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Howard Alan Zochlinski v. Regents of the University of California

February 9, 2011

HOWARD ALAN ZOCHLINSKI, PLAINTIFF,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

On December 9, 2010, the court held a hearing on defendants' motion to dismiss. Plaintiff appeared in pro per. Defendants were represented by Nancy Huneke. Upon consideration of the motions on file in this action, discussion with plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

FACTUAL AND PROCEDURAL BACKGROUND Plaintiff's allegations stem from his disqualification in 1993 from a Ph.D. program at the University of California at Davis ("U.C. Davis"). (Compl. at 1-2.) Defendant John Jones was a U.C. Davis police officer who arrested plaintiff on unrelated charges in 1972 and again in 1992. (Id. at 2.) Defendant John Oakley is a law professor at U.C. Davis. (Id. at 1.)

In the complaint, which was initially filed in the Yolo County Superior Court on January 22, 2010 and removed by the defendants to this court on July 14, 2010*fn1 , plaintiff claims Jones slandered him in 2001 when he told an editor of the California Aggie, U.C. Davis's campus newspaper, that plaintiff was a dangerous person; this statement allegedly intimidated the editor sufficiently so as to cause her to decline publication of an article written about plaintiff. (Compl. at 3-4.)

Plaintiff also claims that Professor Oakley slandered him to Professor Rodman, the Associate Dean of Student Affairs while plaintiff was enrolled in the Ph.D. program. (Compl. at 2-3.) Plaintiff alleges that in 2000, Professor Rodman sought Oakley's advice regarding plaintiff's request to be re-admitted to the Ph.D. program. During that conversation, Oakley allegedly advised Professor Rodman not to get involved with plaintiff, otherwise he would be "putting [himself] and [his] family in danger." (Id. at 3.) Oakley then compared plaintiff to Charles Manson. (Id.)

The factual allegations against the Regents of the University of California ("the Regents") are bare, though it appears that plaintiff's primary complaint is that the Regents are persecuting plaintiff for his ongoing litigation against them and are attempting to prevent plaintiff's return to U.C. Davis as a graduate student.

Plaintiff's claims against the Regents, Jones and Oakley are based on state law claims of slander, intentional infliction of emotional distress ("IIED"), interference with right to practice profession and pursue career, as well as federal claims for violations of his First, Sixth and Fourteenth Amendment rights, conspiracy, and for violations of 42 U.S.C. §§ 1981-2000e. /////

Attached to plaintiff's complaint is a declaration from Professor Rodman dated January 10, 2009 ("the Rodman declaration"), in which Prof. Rodman discusses these slanders.

Plaintiff seeks injunctive relief and monetary damages in the amount of twenty million dollars. (Compl. at 14.)

STANDARDS

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1974 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

The court is permitted to consider material properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Matters of public record include pleadings and other papers filed with a court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). /////

Rule 12(e) of the Federal Rules of Civil Procedure is designed to strike at unintelligibility, rather than want of detail. See Woods v. Reno Commodities, Inc., 600 F. Supp. 574, 580 (D. Nev. 1984); Nelson v. Quimby Island Reclamation Dist., 491 F. Supp. 1364, 1385 (N.D. Cal. 1980). The rule permits a party to move for a more definite statement "[i]f a pleading is so vague that a party cannot reasonably be required to frame a responsive pleading." Fed. R. Civ. P. 12(e). The function of such a motion is thus not to require the pleader to disclose details of the case, see Boxall v. Sequoia Union High Sch. Dist., 464 F. Supp. 1104, 1114 (N.D. Cal. 1979), or to provide the evidentiary material that may properly be obtained by discovery, see Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981). A motion for more definite statement should be denied if a pleading meets federal standards by providing a short and plain statement of the claim showing that the pleader is entitled to relief. See Fed. R. Civ. P. 8(a)(2).

DISCUSSION

A. Defendants' Motion to Dismiss

Defendants seek dismissal of the complaint on the grounds that plaintiff's claims are barred by the statute of limitations and plaintiff fails to state a claim.

