Bernson v. Browning-Ferris Industries of California, Inc.

KENNARD, J., Dissenting.

When a person who is the subject of a defamatory report has obtained a copy of the report, but does not know who prepared it, how long can he or she wait to file suit? California law requires the person to file a complaint within one year after he or she knows facts sufficient to state a cause of action for libel. The fact that the defamed person does not know who prepared the report does not change this rule, because California’s fictitious name or “Doe” pleading procedure protects plaintiffs who do not know who has wronged them, by permitting them to designate by a fictitious name any defendant whose identity is not known when the complaint is filed. Here, plaintiff ignored this established procedure, and waited to file this lawsuit until more than three years after he knew the facts necessary to state a cause of action for libel, and over two years after the statute of limitations had expired on his claim.

The majority concludes that if the persons responsible for the defamatory report concealed their identities from plaintiff the statute of limitations *939should not bar this action. The majority’s theory is that the concealment of identity would prevent plaintiff from filing suit. I disagree with the broad rule the majority adopts today. Because the “Doe” pleading procedure allows a plaintiff to bring suit against unidentified persons, a tortfeasor who conceals his or her identity throughout the period of the statute of limitations does not necessarily prevent a plaintiff from filing suit.

Moreover, the rule the majority adopts should not save this lawsuit. The only act of concealment of identity alleged in this case occurred after the statute of limitations on plaintiff’s libel action had already run. Accordingly, I dissent

I

Plaintiff Hal Bernson, a member of the Los Angeles City Council, filed this lawsuit on January 17, 1992, naming as defendants Browning-Ferris Industries of California, Inc. (hereafter BFI), and three individuals, Les Bittenson, Lynn Wessell and Mark Ryavec. In the complaint seeking damages on several theories, Bernson alleged that defendants had libeled him in a report “formulated, printed, published and publicly disseminated” some time preceding Bernson’s reelection to the city council in June 1991. The report, attached as an exhibit to Bernson’s complaint, is titled “Los Angeles Councilman Hal Bernson—An Analysis of City/Campaign Financial Travel 1983-1988,” and sets forth details of public campaign funds that Bernson purportedly spent on personal travel.

By general and special demurrer, defendant Ryavec asserted that the complaint failed to state any cause of action and objected, on grounds of “uncertainty,” that it failed to allege “actionable conduct or damage first sustained” within the one-year statutory limitations period. (Code Civ. Proc., § 430.10, subds. (e) & (f); further undesignated statutory references are to this code.)1 In response to the special demurrer for uncertainty, Bernson filed two declarations, his own and that of his chief deputy, Greig Smith. Bern-son’s declaration revealed that he had known of the allegedly libelous report since “the second half of 1988,” when his staff obtained a copy of the report from a newspaper reporter. Bemson’s declaration also mentioned that the report had been distributed anonymously to members.of the Los Angeles media and “contained numerous untrue allegations concerning [Bernson’s] city and campaign travel and spending.”

Bernson’s declaration further stated: on.February 6, 1990, two Los Angeles Times reporters told Bernson it was defendant BFI that had prepared *940the report. Immediately thereafter, Bernson confronted BFI’s attorney with the reporters’ statements. On February 12, 1990, BFI’s attorney sent a letter to the Los Angeles Times, with a copy to Bernson, denying BFI’s involvement in the preparation or distribution of the report and demanding that the reporters retract their accusations. Bernson accepted the representations of BFI’s attorney, and “remained unaware of the Report’s source” until May 31, 1991, when his chief deputy, Greig Smith, advised him that a third Los Angeles Times reporter had credited defendant Mark Ryavec with preparing the report for BFT. Smith’s declaration confirmed the facts contained in Bemson’s declaration.

The parties and the trial court treated the factual allegations set out in these two declarations as amendments to Bernson’s complaint. Based on these additional facts revealing Bernson’s knowledge of the report and its contents in late 1988, the trial court ruled that the complaint, raising claims subject to one-year statutory limitation periods, was untimely when filed on January 17, 1992. On that basis the court sustained defendant Ryavec’s general demurrer without leave to amend, and dismissed Bernson’s action against Ryavec with prejudice. Shortly thereafter, upon a motion of the remaining defendants (BFI, Bittenson, and Wessell), raising the one-year statute of limitations as a bar to Bernson’s action, the trial court entered summary judgment.

