                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 GARY KLEIN,                                      No. 15-56279
                      Plaintiff-Appellant,
                                                    D.C. No.
                     v.                          2:13-cv-00110-
                                                   JFW-VBK
 CITY OF BEVERLY HILLS; DANIEL
 CHILSON; MICHAEL PUBLICKER;
 DAVID L. SNOWDEN, Chief,                           OPINION
              Defendants-Appellees.



        Appeal from the United States District Court
           for the Central District of California
         John F. Walter, District Judge, Presiding

           Argued and Submitted March 10, 2017
                   Pasadena, California

                      Filed August 4, 2017

 Before: A. Wallace Tashima and Jacqueline H. Nguyen,
 Circuit Judges, and Algenon L. Marbley, * District Judge.

                      Per Curiam Opinion


     *
       The Honorable Algenon L. Marbley, United States District Judge
for the Southern District of Ohio, sitting by designation.
2                   KLEIN V. BEVERLY HILLS

                          SUMMARY **


                           Civil Rights

    The panel affirmed in part, and reversed in part, the
district court’s summary judgment in favor of the City of
Beverly Hills, its police chief and others in Gary Klein’s 42
U.S.C. § 1983 action, alleging that search warrants issued in
connection with an investigation of Klein’s wife’s death
were obtained through judicial deception.

    The panel held that the discovery rule applied to a
judicial deception claim. The panel further held that Klein’s
judicial deception claim as to the first search warrant in
August 2009 began accruing when the underlying affidavit
became reasonably available. The panel concluded that
because Klein acted with diligence, his claim for judicial
deception arising from the August 2009 search was timely.

    In a concurrently field memorandum disposition, the
panel affirmed the district court’s decision that Klein’s
judicial deception claim failed on the merits.


                            COUNSEL

Joseph S. Klapach (argued), Klapach & Klapach P.C.,
Beverly Hills, California, for Plaintiff-Appellant.

M. Lois Bobak (argued), Woodruff Spradlin & Smart APC,
Costa Mesa, California, for Defendants-Appellees.

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 KLEIN V. BEVERLY HILLS                     3

                         OPINION

PER CURIAM:

    Gary Klein sued the City of Beverly Hills, its police
chief, and others for investigating him in connection with his
wife’s death, claiming that the search warrants for his home
and computer were obtained through judicial deception. We
must decide when a judicial deception claim accrues.

                              I.

                             A.

    Gary Klein’s wife unexpectedly died at the age of forty-
one. During the course of its investigation, the Beverly Hills
Police Department came to suspect that Klein may have
poisoned her. The police obtained three search warrants to
search Klein’s home and computer. Despite an extensive
and lengthy investigation, no criminal charges were ever
filed.

    Klein filed this lawsuit under 42 U.S.C. § 1983 against
the police department, the Chief, and the assigned detectives,
challenging the validity of the search warrants. Klein argues
that the warrants were obtained by judicial deception based
on numerous alleged false statements and omissions by the
detectives. Defendants argue that the first warrant, which
was supported by a 10-page affidavit by Detective Daniel
Chilson and was executed on August 3, 2009, is barred by a
two-year statute of limitations.

   At the time of the search, the police refused to show
Klein the warrant and affidavit because these documents
were sealed. In the months and years following the search,
Klein made multiple unsuccessful attempts to obtain the
4                 KLEIN V. BEVERLY HILLS

search warrant and affidavit. Klein’s efforts included
repeated requests to the police department and, when those
requests were unsuccessful, he hired a criminal defense
attorney to petition the Los Angeles Superior Court to unseal
the warrant. On January 12, 2012, the state court ruled
against him on the ground that unsealing the warrant would
“interfere” with the ongoing investigation.

                              B.

    The current lawsuit was filed on January 7, 2013, almost
three and a half years after the warrant was executed. After
the district court granted multiple stays of discovery at
Defendants’ request, the search warrant and supporting
affidavit were produced as part of discovery to Klein in
March 2015. Soon thereafter, the district court granted
Defendants’ motion for summary judgment, finding with
regard to the August 2009 search that Klein’s claim of
judicial deception was barred by the two-year statute of
limitations. This appeal followed.

                              II.

                              A.

      “For actions under 42 U.S.C. § 1983, courts apply the
forum state’s statute of limitations for personal injury actions
. . . .” Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004)
(citing Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999)).
California has a two-year statute of limitations for personal
injury actions. Cal. Civ. Proc. Code § 335.1.

