Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1986)

MEMORANDUM^** 

Victor Falvay appeals the district court's dismissal of his 42 U.S.C. § 1983 action against defendants City of Hanford and County of Kings. The district court held that under Wilson v. Garcia, 471 U.S. 261 (1985), and Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir. 1987), Falvay's suit was untimely filed. Falvay argues that application of Wilson v. Garcia should be tolled because word of that decision was not widely promulgated to California attorneys. We disagree and affirm the district court's dismissal of Falvay's suit. Defendants request that Rule 11 sanctions be imposed on Falvay's counsel for filing this appeal. We deny defendants' request.

DISCUSSION

On October 14, 1986, Falvay filed a Section 1983 suit against defendants, alleging that he was wrongfully arrested on October 13, 1983 and wrongfully restrained from the time of his arrest until October 17, 1983. At the time Falvay's cause of action arose, the statute of limitations for a Section 1983 action arising in California was three years. Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962).

In Wilson v. Garcia, 471 U.S. 261 (1985), decided April 17, 1985, the Supreme Court held that the applicable statute of limitations for a Section 1983 claim is the state statute of limitations for a personal injury suit. The effect of Wilson was to set a one-year statute of limitations for Section 1983 actions arising in California. In Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987), we resolved the issue of Wilson's retroactive application to Section 1983 suits not filed prior to Wilson as follows:

[W]e hold that in states such as California, where the effect of Wilson v. Garcia is to shorten the limitation period for 42 U.S.C. § 1983 actions, the limitations period for causes of action arising prior to Wilson shall be either (1) the pre-Wilson period, commencing at the time the cause of action arises, or (2) the post-Wilson period, commencing with the Wilson decision, whichever expires first. Thus, in California, the applicable statute of limitations is either three years from the time the cause of action arises or one year from Wilson, depending on which period expires first.

Thus, under Wilson and Usher, the district court properly found that Falvay's suit was not filed within the statute of limitations.

Falvay contends, however, that the district court erred in applying Wilson because that case and its effect on the statute of limitations for Section 1983 actions in California had not been reported in the annotated versions of California law or other sourcebooks relied upon by California legal practitioners. He argues that because his counsel could not be expected to be cognizant of Wilson, the application of Wilson should be tolled and his suit should be allowed to go forward as timely filed under Smith v. Cremins.

Falvay fails to cite any authority, however, in support of his tolling theory. As the district court stated, a Section 1983 suit is a federal action and it is incumbent upon an attorney filing such an action to keep abreast of federal law, whether or not any changes in such law are promptly and accurately reported in state law sourcebooks.

Defendants request that we impose sanctions upon Falvay's counsel under Fed. R. Civ. P. 11 because this appeal is frivolous. In response to a frivolous appeal, we have awarded sanctions under 28 U.S.C. § 1912 (1982) and Fed. R. Civ. P. 38 but not under Fed. R. Civ. P. 11. See Mackey v. Pioneer Nat. Bank, 867 F.2d 520, 526-27 (9th Cir. 1989); Hewitt v. City of Stanton, 798 F.2d 1230, 1233 (9th Cir. 1986). "An appeal is considered frivolous in this circuit when the result is obvious, or the appellant's arguments of error are wholly without merit." Mackey, 798 F.2d at 527 (citations omitted). Because we cannot say that Falvay's arguments are entirely meritless, we deny defendants' request for sanctions.

AFFIRMED.