Jones v. Reekes CA5

Filed 2/28/22 Jones v. Reekes CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RICHARD JONES, et al.,
F082499
Plaintiffs and Appellants,
(Super. Ct. No. BCV-20-102526)
v.
CONNIE REEKES, OPINION
Defendant and Respondent.
APPEAL from an order of the Superior Court of Kern County. David R. Lampe,
Judge.
Parker Mills, David E. Parker and Steven S. Wang for Plaintiffs and Appellants.
Ganong Law and Philip W. Ganong for Defendant and Respondent.
-ooOoo-
Plaintiffs Richard Jones and his businesses Preferred Towing Service, LLC and
Fast Response Security, Inc. (collectively Jones) appeal from the trial court’s order
granting a special anti-strategic lawsuit against public participation motion to strike
pursuant to Code of Civil Procedure section 425.16 (“anti-SLAPP motion”) in favor of
defendant Connie Reekes. Reekes made numerous Facebook posts critical of Jones and
his businesses. Jones sued Reekes for defamation, and in response Reekes filed her anti-
SLAPP motion against Jones. Jones claims the trial court erred in its determination that
Jones’s defamation claims against Reekes were time-barred, having been posted to the
internet website in question more than one year prior to the commencement of Jones’s
defamation action. Jones alleges the discovery rule and the republication rule apply and
delayed the accrual of his defamation cause of action until June 2020 when a third party
showed him saved screenshots of posts.
After independently reviewing the record, we disagree with Jones and therefore
affirm the judgment.
FACTS
Jones operates several businesses in California City, including Preferred Towing
Service, LLC (a towing company) and Fast Response Security, Inc. (a private security
services company). Jones’s business partner Amanda Adolf administered a Facebook site
entitled “Eyes on You,” which apparently focused on matters of public interest within
California City.
In early 2017, Reekes began posting opinions on the Facebook page Adolf
administered. Reekes also contributed to a Facebook site parodying “Eyes on You,”
entitled “Eyes on Ewe,” which also profiled matters of public interest within California
City, but from a predictably different point of view. “Eyes on Ewe” was started by
Jaymes Gordon, a California City resident. The comments in question criticizing Jones
and alleging that Jones was involved in political corruption and control of the city leaders
and police in California City appear to have been posted before May 2019 on “Eyes on
Ewe.” Reekes claimed the only place she posted any of the comments at issue was on the
“Eyes on Ewe” Facebook account. Gordon shut down the “Eyes on Ewe” Facebook
public account on or about May 12, 2019, as part of a small claims case settlement. With
the closure and deletion of “Eyes on Ewe,” Reekes’s comments regarding Jones were
likewise deleted, and were not publicly accessible thereafter.
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According to Jones (and Adolf), Reekes blocked them from accessing Reekes’s
Facebook postings (regardless of site) beginning in early 2017. Jones and Adolf
discovered Reekes’s pre-May 2019 postings on “Eyes on Ewe” regarding Jones and his
business interests in June 2020. In early to mid-June 2020, “several customers” of one of
Jones’s businesses asked Adolf questions about statements attributed to Reekes in
Facebook pages, regarding Jones and his businesses’ purported involvement in California
City politics. In response, Adolf contacted a friend, Carla Conry, who had been
monitoring the “Eyes on Ewe” Facebook page for defamatory comments, and asked her if
she had seen any comments by Reekes about Jones or Adolf on any Facebook pages.
Conry sent Adolf screenshot images from “hundreds of Facebook posts and comments
made by Ms. Reekes in the ‘Eyes on Ewe’ and ‘The Real California City News’
Facebook pages.” Adolf then shared these screenshots with Jones.
PROCEEDINGS
On October 28, 2020, Jones sued Reekes for one cause of action for defamation.
The complaint alleged that Reekes made “numerous” defamatory statements concerning
Jones in various posts and comments made on “their Facebook page” all within the year
prior to the filing of the complaint. Specifically, Jones alleged Reekes accused Jones “of
paying bribes to city officials, including city councilmembers and the police chief, to
obtain an advantageous business relationship with the city.” Jones’s complaint also
alleged Reekes published statements in Facebook posts falsely accusing Jones of
conspiring with the chief of police of California City and his brother to steal furniture
owned by the city. Jones further alleged that those who viewed Reekes’s Facebook posts
“reasonably understood the statements to mean that [Jones] had committed crimes,
including bribery of government officials and criminal conspiracy within the meaning of
the California Penal Code.” Jones claimed the statements in question were demonstrably
false, because Jones “never gave or offered to give money or something of value to
California City officials, including its councilmembers or the Chief of Police, with an
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intent to buy favors or obtain an advantageous business relationship with the city; [Jones]
never hired or employed the brother of the then Chief of Police; and [Jones] never stole
or conspired with others to steal, city-owned property, including desks.” Jones
additionally alleged that Reekes “failed to use reasonable care to determine the truth or
falsity of the statements made” in the Facebook posts, and “acted recklessly and
maliciously.” The complaint included no exhibits, such as screenshots of Reekes’s
postings on the “Eyes on Ewe” Facebook page (or any other Facebook page), though it
did quote thirteen alleged examples verbatim. Jones’s complaint did not provide any
URL listings for any websites it alleged Reekes’s statements were posted on, nor any
specific dates it alleged the statements were posted.
