Shively v. Bozanich

• Decision Date: 22 December 2003
• Docket Number: No. S094467.,S094467.
• Citation: Shively v. Bozanich, 31 Cal.4th 1230, 7 Cal.Rptr.3d 576, 80 P.3d 676 (Cal. 2003)
• Court: California Supreme Court
• Parties: Jill SHIVELY, Plaintiff and Appellant, v. Peter BOZANICH, as Deputy District Attorney, etc., et al., Defendants and Respondents. Jill Shively, Plaintiff and Appellant, v. Brian Patrick Clarke, Defendant and Respondent.

7 Cal.Rptr.3d 576

80 P.3d 676

31 Cal.4th 1230

Jill SHIVELY, Plaintiff and Appellant, v.Peter BOZANICH, as Deputy District Attorney, etc., et al., Defendants and Respondents.

Jill Shively, Plaintiff and Appellant, v.Brian Patrick Clarke, Defendant and Respondent.

No. S094467.

Supreme Court of California.

December 22, 2003.

As Modified December 22, 2003.

Hill & Hill, Monique Shana Hill, Playa Del Rey, and Gregory Charles Hill, Ventura, for Plaintiff and Appellant.

Law Office of Robert Cooper and Robert Cooper for Paul Ingerson as Amicus Curiae on behalf of Plaintiff and Appellant.

Franscell, Strickland, Roberts & Lawrence, David D. Lawrence, Orange, Cindy S. Lee, Pasadena, and Jin S. Choi, Atlanta, GA, for Defendants and RespondentsPeter Bozanich and County of Los Angeles.

Davis Wright Tremaine, Kelli L. Sager, Alonzo Wickers IV, Rochelle L. Wilcox, Los Angeles, and Thomas R. Burke, San Francisco, for California Newspapers Publishers Association, Los Angeles Times Communications, LLC, The Copley Press, Inc., ABC, Inc., Magazine Publishers of America, Inc., News America, Inc., Cable News Network, National Broadcasting Company, Inc., and Time Inc., as Amicus Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

Thomas W. Newton, Sacramento, for California Newspaper Publishers Association as Amicus Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

Karlene W. Goller, Los Angeles, for Los Angeles Times Communications, LLC, as

Amicus Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

Harold L. Fuson, Jr., and Judith Fanshaw, La Jolla, for The Copley Press, Inc., as Amicus Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

Jean Zoeller, Burbank, for ABC, Inc., as Amicus Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

Squadron, Ellenoof, Plesent & Sheinfeld and Slade R. Metcalf, New York, NY, for Magazine Publishers of America, Inc., as Amici Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

Jan F. Constantine, New York, NY, for News America, Inc., as Amicus Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

David Vigilante, for Cable News Network as Amicus Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

Andrea Hartman, Burbank, for National Broadcasting, Inc., as Amicus Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

Paul Gardephe, New York, NY, for Time Inc., as Amicus Curiae on behalf of Defendants and RespondentsPeter Bozanich and County of Los Angeles.

No appearance for Defendant and RespondentBrian Patrick Clarke.

GEORGE, C.J.

In this casewe consider the application of the statute of limitations to a defamation case in which plaintiff first learned that she had been defamed after purchasing and reading a book that contained defamatory remarks about her, remarks that were attributed to persons other than the author of the book.

Ordinarily, a tort cause of action accrues and the limitations period commences when the injury occurs; for defamation this occurs, generally speaking, when the defendant communicates the defamatory statement to others.In some tort actions, the accrual of the cause of action is delayed until the plaintiff knew (or with reasonable diligence should have known) of the factual basis for the claim.This so-called discovery rule has been applied to defamation actions in limited circumstances when the defamatory statement is made in secret or is inherently undiscoverable.The question before us is whether the discovery rule may be employed to delay the accrual of a cause of action for defamation beyond the point at which the defamation no longer is secret but was made public in a book.

In the present case, plaintiff alleged that the same defamatory statement was communicated on three separate occasions.The first two occasions involved relatively private communications with only one or two listeners.On the third occasion, the statement was recounted in the book, together with a description of the circumstances under which the statement originally was made and subsequently was repeated.

