Supreme Court of California Justia
Citation 47 Cal. 4th 468, 213 P.3d 132, 97 Cal. Rptr. 3d 798

Christoff v. Nestle USA

Filed 8/17/09

IN THE SUPREME COURT OF CALIFORNIA

RUSSELL CHRISTOFF,
Plaintiff and Respondent,
S155242
v.
Ct.App. 2/8 B182880
NESTLÉ USA, INC.,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. EC036163

In 1986, professional model Russell Christoff was paid $250 to pose for a
photograph to be used in Canada on a label for bricks of coffee. Sixteen years
later, Christoff saw his face on a jar of Taster‟s Choice instant coffee in the United
States and discovered that his image had been used without his consent on
millions of labels sold internationally for the preceding five years. Christoff filed
the present action for appropriation of his likeness six years after Nestlé USA, Inc.
(Nestlé), began using his image on the Taster‟s Choice label but less than a year
after his discovery.
The trial court applied a two-year statute of limitations and instructed the
jury to determine under the discovery rule whether Christoff knew or should have
known earlier that Nestlé had used his image. The jury found that Christoff did
not know, and should not reasonably have suspected prior to seeing the jar, that his
image was being used without his consent and awarded him more than $15 million
in damages.
1


The Court of Appeal reversed, holding that under the single-publication
rule, because Christoff had not filed his lawsuit within two years after Nestlé first
“published” the label, his cause of action is barred by the statute of limitations
unless, on remand, the trier of fact finds that Nestlé had hindered Christoff‟s
discovery of the use of his photograph, or that the label had been “republished.”
We granted review.
We agree with the Court of Appeal that the judgment must be reversed
because the trial court erroneously ruled that the single-publication rule does not
apply to claims for appropriation of likeness. But we do not agree with the Court
of Appeal that this means that Christoff‟s action necessarily is barred by the
statute of limitations unless he can show on remand that Nestlé had hindered his
discovery of the use of his photograph, or that the label had been “republished.”
The Court of Appeal‟s ruling presupposes that Nestlé‟s various uses of Christoff‟s
likeness, including its production of the product label for a five-year period,
necessarily constituted a “single publication” within the meaning of the single-
publication rule. Because the parties were prevented by the trial court‟s erroneous
legal ruling from developing a record concerning whether the single-publication
rule applied, we remand the matter for further proceedings.
FACTS1
In 1986, Russell Christoff, an actor and professional model, posed gazing at
a cup of coffee, as if he enjoyed the aroma. The photo shoot was arranged by
Nestlé Canada.2 Christoff was paid $250 for a two-hour photo shoot and received

1
The statement of facts and procedural history is based largely on the
opinion of the Court of Appeal.
2
Nestlé Canada is a corporation affiliated with but separate from respondent
and is not a party to this appeal.
2


a contract providing that if Nestlé Canada used the picture on a label it was
designing for a brick of Taster‟s Choice coffee, Christoff would be paid $2,000
plus an agency commission.3 The price for any other use of Christoff‟s image
would require further negotiations. Without informing Christoff, or paying him
according to the terms of the contract, Nestlé Canada used Christoff‟s image on
the coffee brick.
Eleven years later, in 1997, Nestlé decided to redesign its label for Taster‟s
Choice instant coffee, which, for three decades, had prominently featured a
“taster,” that is a person peering into a cup of coffee. The high resolution artwork
of the original “taster” used to produce the existing label had been lost. Nestlé
searched without success for other high resolution artwork of the original “taster,”
but found instead the photograph of Christoff that Nestlé Canada had used on the
coffee brick, which satisfied the requirements.
Nestlé decided to use Christoff‟s image because he looked “distinguished”
and resembled the original “taster.” Christoff‟s photograph was “youthened” to
make him appear younger and more similar to the original “taster.” Nestlé
believed that it had authority to use Christoff‟s image because it had been widely
used in Canada. Nestlé never investigated the scope of the consent and never
asked Christoff if he consented to the use of his image. Christoff‟s image was
used in the redesigned Taster‟s Choice label beginning in 1998. The redesigned
label was used on several different Taster‟s Choice jars, including regular coffee,
decaffeinated, and various flavors. Labels bearing Christoff‟s image also were

3
From 1987 to 2000, Christoff‟s average income from modeling and acting
was about $50,000 a year. At the time of trial in 2005, Christoff worked as an
elementary school teacher in addition to modeling and acting.
3


produced in different languages and placed on jars of coffee to be sold
internationally. For the label used in Mexico, Christoff‟s image was altered to add
sideburns and darken his complexion. Images of jars of coffee bearing Christoff‟s
image appeared in Nestlé‟s multiple advertising campaigns for Taster‟s Choice,
including transit ads, coupons in newspapers, magazine advertisements, and
Internet advertisements.
In 2002, a person standing in line with Christoff at a hardware store
remarked that he “look[ed] like the guy on my coffee jar.” A month or so later, on
June 4, 2002, Christoff saw a jar of Taster‟s Choice instant coffee on a store shelf
and, for the first time, recognized his photograph on the label. He purchased the
jar of coffee and called his agent.
In 2003, Nestlé again redesigned its label using another model, James
Vaccaro, as the “taster.” Vaccaro was paid $150,000 for the use of his image for
10 years. The new label started circulating in May 2003, but jars of Taster‟s
Choice with Christoff‟s image were still in Nestlé‟s inventory and could have been
shipped to retailers.
PROCEDURAL BACKGROUND
In 2003, Christoff sued Nestlé, alleging causes of action for unauthorized
commercial use of another‟s likeness in violation of Civil Code section 3344,4
common law appropriation of likeness, quantum meruit (initially labeled “quasi-

4
Civil Code section 3344, subdivision (a), states, in pertinent part: “Any
person who knowingly uses another‟s name, voice, signature, photograph, or
likeness, in any manner, on or in products, merchandise, or goods, or for purposes
of advertising or selling, or soliciting purchases of, products, merchandise, goods
or services, without such person‟s prior consent . . . shall be liable for any
damages sustained by the person or persons injured as a result thereof. . . .”
4


contract”), and unjust enrichment. The trial court denied Nestlé‟s motion for
summary judgment based on the statute of limitations, ruling that the Uniform
Single Publication Act as codified in Civil Code section 3425.3 (hereafter section
3425.3), which states that “[n]o person shall have more than one cause of action
for damages for libel or slander or invasion of privacy or any other tort founded
upon any single publication or exhibition or utterance, such as any one issue of a
newspaper or book or magazine,” 5 did not apply to Christoff‟s claims because
they were not “based on defamation.” The trial court reasoned that the single-
publication rule “was developed in the common law to avoid the problems that
mass publication of books and newspapers created for the tort of defamation.”
The court explained that Christoff‟s “claim is not defamation-like because he is
not alleging that he suffered damages from offensive communications,” but rather
his “claim arises from the alleged unauthorized use of his likeness, which is
protected by his right of publicity.” Christoff “does not claim that this use was
offensive, but instead seeks compensation for the defendant‟s use of his likeness in
advertising.”
The court applied a two-year statute of limitations under Code of Civil
Procedure section 339 and instructed the jury that because Christoff filed his
complaint on February 7, 2003, he could “claim damages that took place at any
time on or after February 7, 2001.” The court further instructed the jury that “the