1. Statute of Limitations

Defendants first seek dismissal on the ground that plaintiff's numerous claims are barred by the statute of limitations. The statute of limitations in California is one year for defamation. Cal. Civ. Code § 340(c). Unruh Act claims and claims under 42 U.S.C. § 1986 are also subject to a one-year statute of limitations. Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 757-59 (Cal. Ct. App. 2002) (explaining that the provisions of the Unruh Act that derive from the common law, including California Civil Code § 51, carry a one-year statute of limitations); Cal. Civ. Code § 51; 42 U.S.C. § 1986.

Because section 1983 does not contain a statute of limitations, federal courts apply the forum state's statute of limitations for personal injury claims. See Wilson v. Garcia, 471 U.S. 261, 276 (1985). The personal injury statute of limitations also applies to actions under 42 U.S.C. §§ 1981 and 1985. See Taylor v. Regents of the Univ. of California, 993 F.2d 710, 711-12 (9th Cir. 1993); McDougal v. County of Imperial, 942 F.2d 668, 673-74 (9th Cir. 1991). For claims that accrued prior to January 1, 2003, the statute of limitations in California for personal injury actions was one year. See Elliott v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994); Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004); Cal. Civ. Proc. Code § 335.1.

On January 1, 2003, California Code of Civil Procedure section 335.1*fn2 took effect to extend the prior limitations period for personal injury actions (and correspondingly to federal civil rights claims) from one year under former California Code of Civil Procedure section 340(3) to two years. Abreu v. Ramirez, 284 F. Supp. 2d 1250, 1255 (C.D. Cal. 2003); see Cal. Senate Bill 688 (Burton), Stats. 2002, ch. 448, § 3.

Applying California law, claims brought under section 1983 and which arise in California are generally barred if not brought within one year if they accrued prior to January 1, 2003 and within two years if they accrued after January 1, 2003.*fn3 See Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975); Elliot v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994); Krug v. Imbrodino, 896 F.2d 395, 396-97 (9th Cir. 1990); see also Taylor v. Regents of University of California, 993 F.2d 710, 711 (9th Cir. 1993), cert. denied, 510 U.S. 1076 (1994). ///// /////

Here, the alleged slanders occurred in 2000 and 2001, thus the pre-2003 one year statute of limitations applies to all claims. Plaintiff, however, did not file the present action until January 22, 2010. Thus, absent tolling, this action is untimely.

Plaintiff's position is that the delayed discovery rule applies because he was unaware of the slanders until he received a copy of Professor Rodman's declaration wherein these slanders were discussed. Plaintiff also seeks equitable tolling due to illness.

Federal law "determines when a federal cause of action accrues, despite the fact that state law determines the relevant statute of limitations." Wetzel v. Lou Ehlers Cadillac Group, 189 F.3d 1160, 1163 (9th Cir. 1999) (quoting Williams v. UNUM Life Ins. Co. of America, 113 F.3d 1108, 1111 (9th Cir. 1997)). Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). "Generally, the statute of limitations begins to run when a potential plaintiff knows or has reason to know of the asserted injury." De Anza Properties X, Ltd. v. County of Santa Cruz, 936 F.2d 1084, 1086 (9th Cir. 1991); see also Soliman v. Philip Morris, Inc., 311 F.3d 966, 971 (9th Cir. 2002).

However, the date of accrual may toll in certain situations that are subject to the delayed-discovery doctrine. See Neel v. Magana, Olney, Levy, Cathcart & Gelfund, 6 Cal.3d 176, 190 (1971); Cain v. State Farm Mut. Auto. Ins. Co., 62 Cal. App. 3d 310, 314-15 (1976). Under the "delayed-discovery doctrine" or "discovery rule," the limitations period begins to run once a plaintiff "has knowledge of the 'critical facts' of his injury, which are 'that he has been hurt and who has inflicted the injury.'" Bibeau v. Pacific Northwest Research Foundation, 188 F.3d 1105, 1108 (9th Cir. 1999) (quoting United States v. Kubrick, 444 U.S. 111, 122 (1979)). Under this rule, a plaintiff "must be diligent in discovering the critical facts," or his claim will be barred if he "should have known in the exercise of due diligence." Bibeau, 188 F.3d at 1108. /////

Plaintiff asserts that he was not aware of either Jones or Oakley's statements until January 24, 2009, when he received in hand a copy of Professor Rodman's declarations. (Opp'n at 5-6.) As to Jones, plaintiff admits that in 2005 he became aware that Jones "had intimidated the editor to such an extent that not only did the editor refuse to run that article ... but refused to employ [the reporter] again." (Compl. at 4.) At the time, though, plaintiff thought Jones's "weight, height and police status" were the sources of intimidation, not any statements made by Jones. (Opp'n at 9.)

