Stanford Law School - Robert Crown Law Library

Filed 12/24/07

IN THE SUPREME COURT OF CALIFORNIA

HEBREW ACADEMY
OF SAN FRANCISCO et al.,
Plaintiffs and Appellants,
S134873
v.
Ct.App. 1/2 A106618
RICHARD N. GOLDMAN et al.,
Superior Court of the
City and County of San Francisco
Defendants and Respondents. )
No. 414796

In this case, we address whether the statute of limitations bars a cause of
action for defamation that is based upon statements contained in a transcript of an
oral history that was published with only limited circulation. We held in Shively v.
Bozanich (2003) 31 Cal.4th 1230, 1237, that under the single-publication rule, the
statute of limitations on a cause of action for defamation based upon a statement in
a book published with general circulation “ran from the date the book was first
generally distributed to the public, regardless of the date on which plaintiff
actually learned of the existence of the book and read its contents.” We further
held “that the discovery rule does not apply to delay the accrual of a cause of
action for a defamation contained in such a publication.” (Ibid.) We expressly did
not address, however, “[t]he applicability of the single-publication rule to written
publications that receive an extremely limited distribution . . . .” (Id. at p. 1245,
fn. 6.)
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As explained below, we conclude that our holding in Shively v. Bozanich,
supra, 31 Cal.4th 1230 applies as well to publications that are not widely
distributed.
FACTS
On November 18, 2002, the Hebrew Academy of San Francisco and its
founder and dean, Rabbi Pinchas Lipner, sued Richard N. Goldman, the Jewish
Community Federation of San Francisco, the Peninsula, Marin and Sonoma
Counties (Federation), and related defendants for defamation and placing plaintiffs
in a false light.1 In a second amended complaint, plaintiffs alleged that they had
been defamed a decade earlier “in the early 1990’s” during an interview of
Goldman conducted by Eleanor Glaser as part of the Jewish Community
Federation Oral History Project, in which Goldman stated, inter alia, that Rabbi
Lipner “doesn’t deserve respect for the way he conducts his affairs,” is not “an
honorable man,” “has done little for the community,” is “self-serving and an
embarrassment,” and was “run out of other communities before he got here,”
adding: “I’m not sure but I think he had been in Cleveland before he came here.
Somebody checked the record and found that community did not tolerate him.”
Goldman also recounted that on “a couple of occasions” at the Hebrew Academy,
“[w]hen he would walk into the room, the children would stand at attention as if it
were the Fuhrer walking in.”
Plaintiffs alleged that this oral history project was conducted “under the
auspices” of the Regional Oral History Office of the Bancroft Library at the
University of California, Berkeley. The project consisted of a series of interviews

