Belli v. Roberts Bros. Furs

• Decision Date: 21 February 1966
• Citation: 240 Cal.App.2d 284,49 Cal.Rptr. 625
• Court: California Court of Appeals Court of Appeals
• Parties: Melvin M. BELLI and Joy Belli, Plaintiffs and Appellants, v. ROBERTS BROTHERS FURS, a corporation, Defendant and Respondent. Civ. 22637.

Page 625

49 Cal.Rptr. 625

240 Cal.App.2d 284

Melvin M. BELLI and Joy Belli, Plaintiffs and Appellants, v. ROBERTS BROTHERS FURS, a corporation, Defendant and Respondent.

Civ. 22637.

District Court of Appeal, First District, Division 3, California.

Feb. 21, 1966.

Hearing Denied April 22, 1966.

Belli, Ashe & Gerry, Frederick A. Cone, San Francisco, for appellants.

Weyman I. Lundquist, M. Laurence Popofsky, Heller, Ehrman, White & McAuliffe, San Francisco, for respondent.

SALSMAN, Justice.

This is an appeal from a summary judgment granted in respondent's favor, on the ground that the statute of limitations (Code Civ.Proc. § 340) barred appellants' alleged causes of action. We conclude that the trial court was correct in its ruling, and therefore affirm the judgment.

Appellants filed their complaint on February 14, 1963. They alleged that, on February 14, 1962 '* * * defendants * * * wrongfully * * * did cause to be published a certain statement concerning plaintiffs, to-wit: Plaintiff, MELVIN M. BELLI, had refused to pay for a certain fur stole allegedly purchased from the defendants, ROBERTS BROTHERS FURS, a corporation. Defendants * * * did conspire * * * to publish said statement in defendants' newspaper, knowing said statement to be false * * * as a direct and proximate result of which plaintiffs' right of privacy was thereby invaded.'

Appellants did not name the San Francisco Chronicle, the newspaper in which the alleged defamatory matter was published, as a party defendant. The demurrers of all individual defendants were sustained and judgment entered in their behalf. After entry of judgment for the individual defendants, the corporate defendant, Roberts Brothers Furs, successfully moved for summary judgment. This appeal challenges only the judgment entered in favor of the corporate defendant.

In support of its motion for summary judgment, respondent submitted certain interrogatories propounded to Kenneth R. Hobson, circulation director of the San Francisco Chronicle. Answers to these interrogatories disclose that the February 14, 1962 issue of the Chronicle was composed of six editions, issued at various times. These editions were: 1) Race edition, issued at 6:15 p. m. February 13, 1962; 2) 2-Star final edition, issued at 8:45 p. m. February 13, 1962; 3) 3-Star final edition, issued at 11 p. m. February 13, 1962; 4) First home edition, issued at 11:30 p. m. February 13, 1962; 5) Second home edition issued at 12:45 a. m. February 14, 1962; 6) 4-Star final edition, issued at 2 a. m. February 14, 1962. The answers further disclosed that the objectionable matter appeared in all six editions of the newspaper, and that 7000 to 8000 copies of the newspaper dated February 14, 1962 had been sold to the public before 11:59 p. m. February 13, 1962.

The critical issue to be decided is whether appellants' alleged claims are barred by the statute of limitations. ¹

Appellants first point out that their complaint alleges a civil conspiracy, and that the gist of the tort of civil conspiracy is the damage resulting from the overt acts done pursuant to common design. (See DeVries v. Brumback, 53 Cal.2d 643, 649, 2 Cal.Rptr. 764, 349 P.2d 532.) Here they argue that overt acts were done on February 14, 1962, when at least two editions of the Chronicle were put out and sold to the public, resulting in damage to appellants. To support the contention that their action was brought in time, they cite and rely upon Schessler v. Keck, 125 Cal.App.2d 827, 271 P.2d 588, which holds, in effect, that while a conspiracy to defame is in existence the statute of limitations does not begin to run until there is a cessation of the wrongful acts committed in furtherance of the conspiracy. But here, as we have noted, the Chronicle is not a party defendant, nor is any agnet or employee of the Chronicle a party. The only party with which we are here concerned is the respondent Roberts Brothers Furs, a corporation. It is not claimed by appellants that the Chronicle, or any of its agents or servants, was a party to the alleged conspiracy. This being so, it seems clear that the acts done by the alleged conspirators must have been completed before the first publication of the article complained of, since all publications of the material, in whatever edition they appeared, were the same. This would necessarily mean that appellants' causes of action, if based on a civil conspiracy, arose at the latest when the first publication of the newspaper was made on February 13, 1962, and hence their complaint filed February 14, 1963 was too late. But we need not rest our decision on this ground. As will appear, the action is governed by the California Uniform Single Publication Act (Civil Code §§ 3425.1-3425.5) and the provisions of that statute operate to bar the causes of action alleged in the complaint.

The Uniform Single Publication Act was proposed by the National Conference of Commissioners on Uniform State Laws. Its purpose is to make uniform the law of those jurisdictions that adopt it. (Civil Code § 3425.2.) The statute has been adopted in several states and the Canal Zone. Section 3425.3 of the act provides in part that 'No person shall have more than one cause of action for damages for * * * invasion of privacy * * * founded upon any single publication * * * such as any one issue of a newspaper * * *.' (Emphasis ours.) As enacted in other jurisdictions, the language used to illustrate a single publication is '* * * such as one edition of a newspaper. * * *' (Emphasis ours.) The meager legislative history of the statute is found in the Assembly Final History, ² and the Senate Journal of May 6, 1955. We may and do take judicial notice of both records, and their contents. It appears from the Assembly Final History that the statute was proposed as Assembly Bill 743 at the regular session of 1955, and that it was passed in the Assembly and sent to the Senate. The Senate Journal for May 6, 1955 reveals that the proposed statute was amended in the Senate on that day by striking out the word 'edition' and inserting the word 'issue', after which the bill was passed and returned to the Assembly where the amendment was accepted. Our task is to determine what the Legislature meant and intended when it deleted the word 'edition' and inserted in lieu thereof the word 'issue' so that we may give the statute the effect intended by the Legislature. (See Noble v. Key System, Ltd., 10 Cal.App.2d 132, 51 P.2d 887.) To this end we must construe ordinary words as having the meaning ordinarily attributed to them, but if it appears that an ordinary word has been used to convey some special or technical meaning then we must give such word or words the meaning intended.

The words 'edition' and 'issue' as commonly used do not appear to have any technical meaning. They are often used interchangeably. Nevertheless it appears to us that here the Legislature has chosen to attribute a technical or special meaning to both the...