Reekes filed a general denial in December 2020. Among the affirmative defenses
Reekes raised was that the publications complained of pertained to a matter of public
concern, and that Reekes was not negligent in publishing the statements. As additional
affirmative defenses, Reekes alleged that the statements complained of were published
more than one year prior to the filing of Jones’s October 2020 complaint and that the
Facebook page where the allegedly defamatory statements were published had been taken
down and no longer existed more than one year before the filing of Jones’s complaint.
Specifically, Reekes compared the alleged defamatory statements referenced in an
October 8, 2020 cease and desist letter Reekes received from Jones’s attorney with
Reekes’s acknowledged postings on the “Eyes on Ewe” Facebook account, and
determined that all of the statements were taken from Reekes’s “Eyes on Ewe” postings.
Reekes specifically denied posting or republishing any of the statements Jones
complained of on any Facebook site other than “Eyes on Ewe.”
In December 2020, Reekes also brought an anti-SLAPP special motion to strike
Jones’s complaint, pursuant to Code of Civil Procedure section 425.16. Reekes’s anti-
SLAPP motion challenged the allegations in Jones’s complaint as time-barred by the
applicable one-year statute of limitations, calculated from the first posting of the alleged
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defamatory publication under the “single-publication” rule. Reekes contended the “Eyes
on Ewe” Facebook page was deleted on May 12, 2019, some seventeen months before
Jones filed his defamation suit against Reekes. Moreover, Reekes asserted that there had
been no republication event for purposes of California law in the intervening time.
Reekes also alleged that the “Eyes on Ewe” Facebook postings all involved matters of
public interest (specifically, influence-peddling within the California City city council
and police department).
In Jones’s opposition to the motion, Jones conceded the statements in question
constituted free speech in connection with an issue of public interest, but alleged the
statute had been tolled by Reekes’s blockage of Jones from her personal Facebook
account. In her reply to Jones’s opposition, Reekes stated that Jones was not prevented
from seeing the comments using any other Facebook account. Reekes further alleged that
because Jones’s close friend Conry shared Reekes’s Facebook comments, Jones had a
reasonable opportunity to have discovered them in a timely fashion.
On January 28, 2021, the trial court held a hearing on Reekes’s anti-SLAPP
motion. Jones argued the initial set of statements was blocked by Reekes so that Jones
could not discover them, warranting utilization of the delayed discovery rule. Jones also
alleged that there was a second, more recent set of defamatory Facebook postings made
by Reekes in 2020. This second set of postings was allegedly made on a Facebook page
called “The Real California City News.” Jones claimed Reekes made no untimeliness
arguments with respect to the second set of postings.
The trial court granted Reekes’s anti-SLAPP motion, finding that Reekes met her
burden of establishing that the statements forming the basis of Jones’s defamation claim
fell within the purview of Code of Civil Procedure section 425.16. The trial court also
found Jones’s claim time-barred because Reekes’s statements had been posted to the
“Eyes on Ewe” Facebook page more than one year prior to the filing of Jones’s
complaint, and it therefore held that Jones had not met his burden of demonstrating a
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probability of prevailing on his claim. The trial court rejected Jones’s assertions that a
second set of defamatory statements had been posted on “The Real California City
News” Facebook page by Reekes in 2020, finding a lack of specificity in the complaint
regarding such allegations, which took any such allegations outside of the purview of the
anti-SLAPP motion.
On February 8, 2021, the court filed its order granting Reekes’s anti-SLAPP
motion. On March 9, 2021, Jones timely appealed the order granting the anti-SLAPP
motion.
DISCUSSION
I. BASIC LEGAL PRINCIPLES
A. Anti-SLAPP Motions
1. General background
The California Legislature enacted Code of Civil Procedure 1 section 425.16
(“anti-SLAPP statute”) in response to “a disturbing increase in lawsuits brought primarily
to chill the valid exercise of the constitutional rights of freedom of speech and petition for
the redress of grievances.” (§ 425.16, subd. (a).) Section 425.16 states in pertinent part:
“(b)(1) A cause of action against a person arising from any act of that person in
furtherance of a person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).)
For a trial court, anti-SLAPP motions require a two-part analysis: (1) the
defendant bringing the anti-SLAPP motion must make a prima facie showing that the suit
1All subsequent statutory references are to the Code of Civil Procedure unless
otherwise stated.