5
Section 3425.3 states: “No person shall have more than one cause of action
for damages for libel or slander or invasion of privacy or any other tort founded
upon any single publication or exhibition or utterance, such as any one issue of a
newspaper or book or magazine or any one presentation to an audience or any one
broadcast over radio or television or any one exhibition of a motion picture.
Recovery in any action shall include all damages for any such tort suffered by the
plaintiff in all jurisdictions.”
5


rule of delayed discovery” would apply and Christoff could “also seek damages
that took place from the time Nestlé USA first used his image” if Christoff proved
that “prior to his discovery of the facts he did not previously suspect, or should
have suspected, that his photograph was on the Taster‟s Choice label.” 6 The trial
court denied Nestlé‟s motion for summary adjudication, in which it asserted that
there was no evidence it knowingly used Christoff‟s photograph without his
consent.
At trial, Nestlé vigorously objected to the testimony of Christoff‟s damage
expert, Peter Sealy, that the icon on the Taster‟s Choice label was responsible for 5
to 15 percent of Nestlé‟s profits from selling Taster‟s Choice instant coffee. This
testimony was the basis for Christoff‟s argument that he was entitled to 10 percent
of Nestlé‟s profits from the sale of Taster‟s Choice instant coffee. Christoff‟s
accounting expert testified that, during the six-year period Nestlé used Christoff‟s
likeness, Nestlé‟s total profits from Taster‟s Choice were $531,018,000 and, based
on Sealy‟s testimony, Christoff was entitled to $53,101,800.
Joseph Hunter, a former partner at Ford Models, a prominent modeling
agency, also testified as an expert for Christoff. According to Hunter, a model

6
The court instructed the jury: “The Court has determined that the statute of
limitations for Mr. Christoff‟s claims under Civil Code section 3344 is two years.
Mr. Christoff filed his Complaint on February 7, 2003, meaning that he may claim
damages that took place at any time on or after February 7, 2001. [¶] In addition,
if you find that the rule of delayed discovery applies, then Mr. Christoff may also
seek damages that took place from the time Nestle USA first used his image. In
order to establish a delayed discovery Mr. Christoff bears the burden of proving
that: (a) prior to his discovery of the facts he did not previously suspect, or should
have suspected, that his photograph was on the Taster‟s Choice label; and (b) he
had no notice or information of circumstances which would have put a reasonable
person on inquiry despite the exercise of reasonable diligence that his photograph
was on the Taster‟s Choice label.”
6


generally charges a day rate for a photo shoot and a usage fee for different uses
such as packaging, billboards, and transit. He valued the use of Christoff‟s
photograph for a six-year period at $1,475,000. In addition to the six-year time
period, Hunter assumed that the photo was used “in virtually all kinds of media
that existed.” He acknowledged that Vaccaro received $150,000 for the use of his
image for a 10-year period but explained that $150,000 is a very low fee.
At the close of Christoff‟s case, the court granted Nestlé‟s nonsuit motion
on the issue of punitive damages. The court found no evidence of malice.
The jury concluded as follows: (1) Nestlé knowingly used Christoff‟s
photograph or likeness on the Taster‟s Choice labels for commercial purposes
without Christoff‟s consent; (2) prior to 2002, Christoff did not know and should
not have known or reasonably suspected that his photograph was being used for
commercial purposes; (3) Christoff suffered $330,000 in actual damages; (4) the
profits attributable to the use of Christoff‟s photograph or likeness were
$15,305,850; (5) the damages for the common law appropriation claim were
$330,000 and for the quantum meruit claim were $15,635,850. The trial court
subsequently granted Christoff‟s motion for attorney fees. Nestlé appealed from
the judgment and the order awarding costs and attorney fees.
The Court of Appeal reversed the judgment and remanded the case for a
new trial, ruling that the single-publication rule codified in section 3425.3 applied
to the tort of appropriation of likeness. The court applied our decision in Shively
v. Bozanich (2003) 31 Cal.4th 1230, 1245 (hereafter Shively), which held that the
defamation cause of action in that case accrued upon the “ „first general
distribution of the publication to the public,‟ ” and reasoned that whether the
discovery rule delayed the accrual of the cause of action depended upon whether
Nestlé hindered Christoff‟s discovery of the use of his photograph. The court
7
directed that, in a retrial, the trier of fact must consider whether Nestlé hindered
Christoff‟s discovery of the use of his photograph and “whether any republications
occurred within the two-year limitations period.”7
DISCUSSION
The Court of Appeal ruled that the single-publication rule as codified in
section 3425.3 applied to Christoff‟s cause of action for unauthorized commercial
use of his likeness and, thus, the statute of limitations was triggered when Nestlé
first “published” the label and expired two years later unless accrual of Christoff‟s
action was delayed by the delayed discovery rule or the statute of limitations
began anew because Nestlé “republished” the label. We agree that, in general, the
single-publication rule as codified in section 3425.3 applies to causes of action for
unauthorized commercial use of likeness, but in order to determine when the
statute of limitations was triggered for Christoff‟s action, we must decide whether
Nestlé‟s unauthorized use of Christoff‟s image, including its production of the
label, constituted a “single publication” within the meaning of the
single-publication rule. As explained below, the record on appeal is insufficient to
permit this court to answer this question.
The Court of Appeal was correct that the single-publication rule as codified
in section 3425.3 applies, in general, to a cause of action for unauthorized
commercial use of likeness. The language of section 3425.3 is quite broad and

7
The Court of Appeal further ruled that the two-year statute of limitations set
forth in Code of Civil Procedure section 339 applied, that Nestlé knowingly used
Christoff‟s likeness within the meaning of Civil Code section 3344, that the award
of more than $15 million for profits attributable to the use of Christoff‟s
photograph was not supported by substantial evidence, and that the award of more
than $15 million for quantum meruit must be reversed.
8


