Hebrew Academy of San Francisco v. Goldman

KENNARD, J., Concurring and Dissenting.

In Shively v. Bozanich (2003) 31 Cal.4th 1230 [ 7 Cal.Rptr.3d 576 , 80 P.3d 676 ] (Shively), the plaintiff sued for defamation based on statements in a book that had been widely disseminated to the general public. Applying the single-publication rule, this court in Shively explained that “for any single edition of a newspaper or book, there [is] but a single potential action for a defamatory statement contained in the *896 newspaper or book, no matter how many copies of the newspaper or book [are] distributed.” (Id. at p. 1245.) Shively left open the issue of the “applicability of the single-publication rule to written publications that receive an extremely limited distribution . . . .” (Id. at p. 1245, fn. 6, italics added.) Today, the majority holds that the rule does apply in that situation. I agree.

But I disagree with the majority’s additional holding that the discovery rule, which postpones accrual of certain tort causes of action until the plaintiff knew or reasonably should have discovered the grounds for the cause of action, does not apply here. 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 reputations.

I

In 1990 the Jewish Community Federation of San Francisco, the Peninsula, Marin and Sonoma Counties (Federation) and the San Francisco Jewish Community Endowment Fund (Endowment Fund) provided funding for oral histories of past presidents of the Federation. Defendant Richard N. Goldman is a past president.

In 1992, Elizabeth Glaser, an employee of the Regional Oral History Office (ROHO) of the Bancroft Library at the University of California at Berkeley, conducted four interviews of Goldman. In talking about plaintiff Rabbi Pinchas Lipner, the founder and dean of plaintiff Hebrew Academy of San Francisco (Hebrew Academy), Goldman said that Lipner “doesn’t deserve respect for the way he conducts his affairs,” is not honorable, has done little for the community, is an embarrassment, and was “run out of other communities before he got here.” Goldman also said that on occasion when Rabbi Lipner, who was a survivor of the Holocaust in World War II, “would walk into the room [at the Hebrew Academy school], the children would stand at attention as if it were the Führer walking in.”

The ROHO interviews were transcribed and, after editing by defendant Goldman, were bound into a single volume. In 1993, ROHO published the copyrighted document. Between 1993 and 2003, ROHO sold 37 copies of the transcript. Of these, 15 copies were acquired by Goldman and 12 copies by the Federation. Of the remaining 10 copies, three were acquired by the Bancroft Library’s ROHO; two by the New York Public Library; two by the Magnes Museum in Berkeley; one by Temple Emanu-El in San Francisco; one by the Charles E. Young Research Library at the University of California at Los Angeles; and one by an individual in Washington, D.C. (The Bancroft *897 Library restricts access to such materials by the general public. The record does not disclose whether the other institutions have similar restrictions.) Thus, over a 10-year period, no more than 10 copies of the oral history transcript at issue were disseminated nationwide, with no distribution to the general public.

In 2001, Miriam Real, the founder in 1978 of an organization called Oral History Associates, was doing research for a book she was writing about Rabbi Lipner and the Hebrew Academy. From 1968 until 1979, Real had held the same job at ROHO as Elizabeth Glasner, who, as mentioned above, in 1992 conducted the oral history interviews of Goldman. In August 2002, Real became the director of admissions at the Hebrew Academy. While doing preliminary research in 2001 for her book, Real learned that ROHO had done a series of oral histories of the Federation’s past presidents. Because transcripts of oral histories at the Bancroft Library were kept in stacks not accessible to the public, Real looked through the library’s card catalogue for oral history transcripts that might contain information she needed for her research project. As the library did not permit patrons to make copies, Real filled out a form requesting that specified pages of certain oral histories be copied and sent to her. After receiving those copies in the mail, Real on December 28, 2001, discovered the statements that defendant Goldman in 1992 had made about Rabbi Lipner; that same day, Real faxed copies of Goldman’s statements to Rabbi Lipner.

Less than one year later, on November 18, 2002, Rabbi Lipner and the Hebrew Academy brought this action for defamation against Goldman, the Federation, and the Endowment Fund. Defendants successfully moved for summary judgment. The trial court ruled that the action was barred by the one-year statute of limitations (Code Civ. Proc., § 340, subd. (c)), and it found inapplicable the discovery rule, which postpones accrual of certain tort causes of action until the plaintiff knew or reasonably should have discovered the basis of the cause of action. The Court of Appeal reversed.

II

Statutes of limitations set forth the periods beyond which a cause of action may not be brought. (Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 532 [ 85 Cal.Rptr.2d 257 , 976 P.2d 808 ].) They are statutes of repose, intended to preclude lawsuits by those who have not been diligent in enforcing their rights. (Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, 730 [ 152 Cal.Rptr. 27 ].)

