NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTAL MOSTEIRO, Plaintiff

- Appellee,

v. ZACHARY SIMMONS, Defendant

- Appellant

. No. 22

- 16780
D.C. No. 2:19

- cv - 00593

- MCE

- DB

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding Submitted August 21, 2023 * * San Francisco, California Before: BUMATAY, KOH, and DESAI, Circuit Judges. Dissent by: Judge BUMATAY Zachary Simmons appeals the district court’s denial of his motion to dismiss Christal Mosteiro’s 42 U.S.C. § 1983 action. 1 Simmons moved to dismiss on the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

1 The district court certified its order for interlocutory appeal under 28 U.S.C. § 1292(b), and we granted permission for Simmons to appeal. 

# FILED

SEP 5 2023 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 ground that the action was time

- barred by the statute of limitations , arguing that Mosteiro was not entitled to tolling under California Civil Procedure Code § 352.1(a) because her claims accrued while she was a pre

- trial detainee i n county jail

. Our review is de novo, Aragon v. Federated Department Stores, Inc. , 750 F.2d 1447, 1449

– 50 (9th Cir. 1985), and we affirm.
1. Adhering to our precedent in Elliott v. City of Union City , 25 F.3d 800 , 801 (9th Cir. 1994) , we conclude that § 352.1(a) extends to a pre

- trial detainee in county jail who is held in continuous custody. Section 352.1(a) tolls the statute of limitations when an individual is “imprisoned on a criminal charge, or in execution under the sentence of a cr iminal court for a term less than for life

. ” Elliott considered “whether being continuously incarcerated prior to arraignment constitutes being ‘imprisoned on a criminal charge’ within the meaning of” § 352(a)(3), the predecessor statute to the current § 352.1(a). 2 25 F.3d at 802. Concluding that it does, Elliott held that § 352(a)(3) “covers all post

- arrest custody,” so long as a plaintiff was in continuous custody from when his claim accrued. Id. at 803.

2 There is no difference between the two statutes that is material to this case because § 352.1 (a) “ utiliz[es] the same statutory wording” at issue here. Brooks v. Mercy Hosp. , 204 Cal. Rptr. 3d 289, 293 (Cal. Ct. App. 2016). The only distinction is that § 352.1 (a) added the phrase “not to exceed two years,” thereby limiting tolling to two years. Id. at 291, 29 3

. Thus , California courts have looked to interpretations of § 352 in construing § 352.1 (a)

. Id. at 290 , 293.3 After Elliott , however, one California Court of Appeal held that § 352.1(a) applies solely to plaintiffs “ serving a term of imprisonment in the state prison ,” not
to pre - trial detainees in county jail. Austin v. Medicis , 230 Cal. Rptr. 3d 528, 531 (Cal. Ct. App. 2018)

. To reach tha t conclusion , Austin relied on the statute’s legislative history, which it turned to after finding the statutory language ambiguous

. Id. at 538. Austin rejected Elliott in a passing footnote, observing only that, because Elliott “predated the enactment o f [§] 352.1,” it “ did not have the benefit of the legislative findings on this subject.” Id. at 537 n.4.

“ When interpreting state law, federal courts are bound by decisions of the state’s highest court. ” Vestar Dev. II, LLC v. Gen. Dynamics Corp. , 249 F.3d 958, 960 (9th Cir. 2001) ( citation omitted ). Where, as here, the re is no applicable California Supreme Court decision , we “ must predict how the highest state court would decide the issue using intermediate appellate court decisions, decisions from
ot her jurisdictions, statutes, treatises, and restatements as guidance. ” Id. ( citation omitted ). “ However, where there is no convincing evidence that the state supreme court would decide differently, a federal court is obligated to follow the decisions of the state ’ s intermediate appellate courts. ” Id. (citation omitted ) ; see also T

Mobile USA Inc. v. Selective Ins. Co. of Am. , 908 F.3d 581, 586 (9th Cir. 2018) (“An intermediate state appellate court decision is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other4 persuasive data that the highest court of the state would decide otherwise.” ( internal quotation marks and citation omitted ) ).
C onvincing evidence exists that the California Supreme C ourt , in interpreting § 352.1(a) , would not follow Austin