applies by its terms to any action “for libel or slander or invasion of privacy or any
other tort founded upon any single publication or exhibition or utterance, such as
any one issue of a newspaper or book or magazine or any one presentation to an
audience or any one broadcast over radio or television or any one exhibition of a
motion picture.” (Italics added.) “When the Legislature inserted the clause „or
any other tort‟ it is presumed to have meant exactly what it said.” (Strick v.
Superior Court (1983) 143 Cal.App.3d 916, 924.) The rule announced in section
3425.3 is “ „not aimed at the particular tort alleged, but rather at the manner in
which the tort is executed.‟ ” (Ibid.; see Long v. Walt Disney Co. (2004) 116
Cal.App.4th 868, 871 [“courts in California and other jurisdictions have
interpreted the uniform act expansively”].) We agree with the Court of Appeal,
therefore, that the trial court erred in ruling that section 3425.3 did not apply to
Christoff‟s claims because they were not “based on defamation.”
The Court of Appeal then turned to our decision in Shively, which held that
a cause of action that is governed by the single-publication rule accrues “from the
date of the „ “first general distribution of the publication to the public.” ‟ (Shively,
supra, 31 Cal.4th at p. 1245.)” Christoff argues, inter alia, that the single-
publication rule does not apply to Nestlé‟s printing of its product label because it
is not “a single „publication,‟ a one-time occurrence,” such as a newspaper, book,
magazine, or television broadcast. Nestlé counters that “the rule was intended to
apply to multiple printings of the same publication.” The question is more subtle
than either of these positions would suggest.
In order to apply the single-publication rule, a court first must identify what
constitutes a “single integrated publication” (Belli v. Roberts Brothers Furs (1966)
240 Cal.App.2d 284, 289) within the meaning of the rule, such as the printing and
distribution of a particular issue of a newspaper, magazine, or book. Whether the
9
printing of a product label over a five-year period constitutes a single integrated
publication within the meaning of the single-publication rule is an issue of first
impression in this state. In addition to producing the product label, Nestlé also
used Christoff‟s likeness in other forms, including transit ads, coupons in
newspapers, magazine advertisements, and Internet advertisements. This raises
questions whether each of these activities constituted a “single integrated
publication,” whether the entire advertising campaign should be considered a
“single integrated publication,” or whether Nestlé‟s first use of Christoff‟s image
triggered the running of the statute of limitations for all subsequent uses in
whatever form. These are important questions, and there is little authority to turn
to for guidance.
The single-publication rule was created to address the problem that arose
with the advent of mass communication from the general rule in defamation cases
that “each time the defamatory statement is communicated to a third person . . . the
statement is said to have been „published,‟ ” giving rise to a separate cause of
action. (Shively, supra, 31 Cal.4th at p. 1242.) “[T]he principle that each
communication of a defamatory remark to a new audience constitutes a separate
„publication,‟ giving rise to a separate cause of action, led to the conclusion that
each sale or delivery of a copy of a newspaper or book containing a defamation
also constitutes a separate publication of the defamation to a new audience, giving
rise to a separate cause of action for defamation. [Citations.] This conclusion had
the potential to subject the publishers of books and newspapers to lawsuits stating
hundreds, thousands, or even millions of causes of action for a single issue of a
periodical or edition of a book.” (Id. at pp. 1243-1244.) “As one commentator
stated: „. . . Regardless of whether it was an appropriate rule in 1849 it is
horrendous today when magazine readers and radio and TV audiences may total
10
many millions.‟ [Citation.]” (Hebrew Academy of San Francisco v. Goldman
(2007) 42 Cal.4th 883, 891, fn. 2.)
The common law rule that each “publication” of a defamatory statement
created a new cause of action “also had the potential to disturb the repose that the
statute of limitations ordinarily would afford, because a new publication of the
defamation could occur if a copy of the newspaper or book were preserved for
many years and then came into the hands of a new reader . . . . The statute of
limitations could be tolled indefinitely, perhaps forever, under this approach.”
(Shively, supra, 31 Cal.4th 1230, 1244.) We cited as an example “a 19th-centruy
English case that concluded a plaintiff could bring an action seeking redress for
libel against a publisher based upon an allegedly defamatory remark contained in a
newspaper issued 17 years prior to the plaintiff‟s discovery of the defamation, on
the theory that the sale to the plaintiff of the long-forgotten copy of the newspaper
constituted a new publication, starting anew the running of the period of
limitations. [Citation.]” (Ibid.) We observed “courts recognized that the advent of
books and newspapers that were circulated among a mass readership threatened
unending and potentially ruinous liability as well as overwhelming (and endless)
litigation, as long as courts adhered to the rule that each sale of a copy of a
newspaper or a book, regardless how long after original publication, constituted a
new and separate publication.” (Ibid.)
To correct these problems, “courts fashioned what became known as the
single-publication rule, holding that, for any single edition of a newspaper or
book, there was but a single potential action for a defamatory statement contained
in the newspaper or book, no matter how many copies of the newspaper or the
book were distributed. [Citations.]” (Shively, supra, 31 Cal.4th at p. 1245.) The
common law single-publication rule was codified in 1955 when California adopted
11
the Uniform Single Publication Act by enacting section 3425.3, which states, in
part: “No person shall have more than one cause of action for damages for libel or
slander or invasion of privacy or any other tort founded upon any single
publication . . . .” The prefatory note to the uniform act states that under the
single-publication rule “any single integrated publication, such as one edition of a
newspaper or magazine, or one broadcast, is treated as a unit, giving rise to only
one cause of action.” (U. Single Pub. Act (2005) 14 U. Laws Ann. 469.)8
The decision in Gregoire v. G. P. Putnam’s Sons (N.Y. 1948) 81 N.E.2d
45, upon which we relied in Shively, recognized that the purpose of the single-
publication rule was to give meaning to the statute of limitations as “a statute of
repose ― designed „to spare the courts from litigation of stale claims, and the
citizen from being put to his defense after memories have faded, witnesses have
died or disappeared, and evidence has been lost.‟ [Citation.]” (Id. at p. 48.) The
plaintiff in Gregoire filed a suit for defamation nearly five years after the book
Total Espionage first was published. Although approximately 6,000 copies of the
book had been sold in each of the first two years of its distribution, only 60 copies
had been sold from stock in the year prior to the filing of the action. The plaintiff
argued that these relatively few sales from stock caused the book to be
“republished,” triggering a new limitations period. The court observed that
accepting the plaintiff‟s view would mean that “although a book containing

8
The Uniform Single Publication Act has been adopted in six other states ―
Arizona (Ariz. Rev. Stat. § 12-651), Idaho (Idaho Code §§ 6-702 to 6-705),
Illinois (740 Ill. Comp. Stat. 165/1-5), New Mexico (N.M. Stat. Ann. §§ 41-7-1 to
41-7-5), North Dakota (N.D. Cent. Code § 14-02-10), and Pennsylvania (42 Pa.
Cons. Stat. § 8341) ― and the “great majority” of the remaining states follow the
single-publication rule by judicial decision. (Keeton v. Hustler Magazine, Inc.
(1984) 465 U.S. 770, 777, fn. 8.)
12


