Bernson v. Browning-Ferris Industries

• Decision Date: 06 June 1994
• Docket Number: No. S032755,BROWNING-FERRIS,S032755
• Citation: 7 Cal.4th 926,30 Cal.Rptr.2d 440,873 P.2d 613
• Court: California Supreme Court
• Parties: , 873 P.2d 613, 22 Media L. Rep. 2065 Hal BERNSON, Plaintiff and Appellant, v.INDUSTRIES OF CALIFORNIA, INC., et al., Defendants and Respondents.

Page 440

30 Cal.Rptr.2d 440

7 Cal.4th 926, 873 P.2d 613, 22 Media L. Rep. 2065

Hal BERNSON, Plaintiff and Appellant, v. BROWNING-FERRIS INDUSTRIES OF CALIFORNIA, INC., et al., Defendants and Respondents.

No. S032755.

Supreme Court of California In Bank.

June 6, 1994.

Iverson, Yoakum, Papiano & Hatch, Neil Papiano, Patrick McAdam and Zachary J. Winner, Los Angeles, for plaintiff and appellant.

William L. Winslow, Santa Monica, McClintock, Weston, Benshoff, Rochefort, Rubalcava & MacCuish, Steven W. Weston, David W. Lamb, Steven J. Vining, Tamara G. Edwards and Brian C. Whitten, Los Angeles, for defendants and respondents.

ARABIAN, Justice.

May the authors of an allegedly defamatory writing who conceal their identities be equitably estopped from pleading the statute of limitations in a libel action? We conclude that equitable considerations may justify an estoppel where the libeled individual neither knew, nor through the exercise of reasonable diligence should have discovered, the identity of the authors. In light of our conclusion, we shall remand the matter for a determination of the question of plaintiff's diligence and related issues.

I. FACTS

The trial court in this matter sustained a demurrer and granted a summary judgment on the same ground, to wit, that the action was barred by the statute of limitations. In reviewing the demurrer, we accept as true all material allegations of the complaint. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 7, 276 Cal.Rptr. 303, 801 P.2d 1054.) In reviewing the summary judgment, we independently examine the supporting and opposing papers to determine whether they reveal any material issue of fact and whether the moving party was entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

During the latter half of 1988, Hal Bernson, a member of the Los Angeles City Council, became aware that he was the subject of a highly critical dossier circulating among the Los Angeles media. The 36-page document, entitled "Los Angeles Councilman Hal Bernson--An Analysis of City/Campaign Financial Travel 1983-1988," stated that Bernson had used campaign funds and charged the City of Los Angeles for expenses, including "extensive personal travel" in Europe and Asia, which were "unusual" and "legally questionable." Nothing in the document identified its author, sponsor or distributor.

As explained in his opposition papers, although Bernson managed to obtain a copy of the report, he had no information as to the identity of the parties behind it until February 6, 1990. On that date, two reporters for the Los Angeles Times informed Bernson during the course of an interview that they understood the report had been prepared by defendant Browning-Ferris Industries of California, Inc. (BFI). Bernson immediately contacted H. Randall Stoke, legal counsel to BFI, to confirm the reporters' statements. Stoke, however, denied any knowledge of the report or its source. Several days later, Attorney Stoke sent a letter to the Los Angeles Times (copy to Bernson) in which Stoke emphatically denied that his client, BFI, had any responsibility "direct or indirect" for the preparation of the report. Further, Stoke demanded that the Times retract its attribution of authorship to BFI and "advise councilman Bernson that BFI was not ... involved in any such matter."

Accepting Attorney Stoke's representations, Bernson alleges that he remained unenlightened of the report's authorship until late May 1991. At that time, another Los Angeles Times reporter informed Bernson's chief deputy that an independent political consultant, defendant Mark Ryavec, had prepared the dossier on behalf of BFI. Based on this information, Bernson concluded that Stoke's previous representations of BFI's noninvolvement had been false. Less than one year later, Bernson filed the instant libel action against BFI, Mark Ryavec and Lynn Wessell (the political consultants who allegedlyprepared the report) and Les Bittenson (the BFI employee who allegedly hired Ryavec and Wessell). ¹

The trial court sustained without leave to amend defendant Ryavec's demurrer on the basis of the one-year statute of limitations applicable to Bernson's tort claims (Code Civ.Proc., § 340, subd. (3)) and entered a judgment of dismissal. The remaining defendants (BFI, Bittenson and Wessell) answered and then moved for summary judgment also on the ground that the action was time-barred. The trial court granted the motion and entered judgment in favor of BFI, Bittenson and Wessell. The Court of Appeal affirmed. We granted Bernson's petition for review.

