Tuesday, December 23, 2003
Suit Against Prosecutor Over Simpson Book Held Time-Barred
Court Says Defamation Limitations Period Began Running When Book Was Distributed, Not When Plaintiff Read It
By KENNETH OFGANG, Staff Writer/Appellate Courts
The time in which a plaintiff injured by the republication of a defamatory statement in a book may sue begins to run when the work is distributed, rather than when the plaintiff first read it or learned of its contents, the California Supreme Court unanimously ruled yesterday.
Equity precludes application of a delayed discovery rule in that situation, Chief Justice Ronald M. George wrote. The decision reinstates a Los Angeles Superior Court judge’s dismissal of a suit by former O.J. Simpson case witness Jill Shively against Deputy District Attorney Peter Bozanich and Los Angeles County.
Div. Three of this district’s Court of Appeal ruled in January 2001 that there were triable issues as to whether Shively had timely filed her suit, which was based on a 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 the book in which Bozanich is quoted as calling Shively†a “felony probationer” were distributed in the United States and Canada, more than 6,000 of those in California, a publisher’s representative said.
Bozanich, a county prosecutor since 1971, was promoted to assistant district attorney in charge of special operations after Steve Cooley took over as district attorney in December 2000.
Grand Jury Witness
Shively was a witness in the aborted grand jury probe of the murders of Nicole Brown Simpson and Ronald Goldman. Shively told the grand jury that she encountered O.J. Simpson crossing San Vicente Boulevard in a white Bronco at about 10:50 p.m. the night of the killings, going south to north in the way one would expect if he were leaving the home of his ex-wife on the way back to his home.
Shively was ultimately declared an unreliable witness by chief Simpson prosecutor Marcia Clark, after it was disclosed she had received $5,000 to tell her story to the syndicated television program “Hard Copy.”
Shively sued Bozanich, Los Angeles County, Brian Patrick Clarke, Bosco, and publisher William Morrow & Company in 1997. It was Clarke, an actor and Shively’s former boyfriend, whose false allegation Bozanich allegedly repeated, according to the book.
Clarke is described in the book as having been married to the sister of the former husband of Bozanich’s wife, Deputy District Attorney Pamela Ferrero Bozanich.
Los Angeles Superior Court Judge Reginald Dunn, since retired, granted summary judgment in favor of Bozanich and the county, which was named as a defendant based on an allegation that Bozanich was acting within the scope of his employment when he made the defamatory comment. Dunn also sustained a demurrer by Clarke.
Those rulings were based on the one-year statute of limitations. But the Div. Three panel, in an opinion by Justice Walter Croskey, said there was a triable issue as to whether Shively discovered, or reasonably should have discovered, the basis for her lawsuit more than a year before it was filed.
Shively claimed she had no knowledge of the statement until she read the book in December 1996, five months before she filed a tort claim with the county and 10 months before she filed suit.
But the high court concluded that the Court of Appeal was wrong to allow Shively to invoke the delayed-discovery rule so as to extend the time in which to sue non-mass-media defendants such as Bozanich and Clarke for earlier statements of which the plaintiff became aware solely as a result of republication in the mass media.
George cited the single-publication rule, which holds that the victim of defamation may sue only once for the publication of a defamatory statement in a particular book, newspaper, or the like.
The rule, the chief justice explained, was a common-law response to early English cases holding that each sale of a libelous book or newspaper constituted a separate publication. The rule avoids “both the multiplicity and the staleness of claims” illustrated by an 1849 English case allowing suit based upon defamatory material that the plaintiff saw when he purchased a copy of a newspaper published 17 years earlier, George wrote.
The delayed discovery rule has been applied to some defamation cases, for example where the defamatory statement is made in a personnel file or other document to which the plaintiff lacks access, the chief justice acknowledged. But it has never been applied to a publication in a book or newspaper, he said.
Shively, he wrote, “does not explain how the equitable considerations that may apply to a defamation that is hidden from view might apply to a defamation that is made public in a book.”
“Indeed, courts uniformly have rejected the application of the discovery rule to libels published in books, magazines, and newspapers, pointing out that application of the discovery rule would undermine the protection provided by the single-publication rule.”
The case was argued in the Supreme Court by Gregory C. Hill of Ventura’s Hill & Hill for Shively; Cindy S. Lee of Pasadena’s Franscell, Strickland, Roberts & Lawrence for Bozanich and the county; and Kelli Sager of the Los Angeles office of Davis Wright Tremaine for the California Newspaper Publishers Association and other media organizations as amicus in support of the defendants.
The case is Shively v. Bozanich, 03 S.O.S. 6546.
Copyright 2003, Metropolitan News Company