libelous material may have been the product of but one edition or printing fifty
years ago, if, by sale from stock or by display, the publisher continues to make
unsold copies of the single publication available to the public today, such conduct
would amount to a republication of any libel the book contains and thereby would
become actionable. Under such a rule the Statute of Limitation would never expire
so long as a copy of such book remained in stock and is made by the publisher the
subject of a sale or inspection by the public.” (Id. at pp. 48-49.)
The court in Gregoire thus held that the publisher was entitled to repose
following the initial process of printing and releasing the book to the public and
that subsequent sales from the stock so produced would not begin the statute of
limitations anew. The court stated “that the publication of a libelous book,
involving styling, printing, binding and those other acts which enable a publisher
on a given date to release to the public thousands of copies of a single printing or
impression, affords the one libeled a legal basis for only one cause of action which
arises when the finished product is released by the publisher for sale in accord
with trade practice.” (Gregoire v. G. P. Putnam’s Sons, supra, 81 N.E.2d at
p. 49.)
The New York high court later described its holding in Gregoire as
follows: “[T]he Gregoire court furnishes its own illustrations of the kind of case
in which the [single-publication] principle it articulated was to have its primary
application. First, of course, was the case then at hand. It emanated from a
publisher‟s sale from stock of a copy of the book containing the libelous language.
Since this transaction occurred two years after the book had last undergone a
printing and general distribution, the issue was whether the last printing or the
later sale from stock was to be the point of departure for the running of the statute.
Qualitatively . . . , the sale from stock here was one of only a trickle of 60 to which
13
dwindling demand for the book had reduced such sales in the 12 months preceding
initiation of suit. Thus, on its facts, Gregoire merely held that . . . the Statute of
Limitations is not to be reactivated by a late sale from the residue of a time-barred
publishing event.” (Rinaldi v. Viking Penguin, Inc. (N.Y. 1981) 420 N.E.2d 377,
381.)
The first California case to apply the single-publication rule, Belli v.
Roberts Brothers Furs, supra, 240 Cal.App.2d 284, held that the February 14,
1962, issue of the San Francisco Chronicle newspaper, which was composed of six
editions that were issued over a two-day period was “a single, integrated
publication.” (Id. at p. 289.) The court concluded that “the Legislature intended
to abrogate the right to bring a separate action based upon defamatory matter
appearing in several editions of a newspaper or magazine, where, as here, all of
the editions comprise a single issue of a particular date.” (Id. at p. 289.)
The Court of Appeal therefore concluded that “[t]he various editions of the
Chronicle for February 14, 1962, comprise a single integrated publication, namely
the issue of the newspaper for that date. As we have seen, the allegedly
defamatory matter appeared in the first edition and was repeated without change in
each and every edition that followed. It has generally been held that, in the case of
a single, integrated publication, the cause of action based upon objectionable
matter appearing in the publication accrues upon the first general distribution of
the publication to the public. [Citation.]” (Belli v. Roberts Brothers Furs, supra,
240 Cal.App.2d at p. 289; see Fleury v. Harper & Row, Publishers, Inc. (9th Cir.
1983) 698 F.2d 1022, 1027 [“In the case of a single, integrated publication, a
cause of action accrues on the first general distribution of the publication to the
public.”]; Rinaldi v. Viking Penguin, Inc., supra, 420 N.E.2d 377, 381 [“the
activities reasonably related to the production and distribution of a newspaper or
14
magazine were regarded as part of a single transaction against which the statute
would run from the time that the original circulation of the periodical, no matter
how large or widespread, had taken place”].)
The single-publication rule is intended to prevent a “single integrated
publication” from resulting in numerous causes of action because the publication
is received by a mass audience. (Rinaldi v. Viking Penguin, Inc., supra, 420
N.E.2d 377, 381 [“neither the time nor the circumstance in which a copy of a book
or other publication finds its way to a particular consumer is, in and of itself, to
militate against the operation of the unitary, integrated publication concept”].) As
the Court of Appeal recognized in Miller v. Collectors Universe, Inc. (2008) 159
Cal.App.4th 988, 998: “The original purpose of the single-publication rule is
apparent, both from its history and from the language of the California statute
implementing it. The rule was originally directed at mass communications, such as
communications in newspapers, books, magazines, radio and television
broadcasts, and speeches to an audience. Where the offending language is read or
heard by a large audience, the rule limits the plaintiff to a single cause of action
for each mass communication. A separate cause of action for each member of the
public audience is disallowed.”
The rule does not address the issue of repeated publications of the same
libelous material over a substantial period of time. (See Kanarek v. Bugliosi
(1980) 108 Cal.App.3d 327, 332 [“the Uniform Single Publication Act . . . was not
designed to give unending immunity for repeated publications of libelous matter].)
This distinction is clearly made in the Restatement Second of Torts, which adopts
the single-publication rule that “[a]ny one edition of a book or newspaper, or any
one radio or television broadcast, exhibition of a motion picture or similar
aggregate communication is a single publication.” (Rest. 2d Torts, § 577A,
15
p. 208.) The comments explain: “An exceptional rule, sometimes called the
„single publication rule,‟ is applied in cases where the same communication is
heard at the same time by two or more persons. In order to avoid multiplicity of
actions and undue harassment of the defendant by repeated suits by new
individuals, as well as excessive damages that might have been recovered in
numerous separate suits, the communication to the entire group is treated as one
publication, giving rise to only one cause of action.” (Id., com. b, p. 209.) The
single publication rule applies also to the issue of any one edition of a newspaper,
magazine or book; to any one broadcast over radio or television; to any one
exhibition of a motion picture; to any one theatrical performance or other
presentation to an audience; and to any similar aggregate communication that
reaches a large number of persons at the same time. . . .” (Id., com. c, p. 209.)
It is not clear whether the production of a product label over a period of
years is a “single integrated publication” that triggers the running of the statute of
limitations when the first such label is distributed to the public. Publishing an
issue of a newspaper or magazine or an edition of a book is a discrete publishing
event. A publisher that prints and distributes an issue of a magazine or an edition
of a book is entitled to repose from the threat that a copy of that magazine or book
will surface years later and trigger a lawsuit. But as we stated earlier, there is little
case law or academic commentary discussing whether a manufacturer that
produces a product label for a period of years is entitled to the same repose,
especially while that product label is still being produced. Christoff argues that
Nestlé‟s conduct qualified as a continuing wrong, in which “a cause of action
accrues each time a wrongful act occurs, triggering a new limitations period.”
(Holgar Dulce Hogar v. Community Development Commission (2003) 110
Cal.App.4th 1288, 1295.) Nestlé, by contrast, argues that its use of Christoff‟s
16
image on its product label was a “single overt act” with “a continual effect that is
relevant to damages, but does not denote a continuing course of conduct for which
the limitations period can be tolled.” (Blair v. Nevada Landing Partnership
(Ill.App.Ct. 2006) 859 N.E.2d 1188, 1193; accord, Cuccioli v. Jekyll & Hyde Neue
Metropol Bremen Theater (S.D.N.Y. 2001) 150 F.Supp.2d 566.)
We decline to resolve this important issue without the benefit of a sufficient
factual record that reveals the manner in which the labels were produced and
distributed, including when production of the labels began and ceased. (Lahr v.
Adell Chemical Co. (1st Cir. 1962) 300 F.2d 256, 260 [“Whether the single
publication rule should be applied to the circumstances of this case had best be
decided when we know what they were.”].) The parties did not have a reason or
an opportunity to present such evidence in light of the trial court‟s erroneous
ruling that the single-publication rule did not apply to claims for misappropriation
of likeness. The parties will have that opportunity on remand to the superior court.
If on remand it is established that all or some portion of the production of the label
constituted a single integrated publication, then the superior court should further
consider whether the statute of limitation began anew because the label was
“republished” within the meaning of the single-publication rule.
Whether producing the product labels was a “single integrated publication”
is not the only issue that the trial court will face on remand. Evidence was
introduced at trial that Christoff‟s image also was used without his consent in
various forms of advertising, including transit ads, coupons in newspapers,
magazine advertisements, and Internet advertisements. Nestlé may be able to
show that the production of some or all of these items were single integrated
publications and that the statute of limitations was triggered as to that item when it
first was distributed to the public.
17
The Court of Appeal further held that the trial court erred in instructing the
jury to apply the delayed discovery rule if it found that “prior to his discovery of
the facts [Christoff] did not previously suspect, or should have suspected, that his
photograph was on the Taster‟s Choice label.” We agree. “[C]ourts 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.”
(Shively, supra, 31 Cal.4th at p. 1250.) The same logic applies to a product label
such as the one in the present case that is “not published in an inherently secretive
manner” (Hebrew Academy of San Francisco v. Goldman, supra, 42 Cal.4th 883,
894), but is distributed widely to the public.
18
DISPOSITION
The judgment of the Court of Appeal is reversed to the extent that it holds
that, for purposes of the statute of limitations, Christoff‟s cause of action
necessarily accrued when Nestlé first “published” the label under the rule we
announced in Shively v. Bozanich, supra, 31 Cal.4th 1230. In all other respects,
the judgment of the Court of Appeal is affirmed and the matter is remanded to the
Court of Appeal for further proceedings consistent with our opinion.
MORENO, J.
WE CONCUR: GEORGE, C. J.

