Lim v. Superior Court In and For Pima County

• Decision Date: 01 July 1980
• Docket Number: No. 2,CA-CIV,2
• Citation: 126 Ariz. 481,616 P.2d 941
• Parties: Harold LIM and Phyllis Lim, husband and wife; and Barbara Kooistra Hamm, Petitioners, v. SUPERIOR COURT of the State of Arizona In and For the COUNTY OF PIMA, and Commissioner Lawrence K. Bret Harte, Pima County Court Commissioner, and Lawrence G. Moore, Real Party in Interest, Respondents. 3616.
• Court: Arizona Court of Appeals

Page 941

616 P.2d 941

126 Ariz. 481

Harold LIM and Phyllis Lim, husband and wife; and Barbara Kooistra Hamm, Petitioners, v. SUPERIOR COURT of the State of Arizona In and For the COUNTY OF PIMA, and Commissioner Lawrence K. Bret Harte, Pima County Court Commissioner, and Lawrence G. Moore, Real Party in Interest, Respondents.

No. 2 CA-CIV 3616.

Court of Appeals of Arizona, Division 2.

July 1, 1980.

Rehearing Denied Aug. 6, 1980.

Review Denied Sept. 11, 1980.

Bilby, Shoenhair, Warnock & Dolph, P. C., by Lina S. Rodriguez, Tucson, for petitioners.

John William Johnson by Christopher Paul Tabing, Tucson, for respondent real party in interest.

OPINION

HATHAWAY, Chief Judge.

Petitioners challenge the respondent court's refusal to grant their motion for summary judgment and motion for rehearing and reconsideration, alleging that the real party in interest's claim is barred by the Statute of Limitations. Since petitioners have no plain, speedy and adequate remedy by appeal, and because our granting of relief will terminate this litigation, we assume jurisdiction. Scottsdale Jaycees v. Superior Court of Maricopa County, 17 Ariz.App. 571, 499 P.2d 185 (1972). On November 21, 1978, the real party in interest Moore filed a complaint against petitioners and assorted John Does alleging defamation "within two (2) years last past." On July 30, 1979, petitioners filed a motion for summary judgment, claiming the suit was barred by a one-year Statute of Limitations. The real party in interest acknowledged the statutory period had run but argued that the statute had been tolled because petitioners had fraudulently concealed the identity of the alleged defamers. By minute entry dated November 20, 1979, respondent court ruled:

"The Court believes that the interests of justice and the conduct of the defendants require that this case not be dismissed due to the running of the Statute of Limitations."

The motion for rehearing and reconsideration was denied on February 25, 1980.

A.R.S. § 12-541 provides, in part:

"There shall be commenced and prosecuted within one year after the cause of action accrues, and not afterward, the following actions:

1. For malicious prosecution, or for false imprisonment, or for injuries done to the character or reputation of another by liable or slander."

An action for defamation accrues and the Statute of Limitations begins to run upon publication. 50 Am.Jur.2d, Libel and Slander, § 390; Campbell v. Jewish Committee for Personal Service, 125 Cal.App.2d 771, 271 P.2d 185 (1954). The statements herein were published prior to November 24, 1976, and the complaint was filed November 21, 1978, almost one year beyond when Arizona's one-year Statute of Limitations had run. It is the real party in interest's contention that the statute should have been tolled because the petitioners "abuse" Rule 26, Arizona Rules of Civil Procedure, by concealing the identity of the author of the anonymous letter which is the basis of his action.

The alleged defamation occurred in November 1976 and the following month the real party in interest filed an action on the same facts against Hughes Aircraft Company, certain employees, and fictitious defendants. He noticed the deposition of petitioners Hamm and Harold Lim. Counsel for Hamm objected to the deposition because neither she nor Mr. Lim had been served with witness fees and mileage required under the rule for nonparties. Mr. Lim's deposition was not taken until September 29, 1978, after the Statute of Limitations had run. The real party in interest did renotice Ms. Hamm, and her deposition was taken on March 10, 1977. At the deposition, defendants in the Hughes Aircraft action objected that the questions to Ms. Hamm were irrelevant.

Hughes Aircraft had filed a motion for summary judgment and advised the real party in interest that if the motion were denied or, in the alternative, if the real party in interest obtained an order compelling Ms. Hamm's testimony, the defendants were willing to produce Ms. Hamm for deposition. The motion for summary judgment was granted in July 1977, on the basis that the real party in interest had failed to state a claim for wrongful termination. Meanwhile, the ongoing dispute to compel discovery regarding the depositions of Ms. Hamm and Mr. Lim, among others, was not as yet resolved. A motion to reconsider the trial court's denial of a motion to compel discovery was filed and a hearing was set for December 5, 1977, one month beyond the one-year Statute of Limitations.

On January 16, 1978, the court granted the real party in interest a limited right to ask questions of Ms. Hamm. However, as noted previously, the deposition of Mr. Lim was not taken until September 29, 1978, 10 months after the Statute of Limitations had expired. The deposition of Ms. Hamm was not taken again until October 11, 1978, nine months after the court's order and almost one year after the expiration of the statute. During Ms. Hamm's deposition, her counsel objected that the questions being asked were irrelevant and beyond the scope of the limited order of the court. The case involved herein was filed November 21, 1978.

Nothing in the record shows an "abuse" by petitioners of Rule 26, Arizona Rules of Civil Procedure. Rather, a wilful lack of diligence on the part of the...