1
The record before us does not include a copy of the original complaint, but
the Court of Appeal’s opinion so states and neither party filed a petition for
rehearing challenging these facts.
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of Federation presidents and executives. Fewer than 10 copies of the transcripts of
these interviews were published. Plaintiffs alleged that Rabbi Lipner first became
aware of these statements on or about the first week of January 2002, when he
“was informed by a researcher” that the Regional Oral History Office of the
Bancroft Library “had published a transcript of the Goldman interview.”
Defendants filed a motion for summary judgment on the ground, among
others, that the action was barred by the one-year statute of limitations set forth in
Code of Civil Procedure section 340, former subdivision (3) (redesignated subd.
(c) by Stats. 2002, ch. 448, § 1). Defendants submitted in support of the motion
the declaration of Shannon Page, the assistant director of the Regional Oral
History Office of the Bancroft Library (ROHO). Page declared that ROHO is a
division of the Bancroft Library at the University of California, Berkeley, which
“is the primary special collections library at the University of California, and is
one of the largest and most heavily used libraries of its kind in the United States.
. . . [I]ts holdings include more than half a million volumes and 50,000,000
manuscript items. . . . [¶] Bancroft’s collection is listed in several publicly
available online catalogs . . . . These online resources are supplemented by card
catalogs, finding aids, and a reference collection housed in Bancroft’s Heller
Reading Room.”
Page further declared: “ROHO researcher Eleanor K. Glaser conducted the
Goldman interview at issue in this action as one in a series of interviews begun in
1990 to record the contemporary history of the Jewish Welfare Federation
(‘JWF’). The series, sponsored by the Jewish Community Endowment Fund,
sought to collect the oral histories of the then thirteen living past presidents of the
Jewish Community Federation of San Francisco . . . . [¶]The Goldman interview
itself was conducted in 1992, copyrighted for publication, and published in
1993. . . . [¶] The Goldman interview, like all ROHO transcripts, was placed in the
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Bancroft Library at Berkeley and in the Charles E. Young Research Library at
UCLA, and copies were made available at cost to other libraries. . . . [¶] . . . In
addition . . . the Goldman interview . . . has been acquired, for example, by the
New York Public Library, as well as private entitles, including the Jewish
Community Federation Library and Temple Emanu-El in San Francisco.”
In opposition to the motion for summary judgment, Rabbi Lipner declared
that “[o]n or about December 28, 2001, a researcher, Miriam Real, provided me
with a copies [sic] of two pages from a transcript of an interview of Richard N.
Goldman containing the defamatory statement about me and the Hebrew Academy
that are the basis for this lawsuit. Prior to that time, I did not know, and could not
with reasonable diligence have known, that defendants had published such
statements, in that the transcripts were never distributed to the general public, but
were available only in a few locations.”
Miriam Real declared that she was the director of admissions for the
Hebrew Academy and formerly had been “employed as an interviewer and editor
at the Regional Oral History Office, University of California, Berkeley, the same
position held by Eleanor Glaser.” Real decided to write a book about Rabbi
Lipner and, while conducting preliminary research, learned about the series of
interviews with past presidents of the Federation. Real stated: “Although
transcripts of the [ROHO] interviews were kept at the Bancroft Library on the
University of California campus, the transcripts themselves were not readily
available for viewing by the public. The transcripts were kept in the stacks, to
which the general public does not have access. After searching the card catalog
for potentially useful transcripts, I then required that the transcripts be retrieved
from the stacks. . . . If I found a reference to a potentially useful subject, I then
filled out a form to request that the referenced pages of the transcript be copied
and, rather than waiting several hours for the copies, requested that the pages be
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mailed to me. I was not allowed to make copies of the pages myself. [¶] . . .
Toward the end of winter break in December 2001, I reviewed the materials I had
accumulated . . . . On or about Friday, December 28, 2001, I first discovered
Richard Goldman’s defamatory statements. I promptly contacted Rabbi Lipner
and faxed the two pages containing the statements to him.”
The superior court granted defendants’ motion for summary judgment,
ruling that the action was “barred by the one-year statute of limitations set forth in
California Code of Civil Procedure section 340[, subd. (c)].” The court further
held that “the ‘rule of discovery’ asserted by plaintiffs in an attempt to toll the
statute of limitations does not apply in this action.” The Court of Appeal reversed,
ruling that the alleged defamation was not subject to the single-publication rule,
and that the action was tolled by the discovery rule “because the alleged libel was
hidden or beyond what the ordinary person could be expected to immediately
detect or comprehend.” One justice dissented on the grounds that “the unique
facts of this case place it within the single-publication rule and, separate and apart
from that, also beyond the reach of the delayed-discovery rule.”
DISCUSSION
As we recently explained in Shively v. Bozanich, supra, 31 Cal.4th 1230,
1245, the single-publication rule provides “that, for any single edition of a
newspaper or book, there [is] 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.]” We further held in Shively
that the accrual of the cause of action in that case was not delayed by the discovery
rule—which provides “that in some instances, the accrual of a cause of action in
tort is delayed until the plaintiff discovered (or reasonably should have discovered
or suspected) the factual basis for his or her claim” (id. at p. 1248)—because the
justification for the discovery rule “does not apply when the defamation occurred
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by means of a book, magazine, or newspaper that was distributed to the public.”
(Id. at pp. 1250-1251.)
As explained below, we hold that the 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.
The plaintiff in Shively v. Bozanich, supra, 31 Cal.4th 1230, 1238, alleged
that she had been defamed by being described as “ ‘a felony probationer’ ” in the
book, A Problem of Evidence. The book was on sale in California no later than
September 18, 1996 and by October 21, 1996, almost 7,000 copies of the book
had been shipped to California and 33,000 copies had been distributed throughout
the country. The plaintiff alleged that she first became aware of the allegedly
defamatory statement when she purchased and read the book in December 1996.
She filed an action for defamation on October 22, 1997, 10 months after she
allegedly became aware of the defamation, but just more than a year after the book
had been distributed to the public. We held that her defamation cause of action
was barred by the one-year statute of limitations, because “in 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. [Citations.]
. . . [W]ith 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. [Citations.]” (Id. at p. 1247.)
Our holding in Shively that a cause of action for defamation based upon a
statement in a book or newspaper accrues when the book or newspaper is first
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generally distributed to the public is an application of the single-publication rule,
which establishes an exception to the general “rule that each publication of a
defamatory statement gives rise to a new cause of action for defamation.” (Shively
v. Bozanich, supra, 31 Cal.4th 1230, 1243.) Under the general rule, a new cause
of action for defamation arises each time the defamer “repeats or recirculates his
or her original remarks to a new audience. [Citations.]” (Ibid.; Newell, Libel and
Slander (2d. ed. 1898) Publication of Defamatory Matter, § 23, p. 243 [“Every
sale or delivery of a written or printed copy of a libel is a fresh publication . . . .”].)
This venerable common law rule came into question with the advent of
mass publication of books and newspapers.2 As we explained in Shively: “Under
the common law as it existed in the 19th century and early part of the 20th
century, the 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. This
conclusion also had the potential to disturb the repose that the statute of limitations

