Wednesday, December 26, 2007
S.C. Applies Single Publication Rule, Rejects Libel Suit
By KENNETH OFGANG, Staff Writer
The time in which a plaintiff injured by the republication of a defamatory statement may sue begins to run when the work is distributed, rather than when the plaintiff first read it or learned of its contents, even when the work was of highly limited circulation, the California Supreme Court ruled yesterday.
In a 6-1 decision, the court reversed a First District Court of Appeal ruling.
The high court held that a defamation suit by the Hebrew Academy of San Francisco and its founder and dean, Rabbi Pinchas Lipner, against Richard N. Goldman, the Jewish Community Federation of San Francisco, the Peninsula, Marin and Sonoma Counties, and related defendants was barred by the statute of limitations.
The suit was filed in November 2002. In an amended complaint, the plaintiffs alleged that they had been defamed more than 10 years earlier during an interview of Goldman conducted by Eleanor Glaser as part of the Jewish Community Federation Oral History Project, in which Goldman stated, among other things, that Lipner “doesn’t deserve respect for the way he conducts his affairs,” is not “an honorable man,” “has done little for the community,” is “self-serving and an embarrassment,” and was “run out of other communities before he got here.”
Goldman also recounted that on “a couple of occasions” at the Hebrew Academy, “[w]hen he would walk into the room, the children would stand at attention as if it were the Fuhrer walking in.”
The defendants moved for summary judgment based on the one-year statute of limitations. The plaintiffs responded that the action was timely because it was filed within one year of Lipner’s learning of the interview’s contents from a colleague who had read a transcript of its at the UC Berkeley Bancroft Library.
Evidence showed that fewer than 10 copies of the transcripts of the interview were printed. One was placed in the Bancroft Library and another in the Charles E.
Young Research Library at UCLA.
Copies were made available to other libraries, and the existence of the transcripts was made known through online catalogues.
The trial judge granted summary judgment, but the Court of Appeal said the circumstances were unique and that the single publication rule, under which the republication of a defamatory statement does not trigger a new limitations period, did not apply because members of the general public would not have had access to the original publication.
The Court of Appeal instead applied the discovery rule, concluding that the plaintiffs had one year from the date that they discovered, or by due diligence should have discovered, the contents of the transcripts in which to sue.
In reversing, the Supreme Court held that its decision in Shively v. Bozanich (2003) 31 Cal.4th 1230, holding that the discovery rule did not apply to a defamatory statement that was republished in a book that was generally distributed to the public, extends to publications of limited circulation.
Shively held that former O.J. Simpson case witness Jill Shively did not have a timely claim against Deputy District Attorney Peter Bozanich and Los Angeles County for a defamatory statement attributed to Bozanich in Joseph Bosco’s book, “A Problem of Evidence: How the Prosecution Freed O.J. Simpson,” about 36,000 copies of which were circulated.
Application of that ruling to Lipner does no injustice, Justice Carlos Moreno wrote yesterday for the high court, explaining:
“The transcript at issue here was not published in an inherently secretive manner....although not widely distributed, the transcript was available to the public. Rabbi Lipner became aware of the transcript when a colleague discovered it while conducting research for a book about him. As we stated in Shively, the discovery rule has been applied to defamation cases ‘when the defamatory statement is hidden from view as, for example, in a personnel file that generally cannot be inspected by the plaintiff. . . . The cases turn upon the circumstances in which the defamatory statement is made and frequently involve a defamatory writing that has been kept in a place to which the plaintiff has no access or cause to seek access.’...Because plaintiffs in the present case had access to the document from the time it was published, the discovery rule does not apply.”
Moreno’s opinion was joined by Justices Ming Chin, Carol Corrigan and Marvin Baxter, and by Court of Appeal Justices Robert Mallano and Nora Manella of this district, assigned to sit in place of Chief Justice Ronald M. George and Justice Kathryn M. Wedegar, who were recused.
Justice Joyce L. Kennard argued in dissent that the discovery rule should apply.
“Not to apply this rule in cases like this one is, in my view, unjust because it effectively deprives many defamation victims of any opportunity to obtain compensation for the harm done to their reputation,” Kennard wrote.
The case is Hebrew Academy of San Francisco v. Goldman, 07 S.O.S. 7527.
Copyright 2007, Metropolitan News Company