Valle v. Aguilar

Filed 5/3/07 Valle v. Aguilar CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Elio Antonio Valle sued Yolanda Aguilar for defamation. Aguilar filed a special motion pursuant to Code of Civil Procedure section 425.16,^[1]known as the anti-SLAPP (strategic lawsuit against public participation) statute, to strike Valles defamation claim. The trial court denied the motion and Aguilar appeals. We conclude that the conduct underlying the defamation claim is protected under the anti-SLAPP statute and that the statute of limitations prevents Valle from establishing a probability of prevailing on his claim. We therefore reverse the judgment.

BACKGROUND

Univision Radio, Inc. (Univision Radio), a Spanish language radio program, is the parent company of Univision Radio San Francisco, Inc. (Univision San Francisco; collectively, Univision). Aguilar and Valle were coworkers at Univision San Francisco from 2002 until January 13, 2005. By the end of 2004, Aguilar had filed five police reports regarding repeated vandalism of her car.

On December 8, 2004, Aguilar obtained a temporary restraining order (TRO) against Valle, and requested a hearing on her petition for injunction prohibiting civil harassment (petition). In her petition, Aguilar asserted, among other things, that Valle had told coworkers that she would appear dead one day; she saw Valle scratch her car on November 26, 2004, and that she had filed five police reports; [h]e talk[ed] b[ad] about Mexicans; and he sexually harassed her. She stated that she was afraid that he would kill her.

After Valle received a copy of Aguilars TRO and petition, he provided a copy of the court documents to a person at Univision San Francisco. Valle complained to Michelle Hohman, who was the general manager at Univision San Francisco at that time,^[2]that Aguilar had filed a baseless petition against him; he asked Hohman to assist him in stopping Aguilars continuing harassment. Once Univision received a copy of the court documents, Ellen R. Fox, the vice president of human resources at Univision Radio, traveled from the companys headquarters in Dallas to San Francisco to conduct an investigation.

Fox remained in San Francisco from January 5 through January 7, 2005. Fox interviewed numerous people, including the following people: Aguilars coworkers, Jose Luis Gonzalez and Jose Agauayo; Humberto Lopez, an employee of American Empire, the company that provided janitorial services at Univision San Francisco; and Hohman, Valle, and Aguilar.

Hohman interviewed Mario and Sergio,^[3]employees of American Empire, and they told her that they had heard Valle declare that one day [Aguilar] is going to end up dead. Additionally, Mario told Hohman that he once drove home with Aguilar when she told him that she was afraid to drive alone. Mario noticed Valle in his vehicle following them for a few blocks. Hohman, however, informed Fox that she did not believe it was unusual for Valle to be following them because Valles route to his home was the same as Aguilars route home.

Fox met with Aguilar on January 5, 2005. Aguilar alleged that Valle had stared at her and made disparaging comments about Mexicans. She also stated that he called her puta, menopausico, lesbian, and old lady.

On January 7, 2005, Fox and Hohman met with Valle and advised him that he was accused of remarking that Aguilar would end up dead and of using profane and disparaging language, such as the word puta and words offensive to people of Mexican origin. Valle responded that he had no interest in Aguilar and would not have harassed her because he is gay.

On January 10, 2005, Fox provided Hohman with a summary of the information she had obtained during her investigation. According to Hohman, Foxs summary revealed that a number of witnesses corroborated Aguilars allegations that Valle had made threatening comments and had made derogatory comments. Thus, for example, coworker Lopez had stated that Sergio and Mario reported to him that they had heard Valle remark that Aguilar was going to end up dead one day. Lopez told Fox that Aguilar was fearful of Valle. Another coworker, Aguayo, corroborated Lopezs statements and also stated that Aguilar told him that she was afraid of Valle. A former employee stated that Valle had told him to have sex with Aguilar; he also reported that Valle referred to Aguilar as a prostitute. This former employee declared that Valle referred to Mexican people as nacos, filthy, and without education.

