Judge Holly J. Fujie, Case Number: 2STCV2938531683, Date: 2023-10-30 Tentative Ruling

Case Number: 2STCV2938531683 Hearing Date: October 30, 2023 Dept: 56

This is an action arising from false statements allegedly made about Plaintiff Fishback in an email sent to employees of the County of Los Angeles Department of Public Works. Plaintiff Fishback filed the operative Third Amended Complaint (“TAC”) against Defendant Campbell alleging causes of action for: defamation and libel per se under California Civil Code, Sections 45 and 45a.

Defendant Campbell filed a demurrer to the sole cause of action in the TAC. Defendant Campbell also filed a motion to strike portions of the TAC. Plaintiff Fishback filed an opposition. Defendant Campbell filed a reply.

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) In the demurrer context a court “may also take notice of exhibits attached to the complain[t].” (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.) “If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Id.)

Defendant Campbell argues that Plaintiff Fishback’s defamation claim fails because: (1) it is barred by the statute of limitations and (2) does not state any legal theory or cause of action.

Defendant Campbell asserts that the communication at issue occurred on April 22, 2014, but this present action was not filed until September 28, 2022, more than eight years later. Defendant Campbell further asserts that even if calculated from the date of discovery of the subject email, September 16, 2014, Plaintiff Fishback’s present case is still barred and subject to dismissal. As such, Defendant Campbell asserts that the cause of action in the TAC fails.

Under California Code of Civil Procedure, Section 340(c), within one year an action for libel and slander must be brought. This statutory bar can be avoided if the plaintiff pleads facts “which show an excuse, tolling, or some other basis….” (Ponderosa Homes, Inc. v. City of San Ramon (1994) 23 Cal.App.4th 1761, 1768.) Also, “an important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (WA Southwest 2, LLC v. First American Title Ins. Co. (2015) 240 Cal.App.4th 148, 156-57.) Plaintiff relying on this discovery rule “must plead (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Id.)

On the face of the TAC, Plaintiff Fishback alleges that the email giving rise to this present action was discovered on April 22, 2014. Plaintiff Fishback does not plead any facts which show an excuse, tolling, or some other basis for avoiding the statutory bar for filing a libel action within one year. Plaintiff Fishback’s opposition does not address the arguments advanced by Defendant Campbell that Plaintiff Fishback’s claim is barred by the statute of limitations. As such, Plaintiff Fishback has conceded to the arguments of Defendant Campbell on this point. (Heglin v. F.C.B.A. Market (1945) 70 Cal.App.2d 803, 806.)

Because the TAC’s sole claim is barred by the statute of limitations, it is not necessary to address Plaintiff’s attack on the demurrer and motion to strike on other grounds. Moreover, as this is Plaintiff’s fourth unsuccessful attempt to allege a valid cause of action that is not barred by the statute of limitations, the demurrer must be sustained without leave to amend.

The Demurrer to the TAC is sustained without leave to amend. The Motion to Strike is MOOT.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court