CACI No. 1722. Affirmative Defense - Statute of Limitations - Defamation

Judicial Council of California Civil Jury Instructions (2020 edition)

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1722.Affirmative Defense - Statute of Limitations - Defamation
[Name of defendant] contends that [name of plaintiff]’s lawsuit was not
filed within the time set by law. To succeed on this defense, [name of
defendant] must prove that [he/she/nonbinary pronoun/it] first
communicated the alleged defamatory statement to a person other than
[name of plaintiff] before [insert date one year before date of filing]. [For
statements made in a publication, the claimed harm occurred when the
publication was first generally distributed to the public.]
[If, however, [name of plaintiff] proves that on [insert date one year before
date of filing] [he/she/nonbinary pronoun/it] had not discovered the facts
constituting the defamation, and with reasonable diligence could not
have discovered those facts, the lawsuit was filed on time.]
New April 2009; Renumbered from CACI No. 1724 November 2017
Directions for Use
This instruction is for use if the defendant claims that the plaintiff’s action was not
filed within the applicable one-year limitation period for defamation. (See Code Civ.
Proc., § 340(c).)
If the defamation was published in a publication such as a book, newspaper, or
magazine, include the last sentence of the first paragraph, and do not include the
second paragraph The delayed-discovery rule does not apply to these statements.
(Shively v. Bozanich (2003) 31 Cal.4th 1230, 1250-1251 [7 Cal.Rptr.3d 576, 80 P.3d
676].) Otherwise, include the second paragraph if the plaintiff alleges that the
delayed-discovery rule avoids the limitation defense.
The plaintiff bears the burden of pleading and proving delayed discovery. (See
McKelvey v. Boeing North Am. Inc. (1999) 74 Cal.App.4th 151, 160 [86 Cal.Rptr.2d
645].) See also the Sources and Authority to CACI No. 455, Statute of
Limitations - Delayed Discovery.
The delayed discovery rule can apply to matters published in an inherently secretive
manner. (Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal.4th 883, 894
[70 Cal.Rptr.3d 178, 173 P.3d 1004]. Modify the instruction if inherent secrecy is at
issue and depends on disputed facts. It is not clear whether the plaintiff has the
burden of proving inherent secrecy or the defendant has the burden of proving its
absence.
Sources and Authority
• One-Year Statute of Limitations. Code of Civil Procedure section 340.
• “In a claim for defamation, as with other tort claims, the period of limitations
commences when the cause of action accrues. . . . [A] cause of action for
defamation accrues at the time the defamatory statement is ‘published’ (using the
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term ‘published’ in its technical sense). [¶] [I]n defamation actions the general
rule is that publication occurs when the defendant communicates the defamatory
statement to a person other than the person being defamed. As also has been
noted, with respect to books and newspapers, publication occurs (and the cause
of action accrues) when the book or newspaper is first generally distributed to
the public.” (Shively, supra, 31 Cal.4th at pp. 1246-1247, internal citations
omitted.)
• “This court and other courts in California and elsewhere have recognized that in
certain circumstances 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.” (Shively, supra, 31 Cal.4th at pp. 1248-1249.)
• “[A]pplication of the discovery rule to statements contained in books and
newspapers would undermine the single-publication rule and reinstate the
indefinite tolling of the statute of limitations intended to be cured by the
adoption of the single-publication rule. If we were to recognize delayed accrual
of a cause of action based upon the allegedly defamatory statement contained in
the book . . . on the basis that plaintiff did not happen to come across the
statement until some time after the book was first generally distributed to the
public, we would be adopting a rule subjecting publishers and authors to
potential liability during the entire period in which a single copy of the book or
newspaper might exist and fall into the hands of the subject of a defamatory
remark. Inquiry into whether delay in discovering the publication was reasonable
has not been permitted for publications governed by the single-publication rule.
Nor is adoption of the rule proposed by plaintiff appropriate simply because the
originator of a privately communicated defamatory statement may, together with
the author and the publisher of a book, be liable for the defamation contained in
the book. Under the rationale for the single-publication rule, the originator, who
is jointly responsible along with the author and the publisher, should not be
liable for millions of causes of action for a single edition of the book. Similarly,
consistent with that rationale, the originator, like the author or the publisher,
should not be subject to suit many years after the edition is published.” (Shively,
supra, 31 Cal.4th at p. 1251.)
• “The single-publication rule as described in our opinion in Shively and as
codified in Civil Code section 3425.3 applies without limitation to all
publications.” (Hebrew Academy of San Francisco, supra, 42 Cal.4th at p. 893.)
• “[T]he single-publication rule applies not only to books and newspapers that are
published with general circulation (as we addressed in Shively), but also to
publications like that in the present case that are given only limited circulation
and, thus, are not generally distributed to the public. Further, the discovery rule,
which we held in Shively does not apply when a book or newspaper is generally
distributed to the public, does not apply even when, as in the present case, a
publication is given only limited distribution.” (Hebrew Academy of San
Francisco, supra, 42 Cal.4th at p. 890.)
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• “ ‘. . . [C]ourts uniformly have rejected the application of the discovery rule to
libels published in books, magazines, and newspapers,’ stating that ‘although
application of the discovery rule may be justified when the defamation was
communicated in confidence, that is, “in an inherently secretive manner,” the
justification does not apply when the defamation occurred by means of a book,
magazine, or newspaper that was distributed to the public. [Citation.]’ ” (Hebrew
Academy of San Francisco, supra, 42 Cal.4th at p. 894, original italics, internal
citations omitted.)
Secondary Sources
Haning et al., California Practice Guide: Personal Injury (The Rutter Group)
¶ 5:176.10
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.21 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§ 340.290 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.56 (Matthew Bender)
DEFAMATION CACI No. 1722
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