Shively v. Bozanich
| Citation | 85 Cal.App.4th 363,102 Cal.Rptr.2d 138 |
| Decision Date | 08 December 2000 |
| Docket Number | No. B130905.,No. B133983.,B130905.,B133983. |
| Court | California Court of Appeals Court of Appeals |
| 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. |
Hill & Hill, Monique Shana Hill and Gregory Hill, Playa Del Rey, for Plaintiff and Appellant.
Franscell, Strickland, Roberts & Lawrence and Cindy S. Lee, Pasadena, for Defendants and Respondents Peter Bozanich and County of Los Angeles.
No appearance for Defendant and Respondent Brian Patrick Clarke.
In another civil case arising out of the criminal trial of O.J. Simpson, Jill Shively (plaintiff) sued a number of persons, including Deputy District Attorney Peter Bozanich (Bozanich), the County of Los Angeles (County), and plaintiffs alleged former boyfriend, Brian Patrick Clarke (Clarke) (sometimes collectively defendants) for slander. The alleged slander was first discovered by plaintiff following publication of a book about that trial.1
Judgment was entered against plaintiff on all of her causes of action against these three defendants following Clarke's successful demurrer to all of plaintiffs causes of action against him, and Bozanich's and County's successful motion for summary judgment. Plaintiff appeals.2
We reverse both judgments, because the trial court erroneously held that the discovery rule did not apply to prevent the statute of limitations from accruing until plaintiff knew or should have known she had been defamed. We conclude that not only does the discovery rule apply to toll the running of the statute of limitations in defamation cases, it also applies when the defendant's alleged defamatory statement is republished in a mass media publication.
Plaintiff was mentioned in author's book. Among the things said of plaintiff in the book, and the statement over which she was to sue, was that "[s]he's a felony probationer" (the words).4
On October 22, 1997, plaintiff filed a complaint for damages for libel and slander against defendants, author, and publisher. She alleged that the words were slanderous and libelous per se because they necessarily accused her of having committed some felony (a crime), and because they were untrue.
Clarke was alleged to have spoken the words on or about June 1994, and the words were alleged to have been published to, in other words, heard by, Bozanich and his wife, Ferrero. This publication constituted the basis for plaintiffs first cause of action for slander against Clarke.
Bozanich, in a separate publication of his own (which also constituted a republication by Clarke) was alleged, "on or about 1996," to have spoken the words to the author, and to have done so within the scope of his employment by County. This publication constituted the basis for the second cause of action (for slander against Bozanich), the third cause of action (for slander against County under an agency theory of liability), and the fourth cause of action (against Clarke for slander, based on the principle that Clarke could have foreseen that Bozanich would repeat the defamatory statement to others).
Author and publisher were alleged to have published the defamatory words when, "[o]n or about December 1996," they "published" the book containing the words, thus causing the words to be read by many people in and around Los Angeles. This publication constituted the basis for the fifth cause of action (for libel against publisher and author), the sixth cause of action (against Clarke for slander), the seventh cause of action (against Bozanich for slander), and the eighth cause of action (against County for slander). The sixth, seventh and eighth causes of action against defendants, like the fourth cause of action against Clarke, were all based on the principle that the republication of Clarke's and Bozanich's defamatory statements by author and publisher was reasonably foreseeable.
Of particular importance to this appeal, the complaint also specifically alleged, as to each cause of action, that plaintiff did not, and could not have, become aware that, vis-à-vis Clarke, Bozanich, and County, the words had been spoken, published by others, and republished until they were republished in the book.