In a memorandum from Fox to Aguilar dated January 12, 2005 (Fox memorandum), Fox wrote in relevant part: Although we did not receive a complaint from you, it was brought to my attention that you had filed for a restraining order against another Univision Employee, Elio Valle (Elio advised Greg Hyndman of your proposed action). As you know, I traveled to San Francisco on Wednesday, January 5th to meet with you and determine whether there was any workplace conduct that needed to be addressed. On Thursday, January 6th, and Friday, January 7th, I interviewed several other Univision employees. Per your suggestion, I had subsequent conversations with three members of building maintenance. [] While I was unable to substantiate all of your claims, I did determine that Mr. Valle violated company policy by engaging in inappropriate discussions and conversation. Based on my investigation, it appears that Mr. Valle may have made derogatory and offensive comments about Mexicans and that he also may have made at least one comment that was perceived to be of a threatening nature. Your accusation that Mr. Valle vandalized your car could not be verified. . . .

The final paragraph of the Fox memorandum referenced Aguilars TRO. Fox wrote in relevant part: While we do not believe that Mr. Valle poses a threat to you at work, out of an abundance of caution we will continue to retain the services of a security guard until the end of the week. We understand that you are seeking a restraining order, and we would advise you to exercise due caution if you truly believe that Mr. Valle is a threat to you.

Fox concluded that Valle had violated company policy and on January 13, 2005, she sent an e-mail to Hohman instructing her to terminate Valles employment that day. Hohman and Greg Hyndman, the human resources manager for Univision San Francisco, advised Valle on January 13, 2005, that his employment was being terminated as a result of the investigation.

The trial court held its hearing on Aguilars petition for an injunction on the following day, January 14, 2005. An attorney for Univision attended the hearing to observe the proceedings and when the court asked the attorney about the investigation regarding Aguilars allegations, the attorney responded that she was not involved in the investigation. Counsel asserted that she only knew the investigation uncovered sufficient evidence to support the termination of Valles employment, but she did not know the details of the investigation. At the hearing, Aguilar testified that Valle threatened to kill her; that he scratched, threw acid on, and vandalized her car; that he touched her, harassed her, proposed that they have relations, and told others that he had sex with her; and that he told her he wanted to kill himself because he is gay.

The trial court expressed doubt as to whether Valle vandalized Aguilars car. Further, the court noted that, since it was being kept in the dark regarding Univisions investigation and Valle was no longer going to be at Aguilars place of work, the court saw no reason for a restraining order. It therefore discharged the TRO and denied the injunction.

On February 3, 2005, Valle filed a complaint of discrimination against Univision with the Department of Fair Employment and Housing (DFEH) and requested an immediate right to sue notice. On November 9, 2005, Valle filed a complaint in the superior court against Univision and other individuals; the pleading did not include Aguilar as a defendant.

On May 2, 2006, Valle filed a first amended complaint and named Aguilar as a defendant in his defamation claim. Valle alleged that, beginning in July 2003, Aguilar had engaged in a campaign of making unwelcome sexual advances towards him, which he consistently rebuffed. He asserted that he submitted a written complaint regarding this harassment in November 2003. In December, he complained that Aguilar called him mariposa, the Spanish slang word for homosexual. He also asserted that after a broadcast on July 10, 2004, Aguilar told Hohman and other employees of Univision that Valle had scratched her car and that he wanted to kill her.

Valle further alleged that in December 2004, Aguilar filed a baseless Petition for Injunction Prohibiting Civil Harassment against plaintiff in San Francisco Superior Court, again claiming that he had threatened to physically harm her and damage her automobile. Specifically, she falsely claimed that plaintiff told coworkers that she would appear dead one day, that he had repeatedly sexually harassed her, and that he had scratched her car and/or thrown acid and/or paint on her car, in addition to other factually devoid statements.