. First, Austin ’s reasoning contravened fundamental rules of statutory interpretation under California law. Cf. Curtis v. Irwin Indus., Inc. , 913 F.3d 1146, 1155 (9th Cir. 2019) ( concluding that there was “ no reason ” that the California Supreme Court would reject California Court of Appeal decisions that “provided a reasonable statutory interpretation”). “Statutory interpretation under Califo rnia law begins with the words themselves, giving them ‘their plain and commonsense meaning

. . . . ’ ” Herrera v. Zumiez,
Inc. , 953 F.3d 1063, 1071 (9th Cir. 2020) (quoting Murphy v. Kenneth Cole Prods ., Inc. , 155 P.3d 284, 289 ( Cal. 2007) ). In concluding that § 352.1(a) is ambiguous, Austin considered only the word “imprisoned , ” disregarding not just the phrase in which it is used ( “imprisoned on a criminal charge ”) , but the immediately following clause in the same sentence (“ or in execution under the sentence of a criminal court ”)

. See 230 Cal. Rptr. 3d at
538

. However, that this single word “isolated from its context is susceptible of more than one meaning” does not render it ambiguous. Foster

- Gardner, Inc. v. Nat’l Union Fire Ins. Co. , 959 P.2d 26 5, 272 (Cal. 1998) ( citation omitted)

. “[I]t is a ‘fundamental principle of statutory construction (and, indeed, of language itself)5 that the meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.’” S uper. Ct. v. Pub. Emp. Rels. Bd. , 241 Cal. Rptr. 3d 554, 577 (Cal. Ct. App. 2018) (quoting Deal v. United States , 508 U.S. 129, 132 (1993)). California courts may not “delet[e]” or “read [] out” terms that the Legislature inserted. Golden State Boring & Pipe Jacking, Inc. v. Orange Cnty. Water Dist. , 49 Cal. Rptr. 3d 447, 453 (Cal. Ct. App. 2006) (emphasis omitted). “In the construction of a statute, . . . the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to .

. . omit what has been inserted. ” Id. (quoting Cal. Civ. Proc. Code § 1858)

. Rather, the court must “giv[e] significance to every word, phrase, sentence, and part of a n
act. ” City of San Jose v. Supe r. Ct. , 389 P.3d 848, 853 ( Cal. 2017) (citation omitted). As such , Austin ’s construction of § 352.1(a) violated these rules by failing to interpret the phrase “imprisoned on a criminal charge” as a whole and in
context. By contrast, Elliott recognized that the phrase “ imprisoned on a criminal charge” plainly encompasses pre - trial detention , r eferring to imprisonment “prior to conviction.” 25 F.3d at 802 n.2. Elliott ’s interpretation of “criminal charge” accords with its “usual and ordinary meaning .” Turner v. Victoria , 532 P.3d 1101, 1106 (Cal. 2023)

. W hen § 352.1(a) was enacted, Black’s Law Dictionary defined “charge” as “[i]n a criminal case, the specific crime the defendant is accused of6 committing. Accusation of a crime by a formal complaint, information or indictment.” Black’s Law Dictionary (6th ed. 1990) ; see also Black’s Law Dictionary (11th ed. 2019) (defining “charge” as “[a] formal accusation of an offens e as a preliminary step to prosecution . . . [a]lso termed criminal charge” ). This ordinary understanding of “criminal charge” also comports with California case law interpreting this phrase. A pplying § 352.1(a) , the California Court of Appeal recognized that a plaintiff could “fac[e] criminal charges while released on bail ,” holding that such status does not constitute imprisonment under the statute

. Maddox v. Lake , 2015 WL 4571550, at *4 (Cal. Ct. App. July 29 , 2015) (emphasis added). 3 Similarly , in the context of another tolling statute , California Government Code § 945.3 , t he California Court of Appeal interpreted “criminal charge” to mean an “accusatory pleading” that precedes judgment and
sentence. McAlp ine v. Super. Ct. , 257 Cal. Rptr. 32, 35, 37 (Cal. Ct. App. 1989). Consequently , “criminal charges are ‘pending’ for purposes of [§] 945.3 until the date of judgment and sentence.” Id. at 37

