                                                                          FILED
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 15 2016
                             FOR THE NINTH CIRCUIT                     MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS




L. ANDERSON,                                   No.   14-56726

              Plaintiff-Appellee,              D.C. No.
                                               2:14-cv-04325-GW-AGR
 v.                                            Central District of California,
                                               Los Angeles
MICHAELS STORES INC, a Delaware
Corporation,
                                               ORDER
              Defendant-Appellant.


Before: GOULD, and BERZON, Circuit Judges, and STEEH,* District Judge.

      Plaintiff-Appellee Lisa Anderson’s Petition for Panel Rehearing and/or

Clarification is GRANTED. The memorandum disposition previously filed on

May 19, 2016 is withdrawn and a replacement memorandum disposition shall be

filed forthwith with this order.




         *
             The Honorable George Caram Steeh III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 15 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


L. ANDERSON,                                     No. 14-56726

              Plaintiff - Appellee,              D.C. No. 2:14-cv-04325-GW-
                                                 AGR
 v.

MICHAELS STORES INC., a Delaware                 MEMORANDUM*
Corporation,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                     Argued and Submitted December 7, 2015
                              Pasadena, California

Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District
Judge.

      Defendant-Appellant Michaels Stores, Inc. (Michaels) appeals the district

court’s order denying Michaels’s motion for judgment on the pleadings. Michaels


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
contends that the claims of Plaintiffs-Appellants Lisa Anderson and twenty-four

other claimants are barred by the statutes of limitation.1 These claims include

Michaels’s failure to pay overtime wages, Cal. Lab. Code §§ 510(a) and 1194,

failure to provide accurate wage statements, Cal. Lab. Code § 226(e), failure to pay

all wages due, Cal. Lab. Code § 203, and engagement in unfair competition, Cal.

Bus. & Prof. Code § 17200 et seq.. We have jurisdiction under 28 U.S.C. §

1292(b), and we reverse.

      At issue is whether, applying the doctrine outlined in American Pipe &

Construction Company v. Utah, 414 U.S. 538, 556–59 (1974), the statutes of

limitation for Anderson’s claims tolled during the pendency of a 2006 and 2011

class action. With the exception of those arising under section 17200, a three-year

limitations period applies to Anderson’s claims. Cal. Bus. & Prof. Code § 17208;

Cal. Civ. Proc. Code § 338(a); Cal. Lab. Code § 203(b). Because Anderson’s

employment with Michaels ended in August 2008, and her claims are determined

on a workweek-by-workweek and pay period basis, see Marlo v. United Parcel

Serv., Inc., 639 F.3d 942, 948 (9th Cir. 2011), Anderson’s claims arising before




      1
        This disposition only addresses Anderson’s claims because only her claims
are before us on appeal.

                                          2
and during the first class action are time barred unless tolling occurred during both

class actions.

      California law controls in assessing whether tolling should be allowed

during the pendency of both class actions. Albano v. Shea Homes Ltd. P’ship, 634

F.3d 524, 530 (9th Cir. 2011). California has adopted the American Pipe tolling

doctrine, see Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 1119, 1126 (1988), and has

allowed a second class action to proceed after holding that the statute of limitation

tolled during the first class action, Falk v. Children’s Hosp. L.A., 237 Cal. App. 4th

1454, 1470 (2015). But California has not ruled whether so-called “piggyback”

tolling—that is, tolling during two separate class actions—is permissible. Tolling

rules are state law questions, implicating California’s interest in managing its own

judicial system. See Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025 (9th

Cir. 2008). Clemens requires that we not import the “piggyback” limitations

tolling doctrine into California state law. See id.

      Equitable tolling and equitable estoppel also do not help Anderson. She

forfeited both contentions by not arguing them fully before the district court. See

Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir. 2004). Because these arguments

rely on law that was settled when this matter was before the district court, and

because these arguments are not purely legal, we decline to consider them for the


                                           3
first time on appeal. See AlohaCare v. Hawaii, Dept. of Human Servs., 572 F.3d

740, 744–45 (9th Cir. 2009).

       Anderson also contends that regardless of whether this court allows tolling

during the first and second class actions, the claims that accrued after the first class

action was decertified should have tolled during the second class action. However,

most of Anderson’s claims have a three-year statute of limitation, and more than

three years passed between the end of Anderson’s employment with Michaels and

the filing of the second class action. These claims are time barred regardless of

tolling.

       Unlike the claims under section 203, however, Anderson’s claims under

section 17200 are subject to a four-year limitations period. Cal. Bus. & Prof. Code

§ 17208. Because the second class action was filed on September 13, 2011,

Anderson’s section 17200 claims as to all pay periods between September 13, 2007

and August 2008 would be timely if they were tolled during the second class

action. However, California courts only allow American Pipe tolling when

supported by two policy considerations. See Perkin v. San Diego Gas & Elec. Co.,

225 Cal. App. 4th 492, 503 (2014) (citing Jolly, 751 P.2d at 935). Here, the district

court in the first class action concluded that Anderson’s claims, including those

under section 17200, were not suited for class actions. Under these circumstances,


                                            4
it was not “unforeseeable” that Anderson’s section 17200 claims would not be

certified in the second class action, and tolling these claims would not protect the

class action device or effectuate the purposes of the statute of limitations. See id.

We decline to allow tolling.2

      REVERSED.




      2
         We do not decide whether Anderson can amend her complaint. District
courts have discretion to grant leave to amend, see, e.g., Ascon Properties, Inc. v.
Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989), and we conclude that the
district court should decide in the first instance whether Anderson may do so.

                                           5