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arises from an act in furtherance of the defendant’s rights of petition or free speech in
connection with a public issue (i.e., the challenged cause of action is one arising from
protected activity enumerated in the statute); (2) once such a showing is made, the burden
shifts to plaintiff to demonstrate the probability of prevailing on the merits of the
challenged claims. (§ 425.16; City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 420.)
Regarding the first prong of the test, the statute enumerates the acts that are
protected, including: “(3) any written or oral statement or writing made in a place open
to the public or a public forum in connection with an issue of public interest, or (4) any
other conduct in furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an issue of public
interest.” (§ 425.16, subd. (e).) The determination of whether a particular subject is a
“public issue” or an “issue of public interest” must be “construed broadly.”
(Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th
450, 464 (Hecimovich).
Regarding the second prong of the test, the statute establishes a summary
judgment-like procedure by which the trial court evaluates the merits of the defamation
suit at an early state of its litigation. (Hecimovich, supra, 203 Cal.App.4th at p. 463.) By
its own terms, the statute “shall be construed broadly.” (§ 425.16, subd. (a).) “In making
its determination, the court shall consider the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).)
2. Statute of Limitations
Section 340 establishes a one-year statute of limitations for defamation actions,
which commences at the time the statement in question is first published. (§ 340,
subd. (c); Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246 (Shively).) “[F]or
defamation this occurs, generally speaking, when the defendant communicates the
defamatory statement to others.” (Shively, supra, at p. 1237.) “In general, each time the
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defamatory statement is communicated to a third person who understands its defamatory
meaning as applied to the plaintiff, the statement is said to have been ‘published,’
although a written dissemination, as suggested by the common meaning of that term, is
not required.” (Id. at p. 1242.) The one-year statute begins to run whether or not a
prospective plaintiff is aware that their cause of action has accrued. (Id. at pp. 1245—
1246.) Tolling of the statute of limitations occurs only if there is fraudulent concealment,
or where a plaintiff could not reasonably have discovered the facts giving rise to the
claim. (Id. at p. 1237 [“[t]his so-called discovery rule has been applied to defamation
actions in limited circumstances when the defamatory statement is made is secret or is
inherently undiscoverable”].)
3. Single Publication Rule
In order to ameliorate the difficulties created by the common law rule that each
communication of a defamatory remark to a new audience constituted a separate
“publication” giving rise to a separate cause of action for defamation, “courts fashioned
what became known as the single-publication rule, holding that, for any single edition of
a newspaper or book, there was but a single potential action for a defamatory statement
contained in the newspaper or book, no matter how many copies of the newspaper or
book were distributed.]” (Shively, supra, 31 Cal.4th at p. 1245.)
California has adopted the Uniform Single Publication Act codification of the
single-publication rule in Civil Code section 3425.3. (Shively, supra, 31 Cal.4th at
p. 1246.) “Under 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.’ ” (Id. at p. 1245.) “Under this rule, the cause of action accrues and the
period of limitations commences, regardless of when the plaintiff secured a copy or
became aware of the publication.” (Id. at pp. 1245—1246.)
“Inquiry into whether delay in discovering the publication was reasonable has not
been permitted for publications governed by the single-publication rule.” (Shively, supra,
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31 Cal.4th at p. 1251.) The discovery rule, in other words, does not apply to delay the
accrual of a cause of action for a defamation contained in a publication subject to the
single-publication rule. (Hebrew Academy of San Francisco v. Goldman (2007)
42 Cal.4th 883, 887 (Goldman).)
B. Standard of Review
“The questions of whether the action is a SLAPP suit and whether the plaintiff has
shown a probability of prevailing are reviewed independently on appeal.” (Grenier v.
Taylor (2015) 234 Cal.App.4th 471, 480 (Grenier).)
II. MERITS OF THE APPEAL
A. Contentions of the Parties
Jones contends that the trial court abused its discretion in granting Reekes’s anti-
SLAPP motion to strike, and that the trial court’s finding that Jones’s complaint was
likely time-barred was in error.
B. Applicable Legal Principles
1. Issue One
Is Jones’s defamation claim over Reekes’s internet postings governed by the
single publication rule (Civ. Code, § 3425.3)? Specifically, do Reekes’s republished
defamatory posts and comments concerning Jones on a different Facebook page within a
year of the filing of Jones’s complaint restart the clock on the statute of limitations?
Relatedly, does the fact that someone took a “screenshot” of the alleged defamatory
comment[s] and distributed it constitute a “republication” such as would restart the
statute of limitations anew, assuming no substantive alteration of the comments occurred?
