CACI 1722 Affirmative Defense—Statute of Limitations—Defamation

California Civil Jury Instructions CACI

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.]

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 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.)

“ ‘… [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, Ch. 5-B, Filing Suit: Time Bars and Pleading Concerns, ¶ 5:176.10 (The Rutter Group)
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)