Cantella v. Van De Kamp

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICHARD A. CANATELLA, 
Plaintiff-Appellant,
v. No. 06-15186
JOHN K. VAN DE KAMP; MARIE M.
MOFFAT; JAY GOLDMAN; NANCY  D.C. No.
CV-05-02415-BZ
MCCARTHY; CALIFORNIA BAR
OPINION
JOURNAL; ROBERT HAWLEY;
ZANASSI; MARTHA DAETWYLER,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Bernard Zimmerman, Magistrate, Presiding

Argued and Submitted
October 16, 2006—San Francisco, California

Filed May 3, 2007

Before: J. Clifford Wallace and Jay S. Bybee, Circuit Judges,
and Dean D. Pregerson,* District Judge.

Opinion by Judge Bybee

*The Honorable Dean D. Pregerson, United States District Judge for the
Central District of California, sitting by designation.

4921
4924 CANATELLA v. VAN DE KAMP

COUNSEL

Richard A. Canatella, Esq., and Ronald Toran, Esq., Cotter &
Del Carlo, San Francisco, California, for the plaintiff-
appellant.
 CANATELLA v. VAN DE KAMP 4925
R. Scott Erlewine, Esq., Phillips, Erlewine, & Given LLP, San
Francisco, California, for defendants-appellees.

OPINION

BYBEE, Circuit Judge:

Appellant Richard Canatella (“Canatella”) appeals the
United States District Court’s order dismissing his civil rights
suit against the State Bar of California (“California Bar”),
several officers of the California Bar (collectively, with the
California Bar, “Appellees”), and attorney Martha Daetwyler
(“Daetwyler”). The district court disposed of Canatella’s civil
rights claims against Appellees on statute of limitations
grounds and Canatella’s claims against Daetwyler on state
action and privilege grounds. We now deal with Canatella’s
claims against Appellees1 and affirm the district court’s dis-
missal order.

I

Canatella is a California attorney, who has been repeatedly
sanctioned by both state and federal courts.2 At some point
after 1992, the California Bar initiated disciplinary proceed-
ings against Canatella in connection with those sanctions.
Canatella challenged those proceedings in federal court, but
his suit was dismissed on abstention grounds. After that dis-
missal, Canatella and the California Bar reached an agreement
concerning his professional conduct, and as part of that agree-
1
We deal with Canatella’s claims against Daetwyler in an unpublished
memorandum disposition.
2
Though there is some dispute over how many times Canatella has been
sanctioned, Canatella’s second amended complaint concedes that he has
been “investigated for forty-seven (47) purported sanction orders over a
nine year period” and has been sanctioned at least “twenty-six (26) sepa-
rate times between 1989 and 1998, by federal and state courts.”
4926 CANATELLA v. VAN DE KAMP
ment, Canatella consented to a thirty-day suspension of his
license and a probationary period of eighteen-months. When
the California Supreme Court approved that agreement in
August 1999, the sanction and suspension became part of
Canatella’s public disciplinary record. See CAL. BUS. & PROF.
CODE § 6086.1(a)(1) (providing that “records of original disci-
plinary proceedings in the State Bar Court shall be public”).

Thereafter, in February 2000, pursuant to California law,
the California Bar Journal published an identical summary of
Canatella’s disciplinary sanction in both its paper and online
editions.3 That summary, which Canatella concedes he read in
the print version of the California Bar Journal, read as fol-
lows:

RICHARD A. CANATELLA [#53264], 61, of San
Francisco was suspended for 18 months, stayed,
placed on 18 months of probation with a 30-day
actual suspension, and was ordered to take the
MPRE within one year. The order took effect Sept.
17, 1999.

Canatella stipulated to filing numerous frivolous
actions in courts in San Mateo, San Francisco, and
Santa Clara county courts, as well as in the Califor-
nia Court of Appeal and federal district and appeals
courts.