Additionally, Valle alleged that, after he was served with Aguilars court papers, he immediately brought them to [Univision San Francisco]. [Valle] complained to defendant HOHMAN that defendant AGUILAR had filed a baseless petition against him, and asked for her help in stopping AGUILARs continuing harassment. . . . Under his claim of defamation, Valle alleged that Aguilar repeated the false statements contained in her Petition for Injunction Prohibiting Civil Harassment to Ellen R. Fox on or around January 5, 2006. He claimed that he learned for the first time that Aguilar republished these false statements to Fox when he received discovery responses from Univision in January 2006, which included the Fox memorandum.

On May 19, 2006, Aguilar filed a special motion under section 425.16 to strike Valles claim for defamation. After a hearing on the motion, the trial court issued its decision on July 28, 2006; the court denied the motion. The court ruled that Aguilar demonstrated that the gravamen of [Valles] cause of action constitutes activity protected by the statute; [Valle] in turn demonstrated a likelihood of prevailing on [his] cause of action. The court found that Aguilar made statements to her employer, coworkers, and others that Valle threatened to kill her and vandalize her car and such statement could be deemed defamatory per se. Further, the court found that the absolute litigation privilege (Civ. Code, 47, subd. (b)) and the common interest privilege (id., subd. (c)) did not apply.^[4] The court also rejected Aguilars assertion that the statute of limitations barred the defamation claim because the defamatory statements by Aguilar were republished in the course of Univisions investigation and Valle first learned of these republications during the course of discovery in January 2006.

Aguilar filed a timely notice of appeal.

DISCUSSION

I. The Anti-SLAPP Statute

Section 425.16, commonly referred to as the anti-SLAPP law, provides in relevant part: (a) The Legislature finds and declares that there has been 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. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. [] (b)(1) A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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. [] (2) 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. [] (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination . . . .

Section 425.16, subdivision (e) reads: As used in this section, act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (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; (4) or 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.

Under the statute, the court makes a two-step determination: First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ( 425.16, subd. (b)(1).) A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e) [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. ( 425.16, subd. (b)(1) . . . .) (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier); see also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Only a cause of action that satisfies both prongs of the anti-SLAPP statutei.e., that arises from protected speech or petitioning and lacks even minimal meritis a SLAPP, subject to being stricken under the statute. (Navellier, supra, at p. 89.)

We review an order denying an anti-SLAPP special motion to strike de novo. (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 413; ComputerXpress, Inc. v. Jackson(2001) 93 Cal.App.4th 993, 999.) We therefore review independently whether Valles defamation claim against Aguilar arises from Aguilars exercise of a valid right of free speech or petition and, if so, whether Valle has established a probability of prevailing on this cause of action. (See, e.g., Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.) To establish the probability of prevailing, the plaintiff need only have stated and substantiated a legally sufficient claim. [Citation.] Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.   (Navellier, supra, 29 Cal.4th at pp. 88-89.) The process the court uses in determining the merits of the motion is similar to the process used in approaching summary judgment motions. The evidence presented must be admissible [citation] and the trial court does not weigh the evidence. (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188.) The court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subd. (b)(2); see also Navellier, supra, 29 Cal.4th at p. 89.) [A] probability of prevailing is established if the plaintiff presents evidence establishing a prima facie case which, if believed by the trier of fact, will result in a judgment for the plaintiff. (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, supra, at p. 1188.)

II. Protected Activity

Section 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734.) [A]ll that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116, citing Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1047.) As already noted, in determining whether a cause of action falls within the scope of subdivision (e), courts must broadly construe the anti-SLAPP statute. ( 425.16, subd. (a).)

The mere fact that an action was filed after protected activity took place does not mean it arose from that activity. (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 76-77.) Moreover, simply because a cause of action may arguably have been triggered by protected activity does not entail it is one arising from such. (Id. at p. 78.) The defendants act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendants right of petition or free speech. [Citation.] A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e) . . . . (Id. at p. 78; see also Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1318.)

