Weiner v. Superior Court

• Decision Date: 19 May 1976
• Citation: 130 Cal.Rptr. 61,58 Cal.App.3d 525
• Court: California Court of Appeals Court of Appeals
• Parties: Norman WIENER and Arthur Knox, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Harry SCHOLER and Prudential Construction Company, Real Parties in Interest. Civ. 47519.

Page 61

130 Cal.Rptr. 61

58 Cal.App.3d 525

Norman WIENER and Arthur Knox, Petitioners, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent;

Harry SCHOLER and Prudential Construction Company, Real Parties in Interest.

Civ. 47519.

Court of Appeal, Second District, Division 4, California.

May 19, 1976.

Hearing Denied July 15, 1976.

Stanley Feldsott, and Martin L. Lee, Newport Beach, for petitioners.

No appearance on behalf of respondent.

McCutchen, Black, Verleger & Shea, Howard J. Privett, Steven W. Weston, Los Angeles, and Thomas L. Powell, Torrance, for real parties in interest.

FILES, Presiding Justice.

The question to be decided is whether a notice of motion for leave to amend a complaint, accompanied by a proposed pleading of a second and distinct cause of action not previously pleaded, stops the running of the statute of limitations as to the cause pleaded for the first time in the amendment. We have concluded that under the facts of this case the action on the second cause was 'commenced' when the notice of motion was filed, thereby stopping the running of the statute.

On February 6, 1975, petitioners (hereinafter plaintiffs) filed in the superior court a complaint charging that, on or about April 23, 1974, defendants had caused a libelous statement to be published in the Los Angeles Times. Defendants filed an answer March 14, 1975, denying the allegations of the complaint generally.

On April 24, 1975, the plaintiffs filed in the superior court a notice of motion for leave to amend the complaint. The notice was accompanied by a copy of a 'proposed first amended complaint for libel, slander and invasion of privacy.' This document restated the allegations of the original complaint regarding the April 23 statement, and added that on April 25, 1974, defendants had made another allegedly defamatory statement and had caused it to be published in the Huntington Beach Independent.

On May 19, 1975, the motion was heard and granted. The minute order of the superior court states:

'Motion granted; proposed first amended complaint is deemed filed this date . . ..'

Subsequently a demurrer to the first amended complaint was sustained with leave to amend. Plaintiffs then filed a second amended complaint in nine counts. The first three counts were based upon the April 23 statement. Counts four, five and six were based upon the April 25 statement. Counts seven, eight and nine were similar to four, five and six, with the additional allegation that defendants had been absent from the state of California for 60 days between April 25, 1974, and April 24, 1975.

Defendants demurred to counts four, five and six solely upon the ground each was barred by the one-year statute of limitations in Code of Civil Procedure, section 340, subdivision 3. On October 2, 1975, that demurrer was sustained without leave to amend. At the same time the superior court granted defendants' motion for summary adjudication of counts seven, eight and nine against plaintiffs, upon the ground that no triable issue of fact existed with respect to the allegation that defendants had been physically absent from California for 60 days during the critical year.

Neither the October 2, 1975, minute order of the superior court nor the signed order which followed was appealable because the court had not disposed of all of the issues between the parties affected. (See Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701, 128 P.2d 357.) Plaintiffs therefore petitioned this court for a writ of mandate to set aside that ruling.

We are unable to agree with plaintiffs' theory that their amendment relates back to the time the original complaint was filed under the reasoning of such cases as Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713, 718, 128 P.2d 522; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681, and Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 583, 86 Cal.Rptr. 465, 468 P.2d 825. That line of cases involves amendments based upon the same general set of facts contained in the initial complaint.

The amendment tendered by plaintiff here was more than a restatement, revision, amplification or correction of the allegations of the original complaint, of a change of legal theory. It is essential to distinguish between a new cause of action arising out of 'the same general set of facts' and a new cause arising out of different facts. (See McAllister v. Metzger (1963) 220 Cal.App.2d 692, 699, fn. 4, 33 Cal.Rptr. 879.) The allegations concerning the publication of April 25, 1974, describe a different utterance, alleged to have a different defamatory meaning and made at a different time, for publication in a different newspaper. As set out in these pleadings, the April 25 events were a distinct set of facts. Thus the statute of limitations runs separately with respect to each. (See Moore v. United States F. & G. Co. (1932) 122 Cal.App. 205, 207--209, 9 P.2d 562.)

The applicable statute of limitations is prescribed in Code of Civil Procedure, section 335 and 340 as follows:

335 'PERIODS OF LIMITATION PRESCRIBED. The periods prescribed for the commencement of actions other than for the recovery of real property are as follows:

'. . ..'ODS

'340 Within one year:

'. . .thi

'(3) An action for libel, slander . . ..'

This same statute has been held applicable to claims for invasion of privacy. (See Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 895, 118 Cal.Rptr. 370.)

The one year period runs from the utterance or publication of the defamatory matter. (See Oberkotter v. Woolman (1921) 187 Cal. 500, 504, 202 P. 669; Rutherford v. Johnson (1967) 250 Cal.App.2d 316, 318, fn. 1, 58 Cal.Rptr. 546; Belli v. Roberts Brothers Furs (1966) 240 Cal.App.2d 284, 49 Cal.Rptr. 625.)

Code of Civil Procedure section 350 provides: 'An action is commenced, within the meaning of this Title, when the complaint is filed.'

In the case at bench the text of the proposed first amended complaint, including the allegation of the April 25, 1974, publication, was filed by the...