Six were civil matters he filed relating to a criminal
case in which he represented a babysitter who was
convicted of second degree murder and felony child
abuse. The civil cases, filed on behalf of the babysit-
ter and her parents, who owned the house where she
lived, included legal malpractice, insurance bad
faith, and allegations that various defendants con-
3
The California Bar has been publishing the California Bar Journal in
both paper and electronic form since January 1996.
 CANATELLA v. VAN DE KAMP 4927
spired to deprive his clients of their constitutional
rights.

Canatella’s involvement in nine other matters also
was the subject of discipline.

Sanctions were ordered against him or his clients 37
times. Courts repeatedly found him responsible for
frivolous, meritless and vexatious actions. Sanctions
totaled more than $18,000 in one matter, and the
opposing parties were granted all fees and costs in
another.

In one case, a federal judge said, “This complaint is
a paradigm for ‘frivolous.’ ” Wrote another federal
jurist: “Plaintiff’s repeated attempt to challenge the
sanctions and judgments . . . in the face of clear
authority that his claim is frivolous evidences his bad
faith and wrongful purpose.”

In mitigation, Canatella has no record of discipline
since beginning to practice law in 1972 and he dem-
onstrated his good character by presenting testimoni-
als from eight people, including four attorneys and
three judges. He also presented a lengthy list of his
professional accomplishments.

In addition to containing an electronic version of the Cali-
fornia Bar Journal, the California Bar’s website also contains
a member search function that allows the public to search for
information on California attorneys. Before 2003, if a member
had a disciplinary record, a member search would only reveal
the existence—but not the content—of that record. At some
point after March 2003, however, that same search would
reveal both the existence of a disciplinary record and the Cali-
fornia Bar Journal’s summary of that record.4 Consequently,
4
The California Bar’s website includes summaries of disciplinary pro-
ceedings that occurred after 1996.
4928 CANATELLA v. VAN DE KAMP
at some point after August 2003,5 the same disciplinary sum-
mary that appeared in the online California Bar Journal also
appeared in response to a member search for Canatella’s
name.

On July 27, 2004, Daetwyler—who represented a client
adverse to Canatella’s in a state probate proceeding—cited the
disciplinary summary that appears on Canatella’s member
search page in support of a motion to recover court costs.
Though the probate court denied that motion, Canatella filed
this suit pursuant to 42 U.S.C. § 1983, in July 2005, claiming
that when Daetwyler cited that record she and Appellees vio-
lated his First, Fourth, and Fourteenth Amendment rights.6 As
part of his prayer for relief, Canatella sought both damages
and “[d]eclaratory or injunctive relief enjoining the [Appel-
lees] from republishing the offending summary on the [Cali-
5
The California Bar began including disciplinary summaries on member
search pages in March 2003. Nevertheless, an uncontradicted affidavit
from an employee of Canatella’s firm—the truth of which we assume for
purposes of this appeal—states that the employee could not locate the
summary when he ran a member search for Canatella’s name between
October 2002 and August 2003. The Appellees also concede that “[they]
do not know the specific date” that Canatella’s summary first appeared in
response to a member search.
6
Canatella’s second amended complaint makes five claims. First, Cana-
tella contends that a summary of his disciplinary record that appears on the
California Bar’s website violates his “constitutional right to privacy as a
licensed attorney in good standing[ ] and infringes his right to confidenti-
ality and autonomy.” Next, Canatella contends that by making his disci-
plinary summary available in response to a member search without giving
him a chance to review that summary, Appellees violated his procedural
due process rights. Third, Canatella contends that the posting constitutes
a “prior restraint prohibited by the First Amendment.” Fourth, Canatella
maintains that the posting violates substantive due process because it was
posted “pursuant to a conspiracy designed to destroy [his] reputation and
ability to . . . mak[e] a living and . . . continu[e to] . . . practice . . . law.”
And finally, Canatella maintains that the posting violates the Equal Protec-
tion Clause because the California Bar only posts the records of disciplin-
ary proceedings occurring after 1996 on its website.
 CANATELLA v. VAN DE KAMP 4929
fornia] Bar[’s] internet web site [sic], and directing
[Appellees] to remove the offending summary.”