2. Issue Two
Should the equitable “discovery rule” be applied to an internet publication such as
Reekes’s internet postings to delay the accrual of a cause of action for defamation, or are
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Jones’s claims arising out of Reekes’s internet postings time-barred pursuant to Code of
Civil Procedure section 340?
C. Analysis
Defamation is a reputational injury, occurring via libel or slander. (Civ. Code,
§ 44.) Generally speaking (excepting certain qualifications that are not applicable here),
“a written communication that is false, that is not protected by any privilege, and that
exposes a person to contempt or ridicule or certain other reputational injuries, constitutes
libel.” (Shively, supra, 31 Cal.4th at p. 1242; Civ. Code, § 45.)
Jones concedes that Reekes’s “Eyes on Ewe” postings regarding Jones and his
business interests “constitute free speech under the U.S. or the California Constitution in
connection with an issue of public interest, thereby satisfying the first prong of the anti-
SLAPP analysis.” By Jones’s own admission, then, Reekes’s Facebook postings fall
within the ambit of section 425.16. We therefore affirm the trial court’s conclusion on
this threshold point.
Regarding the second prong of the anti-SLAPP analysis (the plaintiff’s likelihood
of success), “the plaintiff need not produce evidence that he or she can recover on every
possible point urged. It is enough that the plaintiff demonstrates that the suit is viable, so
that the court should deny the special motion to strike and allow the case to go forward.”
(Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 905, emphasis added.) In this case, it is
apparent that the statements Jones complains of were published more than one year prior
to the initiation of Jones’s legal complaint regarding them, and that the single-publication
rule applies in such a way as to make the discovery rule inapplicable to Jones’s claims.
Consequently, we conclude that Jones’s claim of defamation against Reekes is time-
barred, and therefore not viable, and that the trial court was correct to so hold in granting
Reekes’s anti-SLAPP motion.
10.
1. Single-Publication Rule
The single-publication rule establishes an exception to the general rule that when a
defamer republishes or repeats a defamatory statement to a new audience, each such
instance gives rise to a new cause of action for defamation. (Goldman, supra, 42 Cal.4th
at p. 891; Shively, supra, 31 Cal.4th at p. 1243.)
Under the single-publication rule, the statute of limitations on a cause of action for
defamation based upon a written statement runs from the date the statement is “first
generally distributed to the public, regardless of the date on which the plaintiff actually
learned of the existence of the [publication] and read its contents.” (Shively, supra,
31 Cal.4th at p. 1237.) Moreover, “the discovery rule does not apply to delay the accrual
of a cause of action for defamation contained in such a publication.” (Ibid.) The single-
publication rule “applies without limitation to all publications,” including those that are
not widely distributed to the general public. (Goldman, supra, 42 Cal.4th at pp. 887,
893.) Thus, even if access to “Eyes on Ewe” was limited (to those who subscribed to that
Facebook account), Reekes’s postings to that Facebook page constituted a “publication”
for purposes of the single-publication rule. Reekes’s last posting on “Eyes on Ewe” was
no later than May 12, 2019, the date on which that Facebook page was taken down.
Jones’s reliance on Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133(Tamkin) and McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787(McKinney) for the blanket proposition that wherever republication reaches a new entity
or person, repetition justifies a new cause of action is misplaced. Tamkin did cite Shively
in support of the principle that “ ‘[i]n general, each time the defamatory statement is
communicated to a third person who understands its defamatory meaning as applied to
the plaintiff, the statement is said to have been ‘published ….’ ” (Tamkin, supra, at
pp. 145—146.) However, Tamkin’s articulation of that principle was not absolute; by its
very terms, it was a “general” proposition. Exceptions exist, and as will be explained,
apply on the facts of this case.
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McKinney’s contribution to defamation jurisprudence is its holding that the
originator of a defamatory statement can be “liable for damages caused by the disclosure
of the contents of the defamatory statement by the person defamed where such disclosure
is the natural and probable consequence of the originator’s actions.” (McKinney, supra,
at p. 796.) McKinney noted this exception is applicable in two different contexts: first,
“where the originator of the defamatory statement has reason to believe a letter addressed
and sent to the defamed containing a libel will fall into the hands of a third party before
the defamed reads it or is informed of its contents,” and second, “where the originator of
the defamatory statement has reason to believe that the person defamed will be under a
strong compulsion to disclose the contents of the defamatory statement to a third person
after he has read it or been informed of its contents.” (Id. at p. 796.) Neither of these
circumstances applies in this case, and nothing in the Tamkin or McKinney decisions
established an iron-clad rule that any repetition of a statement, under any and all
circumstances, constitutes a republication of the statement for purposes of the single-
publication rule.
Jones’s reliance on Kanarek v. Bugliosi (1980) 108 Cal.App.3d 327, 332
(Kanarek) and Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 395
(Gilbreath) for the proposition that every republication of a defamatory statement starts
the statute of limitations anew is likewise misplaced.