Aguilar asserts that Valles defamation claim against her involves protected activity under subdivisions (e)(1) and (e)(2) of section 425.16. She claims that Valles pleading establishes that every defamatory statement made by Aguilar was made in a judicial proceeding or in connection with issues then under consideration by a judicial body. Valle responds that the allegations in his first amended complaint refer to comments Aguilar made to Fox and therefore these allegations relate to the employers investigation and not to any protected activity. Additionally, he points out that the pleading concerns statements Aguilar made to people at Univision San Francisco prior to the filing of her TRO.^[5]

We disagree with Valles characterization of his pleading: the principal thrust of Valles defamation claim is based on petitioning activity. Valles first amended complaint repeatedly refers to the baseless statements made by Aguilar in her petition and TRO. Additionally, Valles responses to interrogatories during discovery confirm that the allegations were principally related to protected conduct. When responding to a special interrogatory that asked Valle to identify each false and defamatory statement made, Valle set forth the following: Aguilar said that he threatened to kill her; that he scratched her car numerous times, including but not limited to under oath, in a court of law, on January 14, 2005; that he threw acid on her car numerous times, including but not limited to under oath, in a court of law, on January 14, 2005; that he touched her numerous times, including but not limited to under oath, in a court of law, on January 14, 2005; that he harassed her numerous times, including but not limited to under oath, in a court of law, on January 14, 2005; that he proposed they have relations numerous times, including but not limited to under oath, in a court of law, on January 14, 2005; that he said that he wanted to kill [himself] because [he was] gay numerous times [sic], including but not limited to under oath, in a court of law, on January 14, 2005; that he told other people that he had sex with her numerous times, including but not limited to under oath, in a court of law, on January 14, 2005; that he had vandalized her car five times in 2004 numerous times [sic]including but not limited to under oath, in a court of law, on January 14, 2005; that he had spoken badly about Mexicans numerous times including but not limited to under oath, in a court of law, on January 14, 2005; that he referred to Aguilar as a prostitute; and that Aguilar referred to him as naco on July 10, 2004[,] in front of approximately 150 live radio listeners and over the airways. In his deposition, Valle stated that these 12 statements accurately set forth all of the defamatory statements that were made by Aguilar about him.

In his verified response to a special interrogatory asking Valle to identify each document in which Aguilar made a false and defamatory statement about him, Valle identified the following documents: a July 12, 2004 write-up; Aguilars police report; Aguilars TRO and petition; the transcript of the injunction hearing; and postings on the Spanish broadcasting industrys website by Aguilar.

Valle argues that statements at the injunction hearing could not be the basis of his defamation claim because the transcript of the hearing establishes that the attorney for Univision did not provide the court with any details regarding the investigation. Aguilar, however, testified at the hearing. Valles own discovery responses indicated that this testimony formed the basis of his defamation claim. This testimony is clearly protected under section 425.16, subdivision (e).

Valle also claims that his defamation claim was based on statements Aguilar made to coworkers that Valle had vandalized her car and statements Aguilar made to Fox in the course of Univisions investigation. These statements, according to Valle, are not covered by section 425.16, subdivision (e). He asserts that a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188; see also Scott v. Metabolife Internat., Inc., supra, 115 Cal.App.4th at p. 413.)

With regard to Aguilars statements about Valles vandalizing her car, Valle points to comments Aguilar made to Antonio Rojas Castellanos. Castellanos declared that Aguilar told him that Valle threw paint on her car prior to the date she filed her TRO. In support of his argument that pre-litigation statements are not covered by the anti-SLAPP statute, Valle relies on People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280. In People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc., the statements at issue were false damage reports sent to the insurance company as demands for payment at a time when no judicial action was pending. (Id. at p. 285.) The court expressed concern that by protecting the reports simply because they might later be used in an official proceeding, it would protect acts of criminal fraud so long as the defrauding party was willing to take its cause to court. (Ibid.)