Thereafter, Daetwyler and Appellees filed motions to dis-
miss pursuant to Federal Rule of Civil Procedure 12(b)(6).
The district court granted Daetwyler’s motion, and at the
same time, when “it became apparent that” Canatella’s claims
against Appellees might be barred by the statute of limita-
tions, the district court “as permitted by [Federal] Rule [of
Civil Procedure] 12(b)(6) . . . gave the parties an opportunity
to take limited discovery on [that] issue and to submit matters
outside the pleadings to see if [that] potentially dispositive
issue could be resolved at the outset.” Based on information
obtained in that manner, the district court granted Appellees’
motion to dismiss. Canatella appeals that dismissal.

II

A

Canatella filed suit against Appellees pursuant to 42 U.S.C.
§ 1983, which provides in pertinent part:

Every person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immu-
nities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress . . . .

Canatella challenges the district court’s decision granting
Appellees’ motion to dismiss his claims pursuant to Rule
12(b). Because limited “matters outside the pleading[s] [were]
presented to” the district court in ruling on that motion, Cana-
tella’s “motion [is] treated as one for summary judgment and
4930 CANATELLA v. VAN DE KAMP
disposed of as provided in Rule 56.” FED. R. CIV. P. 12(b).
We review such rulings de novo. Orr v. Bank of Am., 285
F.3d 764, 772 (9th Cir. 2002). In so doing, “[w]e must deter-
mine, viewing the evidence in the light most favorable to the
nonmoving party and drawing all justifiable inferences in its
favor, whether there are any genuine issues of material fact
and whether the moving party is entitled to judgment as a
matter of law.” Id.; accord Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Furthermore, “[a] district court’s decision as
to whether a claim is barred by the statute of limitations is
reviewed de novo,” Santa Maria v. Pac. Bell, 202 F.3d 1170,
1175 (9th Cir. 2000), as is the question of when “the statute
of limitations begins to run,” Orr, 285 F.3d at 780. Applying
that standard, we affirm the district court’s decision because
under California law, the statute of limitations ran on Canatel-
la’s claims before he filed his complaint.7

[1] “For actions under 42 U.S.C. § 1983,” like Canatella’s,
“courts apply the forum state’s statute of limitations for per-
sonal injury actions, along with the forum state’s law regard-
ing tolling, including equitable tolling, except to the extent
any of these laws is inconsistent with federal law.” Jones v.
Blanas, 393 F.3d 918, 927 (9th Cir. 2004), cert. denied, 126
S. Ct. 351 (2005). Thus, “California[’s] statute of limitations
for assault, battery, and other personal injury claims” applies
to Canatella’s § 1983 claims unless it is inconsistent with fed-
eral law. Id. The current version of that statute, which became
effective on January 1, 2003, provides that personal injury
actions must be brought within two years after the cause of
action arose. See Maldonado v. Harris, 370 F.3d 945, 954-55
(9th Cir. 2004); see also CAL. CIV. PROC. CODE § 335.1.
Because that statute does not apply retroactively, any cause of
action that was more than one-year old as of January 1, 2003
would be barred under the previous one-year statute of limita-
7
Because the statute of limitations issue is dispositive, we assume—for
the purposes of this appeal—that Canatella has otherwise stated a valid
§ 1983 claim.
 CANATELLA v. VAN DE KAMP 4931
tions. Jones, 393 F.3d at 927 & n.4; see also Maldonado, 370
F.3d at 954-55.