    Federal law, however, governs when civil rights claims
accrue. E.g., Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir.
2001). “Under federal law, a claim accrues when the
plaintiff knows or has reason to know of the injury which is
                  KLEIN V. BEVERLY HILLS                      5

the basis of the action.” Maldonado v. Harris, 370 F.3d 945,
955 (9th Cir. 2004) (quoting Knox, 260 F.3d at 1013). The
discovery rule requires the plaintiff to be diligent in
discovering the critical facts of the case. Bibeau v. Pac. Nw.
Research Found. Inc., 188 F.3d 1105, 1108 (9th Cir. 1999).

                              B.

     The search warrant here was issued and executed on
August 3, 2009, nearly three and a half years before Klein
filed suit. Defendants argue that judicial deception claims,
like other Fourth Amendment claims for unlawful searches
and seizures, accrue at the time of the illegal act. We
disagree. The discovery rule requires that judicial deception
claims begin accruing when the underlying affidavit is
reasonably available. See Mangum v. Action Collection
Serv., Inc., 575 F.3d 935, 940 (9th Cir. 2009) (“[I]n general,
the discovery rule applies to statutes of limitations in federal
litigation . . . .”).

    In a traditional Fourth Amendment case, the plaintiff is
placed on constructive notice of the illegal conduct when the
search and seizure takes place. See, e.g., Belanus v. Clark,
796 F.3d 1021, 1025–27 (9th Cir. 2015) (finding that, at the
time of the searches, the plaintiff was placed on constructive
notice that the searches were warrantless). Accordingly,
such claims begin accruing at the time of the illegal act. See
Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983)
(per curiam).

    Judicial deception claims, by their very nature, accrue
differently. See Chism v. Washington, 661 F.3d 380, 386 n.9
(9th Cir. 2011) (“A judicial deception claim is different from
a garden-variety claim that a warrant lacked probable cause
on its face.”). These claims involve false or misleading
misrepresentations that may not be readily apparent at the
6                 KLEIN V. BEVERLY HILLS

time of the search. See, e.g., Smith v. Almada, 640 F.3d 931,
937 (9th Cir. 2011) (explaining that the crux of a judicial
deception claim is not that an affidavit lacked probable cause
on its face, but rather that an officer misled the judge about
facts material to the existence of probable cause). In order
to discover the underlying illegality in a judicial deception
case, the plaintiff must have access to the underlying
affidavit. See, e.g., United States v. Stanert, 762 F.2d 775,
781 (9th Cir. 1985). Only after examining the underlying
affidavit can the plaintiff identify the critical facts showing
that “[an officer] misled the magistrate judge when applying
for the warrant, and had the magistrate considered all of the
facts that the magistrate would not have found probable
cause.” Chism, 661 F.3d at 386 n.9 (alteration in original)
(quoting Smith, 640 F.3d at 937). We therefore hold that the
discovery rule applies to a judicial deception claim. Here,
Klein’s judicial deception claim as to the first search warrant
in August of 2009 began accruing when the underlying
affidavit became reasonably available.

     Rather than applying the discovery rule, Defendants
assert, and the district court concluded, that judicial
deception claims should accrue on the date of the search,
regardless of whether the underlying affidavit is accessible.
Such a rule, however, would encourage unripe claims and
establish perverse incentives. First, this rule would force
plaintiffs without access to the underlying affidavits to file
unripe and factually unsupported § 1983 suits, wasting legal
and judicial resources as prospective plaintiffs seek to
preserve their claims before the expiration of the applicable
limitations period. Cf. Panetti v. Quarterman, 551 U.S. 930,
943 (2007) (rejecting an approach that would lead
“conscientious defense attorneys . . . to file unripe (and, in
many cases, meritless)” claims that would burden courts and
litigants). Here, Defendants’ rule would have compelled
                  KLEIN V. BEVERLY HILLS                      7

Klein to file an unripe lawsuit based on the hypothetical
possibility of judicial deception. Second, such a rule would
create a perverse incentive for law enforcement to keep
warrants under seal until the applicable limitations period
expires. We see no reason not to apply the discovery rule.
If a diligent plaintiff has pursued the underlying affidavit
without success, accrual need not begin at the time of the
search.

    Here, there is no question that Klein diligently pursued
the facts underlying his judicial deception claim. He
repeatedly sought access to the warrant and the supporting
affidavit. When his requests were denied, Klein hired a
criminal defense attorney and petitioned the Los Angeles
Superior Court to unseal the warrant and affidavit. When
that failed, he filed this § 1983 suit. Even after this suit was
filed, Defendants repeatedly resisted efforts to release the
search affidavit. It is hard to imagine what more Klein could
have done to pursue the factual basis for his judicial
deception claim. Because Klein has acted with diligence, his
claim for judicial deception arising from the August 2009
search is timely.

    In a concurrently filed memorandum disposition, we
affirmed the district court’s decision that Klein’s judicial
deception claims fail on the merits.

   AFFIRMED in part; REVERSED in part.
