Hebrew Academy of San Francisco v. Goldman

• Decision Date: 12 May 2005
• Docket Number: No. A106618.,A106618.
• Court: California Court of Appeals Court of Appeals
• Parties: HEBREW ACADEMY OF SAN FRANCISCO et al., Plaintiffs and Appellants, v. Richard N. GOLDMAN et al., Defendants and Respondents.

28 Cal.Rptr.3d 515

129 Cal.App.4th 391

HEBREW ACADEMY OF SAN FRANCISCO et al., Plaintiffs and Appellants, v. Richard N. GOLDMAN et al., Defendants and Respondents.

No. A106618.

Court of Appeal, First District, Division 2.

May 12, 2005.

Review Granted August 24, 2005.

Paul Kleven, Berkeley, Law Office of Paul Kleven, Attorneys for Appellants.

Michael C. Cooper, Carlson, Calladine & Peterson LLP, Barry W. Lee, San Francisco, Steefel, Levitt & Weiss, Attorneys for Respondents.

KLINE, P.J.

Appellants Hebrew Academy of San Francisco and Rabbi Pinchas Lipner (founder and dean of the Hebrew Academy) appeal from the trial court's grant of summary judgment in favor of respondents Richard N. Goldman, The Jewish Community Federation of San Francisco, the Peninsula, Marin and Sonoma Counties (Federation), and the San Francisco Jewish Community Endowment Fund (Endowment Fund). The trial court granted summary judgment for respondents, determining that appellants' defamation action was barred by the one-year limitations period applicable to causes of action for libel or slander under then Code of Civil Procedure section 340, subdivision (3).¹

The questions presented are (1) whether communication of the alleged defamation is subject to the single-publication rule and, if not, (2) whether appellants' cause of action for defamation should be tolled under the doctrine of delayed discovery, because the alleged libel was hidden or beyond what the ordinary person could be expected to immediately detect or comprehend.

Answering no to the first question and yes to the second, we shall reverse the judgment.

FACTS AND PROCEEDINGS BELOW

In 1990, in order to document Jewish philanthropy in the San Francisco Bay Area during the past half century, the Federation and the Endowment Fund provided $60,000 to fund edited interviews or "oral histories" of 15 past presidents of the Federation, one of whom was respondent Goldman. The project, known as the Jewish Community Federation Leadership Oral History Project, was carried out by the Regional Oral History Office (ROHO), a research program of the Bancroft Library located on the campus of the University of California at Berkeley. Elizabeth Glaser, an employee of ROHO, conducted four interviews of Goldman in 1992. After Goldman reviewed the transcript of the interviews and made a substantial number of changes, the edited interviews were bound in a single volume. Exclusive of introductory statements and a biographical sketch of Goldman, the volume consisted of a 102-page typewritten transcript of Glaser's four interviews of Goldman (hereafter the Goldman oral history). The copyrighted document was published by ROHO in 1993, when copies were placed in the Bancroft Library and the Charles E. Young Research Library at UCLA. As we shall later discuss in greater detail, the document was thereafter made available to other libraries and included in certain Internet databases and online catalogues.

In one of his interviews, responding to questions from Glaser about appellants and their role in the San Francisco Bay Area Jewish community, Goldman criticized the Hebrew Academy, the manner in which Rabbi Lipner treated students and the financial drain on the Jewish community caused by the Federation's support of the school, and alleged that Lipner had been "run out of other communities before he got here."

In 2001, eight years after publication of the Goldman oral history, Miriam Real undertook research preparatory to writing "a historical book about [Rabbi Lipner] and the Hebrew Academy, and, by extension the story of Orthodox Judaism in San Francisco." Because she had once been employed by ROHO, Real was aware it had undertaken a series of interviews with past presidents of the Federation, and thought the transcripts might contain useful information. Oral histories could not be removed from the library and were kept in stacks to which the public was denied access. Real searched the card catalogue for potentially useful oral histories and asked that several be retrieved from the stacks. After reviewing the indices of these histories for subjects relevant to her research, Real filled out a form requesting that specified pages of certain oral histories, including that of respondent Goldman, be copied and mailed to her. Library users were not permitted to themselves make copies and Real was unwilling to wait the several hours it would have taken for the copies to be made. Several weeks later, when she read the materials mailed to her, Real discovered Goldman's allegedly defamatory statements and sent them to Rabbi Lipner.