[2] The parties dispute when Canatella’s claims arose, and
that dispute is relevant to determining whether California’s
previous one-year statute of limitations or the newly enacted
two-year limitation period applies to Canatella’s claim. Cana-
tella contends that his claims did not arise until July 27, 2004,
when Daetwyler cited his disciplinary summary. If Canatella
is correct, the new two-year statute of limitations applies and
Canatella’s July 15, 2005 complaint would have been timely.
By contrast, Appellees contend that Canatella’s claims arose
when the disputed summary first appeared on the California
Bar’s website in the electronic version of the California Bar
Journal in February 2000. To support that argument, Appel-
lees argue that the single publication rule, as codified in Cali-
fornia at Civil Code § 3425.3, applies to Canatella’s claims,
and under that “rule, with respect to the statute of limitations,
publication generally is said to occur on the first general dis-
tribution of the publication to the public,” meaning that a
“cause of action accrues and the period of limitations com-
mences, regardless of when the plaintiff secured a copy or
became aware of the publication.” Shively v. Bozanich, 80
P.3d 676, 684 (Cal. 2003) (internal quotation marks omitted);
see also RESTATEMENT (SECOND) OF TORTS § 577A(4) (1977)
(“As to any single publication, (a) only one action for dam-
ages can be maintained; (b) all damages suffered in all juris-
dictions can be recovered in the one action; and (c) a
judgment for or against the plaintiff upon the merits of any
action for damages bars any other action for damages between
the same parties in all jurisdictions.”). If Appellees are cor-
rect, the old one-year limitations period bars Canatella’s
claims, as his complaint must have been filed no later than
February 2001. Relying on the single publication rule’s logic,
the district court held that Canatella’s claim arose in February
2000 when the summary first appeared in the online version
of the California Bar Journal.
4932 CANATELLA v. VAN DE KAMP
[3] Because federal—not state—“law determines when a
civil rights claim accrues,” Maldonado, 370 F.3d at 955, Cali-
fornia’s single publication rule does not apply to Canatella’s
claims by its own force. Instead, “[u]nder federal law, a claim
accrues when the plaintiff knows or has reason to know of the
injury which is the basis of the action.” TwoRivers v. Lewis,
174 F.3d 987, 991 (9th Cir. 1999). In applying that principle,
however, we have employed the single publication rule’s
logic to hold that once that standard is met, a single publica-
tion gives rise to only one cause of action. In Oja v. United
States Army Corps of Eng’rs, 440 F.3d 1122, 1128, 1130-33
(9th Cir. 2006), for instance, we applied the single publication
rule to a plaintiff’s claim that the Corps of Engineers had vio-
lated the Privacy Act by posting the plaintiff’s employment
information on the internet. Oja held that the plaintiff’s claims
were barred by the Privacy Act’s two-year statute of limita-
tions since the first posting had occurred more than two years
before the plaintiff brought suit and the plaintiff conceded that
he had seen that posting more than two years before he filed
suit. Id. at 1125, 1133. In so doing, we also held—as we do
now—that the “[a]pplication of the single publication rule to
Internet publication was not inconsistent with” federal law
because that rule focuses a plaintiff’s “claims against a defen-
dant, thereby economizing judicial resources while preserving
the plaintiff’s ability to bring the claims.” Id. at 1133. Other
circuits have applied the single publication rule’s logic in a
similar manner. See, e.g., Pitts v. City of Kankakee, 267 F.3d
592, 596-97 (7th Cir. 2001) (applying the single publication
rule’s logic to hold that a defamation claim arising under
§ 1983 was barred on statute of limitations grounds).

B

[4] Applying that principle, Canatella’s civil rights claims
are barred by California’s one-year statute of limitations.
Canatella saw the summary he now complains of in the print
version of the California Bar Journal in February 2000, and
that publication informed—or should have informed—him
 CANATELLA v. VAN DE KAMP 4933
that the same summary appeared on the internet website per
the California Bar’s previously stated policy to post an elec-
tronic version of the California Bar Journal on its website.
Because, under the single publication rule, a single publica-
tion gives rise to only one cause of action, the statute of limi-
tations period began to run on all of Canatella’s claims in
February 2000, and that period expired long before January 1,
2003. Thus, the district court properly concluded that Canatel-
la’s 2005 complaint was untimely.