Bernson sought review in the Court of Appeal, which affirmed the trial court’s judgments. The Court of Appeal correctly resolved this case, as I shall explain.

II

A. A Plaintiff Must File a Libel Action Within One Year After Notice of Facts Sufficient to State a Cause of Action

The statute of limitations for filing a libel action is one year. (§ 340, subd. (3).) This statute of limitations, like any other, serves two functions: it assures that plaintiffs will diligently pursue their claims, and it protects defendants from having to defend stale claims after memories have faded, evidence has been lost, and witnesses have dispersed. (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 898 [218 Cal.Rptr. 313, 705 P.2d 886]; see also Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [245 Cal.Rptr. 658, 751 P.2d 923]; Davies v. Krasna (1975) 14 Cal.3d 502. 512 [121 Cal.Rptr. 705, 535 P.2d 1161, 79 A.L.R.3d 807].) As we said in Gutierrez, “Limitations statutes afford repose by giving security and stability to human affairs.” (39 Cal.3d at p. 899.)

*941In tort actions, the statute of limitations ordinarily begins to run “upon the occurrence of the last element essential to the cause of action.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 187 [98 Cal.Rptr. 837, 491 P.2d 421].) This general rule is modified, however, in cases subject to the rule of delayed discovery, which postpones the accrual date of a cause of action until the plaintiff discovers the “injury and its negligent cause.” (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d 1103, 1109.) A limitations period subject to this rule of delayed discovery accrues no later than the time the plaintiff learns the facts essential to a particular cause of action. (Gutierrez v. Mofid, supra, 39 Cal.3d 892, 897; Neel v. Magana, Olney, Levy, Cathcart & Gelfand, supra, 6 Cal.3d at p. 190.) When, as here, the plaintiff seeks personal injury damages for libel, the rule of delayed discovery applies and the statutory period for filing the. lawsuit starts to run as soon as the plaintiff knows, or should know, the facts essential to alleging a cause of action for libel. (Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, 727-728, 731 [152 Cal.Rptr. 27].)

The facts a plaintiff knows or should know that will commence the running of the statute of limitations in any case that is subject to delayed discovery are not the specific facts the plaintiff must prove to prevail at trial. If the plaintiff is aware of facts that would put a reasonable person “on inquiry, ” such knowledge is sufficient to start the running of the statute of limitations. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1111, original italics.) Once the plaintiff suspects wrongdoing, and has an incentive to sue, the plaintiff “must go find the facts,” and cannot wait for the facts to find the plaintiff. (Ibid.)

The plaintiff’s ignorance of the identity of the defendant does not delay the running of the statute of limitations. (Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1110; accord, Baker v. Beech Aircraft Corp. (1974) 39 Cal.App.3d 315, 321 [114 Cal.Rptr. 171, 91 A.L.R.3d 981]; Calabrese v. County of Monterey (1967) 251 Cal.App.2d 131, 141 [59 Cal.Rptr. 224]; 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 352, p. 381.) Therefore, a plaintiff who has knowledge of facts sufficient to state a cause of action must file suit within the statutory limitations period regardless of the plaintiff s knowledge of the identity of the defendant. Failure to do so is a bar to recovery.

B. Ignorance of the Defendant’s Identity Does Not Preclude a Plaintiff From Filing Suit

To ameliorate the harsh results of applying the statute of limitations to a plaintiff who does not know the identity of the wrongdoer, our law permits *942what is commonly referred to as “Doe” pleading. (§ 474; Jolly v. Eli Lilly & Co., supra, 44 Cal.3d at p. 1118.) Under this procedure, a plaintiff “ignorant of the name of a defendant . . . must state that fact in the complaint, and may designate “such defendant ... in any pleading or proceeding by any name,” and, “when [the defendant’s] true name is discovered, the pleading or proceeding must be amended accordingly.” (§ 474.) Every plaintiff has three years after filing a complaint to serve the defendants designated in the pleading. (§ 583.210.) This rule has the practical effect of providing the plaintiff three additional years in which to identify the defendants. (Jolly v. Eli Lilly & Co., supra, at p. 1118.)