In contrast, here there is no similar policy consideration of refusing to protect criminal acts. Further, litigation was contemplated when Aguilar made the statement to Castellanos. Castellanos stated in his declaration the following: A few weeks before I left Univision [San Francisco], after Yolanda Aguilar told me that Tony Valle had put paint on her car, she told me that he had a big problem and was in big trouble. She told me that she was going to take him to court so that he would get fired. . . . Thus, Aguilars statements to Castellanos appear to be connected to or in anticipation of her filing her TRO.

In any event, these statements to Castellanos and others are not the principal thrust of Valles first amended complaint. Rather, the main thrust of Valles defamation claim concerns Aguilars testimony at the injunction hearing and her allegations against Valle in her court documents. Valle cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one cause of action. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) When causes of action contain allegations of both protected and unprotected conduct, they are considered to be mixed causes of action. [W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is merely incidental to the unprotected conduct . . . . (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1245; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672 [referring to and applying the apparently unanimous conclusion of published appellate cases that the anti-SLAPP statute applies to mixed causes of action unless the protected conduct is incidental to the unprotected conduct].) Here, the protected conduct is not incidental to the comments Aguilar made to coworkers regarding her belief that Valle had vandalized her automobile.

Finally, Valle argues that his defamation claim was based on statements Aguilar made to Fox on January 5, 2005, which were cited in the Fox memorandum dated January 12, 2005. He claims that these statements were part of Univisions investigation and did not involve any protected activity. (See Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1509 [private companys investigation of harassment claim does not qualify as an official proceeding authorized by law under the anti-SLAPP statute].) Valle claims that Foxs stated reason for meeting with Aguilar was to determine whether there was any workplace conduct needed to be addressed and was therefore not connected to Aguilars petitioning activity.

The situation before us is not similar to the one in Olaes v. Nationwide Mutual Ins. Co., supra, 135 Cal.App.4th 1501, where the investigation of harassment had no connection to any judicial proceeding. Valle attempts to establish that Univisions investigation had no connection to protected activity by extracting one phrase from the Fox memorandum to Aguilar. Valle ignores other sentences in the memorandum, which clarify that the investigation was interconnected to Aguilars petitioning activity. The first sentence of the Fox memorandum to Aguilar reads: Although we did not receive a complaint from you, it was brought to my attention that you had filed for a restraining order against another Univision employee, Elio Valle (Elio advised Greg Hyndman of your proposed action). Fox then writes that she traveled to San Francisco to meet with Aguilar and determine whether there was any workplace conduct that needed to be addressed. Thus, the workplace conduct that she was investigating related to the allegations against Valle in Aguilars petition and TRO. The Fox memorandum further noted that Valle may have made derogatory and offensive comments about Mexicans and that he also may have made at least one comment that was perceived to be of a threatening nature. Your accusation that Mr. Valle vandalized your car could not be verified. Thus, Fox makes clear that she investigated the allegations set forth in Aguilars petition and TRO and she directly referenced the TRO when she noted that Univision had hired a security guard to address Aguilars concerns about her safety. Moreover, Fox again acknowledges the allegations in the TRO when she admonished Aguilar to exercise due caution if she truly believed Valle was a threat to her.^[6]

Contrary to Valles assertion, the Fox memorandum is connected to protected conduct and falls within the ambit of section 425.16, subdivision (e). The Fox memorandum reflects Foxs findings after she investigated the claims made in Aguilars court documents. The investigation was initiated after Valle gave these court documents to Univision. Accordingly, the statements Aguilar made to Fox and memorialized in Foxs memorandum were made in connection with an issue under consideration or review by a . . . judicial body . . . . ( 425.16, subd. (e)(2); see also Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1113; Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161 [statements regarding domestic violence and abuse and neglect made to newspaper were at issue in pending adoption and writ proceeding and therefore made in connection to protected activity]; Braun v. Chronicle Publishing Co., supra, 52 Cal.App.4th at pp. 1048-1049 [newspaper articles reporting on investigative audit were made in connection with issue under consideration in official proceeding].)