Canatella attempts to avoid that conclusion on three
grounds: First, he agues that by posting his disciplinary record
at a second place on the California Bar’s website, the Califor-
nia Bar republished his disciplinary record and restarted the
statute of limitations period. Second, Canatella argues that
Daetwyler’s citation of his disciplinary record similarly con-
stituted republication. And third, Canatella claims that every
time a person searches for and locates the allegedly offensive
summary a new cause of action accrues. All three contentions
are without merit.

[5] Canatella’s first argument—that placing his disciplinary
summary on his member search page constituted a separate
publication—is foreclosed by Oja. In that case, the plaintiff
alleged, inter alia, that the Corps of Engineers had published
private employment information in violation of federal law on
two distinct websites thereby giving rise to two separate
causes of action. Oja, 440 F.3d at 1133-34. We agreed, hold-
ing that if the Corps of Engineers had “published the same
private information” that it had previously published “at a dif-
ferent URL address, then that disclosure [would] constitute[ ]
a separate and distinct publication—one not foreclosed by the
single publication rule—and the [Corps of Engineers] might
be liable for a separate violation of the Privacy Act.” Id. (foot-
note omitted). Whereas at first glance that language might
appear to support Canatella’s claim that his cause of action is
not barred by the single publication rule since the first publi-
4934 CANATELLA v. VAN DE KAMP
cation appeared at a slightly different URL address,8 a foot-
note attached to the phrase “a different URL address” makes
clear that Oja simply uses “URL” as a synonym for “web-
site.” See id. at 1134 n.16. Indeed, that footnote reveals that
the Oja plaintiff did not even “provide the [second] website’s
URL listing in his Second Amended Complaint” and simply
alleged that a second publication had occurred on “a second
site, distinct from the [first].” Id.; accord id. (noting that the
plaintiff had alleged that the second publication had occurred
on a “different [Corps of Engineers] website” (emphasis
added)). Accordingly, we “treat[ed] the . . . second site as sep-
arate and distinct from the [first] site” and held—on that basis
—that the plaintiff’s claims based on the second publication
were not barred by the single publication rule. Id. at 1133-34
& n.16. Applying Oja’s mode of analysis, the California Bar’s
decision to add the allegedly offensive disciplinary summary
to Canatella’s member search page did not trigger a new
cause of action since a verbatim copy of that summary had
appeared on the exact same website since February 2000.
Thus, contrary to Canatella’s claims, the California Bar’s
posting of his disciplinary record in a different section of the
same website did not give rise to a new cause of action under
Oja, and accordingly, the statute of limitations period expired
long before Canatella brought suit in 2005.

[6] Even aside from Oja, however, we would be compelled
to reject Canatella’s contention and hold that a website—not
a particular URL—is the touchstone for the single publication
rule analysis because of the very interests the single publica-
tion rule is designed to promote. For instance, as other courts
have noted, the single publication rule exists to “reduce[ ] the
8
The summary was first posted at http://www.calbar.ca.gov/calbar/2cbj/
00feb/attdisc.htm and later posted at http://members.calbar.ca.gov/search/
member_detail.aspx?X=53264. Though at oral argument, Appellees
seemed to indicate that both addresses originally contained the identifier
calbar.org instead of calbar.ca.gov, this difference is immaterial since
users accessing calbar.org are automatically transferred to calbar.ca.gov.
Moreover, Canatella does not rest his argument on this distinction.
 CANATELLA v. VAN DE KAMP 4935
possibility of hardship to plaintiffs [and defendants] by allow-
ing the collection of all damages in one case commenced in
a single jurisdiction” and prevent “a multiplicity of actions,
leading to potential harassment and excessive liability, and
draining of judicial resources.” Firth v. State, 98 N.Y.2d 365,
369-70, 775 N.E.2d 463, 465 (N.Y. 2002); Traditional Cat
Ass’n, Inc. v. Gilbreath, 118 Cal. App. 4th 392, 403-04 (Cal.
Ct. App. 2004). Such interests, however, would hardly be pro-
moted by a rule permitting a new cause of action to arise
every time a few characters—due to the continually evolving
nature of technology—in a URL address changes, even
though the same allegedly defamatory statement continued to
appear on the same website.