By its terms, section 474 applies when a plaintiff is ignorant “of the name of the defendant.” (Italics added.) Typically, a plaintiff who resorts to “Doe” pleading knows the names of one or several defendants but suspects that other persons or entities may also have been involved in the conduct that caused the plaintiff’s injuries. (Hogan, California’s Unique Doe Defendant Practice: A Fiction Stranger Than Truth (1977) 30 Stan.L.Rev. 51, 61.) Under section 474, the plaintiff can, in addition to naming the known defendants, include several “Doe” defendants in the complaint as a procedural precaution against “the possibility that, after the statute of limitations has expired, fresh factual information or new legal developments will reveal that others are liable in addition to, or instead of, those originally sued.” (30 Stan.L.Rev. at p. 51.) This typical situation, however, is not the only use a plaintiff can make of the fictitious name pleading procedure. A plaintiff who has been injured but who does not know the identity of anyone responsible for that injury can, through the use of “Doe” pleading, file a lawsuit within the statutory limitations period naming only defendants designated by fictitious names. (Id. at p. 60, and fn. 30, citing Wallis v. Southern Pac. Transportation Co. (1976) 61 Cal.App.3d 782, 784-785 [132 Cal.Rptr. 631] [complaint named 20 Does and no other defendants].) This procedure permits plaintiffs to preserve claims against unknown defendants.

As this court stated more than a century ago: “Persons are sometimes compelled to bring suits in haste. They have not time to ascertain the true names of parties to be made defendants. The statute of limitations may, in a day from the time the preparation of the complaint is commenced, effect a bar. Sometimes there is no means readily accessible of ascertaining the true names. The [fictitious names] statute . . . was enacted to afford a remedy in such cases. (Irving v. Carpentier (1886) 70 Cal. 23, 26 [11 P. 391].)

This remedy was available here. Even though Bernson did not know who had prepared and distributed the allegedly libelous report, he could have used the “Doe” or fictitious name pleading procedure set forth in section *943474. Bernson’s cause of action for libel accrued sometime in late 1988 when he obtained a copy of the travel expenditure report at issue. At that point, he possessed sufficient facts to plead a cause of action for libel: the report targeted him; its contents were false; it exposed him to “hatred, contempt, ridicule, or obloquy,” and its preparation and widespread distribution to members of the Los Angeles media denoted malice. (Civ. Code, § 45; McCoy v. Hearst Corp. (1986) 42 Cal.3d 835 [231 Cal.Rptr. 518, 727 P.2d 711]; Manguso v. Oceanside Unified School Dist., supra, 88 Cal.App.3d 725.) Under the delayed discovery rule, Bernson had one year from the time in late 1988 when he obtained the report to file his complaint. (§ 340, subd. (3); Manguso v. Oceanside Unified School Dist., supra, at pp. 727, 731.) Bernson did not file his complaint until January 17, 1992—more than three years after his discovery of the report and more than two years after expiration of the one-year limitations period. His complaint was therefore untimely.

Bernson’s claimed ignorance of the identity of the persons responsible for the report and its distribution makes no difference. The identity of the persons responsible for preparing and distributing the report is not an element of a cause of action for libel. (Civ. Code, § 45 [defining libel].) Therefore, ignorance of the identity of the wrongdoer will not delay accrual of the cause of action under the delayed discovery rule. At any time during the limitations period after accrual of his cause of action for libel, Bernson could have filed his complaint naming “Doe” defendants. Yet he ignored the “Doe” pleading procedure and, after learning of the report, waited more than three years to bring suit.

Even though the “Doe” pleading procedure provides an adequate remedy for plaintiffs like Bernson who remain ignorant of the identity of any defendant throughout the period of the statute of limitations, the majority today devises an equitable estoppel remedy to salvage this lawsuit. Although it acknowledges that as a general rule a plaintiff who is ignorant of a defendant’s identity must comply with the statutory limitations period by filing a “Doe” pleading, the majority carves out an equitable exception to that rule for those situations in which “the plaintiff is not only unaware of the defendant’s identity, but is effectively precluded as a practical matter from ascertaining it through normal discovery procedures” as the “result of the defendant’s intentional concealment.” (Maj. opn., ante, p. 933.) The majority’s exception does not withstand scrutiny in general or on the facts of this case, as discussed below.