II. DISCUSSION

Bernson contends here, as he argued below, that defendants should be estopped from asserting the statute of limitations because they affirmatively concealed the fact that they had commissioned, authored, and disseminated the allegedly defamatory dossier. The statute was equitably tolled, in Bernson's view, until he was able to discover the identity of the responsible parties in May 1991. Thus, his action--filed within one year thereof--should be deemed timely.

Defendants respond that Bernson's cause of action accrued no later than when he learned of the defamatory report in late 1988, and that neither Bernson's ignorance nor defendants' concealment of their responsibility for the report tolled the statute. Bernson's proper recourse, defendants argue, was to file a timely action as soon as he discovered the defamatory writing, naming fictitious "Doe" defendants pursuant to Code of Civil Procedure section 474, initiate discovery to identify the actual defendants, and then amend the complaint to specify the defendants' real names. Had he followed this course, the amendment would have "related back" to the date of the filing of the original complaint and would not have been barred by the statute of limitations. (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150-151, 216 Cal.Rptr. 405, 702 P.2d 563; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 602-603, 15 Cal.Rptr. 817, 364 P.2d 681.) ²

A. General Principles

To evaluate and resolve this dispute requires a brief review of certain settled principles. The statute of limitations usually commences when a cause of action "accrues," and it is generally said that "an action accrues on the date of injury." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109, 245 Cal.Rptr. 658, 751 P.2d 923.) Alternatively, it is often stated that the statute commences "upon the occurrence of the last element essential to the cause of action." (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 187, 98 Cal.Rptr. 837, 491 P.2d 421; Gutierrez v. Mofid (1985) 39 Cal.3d 892, 899, 218 Cal.Rptr. 313, 705 P.2d 886.) These general principles have been significantly modified by the common law "discovery rule," which provides that the accrual date may be "delayed until the plaintiff is aware of her injury and its negligent cause." (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1109, 245 Cal.Rptr. 658, 751 P.2d 923.)

A close cousin of the discovery rule is the "well accepted principle ... of fraudulent concealment." (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99, 132 Cal.Rptr. 657, 553 P.2d 1129.) "It has long been established that the defendant's fraud in concealing a cause of action against him tolls the applicable statute of limitations, but only for that period during which the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it." (Ibid.) Like the discovery rule, the rule of fraudulent concealment is an equitable principle designed to effect substantial justice between the parties; its rationale "is that the culpable defendant should be estopped from profiting by his own wrong to the extent that it hindered an 'otherwise diligent' plaintiff in discovering his cause of action." (Id. at p. 100 132 Cal.Rptr. 657, 553 P.2d 1129, italics omitted; see also Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 231-232, 153 P.2d 325.) ³

Consistent with these principles, a cause of action for libel generally accrues when the defamatory matter is published (Strick v. Superior Court (1983) 143 Cal.App.3d 916, 922, 192 Cal.Rptr. 314); under the discovery rule, however, the date of accrual may be delayed where the defendant's actions hinder plaintiff's discovery of the defamatory matter. (See Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, 152 Cal.Rptr. 27; McNair v. Worldwide Church of God (1987) 197 Cal.App.3d 363, 379, 242 Cal.Rptr. 823; see also Cain v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 314-315, 132 Cal.Rptr. 860 [claim for violation of right to privacy accrues upon discovery of the invasion].)

B. Ignorance of Defendant's Identity

While ignorance of the existence of an injury or cause of action may delay the running of the statute of limitations until the date of discovery, the general rule in California has been that ignorance of the identity of the defendant is not essential to a claim and therefore will not toll the statute. (See Gale v. McDaniel (1887) 72 Cal. 334, 335, 13 P. 871; Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1114, 245 Cal.Rptr. 658, 751 P.2d 923.) As we have observed, "the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her." (Jolly v. Eli Lilly Co., supra, 44 Cal.3d at p. 1110, 245 Cal.Rptr. 658, 751 P.2d 923.) Aggrieved parties generally need not know the exact manner in which their injuries were "effected, nor the identities of all parties who may have played a role therein." (Teitelbaum v. Borders (1962) 206 Cal.App.2d 634, 639, 23 Cal.Rptr. 868.)

Although never fully articulated, the rationale for distinguishing between ignorance of the...