Kanarek involved allegedly defamatory statements about Kanarek contained in a
hardback book written by Bugliosi. (Kanarek, supra, 108 Cal.App.3d at p. 329.)
Bugliosi prevailed on a demurrer, and Kanarek did not amend his complaint within the
statutory time limit. (Id. at p. 330.) Kanarek then filed a new action for libel, on the
basis that the publication of a paperback edition of Bugliosi’s book had subsequently
been published, identical in form and content to the hardback edition, and the inclusion of
the identical passages in the paperback edition of the book that had been the basis of
Kanarek’s original defamation action against Bugliosi constituted republication of those
12.
same allegedly defamatory statements. (Ibid.) The Kanarek court agreed, and held that
for purposes of Civil Code section 3425.3, the promulgation of a paperback edition of a
book constituted a republication of that book’s original hardback edition, intended to
reach a new group of readers. (Id. at p. 333.) Thus, the Uniform Single Publication Act
did not bar the filing of a new action for damages based on libel for the paperback
edition. (Ibid.) For reasons explained below, however, Carla Conry’s provision of
Reekes’s “Eyes on Ewe” postings to Adolf are not equivalent to a publishing house’s
release of a paperback edition of a hardback title.
Gilbreath held that the single-publication rule applies to statements published on
websites. (Gilbreath, supra, 118 Cal.App.4th at p. 395.) Gilbreath also held that a
meritorious statute of limitations defense will support an anti-SLAPP motion to strike.
(Id. at p. 397.) Both of those holdings are relevant to this case. On the subject of
republication, Gilbreath stated: “the need to protect Web publishers from almost
perpetual liability for statements they make available to hundreds of millions of people
who have access to the Internet is greater even than the need to protect the publishers of
conventional hard copy newspapers, magazines and books. Importantly, the interests in
free expression, which the court in Firth v. State [(Ct.App.2002) 98 N.Y.2d 365,
747 N.Y.S.2d 69] found were worthy of protection by application of the single-
publication rule to Web pages, are the very same interests which the court in
Shively[, supra, 31 Cal.4th 1230] relied upon in rejecting the notion the single-
publication rule should be subject to any discovery exception.” (Gilbreath, supra, at
p. 404.) Further, Gilbreath articulated conclusions that have resonance in this case: “[i]n
opposing the motion to strike, plaintiffs did not offer any evidence which contradicted
[defendant’s] declaration or provide admissible evidence that the statements on the Web
site had been republished in other formats in the year preceding the filing of their
complaint.” (Ibid.) As will also be explained below, these are nearly identical facts to
the instant case, and call for a similar conclusion.
13.
a. Carla Conry’s provision of Reekes’s “Eyes on Ewe” postings to
Adolf
“In general, the repetition by a new party of another person’s earlier defamatory
remark also gives rise to a separate cause of action for defamation against the original
defamer, when the repetition was reasonably foreseeable.” (Shively, supra, 31 Cal.4th at
p. 1243.) “It is the foreseeable subsequent repetition of the remark that constitutes
publication and an actionable wrong in this situation, even though it is the original author
of the remark who is being held accountable.” (Ibid.)
Carla Conry’s showing Reekes’s previous (and deleted) “Eyes on Ewe” postings
to Adolf did not constitute a republication. It was not reasonably foreseeable and was not
directed to the public generally. As such, this case differs from Schneider v. United
Airlines, Inc. (1989) 208 Cal.App.3d 71 (Schneider), in which United Airlines and
another company were held potentially liable for the republication of an allegedly
defamatory statement by conveying the information in question to a credit reporting
agency. (Id. at pp. 75—78.) In Schneider, the information in question was given by its
originators (United Airlines) to TRW Credit Data (TRW), an agency charged with
republishing that information in response to specific inquiries. (Ibid.) TRW was held to
have republished the information in question by transmitting it to Union Bank in response
to a credit check Union Bank was running on Schneider. (Id. at p. 74.)
By contrast, in this case, Reekes herself did not explicitly provide the information
directly to Conry; Conry culled the statements from the “Eyes on Ewe” website, then
provided them only to Adolf at her request. Unlike United Airlines in Schneider, supra,
208 Cal.App.3d 71, there is no evidence that Reekes had any foresight that Conry (or
anyone else in particular) would privately send Adolf screenshots of Reekes’s “Eyes on
Ewe” postings, or that Adolf would in turn provide them to Jones. Moreover, Conry’s
provision to Adolf of the screenshots did not make the information accessible to the
general public. “Eyes on Ewe” was not apparently altered after it was shut down in May
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2019. Adolf’s showing to Jones Conry’s screenshots of pre-June 2020 postings on “Eyes
on Ewe” were likewise not a new “publication,” because the postings were not shown to
the general public, but only to Jones. Furthermore, Jones suffered no injury by virtue of
Conry’s provision of the screenshots to Adolf, nor Adolf’s provision of the screenshots to
Jones. Jones merely obtained information which he himself had requested, and which
was not disseminated to any other person. These facts are dissimilar to the facts in
Schneider, where TRW’s provision of the statements in question to Union Bank resulted
in Schneider being denied a check guarantee card by Union Bank. (Id. at p. 74.)