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
19





CONCURRING OPINION BY WERDEGAR, J.

I concur fully in the majority opinion. In particular, I agree that without a
better factual record we cannot determine how California‟s single publication rule
(Civ. Code, § 3425.3 (hereafter section 3425.3)) should apply here and hence
whether, or to what extent, plaintiff‟s action is barred by the statute of limitations.
Nonetheless, I believe some general principles relevant to that question may be
discerned from the language of section 3425.3.1
Leaving aside any Taster‟s Choice labels on which plaintiff‟s image was
significantly altered, and further disregarding advertisements that employed
photographs of a label,2 the broadest question posed here is whether all

1
Section 3425.3 states: “No person shall have more than one cause of action
for damages for libel or slander or invasion of privacy or any other tort founded
upon any single publication or exhibition or utterance, such as any one issue of a
newspaper or book or magazine or any one presentation to an audience or any one
broadcast over radio or television or any one exhibition of a motion picture.
Recovery in any action shall include all damages for any such tort suffered by the
plaintiff in all jurisdictions.”
2
That both these categories constituted separate publications from the
original labels themselves seems clear, as they differed in contents from the
original labels and were apparently aimed at different audiences. (See Rinaldi v.
Viking Penguin, Inc.
(N.Y. Sup. Ct. 1979) 422 N.Y.S.2d 552, 556; Kanarek v.
Bugliosi
(1980) 108 Cal.App.3d 327, 332-333.).
1


distribution of labels employing the original misappropriated image, whenever
they occurred, should be deemed to constitute a single publication for purposes of
section 3425.3. Phrased more generally, should a series of temporally distinct
publications be treated as a single publication because each consisted of
substantially the same text or images?
On this question, California courts have not spoken,3 and courts from other
jurisdictions have reached diverse results. Some have held that multiple
broadcasts, distributions or displays of identical material constitute a single
publication for purposes of the statute of limitations, and not a series of
republications. (See, e.g., Blair v. Nevada Landing Partnership (Ill.App.Ct. 2006)
859 N.E.2d 1188, 1193-1194 [use of the plaintiff‟s image in various
advertisements within a casino and on the casino‟s Web site over a nine-year
period treated as a single publication]; Auscape Intern. v. National Geographic
Soc., supra, 461 F.Supp.2d at pp. 185-187 [the defendant, which each year
distributed a digital compilation of past magazine issues, including in each year‟s
compilation all the prior years‟ contents, did not thereby republish the prior years‟
issues]; Zoll v. Jordache Enterprises, Inc. (S.D.N.Y. 2002) 2002 WL 31873461,
pp. *9-*11 [rebroadcast of 1978 television commercial in 2000 was not a
republication of the original 1978 broadcast].)
Other courts have looked on each broadcast or display as a separate
publication, or republication, each of which, if it violates the plaintiff‟s rights,
begins a new limitations period. (See, e.g., Wells v. Talk Radio Network-FM, Inc.

3
The district court in Auscape Intern. v. National Geographic Soc.
(S.D.N.Y. 2006) 461 F.Supp.2d 174, cited in the text, post, however, did attempt
to apply California law in deciding one version of the question.
2


(N.D.Ill. 2008) 2008 WL 4888992, pp. *1-*3 [each unauthorized use of the
plaintiff‟s voice in radio advertisements broadcast repeatedly for two years was a
rebroadcast triggering a new statute of limitations period]; Lehman v. Discovery
Communications, Inc. (E.D.N.Y. 2004) 332 F.Supp.2d 534, 535-536 [where the
defendant broadcast a program 17 times over more than two years, each broadcast
was a republication of the allegedly defamatory material]; Baucom v. Haverty
(Fla.Dist.Ct.App. 2001) 805 So.2d 959, 960-961 [where, over several years, the
defendant repeatedly used the plaintiff‟s name and image in marketing
presentations to potential clients, each such presentation was a new publication].)
In my view, the latter approach is more consistent with our statutory
language. As illustrative of a single publication, section 3425.3 refers to “any one
issue of a newspaper or book or magazine or any one presentation to an audience
or any one broadcast over radio or television or any one exhibition of a motion
picture.” The statute thus dictates we treat as a separate publication any reissue,
rebroadcast or reexhibition, even though the publication‟s contents or the manner
of its distribution or display has not been changed. Section 3425.3‟s reference to
“any one broadcast,” for example, appears to preclude a result like that in Zoll v.
Jordache Enterprises, Inc., supra, 2002 WL 31873461, where two broadcasts of
the same advertisement, separated by 22 years, were deemed to be a single
publication.4

4
Indeed, the court in Zoll v. Jordache Enterprises, Inc., acknowledged that
its approach, which it considered settled under New York law, diverged from that
of the Restatement Second of Torts, under which subsequent broadcasts of the
same material were deemed republications. (Zoll v. Jordache Enterprises, Inc.,
supra, 2002 WL 31873461, at p. *10.) Section 3425.3 clearly adopts the
Restatement‟s view on this point by making “any one broadcast” a separate
publication.
3