We therefore conclude that Aguilar met her burden of establishing that protected activity forms a substantial part of the factual basis for the defamation claim.

III. Probability of Prevailing on Valles Defamation Claim

A. The Statute of Limitations for Defamation

Aguilar contends that Valle cannot establish a reasonable probability of success because, among other things, the statute of limitations bars his defamation claim. The statute of limitations governing a defamation claim is one year. ( 340, subd. (c).) [A] cause of action for defamation accrues at the time the defamatory statement is published (using term published in its technical sense). (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247.) [I]n defamation actions the general rule is that publication occurs when the defendant communicates the defamatory statement to a person other than the person being defamed. (Ibid.) [E]ach publication of a defamatory statement gives rise to a new cause of action for defamation . . . when the original defamer repeats or recirculates his or her original remarks to a new audience. (Id. at p. 1243.)

All of the statements made by Aguilar were made prior to Valles filing his charge with the DFEH, on February 3, 2005. Less than one year later, Valle filed his complaint against Univision, but Aguilar was not included as a defendant. Valle filed his first amended complaint, which included a defamation claim against Aguilar, on May 2, 2006. Since Valle had to file his defamation claim against Aguilar by February 3, 2006, his defamation claim filed on May 2, 2006, was untimely unless an equitable exception tolling the statute of limitations applies.

B. Alleged Clerical Error

Aguilar maintains that reversal is required because the trial court made its ruling based on a clerical error and we should simply correct this error and correct the judgment. In its order denying the special motion to strike, the trial court stated that Aguilar repeated the allegedly false statements at the injunction hearing held on January 14, 2005. It then stated that [t]hese statements were allegedly re-published in the form of company memos in January 2006, during the course of [Univisions] workplace sexual harassment investigation. [Valle] received copies of the memos in January 2006, during the course of discovery in this litigation. The court concluded that Valles claim was not barred by the applicable statute of limitations. The court noted that each publication gives rise to a new cause of action for defamation when the original defamer repeats or recirculates the original remark to a new audience. The court then proceeded to find: Defamatory statements made by [Aguilar] were re-published in the course of Univisions investigation; [Valle] first learned of these republications during the course of discovery in January 2006. . . . [Valles first amended complaint] was filed on May 2, 2006, within one year of discovery of [Aguilars] statements.

Aguilar argues that the trial court based its ruling on the clerical mistake that Univisions investigation was conducted in January 2006. The record unquestionably establishes that Univisions investigation occurred in January 2005, not January 2006. However, we conclude that the courts refusal to grant the motion to strike does not appear to be based on this error. Rather, the court ruled that the statute of limitations was tolled under the discovery rule. The court found that Aguilar did not discover the republished statements until January 2006, and therefore the statute of limitations did not begin to run until this date. Consequently, the court found that Valles first amended complaint that was filed on May 2, 2006, was timely. Thus, the question before us is whether the lower court correctly tolled the statute when it applied the discovery rule.

C. The Discovery Rule

Ordinarily, a tort cause of action accrues and the limitations period commences when the injury occurs; for defamation this occurs, generally speaking, when the defendant communicates the defamatory statement to others. In some tort actions, the accrual of the cause of action is delayed until the plaintiff knew (or with reasonable diligence should have known) of the factual basis for the claim. This so-called discovery rule has been applied to defamation actions in limited circumstances when the defamatory statement is made in secret or is inherently undiscoverable. (Shively v. Bozanich, supra, 31 Cal.4th at p. 1237.)