*944III

A. The Majority’s Equitable Estoppel Rule

In the majority’s view, a defendant can be equitably estopped from asserting the statute of limitations as a bar against a plaintiff who, because of the defendant’s intentional concealment, was unable to learn the defendant’s identity. The rule would not apply in every case of active concealment of identity, however, but would be limited to those cases in which the plaintiff is “effectively precluded” from ascertaining it through civil discovery. (Maj. opn., ante, p. 933.) Moreover, this rule would toll the statute of limitations only until the “plaintiff knows, or through the exercise of reasonable diligence should have discovered, the defendant’s identity.” (Maj. opn., ante, p. 936.)

Underlying the majority’s holding is the premise that it would be unfair to dismiss the case of a plaintiff who, notwithstanding diligent efforts to ascertain the identity of the defendant, was unable to file a timely complaint because of the defendants intentional and wrongful concealment of identity. Implicit in this premise is that a plaintiffs knowledge of the defendant’s identity is necessary for the plaintiff to file a lawsuit. But, as I explained earlier, our law does not penalize a plaintiff who, for whatever reason, is unable to determine within the statutory period of limitations the identity of the wrongdoer responsible for the harm caused the plaintiff. Because plaintiffs ignorant of the identity of any defendant who caused them harm can file a complaint designating the defendant by a fictitious name, as specifically permitted under section 474, they should not be excused from timely filing a complaint.

The majority also assumes that in some cases the plaintiffs ignorance of a defendant’s identity (or more specifically, ignorance of identity that is a by-product of the defendant’s act of concealment) may “effectively” preclude the plaintiff from overcoming that ignorance through “normal discovery procedures.” This situation would arise, presumably, only in cases in which the plaintiff does not know the identity of any defendant. (See maj. opn., ante, p. 933.) The majority reasons that the plaintiff’s lack of knowledge of the identity of any defendant could so impair the use of the discovery procedures that it would be impossible for the plaintiff to find out who should be held accountable for the harm caused the plaintiff. But are the discovery procedures “effectively” unavailable to a plaintiff who is ignorant of the identity of any defendant? The majority accepts without question that this is so. I do not.

*945B. A Plaintiff Who Uses the Doe Pleading Procedure Is Not “Effectively Precluded” From Conducting Discovery to Ascertain a Defendant’s Identity

The majority refers to the Civil Discovery Act of 1986 in a footnote that questions whether “the filing of a complaint naming only Doe defendants” will “trigger the normal discovery procedures.” (Maj. opn., ante, p. 930, fn. 2.) The footnote discusses only two discovery provisions. One of these is section 2035, which pertains to discovery before a lawsuit is filed and thus is irrelevant to whether a plaintiff who has filed a lawsuit using the Doe pleading procedure is effectively cut off from conducting discovery. The other provision the majority cites is section 2025, subdivision (b)(2), which permits a plaintiff “without leave of court” to serve a deposition notice for a date 20 days after “the service of the summons on, or appearance by, any defendant.” The majority apparently assumes that if no defendant is known to the plaintiff, and thus no defendant receives a summons or makes an appearance, the 20-day period after which the plaintiff can hold a deposition will never commence. That assumption, however, belies the statute’s “good cause” exception, under which the trial court can grant a plaintiff leave to conduct a deposition “on an earlier date” upon a showing of good cause. I can think of no better “cause” to justify discovery in a lawsuit than the plaintiff’s need to identity the defendant. Thus, I am not convinced that, as the majority asserts, the provisions of the Civil Discovery Act of 1986 are unavailable to a plaintiff who has filed a “Doe” complaint naming only Doe defendants, or that a plaintiff ignorant of the name of any defendant is “effectively precluded” from overcoming that ignorance through discovery.

C. A Defendant’s Active Concealment of Identity Should Not Estop the Assertion of the Statute of Limitations as a Bar Unless It Actually Prevents the Plaintiff From Bringing Suit

The majority also justifies its estoppel rule as necessary to prevent defendants who conceal their identity from turning their active concealment into a litigation advantage. I agree that if a defendant’s active concealment of identity worked a fraud upon a plaintiff, for instance by lulling the plaintiff into believing there had been no actionable wrong, it would not be equitable to let the defendant gain some benefit from that misconduct.