Granted, determining what is a single “issue” of printed material presents
special difficulties. When large numbers of a book are printed and distributed at
one time, the later distribution of smaller numbers from stock is considered part of
the original publication. (Gregoire v. G. P. Putnam’s Sons (N.Y. 1948) 81 N.E.2d
45, 46, 49.) The same rule has been applied to additional printings of a single
book edition, at least within a short time of its original publication. (See Fleury v.
Harper & Row, Publishers, Inc. (9th Cir. 1983) 698 F.2d 1022, 1028 [where a
book was published in November 1978, “continued printing of the book into
1979” was part of the same publication].) Would the same rule apply if there were
no initial mass printing, but individual copies or small batches of copies were
printed and sent out to readers on demand? Arguably it should, for each instance
of access to text on the Internet is not considered a separate publication (Firth v.
State (N.Y.Ct.Cl. 2000) 706 N.Y.S.2d 835, 841-843), nor presumably would be
each download of text in digital form to an electronic reader or audio device; the
use of printed paper as a distribution medium should not lead to a different result.
A useful distinction lies in earlier cases‟ criterion of a republication
decision that is “ „ “conscious [and] independent” ‟ ” (Barres v. Holt, Rinehart &
Winston, Inc. (N.J.Super.Ct. Law Div. 1974) 330 A.2d 38, 46, italics omitted, affd.
(N.J. 1977) 378 A.2d 1148) or “conscious and deliberate” (Rinaldi v. Viking
Penguin, Inc. (N.Y. 1981) 420 N.E.2d 377, 382). Where the publisher has set up a
more or less automated system for printing and distributing an item or for
downloading it in digital form and does not make a separate publishing decision as
to each copy or small batch of copies, to call each such distribution a new “issue”
of the material would defeat the purposes of the single publication rule. (See Firth
v. State, supra, 706 N.Y.S.2d at p. 843.) Conversely, where a publication has been
out of print or unavailable in digital form for some time and the publisher makes a
4
conscious decision to reissue it or again make it available for download, no reason
appears in the text or purposes of section 3425.3 why the publisher should not be
separately responsible for any tort committed in republishing.
For these reasons, I doubt defendant‟s entire five-year course of printing
and distributing labels may be deemed a single publication simply because the
labels were not substantially altered during that time. The trial court should
consider as well whether the production and distribution of labels was
predetermined by a single initial decision or whether defendant (that is, the
officers or managing agents of defendant corporation) made at any relevant time a
conscious, deliberate choice to continue, renew or expand the use of labels bearing
plaintiff‟s misappropriated image. If any such decisions occurred during the
period defined by the statute of limitations, plaintiff should be able to recover
damages caused by publication pursuant to those decisions.
WERDEGAR, J.
5
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Christoff v. Nestlé USA, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 152 Cal.App.4th 1439
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S155242
Date Filed: August 17, 2009
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Charles W. Stoll

__________________________________________________________________________________

Attorneys for Appellant:

Horvitz & Levy, David M. Axelrad, Jeremy B. Rosen, John A. Taylor, Jr.; Heller & Edwards, Lawrence E.
Heller and Shula R. Barash for Defendant and Appellant.

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Kevin L. Vick; Karlene Goller; Jonathan
Donellan; Hallie Michelena; David Tomlin, Laura Malone; Thomas W. Newton; Peter Scheer; Lucy
Dalglish and Gregg Leslie for Los Angeles Times Communications LLC, The Hearst Corporation, Viacom,
Inc., The Associated Press, The California Newspaper Publishers Association, The California First
Amendment Coalition, The Reporters Committee for Freedom of the Press and The Association of
Alternative Newsweeklies as Amici Curiae on behalf of Defendant and Appellant.

Loeb & Loeb, Douglas E. Mirell and W. Allan Edmiston for Motion Picture Association of America, Inc.,
as Amicus Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Law Offices of Colin C. Claxon, Colin C. Claxon; Mayer & Glassman Law Corporation, Robert David
Mayer; Kibre & Horwitz, Eric G. Stockel; and David J. Franklyn for Plaintiff and Respondent.

Duncan W. Crabtree-Ireland and Danielle S. Van Lier for Screen Actors Guild, Inc., as Amicus Curiae on
behalf of Plaintiff and Respondent.

Reich, Adell & Cvitan, Laurence S. Zakson and William Y. Sheh for American Federation of Television
and Radio Artists, AFL-CIO, as Amicus Curiae on behalf of Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

John A. Taylor, Jr.
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800

Kelli L. Sager
Davis Wright Tremaine
865 South Figueroa Street, Suite 2400
Los Angeles, CA 90017-2566
(213) 633-6800

Colin C. Claxon
Law Offices of Colin C. Claxon
790 Mission Avenue
San Rafael, CA 94901
(415) 485-2200


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case includes the following issues: (1) Does the single publication rule (see Civ. Code, section 3425.3) apply to an action under Civil Code section 3344 for appropriation of likeness? (2) Is the use of a likeness on product labels a "publication" for purposes of the single publication rule? (3) Under what circumstances, if any, would the continuing use of a likeness on product labels and in advertisements marketing a product constitute "republication" and give rise to a new cause of action? (4) Does the discovery rule apply in an action for appropriation of likeness?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 08/17/200947 Cal. 4th 468, 213 P.3d 132, 97 Cal. Rptr. 3d 798S155242Review - Civil Appealopinion issued

Parties
1Christoff, Russell (Plaintiff and Respondent)
Represented by Robert David Mayer
Mayer & Glassman Law Corporation
12400 Wilshire Boulevard, Suite 400
Los Angeles, CA

2Christoff, Russell (Plaintiff and Respondent)
Represented by Eric G. Stockel
Kibre & Horwitz, LLP
9107 Wilshire Boulevard, Suite 300
Beverly Hills, CA

3Christoff, Russell (Plaintiff and Respondent)
Represented by Colin C. Claxon
Law Office of Colin C. Claxon
790 Mission Avenue
San Rafael, CA

4Nestle USA, Inc. (Defendant and Appellant)
Represented by Lawrence E. Heller
Heller & Edwards
9454 Wilshire Boulevard, Suite 500
Beverly Hills, CA

5Nestle USA, Inc. (Defendant and Appellant)
Represented by Jeremy Brooks Rosen
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

6Nestle USA, Inc. (Defendant and Appellant)
Represented by John A. Taylor
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

7American Federation of Television & Radio Artists, AFL-CIO (Amicus curiae)
Represented by Laurence Scott Zakson
Reich Adell Crost & Cvitan
3550 Wilshire Boulevard, Suite 2000
Los Angeles, CA

8American Federation of Television & Radio Artists, AFL-CIO (Amicus curiae)
Represented by William Yuan-Wen Sheh
Reich Adell Crost & Cvitan
3550 Wilshire Boulevard, Suite 2000
Los Angeles, CA

9Los Angeles Times Communications, LLC (Amicus curiae)
Represented by Kevin Lester Vick
Davis Wright Tremaine, LLP
865 S. Figueroa Street, Suite 2400
Los Angeles, CA

10Los Angeles Times Communications, LLC (Amicus curiae)
Represented by Kelli L. Sager
Davis Wright Tremaine, LLP
865 S. Figueroa Street, Suite 2400
Los Angeles, CA

11Motion Picture Associatioin of America, Inc. (Amicus curiae)
Represented by Douglas E. Mirell
Loeb & Loeb, LLP
10100 Santa Monica Boulevard, Suite 2200
Los Angeles, CA

12Screen Actors Guild, Inc. (Amicus curiae)
Represented by Danielle S. Vanlier
Screen Actors Guild, Inc.
5757 Wilshire Boulevard, 7th Floor
Los Angeles, CA

13Screen Actors Guild, Inc. (Amicus curiae)
Represented by Duncan Ware Crabtree-Ireland
Screen Actors Guild, Inc.
5757 Wilshire Boulevard, 7th Floor
Los Angeles, CA


Opinion Authors
OpinionJustice Carlos R. Moreno
ConcurJustice Kathryn M. Werdegar

