                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 22 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



WESTMARK DEVELOPMENT                             No. 09-35392
CORPORATION, a Washington
corporation; TRIZEC INVESTMENT                   D.C. No. 2:08-cv-01727-RSM
CORPORATION, a Washington
corporation,
                                                 MEMORANDUM *
              Plaintiffs - Appellants,

       v.

CITY OF BURIEN, a municipal
corporation,

              Defendant - Appellee.

                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                       Argued and Submitted March 8, 2010
                               Seattle, Washington

Before: TASHIMA, FISHER and BERZON, Circuit Judges.

      Westmark Development Corporation and Trizec Investment Corporation

(collectively, “Westmark”) appeal from the district court’s summary judgment in



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
favor of the City of Burien, finding that a 2005 tolling agreement did not apply to

Westmark’s substantive due process and equal protection claims against the City

and dismissing Westmark’s claims as untimely. On de novo review, we reverse

and remand.

      The district court erroneously concluded that the tolling agreement does not

apply to Westmark’s section 1983 claims against the City. Applying Washington

law, we discern the meaning of the agreement “‘by viewing the contract as a

whole, the subject matter and objective of the contract, all the circumstances

surrounding the making of the contract, the subsequent acts and conduct of the

parties to the contract, and the reasonableness of respective interpretations

advocated by the parties.’” Berg v. Hudesman, 801 P.2d 222, 228 (Wash. 1990)

(quoting Stender v. Twin City Foods, Inc., 510 P.2d 221, 224 (Wash. 1973)

(internal quotation marks omitted)). The subject matter of the agreement is tolling.

Its objective is to toll the limitations period during the pendency of the state court

proceedings, an objective accomplished by the refiling language in paragraph 3.

The agreement as a whole refers to all section 1983 defendants, including the City

– not merely to the individual defendants. Exclusion of the City from numbered

paragraph 4 is unremarkable given that Westmark’s claims against the City were




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filed in 1996, not on October 4, 2004. The interpretation offered by Westmark is

therefore more reasonable.

      We reject the City’s argument that the tolling agreement is ineffective under

Marshall-Wells Hardware Co. v. Title Guaranty & Surety Co., 154 P. 801, 804

(Wash. 1916) (“In order to prevent the defense of the statute of limitations by

estoppel or waiver, there must have been a distinct agreement by the party sued not

to interpose the defense.”). Assuming this principle covers tolling as well as

waiver, the tolling agreement here constitutes “a distinct agreement.”

      We also reject the City’s argument that the tolling agreement is inoperative

because it authorizes tolling for an indefinite period of time. See J. A. Campbell

Co. v. Holsum Baking Co., 130 P.2d 333, 340 (Wash. 1942). The agreement is

definite as to time because it tolls the limitations period from the voluntary

dismissal of the federal action through the resolution of the state court proceedings.

      The City’s unopposed motion to supplement the excerpts of record, filed

August 20, 2009, is GRANTED.

      REVERSED AND REMANDED.




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