A case on point is Kimball v. Pacific Gas & Elec. Co. (1934) 220 Cal. 203 [30 P.2d 39], a personal injury action involving a Pacific Gas and Electric Company (PG&E) employee, Kimball, who, while working in a PG&E powerhouse, was knocked unconscious and suffered severe head injuries when hit by a 20-pound bolt falling from an overhead platform. What Kimball did not know and what was concealed from him was that the person *946who had negligently placed the bolt on the elevated platform was not a fellow PG&E employee, but an employee of the General Electric Company, which PG&E had engaged to repair its powerhouse generators. Accordingly, Kimball pursued his workers’ compensation remedy against PG&E for his injuries but did not file a lawsuit within the one-year statutory limitations period. After Kimball settled his workers’ compensation case, PG&E secretly agreed to accept reimbursement from General Electric Company for one-half of the compensation PG&E had paid for Kimball’s injuries.

This court held that the one-year statute of limitations did not bar Kim-ball’s lawsuit seeking damages from General Electric Company even though Kimball filed his complaint more than one year after his injury. We adopted a rule of “delayed discovery” that operated to postpone accrual of the statute of limitations when a defendant’s fraudulent concealment of identity also concealed from the plaintiff “the facts upon which a legal common-law action is based.” (Kimball v. Pacific Gas & Elec. Co., supra, 220 Cal. at pp. 206-207, 210.) Under this rule, the statute of limitations would not accrue until the plaintiff discovered the facts supporting a common law suit, at which time the statutory limitations period would commence to run. (Id. at p. 210.) The situation here is not similar, however. No active concealment of identity by defendants misled Bernson into believing that he had no cause of action, thus alleviating any need to expand the availability of an estoppel theory beyond the scope set forth in Kimball.

D. Bernson Has Not Met His Burden of Pleading Active Concealment to Excuse His Failure to Comply With the Statute of Limitations

In adopting the equitable estoppel rule in Kimball v. Pacific Gas & Elec. Co., supra, we were careful to note that to assert this tolling provision a plaintiffs complaint must include certain factual allegations “ ‘before it will be held sufficient.’ ” (220 Cal. at p. 215.) To excuse the late filing of a complaint on the basis of a defendant’s fraudulent concealment, the complaint must allege when the fraud was discovered, the circumstances of its discovery, why plaintiff is not at fault for failing to discover the fraud sooner, and that the plaintiff “ *ha[d] no actual or presumptive knowledge of the facts sufficient to put him on inquiry.’ ” (Ibid.; see also 3 Witkin, Cal. Procedure, supra, Actions, § 532, p. 560 [setting forth the pleading obligations of a plaintiff seeking estoppel].)

Here, Bernson’s allegations do not satisfy these pleading requirements. Bernson does not allege a single act of concealment by defendants during the one-year period after he obtained the allegedly libelous report. Indeed, the only suggestion in Bernson’s complaint of any concealment of identity *947attributable to defendants is the letter sent by BFI’s attorney denying his client had any role in preparing or distributing the report. But this letter was sent in February 1990, at least two months after expiration of the statute of limitations. The factual allegations pertaining to this letter fall far short of what is required to plead equitable estoppel of the statute of limitations bar. Bernson’s allegations do not explain his failure to file suit within one year after he learned of the report. Nor do they negate “his actual or presumptive knowledge of facts to put him on inquiry” (Kimball v. Pacific Gas & Elec. Co., supra, 220 Cal. at p. 215) that he had been libeled. Notably, the complaint does not address why Bernson did not pursue his case in a timely fashion using the “Doe” pleading procedure. I can only conclude from the absence of factual allegations explaining Bernson’s late filing of his complaint that he sat on his rights.

Conclusion

To rescue Bernson’s libel action, which he did not file until January 1992, even though by late 1988 he knew every fact necessary to bring a lawsuit, the majority crafts a rule to estop defendants from asserting the statute of limitations as a bar. As I have explained, this rule is unnecessary to achieve equity, is premised on faulty assumptions about California procedure, and should not apply on the facts of this case.

For these reasons, I cannot join the majority, and I would affirm the judgment of the Court of Appeal.

Lucas, C. J., concurred.

Both sides agree that each cause of action in Bernson’s complaint was subject to a one-year limitations period.