Disposition
Aug 17 2009Opinion: Reversed

Dockets
Aug 6 2007Petition for review filed
Russell Christopher, Respondent Attorney Colin C. Claxon
Aug 9 2007Record requested
Aug 10 2007Received Court of Appeal record
Aug 27 2007Answer to petition for review filed
Nestle USA, Inc., Appellant by John A. Taylor, Jr., Horvitz & Levy LLP, retained. CRC 8.25(b)
Aug 31 2007Reply to answer to petition filed
Respondent Russell Christoff Attorneys Colin C. Claxon, etal
Sep 12 2007Received:
Respondent: Russell Christoff from attorney Colin C. Claxon correspondence re: Conflicting Appellate Opinion.
Sep 14 2007Received:
Letter dated 9-13-2007 from John A. Taylor, counsel for appellant, in response to the 9-11-2007 correspondence from Collin Claxon, counsel for plaintiff Christoff.
Sep 21 2007Time extended to grant or deny review
to and including November 2, 2007
Oct 29 2007Received:
Letter dated 10-26-2007 from Jeremy B. Rosen, Horvitz Levy LLP, (Appellant Nestle USA) supplementing their 9-13-2007 response letter
Oct 30 2007Received:
letter dated October 30, 2007 from Colin C. Claxon counsel for respondent Russell Christoff.
Oct 31 2007Letter sent to:
Counsel of record enclosing a copy of the grant order and the form for certification of interested entities or persons.
Oct 31 2007Petition for review granted (civil case)
Votes: George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Nov 1 20072nd record request
for the remaining balance of the record
Nov 1 2007Received Court of Appeal record
Nov 14 2007Certification of interested entities or persons filed
Nestle USA, Inc., defendant and appellant by John A. Tayklor, Jr., Horvitz & Levy LLP, counsel
Nov 30 2007Opening brief on the merits filed
Respondent Russell Christoff Attorney Colin C. Claxon
Dec 11 2007Request for extension of time filed
Nestle USA, Inc., Appellant, requests a 45-day extension to and including February 19, 2008, to file appellant's answer brief on the merits.
Dec 14 2007Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's answer brief on the merits is hereby extended to and including February 19, 2008.
Dec 14 2007Certification of interested entities or persons filed
Counsel for Respondent Russell Christoff Attorney
Feb 6 2008Application filed
"Application for Permission to Submit Electronic Copy of Parties' Briefs on the Merits and the Record on Appeal" submitted on behalf of Nestle USA, Inc. by John A. Taylor, counsel
Feb 14 2008Order filed
The application of appellant filed February 6, 2008, for permission to file electronic copy of parties' brief on the merits and the record on appeal is hereby granted.
Feb 19 2008Application to file over-length brief filed
"Application for leave to file answer brief on the merits in excess of 14,000 words" filed by Nestle USA, INC., by John A. Taylor, Counsel
Feb 19 2008Received:
Oversized Answer Brief on the Merits, from Nestle USA, INC., by John A. Taylor, Counsel
Feb 19 2008Request for judicial notice filed (granted case)
Nestle USA, INC., appellant by John A. Taylor, Counsel
Feb 21 2008Issues ordered limited
The issues to be briefed and argued do not include the following additional issues for review proposed by defendant Nestle USA, Inc. in its answer to the petition for review: 1) A right of publicity claim for profits under Civil Code section 334 is subject to the one-year statute of limitations governing a statute for a penalty, 2) A statutory right of publicity claim, unlike a common law claim, requires knowledge by the defendant that it did not have consent to use the plaintiff's likeness, and 3) The Court of Appeal violated Code of Civil Procedure section 629 by ordering a retrial on plaintiff's claim for profits under Civil Code section 3344 even though it held plaintiff had failed to present substantial evidence supporting that claim. The application to file an answer brief in excess of 14,000 words filed by defendant Nestle USA, Inc. on February 19, 2008 is denied. Defendant Nestle USA, Inc. is granted an extension of time to and including March 5, 2008 to file its answer brief.
Mar 4 2008Answer brief on the merits filed
Nestle USA, Inc., defendant and appellant John A. Taylor, Jr., Horvitz & Levy LLP, counsel
Mar 6 2008Received:
Letter from Horvitz & Levy LLP dated 3-5-2008
Mar 21 2008Reply brief filed (case fully briefed)
Respondent Russell Christoff Attorney Eric G. Stockel
Apr 3 2008Received:
Letter from John A. Taylor, Jr., Horvitz & Levy LLP, enclosing Appellant's (Nestle USA, Inc.) CD-ROM pursuant to Court's February 14, 2008 order.
Apr 18 2008Received application to file Amicus Curiae Brief
Screen Actors Guild Inc. Danielle S. Van Lier, Esq [Application and Brief are under separate covers] in support of respondent Russell Christoff
Apr 18 2008Received application to file Amicus Curiae Brief
Los Angeles Times Communications LLC., The Hearst Corp., Viacom, Inc., The Associated Press, The California Newspaper Publishers Assoc., The California First Amendment Coalition The Reporters Committee for Freedom of the Press and The Association of Alternative Newsweeklies supports appellant Nestle USA, Inc., [App/Brief separate] Kevin L. Vick of Davis Wright Tremaine LLP
Apr 18 2008Received application to file Amicus Curiae Brief
Screen Actors Guild, Inc. in support of respondent by Duncan W. Crabtree-Ireland, counsel
Apr 18 2008Received application to file Amicus Curiae Brief
Motion Picture Associaton of America Attorney W. Allan Edmiston [application and brief under same cover]
Apr 21 2008Received application to file Amicus Curiae Brief
American Federation of Television and Radio Artists, AFL-CIO, in support of respondent by Laurence S. Zakson, Reich Adell & Cvitan, counsel
Apr 28 2008Received:
Errata of Los Angeles Times Communications LLC, The Hearst Corp., Viacom, Inc., etc to A.C. brief submitted on Apr 18, 2008. Attorney Kevin L. Vick of Davis Wright Tremaine LLP
Apr 28 2008Permission to file amicus curiae brief granted
The application of Los Angeles Times Communications LLC, The Hearst Corporation, Viacom, Inc., The Associated Press, The California Newspaper Publishers Association, The California First Amendment Coalition, The Reporters Committee for Freedom of the Press and The Association of Alternative Newsweeklies for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 28 2008Amicus curiae brief filed
Los Angeles Times Communications LLC, The Hearst Corporation, Viacom, Inc., The California First Amendment Coalition, The Reporters Committee for Freedom of the Press and The Association of Alternative Newsweeklies in support of appellant.
Apr 28 2008Permission to file amicus curiae brief granted
The application of Screen Actors Guild, Inc. for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 28 2008Permission to file amicus curiae brief granted
The application of Screen Actors Guild, Inc. for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 28 2008Amicus curiae brief filed
Screen Actors Guild, Inc. in support of respondent
Apr 28 2008Permission to file amicus curiae brief granted
The application of American Federation of Television and Radio Artists, AFL-CIO for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 28 2008Amicus curiae brief filed
American Federation of Television and Radio Artists, AFL-CIO in support of respondent
Apr 28 2008Permission to file amicus curiae brief granted
The application of Motion Picture Association of America, Inc. for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 28 2008Amicus curiae brief filed
Motion Picture Association of America, Inc. in support of appellant.
Apr 28 2008Filed:
Appellant's application for permission to supplement electronic copy of the parties' briefs on the merits and the record on appeal with amicus briefing.
May 1 2008Extension of time granted
The application of appellant filed April 28, 2008, for permission to supplement electronic copy of the parties' briefs on the merits and the record on appeal with amicus briefing is hereby granted.
May 16 2008Response to amicus curiae brief filed
Appellant's Answer to Amicus Briefs of Screen Actors Guild, Inc. and American Federation of Television and Radio Artists, AFL-CIO by John A. Taylor, Jr., Horvitz & Levy LLP, counsel
May 16 2008Response to amicus curiae brief filed
combined response to AC briefs of LA Times, etal and Motion Picture Association of America, Inc. by Respondent Russell Christoff
Jun 2 2008Filed:
Appellant's letter dated 5-30-2008 enclosing 14 copies of the revised CD-ROM, which contains all of the materials in the CD-ROM perviously submitted on April 3, 2008, but now includes both the amicus briefing and the parties' answers thereto.
Apr 22 2009Case ordered on calendar
to be argued Wednesday, June 3, 2009, at 9:00 a.m., in Los Angeles
May 4 2009Request for judicial notice granted
Appellant's request for judicial notice, filed February 19, 2008, is granted.
May 8 2009Application filed
Application to divide oral argument filed by John A. Talor, Jr., counsel for appellant Nestle USA, Inc., requesting to share 10 minutes of time with amici curiae Los Angeles Times Communications, LLC, et al.
May 13 2009Order filed
The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amicus curiae Los Angeles Times Communications, LLC et al. 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
May 27 2009Supplemental brief filed
CRC 8.25(b)
Jun 3 2009Cause argued and submitted
Aug 14 2009Notice of forthcoming opinion posted
To be filed Monday, August 17, 2009 at 10 a.m.
Aug 17 2009Opinion filed: Judgment reversed
The judgment of the Court of Appeal is reversed to the extent that it holds that, for purposes of the statute of limitations, Christoff's cause of action necessarily accrued when Nestle first "published" the label under the rule we announced in Shively v. Bozanich, supra, 31 Cal.4th 1230. In all other respects, the judgment of the Court of Appeal is affirmed and the matter is remanded to the Court of Appeal for further proceedings consistent with our opinion. Majority Opinion by Moreno, J. -- joined by George, C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
Aug 21 2009Rehearing petition filed
Russell Christoff, Plaintiff and Respondent Colin C. Claxon, counsel
Aug 25 2009Time extended to consider modification or rehearing
The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 17, 2009. or the date upon which rehearing is either granted or denied, whichever occurs first.
Aug 31 2009Answer to rehearing petition filed
Nestle USA, Inc., defendant and appellant John A. Taylor, Jr., Horvitz & Levy LLP, counsel CRC 8.25(b)

