                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 28 2013

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




                           FOR THE NINTH CIRCUIT

DONNA M. AVILA,                                  No. 11-17099

              Plaintiff,                         D.C. No. 3:99-cv-03941-SI

  and
                                                 MEMORANDUM *
RONALD JASON AVILA; et al.,

              Plaintiffs - Appellants,

  v.

WILLITS ENVIRONMENTAL
REMEDIATION TRUST; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                             Submitted April 16, 2013 **
                              San Francisco, California




        *
         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. Fed. R. App. P. 34(a)(2).
Before: GRABER and CHRISTEN, Circuit Judges, and TUNHEIM,*** District
        Judge.

      This is the second appeal in a toxic tort action by individuals who allege

injuries resulting from contamination at a chrome-plating facility in Willits,

California, that was formerly owned or operated by Defendants and their

predecessors. In Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828 (9th

Cir.), cert. denied, 132 S. Ct. 120 (2011), we reversed a 2003 summary judgment,

on statute-of-limitations grounds, against 160 plaintiffs. On remand, the district

court ruled that the claims of 86 of those plaintiffs are still time-barred; they now

appeal. Plaintiff Michael Woertink, whose claim was dismissed as time-barred in

2003 but who did not join in the first appeal, also seeks review.

      1. The district court properly ruled that Plaintiffs’ claims are time-barred. A

one-year statute of limitations applies. Cal. Civ. Proc. Code § 340(3) (2001); Stats.

2002, c. 448 (S.B. 688); see O’Connor v. Boeing N. Am., Inc., 311 F.3d 1139,

1149–50 (9th Cir. 2002) (explaining the effect of 42 U.S.C. § 9658(b)(4)(A) on

statutes of limitations and accrual of personal injury claims arising from toxic




        ***
            The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.

                                           2
releases).1 In the first appeal, we held that "Plaintiffs should have known that

Remco was the likely cause of their injuries no later than August 24, 2000." Avila,

633 F.3d at 843. We remanded for the court to decide whether particular plaintiffs’

claims accrued even earlier. Id. The district court assumed that all Plaintiffs’

claims accrued at the latest possible date allowed by our first decision—August 24,

2000—and dismissed those claims because Plaintiffs all filed suit more than a year

after that starting point.

       2. In its 2003 summary judgment order, the district court held that Plaintiff

Woertink’s claims were barred by the statute of limitations; he filed suit on

October 1, 2001. The district court entered a final judgment in 2009. A timely

notice of appeal was filed on behalf of numerous plaintiffs, including Woertink,

but he was removed from the amended notice of appeal. Although Woertink was

included in the 2011 notice of appeal, that notice is timely only as to the district

court’s decision on remand after the previous appeal. That decision did not affect



       1
         Plaintiffs argue in this second round of the appeal that the two-year
limitations period provided by section 340.8 of the California Code of Civil
Procedure, which took effect in 2004, should apply. But they failed to raise this
argument in the first-round, 2009 appeal, so it is waived. Lowery v. Channel
Comm’ns, Inc. (In re Cellular 101, Inc.), 539 F.3d 1150, 1155 (9th Cir. 2008). In
any event, under California law the older statute of limitations applies to Plaintiffs’
claims. Krupnick v. Duke Energy Morro Bay, L.L.C., 9 Cal. Rptr. 3d 767, 769 (Ct.
App. 2004).

                                           3
Woertink’s claims that had been dismissed in the 2003 order because Woertink did

not timely appeal the dismissal in 2009. Because the time limit for filing an appeal

in a civil case, Fed. R. App. P. 4(a), is jurisdictional, Bowles v. Russell, 551 U.S.

205, 209, 214 (2007), we lack authority to consider any substantive issues

regarding the 2003 order.

      AFFIRMED.




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