b. Alleged republication or new publication by Reekes herself
Nor is there any persuasive evidence in the record indicating Reekes republished
the postings in question in other formats in the year before Jones filed his complaint
against her. Jones claims that some of Reekes’s posts and comments in “The Real
California City News” were made in 2020 and constituted republications of Reekes’s
original allegedly defamatory posts and comments. However, the alleged republications
differ from the claimed original statements and do not appear to be literal republications.
Moreover, Jones’s January 13, 2021 supporting declaration regarding both sets of
Reekes’s postings merely states that Jones viewed the screenshot images in question in
late June 2020, not definitively that Reekes published the posts at that time. Furthermore,
neither set of screenshots proffered by Jones contains a year time stamp, only the
occasional date and month, and time of day. They therefore do not present evidence of
publication or republication in 2020 of Reekes’s 2019 “Eyes on Ewe” postings.
2 The Discovery Rule
Having concluded that the single-publication rule applies in this instance, we next
consider whether the accrual of a cause of action for defamation in this case was delayed
by the discovery rule.
The discovery rule “delays accrual [of a cause of action] until the plaintiff has, or
should have, inquiry notice of the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc.
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(2005) 35 Cal.4th 797, 807.) The delayed discovery rule has been applied to defamation
claims. (Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, 728—
731 (Manguso).) Under the discovery rule, if a party could not reasonably have
discovered the facts giving rise to the cause of action for libel, the statute of limitations
starts to run upon discovery of the publication of the defamatory matter. (Schneider,
supra, 208 Cal.App.3d at p. 77.) “Uniform authority establishes that the discovery rule
does not apply to delay the accrual of a cause of action for a defamation contained in” a
book “generally distributed to the public.” (Shively, supra, 31 Cal.4th at p. 1237.) It is
the first general distribution of the allegedly defamatory statement to the general public
that defines when a cause of action for defamation accrues and when the statute of
limitations begins to run, “regardless of the date on which plaintiff actually learned of the
existence of [the general distribution].” (Ibid.)
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.’ ” (Goldman, supra, 42 Cal.4th at p. 893.) Jones contends that because he (and
Adolf) were “blocked” by Reekes from being able to access Reekes’s Facebook accounts,
they were unable to view the derogatory posts and comments Reekes made about him
until June 2020. Jones further contends that pursuant to the discovery rule, his causes of
action against Reekes accrued when he first learned of the statements (viz., June 2020,
when Adolf showed Jones the screenshots her friend Conry had taken from the defunct
“Eyes on Ewe” Facebook page). In Jones’s view, it is only when he knew personally that
any injury might have occurred that the statute of limitations began to run, and
consequently the one-year statute of limitations began running upon Jones’s actual
discovery of the posts and comments. Based upon this, Jones contends his defamation
claim against Reekes (which concededly was filed more than one year after the last
posting by Reekes about Jones on “Eyes on Ewe”) was nevertheless timely.
16.
As was the case in Shively, supra, 31 Cal.4th 1230, in this case any defamation
cause of action Jones had against Reekes accrued and the statute of limitations ran from
the date the statements in question were first generally distributed to the public via the
“Eyes on Ewe” Facebook account that Jones complains of (i.e., no later than May 2019),
regardless of the date on which Jones actually learned of their existence or read their
contents. Reekes’s statements about Jones were first generally distributed to the public
when Reekes posted them on the “Eyes on Ewe” Facebook site, much like the publication
of the book at issue in Shively. Reekes did nothing to conceal her identity or her
responsibility for the “Eyes on Ewe” postings Jones complains of, and used her full, real
name in her postings. The “Eyes on Ewe” postings were made generally available no
later than May 2019, more than one year prior to October 2020, the date Jones
commenced his defamation complaint against Reekes. Reekes’s postings were neither
secret nor inherently undiscoverable.
Moreover, the trial court was presented with ample evidence from which it
reasonably concluded that Jones could easily have discovered the alleged injury in this
case. The declaration of Reekes’s retained technical expert, Alan Urquhart, explicitly
indicated how Reekes’s “blocks” of Jones (and Adolf) from the “Eyes on Ewe” Facebook
page could easily be circumvented. This circumvention apparently would have been no
more complicated than Jones obtaining another Facebook account with a new email
address, or using a different existing email address than the one Reekes had “blocked.”