Clarke demurred to the first cause of action only. The only ground for Clarke's demurrer was that the causes of action against him were barred by the one-year statute of limitation. (Code Civ. Proc. § 340, subd. (3).) In connection with his demurrer, he asked the court to take judicial notice of a declaration filed by publisher and author in support of publisher and author's earlier motion to strike plaintiffs single cause of action (the fifth cause of action) against them. That declaration, signed by publisher's vice president and director of sales, Michael Murphy, stated that by October 21, 1996, 6,613 copies of A Problem of Evidence were for sale on bookstore shelves in California.5
The legal significance of the information in Murphy's declaration was that it related to the "publication date" of the book.6 The publication date, in turn, was argued by Clarke to be the date upon which plaintiffs cause of action for defamation against him for his publication to Bozanich had accrued, and hence the date from which the statute of limitations ran. Because plaintiffs complaint was not filed until October 22, 1997, Clarke argued that, whether the publication date was September 5, 1996 (the first date of shipping the books to California), or October 21, 1996, plaintiffs complaint was untimely, having been filed either a bit over six weeks late, or a day late.
Not surprisingly, given the layers of publications of the defamatory words, Clarke's demurrer rested on multiple arguments, all of which, however, related to the statute of limitations. Clarke argued that plaintiffs cause of action was barred because he allegedly spoke the words more than three years before the complaint was filed. He also argued that he was not alleged to have published the book, and that the book's distribution to the general public, in other words, its publication date, was more than one year before the complaint was filed.
Plaintiff, of course, raised the discovery rule as a defense to the statute of limitations as to the first cause of action, because Clarke's demurrer was addressed only to the first cause of action. As discussed below, the discovery rule—that a cause of action does not accrue until the plaintiff knows, or has reason to know, that he or she has been injured—is applicable to causes of action for libel and slander committed by non-mass media (as opposed to mass media) defendants. An unresolved question, however, is whether the discovery rule applies to the accrual of a cause of action against a non-mass media defendant when there has been a republication of the defendant's defamatory remark by a mass media defendant.
The trial court took judicial notice of the facts contained in Murphy's declaration on the ground that they were facts not reasonably in dispute. (Evi.Code, § 452, subd. (h).)7 It also refused to "extend" the discovery rule (sometimes called the rule of delayed discovery) to plaintiffs causes of action for slander, because the primary case on which plaintiff relied, Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, 729-730, 152 Cal.Rptr. 27 (Manguso), supposedly involved only libel. It then sustained Clarke's demurrer to the first cause of action without leave to amend.
Clarke subsequently made a request for "clarification" of that order. This request, however, was not actually a request for clarification. Instead, it was the vehicle by which Clarke sought to obtain an order sustaining a demurrer that he never filed to two causes of action he had not addressed in his demurrer.8 Over plaintiffs objections, the trial court then sustained, without leave to amend, Clarke's demurrer to the fourth and sixth causes of action. A judgment was entered against plaintiff in favor of Clarke.
County and Bozanich filed a motion for summary judgment, and also used the Murphy declaration, with its attached shipping records, as a basis for such motion. County and Bozanich, too, used the statute of limitations as one ground for their motion for summary judgment. They also urged as a ground for the granting of judgment in their favor that plaintiff had failed to timely comply with the requirements of the Tort Claims Act. (Gov.Code, §§ 901 et seq.)
County and Bozanich's evidence showed that plaintiff had filed a claim with County regarding Bozanich's publication of the words on May 12, 1997, and that her claim was denied. Plaintiffs evidence, consisting of her declaration, stated that she had not read the book and discovered the words until December 1996.
On December 17, 1998, the trial court granted Bozanich's and County's motion for summary judgment. In its minute order granting the motion, it found that the dates set out in Murphy's declaration were undisputed. Implicit in its order was the conclusion that the discovery rule did not apply to toll the accrual of plaintiffs causes of action against Bozanich and County. Judgment was entered accordingly.
Plaintiff contends that the discovery rule applies to defamation in general, and slander in particular, and that it specifically applies to the oral statements that Clarke made to Bozanich, and Bozanich made to author. Furthermore, she contends that the mere fact that those oral statements were republished in the book, a mass media publication, does not prevent the discovery rule from applying so as to toll the accrual of the statute of limitations on her causes of action against non-mass media defendants Clarke, Bozanich, and County. Defendants dispute these contentions.9
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