. In addition , Austin deviates from the “cardinal” rule that “a construction of a

3 Although Madd ox is an unpublished decision, “we may consider unpublished state decisions, even though such opinions have no precedential value , ” in determining whether Austin “accurately represents California law.” Emps. Ins. of Wausau v. Granite State Ins. Co. , 330 F .3d 1214, 1220 n.8 (9th Cir. 2003) ; see also Magadia v. Wal

- Mart Assocs., Inc. , 999 F.3d 668, 681 n.12 (9th Cir. 2021 ) (“ Although these decisions are unpublished with no precedential value, we may still consider them to interpret California law. ”).7 statute which makes some words surplusage is to be avoided.” City of Huntington Park v. Super. Ct. , 41 Cal. Rptr. 2d 68, 72 (Cal. Ct. App. 1995); see also Brennon
B. v. Super. Ct. , 513 P.3d 971, 989 ( Cal. 202 2) (“We seek to avoid interpretations that render any language surplusage. ” ( internal quotation marks and citation omitted ) )

. Austin ’s interpretation of “imprisoned on a criminal charge” to mean only a “term of imprisonment in the state prison,” 2 30 Cal. Rptr. 3d at 542, would render superfluous the very next phrase in the same sentence: “in execution under the sentence of a criminal court for a term less than for life,” Cal. Civ. Proc. Code § 352.1(a). Cf. People v. Saibu , 120 Cal. Rptr. 3d 84, 90 (Cal. Ct. App. 2011) (recognizing a definition of “term of imprisonment” as one that “must refer to the actual sentence imposed by the court” (quoting People v. Riolo , 655 P.2d 723, 725 (Cal. 1983)) )

. Indeed, a s Elliott reasoned, Austin ’s reading of “imprisoned on a criminal charge” to exclude pre

- trial detainees would make the statute “self

contradictory, since it refers to being held ‘on a criminal charge,’ i.e., prior to conviction.” Elliott , 25 F.3d at 80 2 n.2. “It is the second phrase, ‘in execution under sentence of a criminal court,’ that covers post

- conviction incarceration, i.e., confinement in an actual prison.” Id. Moreover, t hat the two phrases are connected by the disjunctive “or” further supports Elliott ’s conclusion that they must “ be given separate meaning s. ” Reiter v. Sonotone Corp. , 442 U.S. 330, 339 (1979) ; see also In re E.A. , 234 Cal. Rptr. 3d8 346, 356 (Cal. Ct. App. 2018) ( “The plain and ordinary meaning of the word ‘ or, ’ when used in a statute, is to designate separate, disjunctive categories. The word ‘or’ suggests alternatives. ” (cleaned up)).
For all these reasons, § 352.1(a) is not ambiguous

. “ If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs. ” Sprint Telephony PCS, L.P. v. Bd. of Equalization , 189 Cal. Rptr. 3d 673, 681 (Cal. App. Ct. 2015) (citation omitted) (emphasis omitted) . Because “[r] esort to legislative history is appropriate only where statut ory language is ambiguous ,” id. (citation omitted) , Austin ’s reliance on the statute’s legislative history to resolve any apparent ambiguity was unwarranted ,

s ee 230 Cal. Rptr. 3d at 592

. Even so, Austin failed to consider another prevailing purpose behin d the tolling statute , as recognized by Bledstein v. Superior Court , 208 Cal. Rptr. 428 (Cal. Ct. App. 1984). There, the California Court of Appeal held that § 352 applied to a plaintiff who was imprisoned in a federal prison and then transferred to a federal halfway house. 4 Id. at 430, 439. In so holding, the court recognized

4 Austin ’s holding that § 352.1(a) applies only to state prison inmates is at odds with Bledstein . To be sure, in Bledstein , the plaintiff’s claim accrued after he began serving his sentence, 208 Cal. Rptr. at 441, so the court was construing the clause “in execution under the sentence of a criminal court,” id. at 4 39

