parents permanently removed him from Guayome Park Academy Charter School.*fn2 (Am. Compl. at 15- 21.)
The forum state's statute of limitations applies in civil rights actions under 42 U.S.C. § 1983. See Hardin v. Straub, 490 U.S. 536 (1989); Wilson v. Garcia, 471 U.S. 261, 268-69 (1985), superseded by statute on other grounds as recognized in Jones v. R.R. Donnelley & Sons , 541 U.S. 369, 377-80 (2004). In California, the applicable statute of limitations is two years. Cal. Code Civ. Proc. § 335.1; see also Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). The same statute applies to Plaintiff's claim under 42 U.S.C. § 2000d. See Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993.) Therefore, based on the allegations on the face of the amended complaint, the section 1983 and 2000d claims appear to be time-barred.
Plaintiff argues that the statute was tolled while his first lawsuit was pending. On June 22, 2004 Plaintiff, as a minor filing through his mother Silvia Peters, filed a complaint in this District based on the same events. (Defs' Ex. 7 (Peters v. Guayome Park Academy Charter School et al., 04cv1259-IEG(POR)).)*fn3 The complaint was dismissed on October 29, 2004. (Id. Ex. 8.) The court ruled that Mrs. Peters could not represent Plaintiff pro se. The complaint was dismissed without prejudice, allowing Mrs. Peters to file an amended complaint pro se asserting only her own claims, or appear thorough counsel to assert the minor Plaintiff's claims along with her own. Alternatively, Plaintiff could assert his own claims pro se when he reached the age of majority. (Id. at 8-3.) On November 29, 2004 Mrs. Peters filed an amended complaint asserting her own claims pro se. (Id. Ex. 9.) Plaintiff was no longer named as a party to the complaint. (Id.) On October 26, 2006 Mrs. Peters' complaint was dismissed without leave to amend (id. Ex. 3) and the dismissal was affirmed on appeal (id. Ex. 4). On September 10, 2008 Plaintiff, no longer a minor, filed the instant action, asserting his own claims pro se. When he filed his amended complaint on November 4, 2008, he was 21 years old. (Am. Compl. at 2.) Pursuant to the October 29, 2004 order, the statute was tolled until Plaintiff reached the age when he had the capacity to sue on his own (Defs' Ex. 8). See also Cal. Code Civ. Proc. 352(a). In California that age is 18. Johns v. County of San Diego, 114 F.3d 874, 877-78 (9th Cir. 1997). Because Plaintiff waited more than two years after reaching the age of majority, the two-year statute of limitations has expired notwithstanding the tolling for his age.
Plaintiff next argues that 28 U.S.C. § 1367(d) tolled the statute so as to make his claims timely. Section 1367(d) provides for tolling after dismissal in federal court of supplemental state law claims. Pursuant to section 1367(a), a federal court may exercise supplemental jurisdiction over state law claims which do not independently come within original federal jurisdiction but which form part of the same Article III "case or controversy.'" Jinks v. Richland County, 538 U.S. 456, 458 (2003). However, not every claim within the same "case or controversy" will be decided in federal court. Id. at 459. Sections 1367(b) and (c) describe situations in which a federal court may or must decline to exercise supplemental jurisdiction. Id. Thus, some state law claims asserted under the supplemental jurisdiction provision of section 1367(a) "will be dismissed because the district court declines to exercise jurisdiction over them and, if they are to be pursued, must be re-filed state court. To prevent the limitations period on such supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, § 1367(d) provides a tolling rule that must be applied in state courts." Id. The statute of limitations for any supplemental state law claim under section 1367(a), and any other claim in the same action that is voluntarily dismissed at the same time or after the dismissal of the supplemental state law claim, is "tolled while the claim is pending and for the period of 30 days after it is dismissed." 28 U.S.C. § 1367(d).
Without fully articulating the argument, Plaintiff apparently relies on section 1367(d) because the appeal of the first lawsuit was decided on August 7, 2008, approximately 30 days before the instant action was filed. (See Defs' Ex. 4.) Section 1367(d) tolling applies when supplemental state law claims are dismissed in federal court pursuant to section 1367 (b) or (c) and then re-asserted in state court. No claims in the previous case were dismissed pursuant to section 1367. (See Defs' Ex. 8, 3 & 4.) Furthermore, the dismissed claims are not being re-filed in state court but in federal court. Accordingly, section 1367(d) tolling does not apply in this case.
Plaintiff also maintains that his claims are timely pursuant to the four-year catch-all statute of limitations in 28 U.S.C. § 1658. "A four-year statute of limitations governs actions arising under federal statutes enacted after December 1, 1990." Cholla Ready Mix, Inc. v. Chuvash, 382 F.3d 969, 974 n.5 (9th Cir. 2004). The statute applies only to those claims which were made possible by a post-December 1,1990 statute or amendment. Id. Plaintiff's claims asserted under 42 U.S.C. §§ 1983 and 2000d were made possible by statutes predating 1990. Id. at 974 & n.5. The four-year statute therefore does not apply to them. Id. at 974 n.5.
For the foregoing reasons, Plaintiff's section 1983 and 2000d claims are barred by the statute of limitations.*fn4 Vista Defendants' motion to dismiss is therefore GRANTED in this respect.
Plaintiff's remaining federal claims are alleged under the ADA and the Rehabilitation Act. Neither statute includes its own statute of limitations. When a federal statute does not contain a statute of limitations, federal courts routinely borrow analogous statutes of limitations of the forum state. Hardin, 490 U.S. at 538. The California statute which could be considered most analogous to the ADA and Rehabilitation Act is the Unruh Civil Rights Act, California Civil Code Section 51, et seq. Kramer v. Regents of the Univ. of Cal., 81 F. Supp. 2d 972 (N.D. Cal. 1999). The longest statute of limitations which could apply to the Unruh Civil Rights act is the three-year statute of limitations in California Civil Code Section 338. Olympic Club v. Those Interested Underwriters at Lloyd's London, 991 F.2d 497, 502 n.11 (9th Cir. 1993); but see W. Shield Investigations & Sec. Consultants v. Super Ct. (Eymil), 82 Cal.App.4th 935, 952-53 (2000); Gatto v. County of Sonoma, 98 Cal.App.4th 744, 754-59 (2002).
Vista Defendants assert that this action was filed more than three years after Plaintiff turned 18 on August 24, 2005. (Defs' Mem of P.&A. at 9 n.5.) However, Plaintiff's birth date is not apparent on the face of the complaint. These claims therefore cannot be dismissed as time-barred on a ...