2
As one commentator stated: “Commencing with an 1849 decision the
English Courts ruled that every sale or delivery of each single copy of a
newspaper or magazine is a separate publication and a separate tort, and this rule
was accepted in the United States. Regardless of whether it was an appropriate
rule in 1849 it is horrendous today when magazine readers and radio and TV
audiences may total many millions.” (Eldredge, The Law of Defamation (1978)
§ 38, p. 209, fns. omitted.)
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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 who had not discovered it previously. The statute
of limitations could be tolled indefinitely, perhaps forever, under this approach.”
(Shively v. Bozanich, supra, 31 Cal.4th 1230, 1243-1244.) Thus, applying to
books and newspapers the general rule that each re-publication of a defamation
gives rise to a new cause of action would trigger two separate but related concerns:
there could be a multiplicity of actions and the statute of limitations would begin
to run anew upon each re-publication.
The single-publication rule directly addresses the first of these concerns—
the potential for a multiplicity of suits—by “holding that, for any single edition of
a newspaper or book, there [is] 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.” (Shively v. Bozanich, supra, 31 Cal.4th
1230, 1245.) This rule was codified in California by the adoption in 1955 of the
Uniform Single Publication Act. (Civ. Code, § 3425.1, et seq.) Civil Code
section 3425.3 states: “No person shall have more than one cause of action for
damages for libel or slander . . . founded upon any single publication or exhibition
or utterance, such as any one issue of a newspaper or book or magazine . . . .”
We recognized in Shively that the single-publication rule also indirectly
addresses the second concern that would be raised by applying to publications the
general rule that a new cause of action for defamation arises upon each re-
publication—that the statute of limitations would begin to run anew upon each re-
publication—by observing that “[u]nder the single-publication rule, with respect
to the statute of limitations, publication generally is said to occur on the ‘first
general distribution of the publication to the public.’ [Citations.]” (Shively v.
Bozanich, supra, 31 Cal.4th 1230, 1245.) Thus, the single-publication rule
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directly prevents a multiplicity of suits by declaring that there can be only one
cause of action for defamation based upon a single publication, and indirectly
limits the extension of the statute of limitations through the judicial interpretation
that this single cause of action accrues upon the first general distribution of the
work to the public. (See Bradford v. American Media Operations, Inc. (E.D.Pa.
1995) 882 F.Supp. 1508, 1514 [“On its face, the Uniform Single Publication Act
only limits the number of suits a plaintiff may bring on a single publication of
defamatory material; it is silent as to when the statute of limitations begins to
accrue on a defamation or invasion of privacy claim. Nevertheless, . . . a number
of jurisdictions have interpreted the single publication rule as establishing that the
statute of limitations begins to run on the date a publication generally becomes
available to the public for purchase.” (Fn. omitted.)]; Note, The Single Publication
Rule in Libel: A Fiction Misapplied (1949) 62 Harv. L.Rev. 1041, 1041-1042.)
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.
Civil Code section 3425.3 applies to tort claims “founded upon any single
publication or exhibition or utterance, such as any one issue of a newspaper or
book or magazine . . . .” Thus, the single-publication rule applies in the present
case, even though the transcript of the oral history at issue was published with
only limited circulation.
Having concluded that the single-publication rule applies to all
publications, including those that receive only limited circulation, we consider
whether the accrual of the cause of action for defamation in this case was delayed
by the discovery rule. As noted above, we stated in Shively that “[u]nder the
single-publication rule, with respect to the statute of limitations, publication
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generally is said to occur on the ‘first general distribution of the publication to the
public.’ [Citations.]” (Shively v. Bozanich, supra, 31 Cal.4th 1230, 1245.)3 But
we also considered in Shively whether the discovery rule postponed the accrual of
the cause of action and, thus, delayed the running of the one-year statute of
limitations set forth in Code of Civil Procedure section 340, subdivision (c). We
noted “that in some instances, the accrual of a cause of action in tort is delayed
until the plaintiff discovered (or reasonably should have discovered or suspected)
the factual basis for his or her claim. [Citation.]” (Shively v. Bozanich, supra, 31
Cal.4th 1230, 1248.)
We observed in Shively that the discovery rule “has been applied when the
defamatory statement is hidden from view as, for example, in a personnel file that
generally cannot be inspected by the plaintiff.” (Shively v. Bozanich, supra, 31
Cal.4th 1230, 1249, citing Manguso v. Oceanside Unified School Dist. (1979) 88
Cal.App.3d 725.) In Manguso, a teacher sued her former principal for placing a
letter containing allegedly libelous statements in the teacher’s confidential
personnel file in 1960. For 16 years, the teacher’s attempts to gain employment
were frustrated when prospective employers read the letter. In 1976, the teacher
discovered that the letter existed and filed an action for defamation within six
months. The Court of Appeal held that the teacher’s cause of action had not
accrued until she learned of the existence of the letter because she could not
reasonably have been expected to discover the basis for her cause of action before