[7] We also reject Canatella’s second contention that a new
cause of action arose on July 27, 2004 when “Daetwyler . . .
and others . . . repeat[ed] or republish[ed] the false and mis-
leading summary to third persons” because Appellees knew or
should have known that Daetwyler would use Canatella’s
disciplinary summary. In support of this claim, Canatella cites
Schneider v. United Airlines, Inc., 208 Cal. App. 3d 71, 75-78
(Cal. Ct. App. 1989), which held that United Airlines and
another company could be held liable for the republication of
an allegedly defamatory statement made by those companies
to a credit reporting agency that then passed the information
on to others. In so holding, Schneider rejected the argument
that the single publication rule should bar such republication
claims because the repetition was “foreseeable” and there was
a “strong causal link between the actions of the originator and
the damage caused by the republication.” Id. at 75-76. At first
glance, Schneider might appear to support Canatella’s argu-
ment since Daetwyler cited Canatella’s disciplinary record.
That case is distinguishable, however, because whereas
Schneider involved giving information to an agency charged
with republishing that information in response to specific
inquiries, Appellees merely posted the allegedly offensive
statement on a public website. Therefore, unlike the defen-
dants in Schneider who made an offensive statement to an
4936 CANATELLA v. VAN DE KAMP
agency that they knew would report the information to others,
Appellees had no similar foresight that Daetwyler would com-
municate the information posted on the internet. Moreover,
far from constituting a republication, Appellee Daetwyler’s
decision to use the statements contained on the internet is
more like the “mere continuing impact from [alleged] past
violations [that] is not actionable” as a new cause of action,
Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (internal
quotation marks omitted), and as such, it cannot give rise to
a new cause of action.

Finally, Canatella’s third argument—that the single publi-
cation rule should not apply because his disciplinary record is
provided in response to specific inquiries—is similarly
flawed. In support of that argument, Canatella relies on Swaf-
ford v. Memphis Individual Practice Ass’n, 1998 WL 281935
(Tenn. Ct. App. Jun. 2, 1998), an unpublished state court
opinion, which we have interpreted as holding that the single
publication rule does not apply to a situation where “a certi-
fied entity directly request[s] [allegedly defamatory] informa-
tion from [an] electronic data-bank held by the [defendant],
[and] the [defendant] provide[s] the information directly to
the requesting entity.” Oja, 440 F.3d at 1133 (explaining
Swafford, 1998 WL 281935, at *8) (emphasis in original). As
we have previously observed, “Swafford is distinguishable
from . . . and is not inconsistent with the application of the
single publication rule to the vast majority of Internet publica-
tion[ ]” cases because “the information at issue in Swafford
was not available for the general public to access, nor could
any unregistered and non-specific entities access the regis-
tered databank,” rather “Swafford is much more akin to the
release of personal credit reports.” Id. Therefore, even assum-
ing, as Canatella argues, that a member search for his disci-
plinary record is a specific inquiry like in Swafford,
Canatella’s reliance on Swafford is misplaced because his
disciplinary record has consistently been generally available.
Accordingly, we reject Canatella’s third contention.
 CANATELLA v. VAN DE KAMP 4937
[8] Consequently, as Canatella may only bring one cause of
action arising from the publication of his disciplinary sum-
mary in any single source and the statute of limitations ran on
that claim before he filed his complaint, we affirm the district
court’s dismissal order.

III

For the reasons set forth above, the district court’s order
dismissing Canatella’s § 1983 claims against Appellees is
AFFIRMED.