Lipner filed a declaration alleging that, prior to receiving the two pages of the Goldman oral history from Real, "I did not know, and could not with reasonable diligence have known, that defendants had published such statements, in that the transcripts were never distributed to the general public, but were available only in a few locations. I did not have access to the Federation offices, where I am informed and believe a copy of the transcript was kept, and did not know of the transcript's existence at any location."

On November 18, 2002, appellants filed their original complaint against respondents, alleging both defamation and placing appellants in a "false light." On December 19, 2002, appellants filed a first amended complaint, which added the Regents of the University of California (Regents) and the Bancroft Library as defendants, as well as the allegation that appellants "did not know, and could not with reasonable diligence have known, that defendants were publishing such statements."

On January 23, 2003, respondents demurred to the first amended complaint. The trial court sustained the demurrer, but gave appellants leave to amend to plead specific facts regarding discovery and publication of the allegedly defamatory statements.²

On March 13, 2003, appellants' second amended complaint was filed, to which respondents also demurred on grounds of the statute of limitations. The demurrers were overruled and the Federation and other defendants answered the complaint. Later in 2003, codefendants Regents and the Bancroft Library filed a special motion to strike the second amended complaint as to them under the anti-SLAPP statute³ (§ 425.16), which the court granted on the ground that appellants could not establish a probability of success because of the bar of the statute of limitations.

Evidently spurred by this ruling, respondents moved for summary judgment on November 20, 2003, on the ground, among others, of the bar of the statute of limitations. The trial court granted the motion on March 11, 2004, holding that appellants' action was barred by section 340, subdivision (3). The order stated that "undisputed material facts establish that the `rule of discovery' asserted by plaintiffs in an attempt to toll the statute of limitations does not apply in this action." Judgment in favor of respondents was entered on March 25, 2004, after which appellants filed this timely appeal.

DISCUSSION

I.

When reviewing a grant of summary judgment, we make "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]" (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222-223, 38 Cal.Rptr.2d 35.) We strictly construe the moving party's evidence, liberally construe that of the opposing party, and resolve any "evidentiary doubts or ambiguities" in favor of the opposing party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.)

Section 437c, subdivision (e), provides that a "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." We will affirm if there is no triable issue of fact and if respondents are entitled to judgment under any theory of law applicable to the case, including but not limited to the theory adopted by the trial court. (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481, 35 Cal.Rptr.2d 698.)

II.

As recently explained by the Supreme Court in Shively v. Bozanich (2003) 31 Cal.4th 1230, 7 Cal.Rptr.3d 576, 80 P.3d 676 (Shively), the single-publication rule addresses the difficulty in identifying the publication or publications that may give rise to a cause of action for defamation. Under the early common law rule, "each communication of a defamatory remark to a new audience constitute[d] a separate `publication,' giving rise to a separate cause of action, led to the conclusion that each sale or delivery of a copy of a newspaper or book containing a defamation also constitutes a separate publication of the defamation to a new audience, giving rise to a separate cause of action for defamation. [Citations.] This conclusion had the potential to subject the publishers of books and newspapers to lawsuits stating hundreds, thousands, or even millions of causes of action for a single issue of a periodical or edition of a book.... The statute of limitations could be tolled indefinitely, perhaps forever, under this approach." (Id. at pp. 1243-1244, 7 Cal. Rptr.3d 576, 80 P.3d 676.) Ultimately, American courts "recognized that the advent of books and newspapers that were circulated among a mass readership threatened unending and potentially ruinous liability as well as overwhelming (and endless) litigation, as long as courts adhered to the rule that each sale of a copy of a newspaper or a book, regardless how long after original publication, constituted a new and separate publication." (Ibid.)

In order to avoid the problem, "courts fashioned what became known as the single-publication rule, holding that, for any single edition of a...