3
We need not determine in the present case whether our holding in Shively
that the statute of limitations begins to run when the publication is first generally
distributed to the public applies in the present case in which the interview was
given only a limited distribution, because the parties agree that the statute of
limitations began to run when the transcript of the interview was published in
1993.
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then: “ ‘ “ ‘The statute of limitations is a statute of repose, enacted as a matter of
public policy to fix a limit within which an action must be brought . . . and is
intended to run against those who are neglectful of their rights and who fail to use
reasonable and proper diligence in the enforcement thereof. . . . The underlying
purpose of statutes of limitations is to prevent the unexpected enforcement of stale
claims concerning which persons interested have been thrown off their guard by
want of prosecution.’ [Citations.]” If the plaintiffs’ allegations of lack of
knowledge are sustained they cannot be accused of being neglectful of their rights
or of using reasonable and proper diligence to enforce them. It is not the policy of
the law to unjustly deprive one of his remedy. . . .’ [Citation.]” (Manguso v.
Oceanside Unified School Dist., supra, 88 Cal.App.3d 725, 730.)
The Manguso court recognized that the “ ‘ “principal purpose” ’ ” of the
discovery rule “ ‘ “is to protect aggrieved parties who, with justification, are
ignorant of their right to sue.” [Citations.]’ ” (Manguso v. Oceanside Unified
School Dist., supra, 88 Cal.App.3d 725, 731.) Thus, the court reasoned, statutes
of limitations “ ‘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.’ [Citation.]” (Ibid.)
In Shively, we distinguished Manguso, noting that “courts 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.]’ ” (Shively v. Bozanich, supra, 31 Cal.4th
1230, 1250-1251, citing McGuiness v. Motor Trend Magazine (1982) 129
Cal.App.3d 59, 61 [“California follows the well-established rule that for purposes
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of the statute of limitations the cause of action accrues ‘upon the first general
distribution of the publication to the public.’ [Citations.]”].)
The transcript at issue here was not published in an inherently secretive
manner as was the letter in Manguso; although not widely distributed, the
transcript was available to the public. Rabbi Lipner became aware of the
transcript when a colleague discovered it while conducting research for a book
about him. As we stated in Shively, the discovery rule has been applied to
defamation cases “when the defamatory statement is hidden from view as, for
example, in a personnel file that generally cannot be inspected by the plaintiff. . . .
The cases turn upon the circumstances in which the defamatory statement is made
and frequently involve a defamatory writing that has been kept in a place to which
the plaintiff has no access or cause to seek access.” (Shively v. Bozanich, supra,
31 Cal.4th 1230, 1249.) Because plaintiffs in the present case had access to the
document from the time it was published, the discovery rule does not apply.4
In the present case, as noted above, the parties agree that plaintiffs’ cause of
action for defamation accrued under the single-publication rule no later than 1993,
when the Goldman interview was published. And, as explained above, the
discovery rule does not delay the accrual of the cause of action, even though the
interview received only limited circulation. Accordingly, the superior court
properly granted defendants’ motion for summary judgment on the ground that