– 40. By contrast, Austin purported to address only the phrase “imprisoned on a criminal charge.” 230 Cal. Rptr. 3d at 542

. In any event , if , as Austin found, the legislative history demonstra tes that tolling was intended only to apply to state prison inmates,9 that “with respect to retaining a tolling provision for prisoners, it would appear . . . the Legislature was motivated at least in part by a recognition of the practical, as well as the legal, difficulties prisoners face in instituting and prosecuting suits.” Id. at 441 (cleaned up).
In contrast to Austin , Elliott took this purpose into account, explaining that “disability statutes are meant to protect those who are incapable of protecting themselves: they apply to prisoners in recognition of their more limited ability to investigate their claims, to contact lawyers and to avail themselves of the judicial process.” Elliott , 25 F.3d at 803 (cleaned up). “For tolling purposes, there is little difference between being incarcerated pre

- arraignment, pre

- conviction or post

conviction: none of these forms of custody affords the prisoner a change in status with regard to his disability.” Id. ; see also id. at 802

– 03 (concluding that “[a] person held in police custody prior to arraignment is faced with the same limitations as someone in custody after arraignment” and “the purpose of disability statutes would be ill

- served by creating an arbitrary distinction between pr e - and post

- arraignment incarceration”). In sum, c onsidering “all available data,” T

- Mobile USA Inc. , 908 F.3d at 586 (citation omitted), we conclude that there is convincing evidence that the

then Bledstein ’s extension of the statute to federal prisoners in federal halfway houses contradicts Austin ’s conclusion

. Notably, Austin does not explain this incongruity with Bledstein

.10 California Supreme Court would interpret § 352.1(a) differen tly than Austin

. Consequently , “[w]e continue to believe that [ Elliott ] .

. . rightly predicts what the California Supreme Court will hold. ” Owen ex rel. Owen v. United States , 713 F.2d 1461, 1466 (9th Cir. 1983)

. 5
2. Under Elliott , Mosteiro’s claims were tolled by § 352.1(a ) because they accrued while Mosteiro was a pre - trial detainee in county jail, and she was in continuous custody from that time until her release from imprisonment. The district court therefore correctly held that Mosteiro’s 42 U.S.C. § 1983 action was timely

. AFFIRMED.

5 Contrary to the dissent’s suggestion, comity and federalism do not mean abdication. Decisions of the California Court of Appeal bind neither other panels of that court nor us. See Muniz v. United Parce l Serv., Inc. , 738 F.3d 214, 219 (9th Cir. 2013)

. A California Court of Appeal’s interpretation of a state statute “ may afford guidance as to how the California Supreme Court would interpret [the statute],” but it “ does not control our interpretation .” A m. Tower Corp. v. City of San Diego , 763 F.3d 1035, 1047 (9th Cir. 2014). Thus, Austin does not relieve us of “ our duty ” as a federal court “ to predict how the highest state court would decide the issue .” In re Kekauoha

- Alisa , 674 F.3d 1083, 1088 (9th Ci r. 2012). Equally wrong is t he dissent ’s claim that we must defer to Austin even if it rests on a flawed statutory interpretation. Our court has squarely rejected that view. In American Tower Corp. , we held that “t he text of the statute is ‘ persuasive d ata ’ that the California Court of Appeal misinterpreted ” a statute. 763 F.3d at 1047. In that case, like here, the California Court of Appeal’s interpretation “read[] out” a statutory phrase, violating the canon against surplusage. Id. at 1048. As a result, “[w]e d[id] not believe the California Supreme Court would do the same and therefore reject[ed] [the California Court of Appeal’s] interpretation.” Id. We do no more in this case.Mosteiro v. Simmons , No. 22

- 16780 Bumatay, J., dissenting:
W e face a n interesting question here

. When considering a question of California law, do we follow our own precedent on the question even if it conflicts with a more recent interpretation of the law by a California intermediate appeal
court ? As a matter of comity and federalism, we ordinarily follow an appellate state
court ’s interpretation of state law . Because th is case doesn’t present unusual circumstance s , I would do so here. At issue is whether California’s tolling statute for prisoners , California C ode of Civil Procedure § 352.1 , applies to pre