Under the discovery rule, the statute of limitations begins to run when the plaintiff was on actual or inquiry notice of his or her injury. (See, e.g., Jollyv.Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 (Jolly)[A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her]; see also April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 826 [ [A] cause of action under the discovery rule accrues when the plaintiff discovers or should have discovered all facts essential to his cause of action ].) If a party could not reasonably have discovered the facts giving rise to the cause of action for libel (i.e., defamatory matter contained in a confidential file and communicated to persons of which plaintiff is unaware), the statute of limitation starts to run upon discovery of the publication of the defamatory matter. (Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71, 77.) A plaintiff need not be aware of the specific facts necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, [the plaintiff] . . . must go find the facts; [the plaintiff] cannot wait for the facts to find [the plaintiff]. (Jolly, supra, at p. 1111.) Once a party suspects wrongdoing, the party cannot sit on his or her rights and later claim the statute is tolled. (Millerv. Bechtel Corp. (1983) 33 Cal.3d 868, 875.)

D. Applying the Discovery Rule to the Facts of This Case

To avoid the consequences of the statute of limitations, Valle asserts that he did not discover specific defamatory statements Aguilar made to Castellanos until May 23, 2006,^[7]and he did not learn about Aguilars republication of the defamatory statements to Fox in January 2005 until Univision produced its documents during discovery in January 2006. He claims that the statute of limitations was therefore tolled (see Schneider v. United Airlines, Inc., supra, 208 Cal.App.3d at p. 77) until he discovered the republication of Aguilars remarks on January 20, and May 23, 2006.

It may well be that Valle and his counsel did not discover Aguilars specific comments made to Fox on January 5, 2005, until Univision provided him with the Fox memorandum in January 2006. However, in early 2005, Valle knew that Univision was investigating the allegations made by Aguilar against him and he therefore was on notice that Univision would talk to Aguilar about the allegations she made. Fox and Hohman interviewed Valle on January 7, 2005, and they advised him that he was accused of remarking that Aguilar would end up dead and of using profane and disparaging language, such as the word puta and words offensive to people of Mexican origin. Further, Univision terminated Valles employment on January 13, 2005, because of the results of its investigation into the allegations underlying Aguilars TRO and petition. Finally, Valle attended the injunction hearing the following day, on January 14, and the attorney for Univision attended and reported that Univision had conducted an investigation, albeit she denied knowing the results of the investigation. It does not matter that Valle did not have specific knowledge that Aguilar had in fact made the allegedly false comments to Fox during Univisions investigation. Under these undisputed facts, Valle was on inquiry notice that Aguilar republished the allegedly false comments during the course of Univisions investigation of the allegations in Aguilars TRO and petition.

Valle argues that he was prevented from discovering Aguilars comments to Fox because Univision illegally denied his request to receive and inspect a copy of his personnel file.^[8] Any alleged misconduct of Univision regarding its refusal to provide Valle with his employment file has no bearing on any claim he may have against Aguilar. Further, as already noted, this delay was inconsequential because he was on inquiry notice of the critical facts at the time Univision terminated his employment and when he attended the injunction hearing.

Similarly, Valle cannot maintain that his first amended complaint against Aguilar was timely simply because he did not discover the identity of Castellanos until May 2006. In May 2006, Valle asserts that he learned for the first time that Aguilar told Castellanos that Valle threw paint on her car. However, on February 3, 2005, Valles counsel attached a letter in support of Valles request for an immediate right to sue notice to his DFEH charge. This letter stated that Aguilar had told Hohman on July 10, 2004, that Valle had scratched her car and stated that he wanted to kill her. Thus, by February 3, 2005, more than one year before Valle filed his first amended complaint against Aguilar, Valle knew that Aguilar had told people that he had vandalized her car. It is a well established rule that . . . only ignorance of one or more critical facts will delay the running of the statute of limitations. (Jolly, supra, 44 Cal.3d at p. 1110; see also Gutierrez v. Mofid (1985) 39 Cal.3d 892, 897-898.) The plaintiff is charged with the knowledge of facts that the attorney would have discovered had counsel conducted a reasonable investigation. (See, e.g., Miller v. Bechtel Corp., supra, 33 Cal.3d at p. 875.) Valle had more than a suspicion that Aguilar had told people at Univision that he damaged her car by February 3, 2005. A reasonable investigation of this suspicion would have uncovered the fact that Aguilar had specifically told Castellanos that Valle had thrown paint on her car.