4
We express no opinion on how the rule might operate if a plaintiff pleaded
that the defendant had intentionally published defamatory material in some
obscure location, intending to use the single-publication rule to shield a market-
flooding publication made after the statute of limitations had run. (See Dominiak
v. National Enquirer (Pa. 1970) 266 A.2d 626, 629; Hartmann v. American News
Co. (W.D.Wis. 1947) 69 F.Supp. 736, 738-739; Note, The Single Publication Rule
in Libel: A Fiction Misapplied, supra, 62 Harv. L.Rev. 1041, 1043.)
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plaintiffs’ action was “barred by the one-year statute of limitations set forth in
California Code of Civil Procedure section 340[, subd. (c)],” and the Court of
Appeal erred in reversing the resulting judgment.
DISPOSITION
The judgment of the Court of Appeal is reversed.
MORENO, J.
WE CONCUR: BAXTER, J.
CHIN,
J.
CORRIGAN,
J.
MALLANO,
J.*
MANELLA,
J.**

*
Associate Justice, Court of Appeal, Second Appellate District, Division 1,
assigned by the Acting Chief Justice pursuant to article VI, section 6, of the
California Constitution.
**
Associate Justice, Court of Appeal, Second Appellate District, Division 4,
assigned by the Acting Chief Justice pursuant to article VI, section 6, of the
California Constitution.
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CONCURRING AND DISSENTING OPINION BY KENNARD, J.

In
Shively v. Bozanich (2003) 31 Cal.4th 1230 (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 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 reputation.
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
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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 Fuhrer 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 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
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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.) 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.)
The limitations period begins upon accrual of a cause of action. (Code Civ.
Proc., § 312.) Generally, a cause of action accrues “ ‘when, under the 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.) 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 generically
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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.) 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 2, 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
4

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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 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. 12.) 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. “ ‘[S]tatutes 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
5

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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.) 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 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.
KENNARD,
J.
6

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Hebrew Academy of San Francisco v. Goldman
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 129 Cal.App.4th 391
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S134873
Date Filed: December 24, 2007
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: Ronald Evans Quidachay

__________________________________________________________________________________

Attorneys for Appellant:

Law Office of Paul Kleven and Paul Kleven for Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Carlson, Calladine & Peterson, Michael C. Cooper; Steefel, Levitt & Weiss and Barry W. Lee for
Defendants and Respondents.