- tr ial detainees. Back in 1994, we held that it does. See Elliott v. City of Union City , 25 F.3d 800, 801 (9th Cir. 1994) (“[W] e hold that [ § 352.1 ’s predecessor statute] tolls the limitations period when the plaintiff has been in continuous custody, commencing at the time of his arrest [

. ]”). But more recently, a California Court of Appeal decision went the other way. See Austin v. Medicis , 230 Cal. Rptr. 3d 528 , 597 (Cal. Ct. App. 2018) (“ We hold

. . . that a would

be plaintiff is ‘ imprisoned on a criminal charge ’ within the meaning of section 352.1 if he or she is serving a term of imprisonment in the state prison .”). And the California Court of Appeal’ s decision was no drive

- by opinion

— it traces its analysis all the way to ancient Greece and to the English commo n law. Id . at 592. Since then , at least on e other California appellate court has approved of Austin ’s analysis 

# FILED

SEP 5 2023 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALSin an unpublished decision

. See People v. Cardoso , 2018 WL 5603538, at *4 (Cal.
Ct. App. 2018) (unpublished). Unless we have “convincing evidence ” that the California Supreme Court would reject an intermediate appellate court’s interpretation, “[w]e are bound to follow” it. In re Watts , 298 F.3d 1077, 1082

- 83 (9 th Cir. 2002) ; see also Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am. , 15 F.4 th 885, 889 (9 th Cir. 2021) ( “[O]rdinarily[, we] accept the decision of an intermediate appellate court as the controlling interpretation of state law.” (simplified) )

. And we follow the state court interpretation even if that means we must jettison our prior interpretation of the state law. See Owen ex rel. Owen v. United States , 713 F.2d 1461, 1465 (9 th Cir. 1983) (“ Our interpretation [of state law] was only binding in the absence of any subsequent indication from the California courts that our interpretation was incorrect. The recent decisions from the courts of appeal cast a new light on the question. ” ( simplified ) ). And we don’t reject a state court’s interpretation of state law lightly. For example, we’ve declined to follow a state court’s interpretation of state law whe n it was in “plain conflict” with the decision of another state court. See Owen ex rel.
Owen , 713 F.2d at 1465. But w hen we have thought it highly likely that the highest state court would reject the intermediate court’s statutory interpretation, we certified the question rather than give preference to our own interpretation. See Munson v. Del Taco, Inc. , 522 F.3d 997, 1002 (9th Cir. 2008)

. But bottom line : ourdisagreement with a state court ’s interpretation on “a question of state law do[es] not constitute convincing evidence that the state supreme court would decide an issue differently .” Ryman v. Sears, Roebuck & Co. , 505 F.3d 993, 995 n.1 (9th Cir. 2007) (simplified). “This is especially true ” when the California S upreme C ourt , like here ,

“ has refused to review the lower court ’ s decision.” State Farm Fire & Cas. Co. v. Abraio , 874 F.2d 619, 621 (9th Cir. 1989). While I share some of the majority’s concerns with A ustin ’s interp retive

moves , o ur role is not to substitute our own judgment for the state court’s. Even if we have doubts about Austin , “principles of federalism and comity weigh strongly in favor of following” it. Franklin v. Cmty. Reg ’ l Med

. Ctr

. , 998 F.3d 867, 874 ( 9 th Cir. 2021)

. We do not stand as a court of error correction over state courts. By not following Austin , we “p lace our court in the inappropriate position of independently determining the meaning of California [tolling] law. ” Id

. And c ontrary to the majority’s view, this isn’t “abdication” ; this is appropriate deference to state courts on a state law issue . Indeed, the majority offers no limiting principle to its aggrandized view of when we may overrule California intermediate appellate courts: if we disagree, then that’s enough. But that’s not what our precedent or Constitution requires

. Because the district court applied Elliot instead of Austin , I would reverse. I thus respectfully dissent.