The limitations period begins upon accrual of a cause of action. (Code Civ. Proc., § 312.) Generally, a cause of action accrues “ ‘when, under the *898 substantive law, the wrongful act is done,’ or the wrongful result occurs, and the consequent ‘liability arises.’ ” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 [ 87 Cal.Rptr.2d 453 , 981 P.2d 79 ].) To put it another way, accrual “sets the date as the time when the cause of action is complete with all of its elements [citations]—the elements being genetically referred to by sets of terms such as ‘wrongdoing’ or ‘wrongful conduct,’ ‘cause’ or ‘causation,’ and ‘harm’ or ‘injury’ [citations].” (Ibid.) “To avoid the harsh and unjust effects” that “rigid adherence to the general rule of accrual” may have (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 462, p. 582), both the Legislature and the courts have created certain exceptions to that rule.

The exception pertinent here is the discovery rule. (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397 .) As noted earlier, this rule postpones accrual of certain tort causes of action until the plaintiff knew or should have discovered the basis for the cause of action. (Shively, supra, 31 Cal.4th at p. 1248 ; Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 397 ; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 179 [ 98 Cal.Rptr. 837 , 491 P.2d 421 ].) As this court explained in Shively, supra, 31 Cal.4th at page 1248 , the discovery rule comes into play “when it is particularly difficult for the plaintiff to observe or understand the breach of duty, or when the injury itself (or its cause) is hidden or beyond what the ordinary person could be expected to understand.”

Nearly three decades ago, the Court of Appeal in Manguso v. Oceanside Unified School Dist., supra, 88 Cal.App.3d 725 , applied the rule to a defamation action based on libelous material contained in a confidential personnel file. (See 3 Witkin, Cal. Procedure, supra, Actions, § 512, p. 643.) Recently, in Shively, supra, 31 Cal.4th at page 1248 , this court acknowledged that “it may be appropriate to apply the discovery rule to delay the accrual of a cause of action for defamation or to impose an equitable estoppel against defendants who assert the defense after the limitations period has expired.”

When, as here, the defamatory statements are contained in a document of extremely limited distribution, application of the discovery rule seems particularly appropriate. As mentioned on page 888, ante, in the 10-year period relevant here, no more than 10 copies of the oral history transcript at issue were disseminated nationwide: nine were acquired by institutions and one by an individual. Until Real in December 2001 told plaintiff Lipner what defendant Goldman had said about him in 1992 (Goldman’s oral history statements were published in 1993), Lipner had no reason to suspect, much less know, that someone had made disparaging statements about him, or that a transcript of those statements existed in the dark recesses of oral history collections at a handful of libraries. Tellingly, even defendant Goldman holds that view. When asked at his deposition in 2004 whether he was “aware of *899 any means by which Rabbi Lipner would have been aware that you had made these statements about him,” Goldman answered, “Obviously, not.”

Yet the majority refuses to apply the discovery rule here. It holds that under the applicable one-year statute of limitations the defamation action should have been brought no later than 1994 because publication of the statements occurred in 1993. (Maj. opn., ante, at p. 895.) The premise of the majority’s holding appears to be that the 1993 publication of these oral history transcripts gave plaintiffs access to them. (Ibid.) But as this court observed in Shively, supra, 31 Cal.4th at page 1249 , a defamation plaintiff must first have “cause to seek access,” that is, a reason to suspect wrongdoing. In 1993, plaintiff Lipner lacked such cause. As I have pointed out, here it was only in December 2001 that Rabbi Lipner learned from Real that while doing research for her book about Lipner and the Hebrew Academy she came across the transcript of defendant Goldman’s 1992 oral history interviews in which he had made disparaging comments about Lipner. Does the majority expect all of us to conduct regular searches of oral history archives on the off chance that some oral history interview transcript may contain defamatory statements about us? Absent some basis to suspect that a defamatory statement has been made, no sane person will undertake this enormous task, and thus the burden that the majority imposes is unreasonable. “ ‘[Sjtatutes of limitations are intended to run against those who fail to exercise reasonable care in the protection and enforcement of their rights; therefore, those statutes should not be interpreted so as to bar a victim of wrongful conduct from asserting a cause of action before he could reasonably be expected to discover its existence.’ ” (Manguso v. Oceanside Unified School Dist., supra, 88 Cal.App.3d at p. 731 .)

Unpersuasive is defendants’ argument that plaintiff Lipner could have discovered the disparaging statements by researching the Internet. Such a search would have revealed only the existence of an oral history of the Federation’s past presidents, as Goldman was, and the names of libraries possessing transcripts of that history.

At what point in time plaintiffs Rabbi Lipner and the Hebrew Academy knew or reasonably should have discovered the disparaging statements by Goldman about Lipner presents a triable issue of material fact, one that however was never decided at trial because the trial court granted defendants’ motion for summary judgment. In reviewing that judgment, the court must independently review the record to determine the existence of a triable issue of material fact. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [ 107 Cal.Rptr.2d 617 , 23 P.3d 1143 ].) In performing that de novo review, the court must “view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [the plaintiff’s] evidentiary submission *900 while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Ibid.) As I just pointed out, here there is a triable issue of material fact. Thus, the trial court erred in granting defendants’ motion for summary judgment.

I would affirm the judgment of the Court of Appeal.

Appellant’s petition for a rehearing was denied March 19, 2008. George, C. J., and Werdegar, J., did not participate therein.