Horvitz & Levy, John A. Taylor, Jr., and Jeremy B. Rosen for Aeonix Publishing Group, The American
Association of Law Libraries, The American Society for Information Science and Technology, The
Association for Documentary Editing, The Association of Research Libraries, Bay Area Independent
Publishers Association, The Independent Book Publishers Association, The Medical Library Association,
The National Coalition for History, Nestlé USA, Inc., The Oral History Association, The Small Press
Center, The Society of American Archivists, The Southern California Association of Law Libraries and
The Special Libraries Association as Amici Curiae on behalf of Defendants and Respondents.

Christopher M. Patti; Munger, Tolles & Olson, Bradley S. Phillips and Ailsa W. Chang for The Regents of
the University of California as Amicus Curiae on behalf of Defendants and Respondents.

---

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

Paul Kleven
Law Office of Paul Kleven
1604 Solano Avenue
Berkeley, CA 94707
(510) 528-7347

Michael C. Cooper
Carlson, Calladine & Peterson
353 Sacramento Street, 16th Floor
San Francisco, CA 94111
(415) 391-3911

Jeremy B. Rosen
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436-3000
(818) 995-0800

---

Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: When a publication containing an allegedly defamatory statement is available to the public but has a very limited distribution, does the statute of limitations on a defamation cause of action begin to run at the time of the first general distribution (the "single publication rule") or when the allegedly defamatory statement is or reasonably should have been discovered (the "discovery rule")?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Mon, 12/24/2007	42 Cal.4th 883 original opinion	S134873	Review - Civil Appeal	closed; remittitur issued	HEBREW ACADEMY OF SAN FRANCISCO v. U.C. REGENTS (S132687)