Briefs
Nov 30 2007Opening brief on the merits filed
Respondent Russell Christoff Attorney Colin C. Claxon
Mar 4 2008Answer brief on the merits filed
Nestle USA, Inc., defendant and appellant
Mar 21 2008Reply brief filed (case fully briefed)
Respondent Russell Christoff Attorney Eric G. Stockel
Apr 28 2008Amicus curiae brief filed
Los Angeles Times Communications LLC, The Hearst Corporation, Viacom, Inc., The California First Amendment Coalition, The Reporters Committee for Freedom of the Press and The Association
Apr 28 2008Amicus curiae brief filed
Screen Actors Guild, Inc. in support of respondent
Apr 28 2008Amicus curiae brief filed
American Federation of Television and Radio Artists, AFL-CIO in support of respondent
Apr 28 2008Amicus curiae brief filed
Motion Picture Association of America, Inc. in support of appellant.
May 16 2008Response to amicus curiae brief filed
Appellant's Answer to Amicus Briefs of Screen Actors Guild, Inc. and American Federation of Television and Radio Artists, AFL-CIO
May 16 2008Response to amicus curiae brief filed
combined response to AC briefs of LA Times, etal and Motion Picture Association of America, Inc. by Respondent Russell Christoff
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 10, 2009
Annotated by Louise Nutt

SUMMARY
The California Supreme Court ruled that the single publication rule applied to claims for appropriation of likeness. But because there was an insufficient factual record, the California Supreme Court declined to resolve the important issue of "whether the production of a product label over a period of years is a 'single integrated publication' that triggers the running of the statute of limitations when the first such label is distributed to the public." Already, "there is little case law or academic commentary" on the matter. Media and entertainment industry groups filed amicus briefs on either side of the case, reflecting the potential effect this case has and could have had on those industries.

FACTS
In 1986, Nestle Canada paid Russell Christoff $250 to pose for a picture. Nestle Canada signed a contract promising to pay him more money if they used his picture in an ad. They used his picture without paying him. In 1997, Nestle USA began using Christoff's picture, again without paying him. Christoff found out about this in 2002 and in 2003, he sued for appropriation of likeness, quantum meruit, and unjust enrichment.

TRIAL COURT
The trial court awarded Christoff over $15 million. The court used the delayed discovery rule and reasoned that single publication did not apply because Christoff's claims were not based on defamation.

COURT OF APPEAL
The Court of Appeal reversed the judgment and remanded for a new trial. The Court of Appeal held that under the single publication rule, which it held to apply, and for the purposes of the statute of limitations, Christoff's cause of action accrued when Nestle first published the label. The statute of limitations had thus run out.

ISSUES
(1) Does the single publication rule (see Civ. Code, section 3425.3) apply to an action under Civil Code section 3344 for appropriation of likeness?
(2) Is the use of a likeness on product labels a "publication" for purposes of the single publication rule?
(3) Under what circumstances, if any, would the continuing use of a likeness on product labels and in advertisements marketing a product constitute "republication" and give rise to a new cause of action?
(4) Does the delayed discovery rule apply to product labels not published in an inherently secretive manner?

HOLDINGS/REASONING
(1) Yes. Section 3425.3 is broad and applies to all torts based on single publication.
(2)/(3) The Court of Appeals presupposed that Nestle's uses of Christoff's image constituted a "single publication," but more facts are needed, so these issues must be dealt with on remand. For issue (2), a likeness on a product is a type of publication, but whether everything Nestle did is a single integrated publication is fact-dependent. Issue (3) is largely left for remand, but also addressed by the concurring opinion.
(4) No. The delayed discovery rule does not apply when a product label is distributed widely to the public, because the application of the discovery rule would undermine the protection provided by the single publication rule.

CONCURRENCE
Werdegar outlines general principles that might help determine how California's single publication rule should apply here. The opinion reads the statute as dictating that any "reissue, rebroadcast or reexhibition, even though the publication's contents or the manner of its distribution or display has not changed" should be treated as a separate publication. Just because the labels were not altered does not mean that the entire course of printing was a single publication. "The trial court should consider as well whether the production and distribution of labels was predetermined by a single initial decision or whether defendant...made at any relevant time a conscious, deliberate choice to continue, renew or expand the use of labels bearing plaintiff's misappropriated image."