Accordingly, we conclude that, Valle had actual knowledge of the critical facts underlying his claim, and therefore the rationale for applying the discovery rule disappeared. (See, e.g., Shively v. Bozanich, supra, 31 Cal.4th at p. 1253.) Valle was aware of these critical facts by February 3, 2005, when he filed his DFEH charge, and therefore the discovery rule does not apply and he had to file his defamation claim against Aguilar by February 3, 2006 ( 340, subd. (c)). Since he did not file his first amended complaint until May 2, 2006, his lawsuit against Aguilar is time-barred.^[9]

DISPOSITION

The judgment is reversed. Valle is to pay the costs of appeal.

_________________________

Lambden, J.

We concur:

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Kline, P.J.

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Haerle, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

^[1] All further unspecified code sections refer to the Code of Civil Procedure.

^[2] Currently, Hohman is the vice president and general manager at Univision Radio Los Angeles, Inc. She was the general manager at Univision San Francisco from August 2003 until May 2005.

^[3] The record does not provide the surnames of Mario and Sergio.

^[4] Civil Code section 47 provides in relevant part: A privileged publication or broadcast is one made: [] (b) In any . . . judicial proceeding . . . . [] . . . [] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. . . .

^[5] In his first amended complaint, Valle alleged that, after a broadcast on July 10, 2004, Aguilar told Hohman and other employees of Univision San Francisco that Valle had scratched her car and that he wanted to kill her.

^[6] Valle requested that we take judicial notice of discovery responses from Univision that were not part of the record in the trial court. We denied this request. However, even if we had taken judicial notice of these responses, they would have had no effect on our conclusion. Univisions responses stated that Valle advised Hyndman that Aguilar had filed a TRO against Valle and Fox traveled to San Francisco to investigate. According to Univision, Fox met with Aguilar on January 5, 2005, at which time Ms. Aguilar alleged that plaintiff had stared at her and made overtures to (request for threesome) when he was a board operator, made disparaging comments about Mexicans, vandalized her car on several occasions, called her names and made threatening statements concerning harm to her personally. These responses do not establish that Foxs investigation was not connected to Aguilars TRO. To the contrary, they further confirm that Valle told Univision about the TRO and Univision sent Fox out to investigate the allegations in the TRO to determine if any policies or procedures of Univision had been violated. Thus, the investigation was clearly interconnected to Aguilars filing of the TRO and petition.

^[7]Valle states in his declaration that he first learned of Aguilars comments to Castellanos when Castellanos told him about these remarks on May 23, 2006.

^[8] In the trial court, Valle asserted that it would be inequitable for Aguilar to benefit from Univisions unclean hands, which prevented him from learning about Aguilars comments to Fox. On appeal, Valle has raised this issue, although he makes no mention of the unclean hands doctrine. In any event, the argument has no merit since Aguilar is not alleged to have been a party to any dealings concerning Valles personnel records. (See, e.g., In re Brandie W. (1984) 157 Cal.App.3d 110, 115 [ The misconduct which brings the clean hands doctrine into operation must relate directly to the transaction concerning which the complaint is made, i.e., it must pertain to the very subject matter involved and affect the equitable relations between the litigants ].)

^[9] Since we conclude that the statute of limitations bars Valles defamation claim against Aguilar, we need not consider Aguilars contentions that Valle had no reasonable probability of prevailing on his defamation claim because both the litigation privilege (Civ. Code, 47, subd. (b)) and the common interest privilege (id., subd. (c)) apply to the statements underlying this cause of action.