Disposition
Dec 24 2007	Opinion: Reversed

Dockets
Jun 20 2005	Petition for review filed   by counsel for defts-resps Goldman, et al c/a rec req
Jun 28 2005	Received Court of Appeal record   file jacket/briefs/two volumes of appendices/accordian file
Jul 12 2005	Answer to petition for review filed   by Appellants Hebrew Academy of San Frnacisco [ CRC 40.1(b) ]
Jul 22 2005	Reply to answer to petition filed
Aug 16 2005	Time extended to grant or deny review   to and including September 16, 2005
Aug 24 2005	Petition for review granted (civil case)   Werdegar, J., was recused and did not participate. Votes: George, C.J., Kennard, Baxter, Chin, and Moreno, JJ.
Sep 2 2005	Certification of interested entities or persons filed   by Paul Kleven, counsel for appellants (Hebrew Academy of San Francisco et al.)
Sep 7 2005	Certification of interested entities or persons filed   by Michael C. Cooper, Carlson Calladine & Peterson, counsel for Respondent Goldman
Sep 8 2005	Request for extension of time filed   for an additional 30 days to file respondent's opening brief on the merits.
Sep 13 2005	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and includindg October 23, 2005.
Oct 24 2005	Opening brief on the merits filed   Respondents Richard N. Goldman et al
Nov 23 2005	Request for extension of time filed   By counsel for appellants {Hebrew Academy of San Francisco et al.,} requesting a 30-day extesion to and including December 23, 2005.
Nov 29 2005	Extension of time granted   On application of appellants and good cause appearing, it is ordered that the time to serve and file appellants' answer brief on the merits is hereby extended to and including December 23, 2005.
Dec 21 2005	Request for extension of time filed   to January 13, 2006 to file Appellants' Answer Brief on the Merits.
Dec 28 2005	Extension of time granted   On application of appellants and good cause appearing, it is ordered that the time to serve and file the Appellants' Answer Brief on the Merits is extended to and including January 13, 2006.
Jan 17 2006	Answer brief on the merits filed   Appellants Hebrew Academy of San Francisco CRC 40.1(b)
Feb 6 2006	Reply brief filed (case fully briefed)   Goldman, et al, Respondents Michael Cooper, Counsel
Mar 1 2006	Request for extension of time filed   for an additional seven days (to March 15, 2006) to file the Application and Amicus Curiae Brief of Nestle USA, Inc.
Mar 6 2006	Extension of time granted   On application of Amicus Nestle USA, Inc. for an additional seven-day extension of time, and good cause appearing, it is hereby ordered that the time to serve and file the Application and Amicus Curiae Brief of Nestle USA, Inc. is hereby granted to and including March 15, 2006.
Mar 9 2006	Received application to file Amicus Curiae Brief   and brief (separate) of The Regents of the University of California in support of respondents
Mar 10 2006	Permission to file amicus curiae brief granted   The application of The Regents of the University of California for permission to fle an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 10 2006	Amicus curiae brief filed   The Regents of the University of California in support of respondents.
Mar 16 2006	Received application to file Amicus Curiae Brief   and brief of Aeonix Publishing Group; The American Association of Law Libraries; The American Society for Information Science and Technology; The Association for Documentary Editing; The Association of Research Libraries; Bay Area Independent Publishers Association; The Independent Book Publishers Association; The Medical Library Association; The National Coalition for History; Nestle USA, Inc; The Oral History Association; The Small Press Center; The Society of American Archivists; The Southern California Association of Law Libraries; and The Special Libraries Association in support of Respondents Richard N. Goldman et al.
Mar 17 2006	Permission to file amicus curiae brief granted   The application of Aeonix Publishing Group et. al. in support of Respondents Richard N. Goldman et al. is granted. an answer thereeto may be served and filed by any party within twenty days of the filing of the brief.
Mar 17 2006	Amicus curiae brief filed   Aeonix Publishing Group et al. in support of Respondents Richard N. Goldman, et al.
Apr 3 2006	Response to amicus curiae brief filed   Appellants' Answer to Amici Curiae Briefs
Sep 5 2007	Case ordered on calendar   to be argued on October 2, 2007, in Santa Rosa, at 1:30 p.m. special session at the Sonoma Country Day School, 4400 Day School Place, Santa Rosa
Sep 17 2007	Application filed to:   divide oral argument time, filed by Michael C. Cooper (counsel for respondents Goldman et al.) Respondents Goldman et al. asking to share 10 minutes of oral argument time with amici Aeonix Publishing Group et al.
Sep 19 2007	Order filed   The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amici curiae Aeonix Publishing Group et al. 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
Sep 20 2007	Supplemental brief filed   Hebrew Academy of San Francisco, et al., plaintiffs and appellants by Paul Kleven, Law Office of Paul Kleven
Sep 21 2007	Supplemental brief filed   Respondents Richard N. Goldman and the Jewish Community Federation of San Francisco, The Peninsula, Marin and Sonoma Counties, The San Francisco Jewish Community Endowment Fund by Michael C. Cooper, Carlson Calladine & Peterson.
Sep 25 2007	Request for Extended Media coverage Filed   by The Santa Rosa Press Democrat
Sep 28 2007	Request for Extended Media coverage Granted   The request for extended media coverage, filed by The Santa Rosa Press Democrat on September 25, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 2 2007	Cause argued and submitted
Oct 17 2007	Note: Mail returned and re-sent   Attorney Bradley Marc Zamczyk, Hinshaw & Culbertson, at the address appearing on the California State Bar website.
Dec 24 2007	Opinion filed: Judgment reversed   Opinion by Moreno, J. -- joined by Baxter, Chin, Corrigan, JJ., Mallano, JPT*, and Manella, JPT**. Concurring and Dissenting Opinion by Kennard, J. *Associate Justice, Second Appellate District, Division One, assigned. ** Associate Justice, Second Appellate District, Division Four, assigned.
Jan 9 2008	Rehearing petition filed   Hebrew Academy of San Francisco, et al., plaintiffs and appellants Paul Kleven, counsel
Jan 10 2008	Time extended to consider modification or rehearing   to and including March 21, 2008
Mar 19 2008	Rehearing denied   George, C.J., and Werdegar, J., were recused and did not participate.
Mar 19 2008	Remittitur issued (civil case)
Apr 4 2008	Received:   Acknowledgment of receipt for remittitur from First Appellate District, Division Two, signed for by Imelda Santos, Deputy Clerk

Briefs
Oct 24 2005	Opening brief on the merits filed
Jan 17 2006	Answer brief on the merits filed
Feb 6 2006	Reply brief filed (case fully briefed)
Mar 10 2006	Amicus curiae brief filed
Mar 17 2006	Amicus curiae brief filed
Apr 3 2006	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website