Examination of the facts of this case convinces the court that the delayed-discovery doctrine should not be applied to plaintiff's claims. The following factors were relied on in making this determination: (1) Professor Rodman's declaration is dated January 10, 2009, more than one year before January 22, 2010, the date on which plaintiff filed the present lawsuit; (2) plaintiff's complaint both attaches to it and references within it statements made by Professor Rodman in his declaration. It is unclear to the court how plaintiff's complaint, which refers to and attaches to it the Rodman declaration, could have been filed two days prior to the date plaintiff claims he received, and thus was aware of, the Rodman declaration; (3) plaintiff's contention that he received notice when he received a copy of Professor Rodman's declaration in hand is unsupported by the law; (4) the Rodman declaration is printed on a document with a footer that reads "Declaration of Peter Rodman -- 2008"; (5) this declaration is prepared as a filing with plaintiff's name on it; (6) the declaration is titled "Declaration of Peter Rodman, Ph.D. in Support of Petitioners' Writs"; (7) the declaration repeatedly references statements made in a writ and a request for judicial notice (see, e.g., Rodman Decl., ¶¶ 5, 9, 12); (8) plaintiff's writs were filed in state court in case No. PT-07-009 in 2008 (see case No. 09cv185-FCD-DFB, Docket No. 13, Ex. C; Docket No. 23 at 2); and (9) it is simply unbelievable that Professor Rodman would prepare his declaration absent plaintiff's knowledge of its contents. Instead, the court finds that Professor Rodman wrote this declaration at plaintiff's request and for litigation purposes. In fact, Professor Rodman's declaration concludes with "I make the foregoing statements from personal knowledge ... and if called as a witness in this case, I could testify thereto." (Rodman Decl. at 20.)

Plaintiff alternatively argues that the doctrine of equitable tolling should apply. Specifically, plaintiff asserts that he was ill from November 2009 and January 24, 2009, and that this illness prevented plaintiff from receiving Professor Rodman's declaration. In California, tolling sometimes may apply where "circumstances effectively render timely commencement of an action impossible or virtually impossible." See Grell v. Laci Le Beau Corp., 73 Cal. App. 4th 1300, 1305 (1999) (citations omitted); see also Lewis v. Superior Court, 175 Cal. App. 3d 366 (1985) (statute tolled when plaintiff's attorney, a sole practitioner, had calendared last date to file but was seriously injured in an automobile accident four days before the statute ran). The equitable tolling doctrine applies "occasionally and in special situations" and requires that the plaintiff have diligently pursued his or her claim. Addison v. State of California, 21 Cal.3d at p. 316; Hull, 28 Cal.App.4th at p. 1336. Here and for the reasons set forth above, the court is unconvinced that Professor Rodman wrote the declaration without plaintiff's knowledge of its contents. Even assuming that plaintiff was ill from November 2008 to January 24, 2009, the court remains convinced that plaintiff was aware of the contents of the Rodman declaration prior to his receipt of it. Thus, equitable tolling should not apply.

Based on these facts, the court finds that plaintiff's claims accrued at the latest on January 10, 2009. Accordingly, those claims that are definitively barred by the one-year statute of limitations -- that is, plaintiff's defamation, Unruh Act and section 1986 claims -- should be dismissed with prejudice.

2. Remaining Federal Claims

The court will proceed with the remaining claims assuming, without deciding, that California Code of Civil Procedure section 335.1's two year statute of limitations applies. Upon review, the court finds that plaintiff's remaining federal claims for violations of his First and Fourteenth Amendment rights, as well as violations of 42 ...


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