With respect to the third occasion, there can be no question that the cause of action for defamation accrued and the statute of limitations ran from the date the book was first generally distributed to the public, regardless of the date on which plaintiff actually learned of the existence of the book and read its contents.Uniform authority establishes that the discovery rule does not apply to delay the accrual of a cause of action for a defamation contained in such a publication.Plaintiff's causes of action based upon the defamatory statements contained in the book are barred by the applicable statute of limitations.

With respect to the first two occasions on which these statements were communicated, even if the defamatory statements originally were made in confidence, any basis upon which to apply the discovery rule was dispelled by the publication of the book recounting these first two communications.Accordingly, we decline to sanction the application of the discovery rule in the circumstances presented by this case.We reverse the judgment of the Court of Appeal that in turn reversed the trial court's entry of judgment in favor of defendants.

I

Plaintiff was a witness for the prosecution in a grand jury proceeding in which the prosecution sought the indictment of Orenthal James(O.J.) Simpson for the murder of Nicole Brown Simpson and Ronald Lyle Goldman.Ultimately, the grand jury proceeding was dismissed and the prosecution proceeded by way of information.Evidently, plaintiff did not testify at the ensuing trial.

Plaintiff alleged in a complaint filed on October 22, 1997, that she was defamed on three occasions.The first was in June 1994 when, her complaint alleged, defendantBrian Patrick Clarke(with whom plaintiff at one time had been romantically involved) described plaintiff to Peter Bozanich, a deputy district attorney employed by Los Angeles County(County) and to Bozanich's wife, fellow prosecutorPam Ferrero, as "a felony probationer."The complaint alleged that plaintiff again was defamed when, in 1996, defendant Bozanich told defendantJoseph Bosco, an author, that plaintiff was on felony probation, adding that the district attorney's office had "checked it out."The complaint alleged that plaintiff was defamed for a third time when, in December 1996, defendant Bosco and defendantWilliam Morrow and Company(William Morrow) published Bosco's book, entitled A Problem of Evidence, which recounted Clarke's and Bozanich's defamatory statements regarding plaintiff.The book, a page of which is attached to the complaint, also stated that Bozanich had recounted to Bosco the circumstances under which he had heard Clarke's statement.The book further explained that it was plaintiff's status as a felony probationer that accounted for the prosecution's failure to call her as a witness at trial, not (as previously had been announced) the circumstance that she had sold her story to Hard Copy.The specific defamatory words alleged in each of the causes of action in the complaint, however, were "[s]he's a felony probationer."

Plaintiff's complaint contained eight causes of action.It named as defendants Clarke, Bozanich, the County (as the employer of Bozanich), Bosco, and William Morrow.Three causes of action were alleged against Clarke, one for each of the three alleged defamations.(Counts one, four, and six.)Two causes of action were alleged against Bozanich, one for his statement to Bosco and one for the statement contained in the book.(Counts two and seven.)Two corresponding causes of action were alleged against the County as Bozanich's employer, based upon Bozanich's having uttered the defamatory remark in the course of his employment with the County.(Counts three and eight.)¹Finally, one cause of action was alleged against Bosco and William Morrow for the statement contained in Bosco's book.(Count five.)Each of the causes of action included allegations with respect to the asserted falsity of the alleged defamatory statement and defendants' malice.The specific allegation that is of importance to the issue in the present case is that plaintiff did not become aware that the defamatory statements had been made, and could not have become aware that they had been made, until the publication of the book A Problem of Evidence.Plaintiff's additional pleadings, as noted below, added the claim that she did not become aware of the defamatory statements until she bought and read the book in December 1996.

Clarke demurred to the first cause of action on the ground that it was barred by the one-year statute of limitations applicable to defamation claims.(SeeCode Civ. Proc., § 340, subd. (c).)²The trial court sustained Clarke's demurrer to the first cause of action without leave to amend, on the basis that the defamatory statement had been made more than one year prior to the filing of the complaint.The court subsequently clarified its order to reflect that, on the same basis, it had sustained the demurrer as to each of the three causes of action that had been alleged against Clarke.A judgment was entered in favor of defendant Clarke on May 24, 1999.Plaintiff filed a notice of appeal, case No. B133983.

For their part, defendants Bozanich and the County answered the complaint and raised various affirmative defenses, including that the causes of action alleged against them were barred by plaintiff's failure to file her claims against them within six months of the time her causes of action accrued, as required by the California Tort Claims Act.(Gov.Code, § 911.2.)Subsequently, these defendants filed a motion for...