Want to see the Ninth Circuit go out of its way to be nice to a civil litigant in order to prevent inequity? Then check this out. Especially Section B and -- in particular -- footnote 4.
I happen to agree with Judge Clifton's resolution. But I'm also certain that not every judge would be similarly inclined to adopt such a favorable approach. Either on the merits (equitable tolling) or in deciding whether to find for appellants on this issue, as Judge Clifton does, notwithstanding the fact that they never really articulated this argument on appeal.
Still, I like it when judges are nice, and reach an equitable result. As happens here.