Further, Reekes’s criticisms of Jones predated even her postings on “Eyes on Ewe.”
Reekes began posting opinions on the Facebook page Adolf administered in early 2017.
Adolf contemporaneously responded negatively to those comments. In fact, according to
Jones (and Adolf), that exchange between Reekes and Adolf precipitated Reekes
blocking Jones and Adolf from accessing Reekes’s Facebook postings (regardless of site)
beginning in early 2017. Reekes was known to Jones, and vice versa, in 2017, two years
17.
before Reekes began posting about Jones on the “Eyes on Ewe” Facebook account. More
specifically, Reekes’s criticisms of Jones were known to Jones in 2017.
Delayed accrual has been justified in professional malpractice cases “on the basis
that the expertise expected of professionals is beyond the ability of laypersons to
evaluate, and on the further basis that it may be impossible for a layperson even to
observe the professional’s application of this expertise.” (Shively, supra, 31 Cal.4th at
p. 1248.) However, when, as here, the basis for a defamation claim “has been published
in the public record or has been the subject of publicity, several cases have declined to
apply the discovery rule, commenting that the plaintiff may be expected to be sufficiently
diligent to discover the basis of his or her claim within the statutory period.” (Ibid.)
The discovery rule has also been applied in an instance where a school principal
placed a letter containing allegedly libelous statements in a teacher’s personnel file in
1960, unbeknownst to the teacher. (Manguso, supra, 88 Cal.App.3d at p. 727.) It was
only in 1976, after sixteen years of fruitlessly seeking further employment, that the
teacher became aware of the existence of the letter and that the letter had been read by
prospective employers to her detriment. (Ibid.) When the teacher filed a defamation
action against her former principal, the Court of Appeal held that her cause of action had
not accrued until the teacher’s discovery of the existence of the letter because she could
not reasonably have been expected to discover the basis of her cause of action before
then. (Id. at p. 731.) The Manguso decision noted that statutes of limitation are
“ ‘ “ ‘enacted as a matter of public policy … and [are] intended to run against those who
are neglectful of their rights and who fail to use reasonable and proper diligence in the
enforcement thereof ….’ ” ’ ” (Manguso, supra, at p. 730.)
Reekes’s statements regarding Jones, unlike the letter in Manguso, were not
published in an inherently secret manner. Reekes posted her comments on a public
online forum, unlike the principal in Manguso, who buried the letter containing the
statements he made in a personnel file utterly inaccessible to the person about whom the
18.
statements were written, and selectively provided the letter only to prospective employers
of the teacher. While Reekes did “block” Jones from the “Eyes on Ewe” account, that
blockage did not change the fundamentally public nature of “Eyes on Ewe,” whose very
purpose was to raise public awareness of the accusations Reekes made against Jones.
Moreover, the blockage was easily circumvented with reasonable and proper diligence, as
evidenced by the supporting declaration provided by Reekes’s retained technical expert
in this case, Alan Urquhart. Reekes’s comments were published in the public record and
were the subject of publicity more than a year before Jones filed his claim. We therefore
agree with the trial court that the discovery rule does not apply here.
Furthermore, the very fact Reekes blocked Jones on the “Eyes on Ewe” cite should
reasonably have placed Jones on notice that Reekes was in all probability posting
commentary concerning Jones on that site, which in turn should have prompted Jones to
try to circumvent the blockage. Such a conclusion was even more probable given
Reekes’s 2017 online postings concerning Jones, and given that his “long time” friend
Conry had successfully sued Jaymes Gordon, the curator of “Eyes on Ewe,” in February
2019 to enjoin the posting of critical statements regarding Conry. In addition, Conry was
actively reviewing “The Real California City News” website for derogatory material
after the stipulated judgment that resulted in “Eyes on Ewe” being shut down. Jones
describes Reekes in his own pleadings as “a prolific Facebook poster who uses the
platform’s soapbox to air her grievances and provide commentary on matters of public
interest in California City and its local politics.” In this way, Jones not only had access to
the statements (by using the technical work-arounds available to circumvent Reekes’s
blockage) but also “cause to seek access,” that is, a reason to suspect wrongdoing on the
part of Reekes. (Shively, supra, 31 Cal.4th at p. 1249.)
The circumstances of the instant case also differ from those of Bernson v.
Browning-Ferris Industries (1994) 7 Cal.4th 926 (Bernson), a case in which the doctrine
of equitable estoppel was applied to delay the accrual of a cause of action for defamation,
19.
and upon which Jones relies here. In Bernson, a 36-page dossier “highly critical” of
Bernson, a member of the Los Angeles City Council, was circulated anonymously among
various Los Angeles media outlets. (Bernson, supra, at p. 929.) Nothing in the dossier,
which stated that Bernson had used campaign funds and charged the City of Los Angeles
for “extensive personal travel” expenses, identified who its author, distributor or sponsor
was. (Ibid.) Bernson became aware that he was the subject of the dossier during the
latter half of 1988, but had no information regarding the identity of the parties behind it
until February 1990. (Ibid.) When two Los Angeles Times journalists told Bernson the
identity of the dossier’s author (Browning-Ferris Industries), Bernson contacted counsel
for Browning-Ferris, who denied any knowledge of the report or its source. (Ibid.)
Counsel for Browning-Ferris went so far as to send a letter to the Los Angeles Times
emphatically denying that Browning-Ferris had any responsibility for the preparation of
the dossier, and demanded the newspaper retract its attribution. (Ibid.) Bernson accepted
Browning-Ferris’s representations until May 1991, when another Los Angeles Times
reporter informed Bernson’s chief deputy that a specific political consultant had prepared
the dossier on Browning-Ferris’s behalf. (Ibid.) Bernson then filed a defamation action
against the political consultant, Browning-Ferris, and others. (Bernson, supra, at pp.
929—930.)
The Bernson trial court sustained the defendants’ demurrer and motions for
summary judgment on the basis of the one-year statute of limitations, and entered
judgments in their favor. (Bernson, supra, at p. 930.) Bernson appealed, arguing that the
defendants should have been estopped from asserting the statute of limitations defense
because they had actively concealed their responsibility for the dossier. (Ibid.) The
defendants responded that Bernson’s cause of action against them accrued no later than
when he learned of the defamatory report in late 1988, and that neither Bernson’s
ignorance nor defendants’ concealment of their responsibility for the report tolled the
statute. (Ibid.) Describing the principle of fraudulent concealment as a “close cousin of
20.
the discovery rule,” the California Supreme Court stated that under the discovery rule,
“the date of accrual may be delayed where the defendant’s actions hinder plaintiff’s
discovery of the defamatory matter.” (Bernson, supra, at pp. 931—932.) Bernson also
noted that “[w]hile ignorance of the existence of an injury or cause of action may delay
the running of the statute of limitations until the date of discovery, the general rule in
California has been that ignorance of the identity of the defendant is not essential to a
claim and therefore will not toll the statute.” (Ibid.)
The statements of Reekes that Jones complains of were all published by virtue of
being posted on the “Eyes on Ewe” Facebook site more than one year prior to the filing
of Jones’s defamation complaint. (Grenier, supra, 234 Cal.App.4th at p. 481
[“Statements made on a Web site are made in a public forum”].) The fact that Jones may
not have been immediately aware of the statements does not matter. The statements were
publicly posted to third persons (i.e., persons other than Jones) no later than May 2019,
when Jaymes Gordon shut down the “Eyes on Ewe” Facebook page. Because Jones had
access to Reekes’s statements from the time they were published (whether he pursued
such access or not), the principle of equitable estoppel articulated in Bernson does not
apply.
While 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, the circumstances of this case do not lend themselves to the
discovery rule. Because the statements of Reekes that Jones complains of were published
with general circulation, the discovery rule does not apply to delay the accrual of Jones’s
causes of action for defamation contained in such publication. (Goldman, supra,
42 Cal.4th at p. 887; Shively, supra, 31 Cal.4th at p. 1245.)
CONCLUSION
Because the statements of Reekes that Jones complains of were first generally
distributed to the public when they were posted on the “Eyes on Ewe” Facebook site,
21.
Jones’s defamation cause of action against Reekes accrued at that time, and the statute of
limitations began to run at that time. Jones’s cause of action for defamation against
Reekes for her “Eyes on Ewe” postings accrued no later than May 12, 2019, when “Eyes
on Ewe” was shut down.
As explained above, the discovery rule does not delay the accrual of Jones’s cause
of action. The provision of the “Eyes on Ewe” screenshots to Jones in June 2020 by way
of Adolf do not constitute a “republication” of the statements for purposes of the single-
publication rule. Any basis upon which to apply the discovery rule (e.g., concealment,
difficulty in ascertaining) was dispelled by Reekes’s public distribution of the statements
via “Eyes on Ewe,” even though Reekes took steps to block Jones from openly following
her on “Eyes on Ewe.” Jones has not complained of any other statements by Reekes with
adequate specificity or particularity as to the date of their publication. Accordingly, we
decline to apply the discovery rule in the circumstances presented by this case. Jones’s
defamation cause of action against Reekes for Reekes’s “Eyes on Ewe” postings is time-
barred, and as such Jones did not demonstrate a probability of prevailing on that cause of
action. We therefore affirm the judgment of the trial court in favor of Reekes.
DISPOSITION
The judgment is affirmed. Reekes shall recover her costs on appeal.
SNAUFFER, J.
WE CONCUR:
PEÑA, ACTING P. J.
DE SANTOS, J.
22.