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When Jill Shively discovered defamatory remarks about herself in a 1996 book on the O.J. Simpson trial, she sued not only the author and publisher, but also the deputy district attorney who was the source of the allegedly slanderous comments and his employer, the county of Los Angeles. A state appeal court let the Brentwood woman’s case proceed, but the California Supreme Court, during oral arguments Tuesday, seemed uncomfortable with the idea of letting Shively sue over comments made in private and republished more than two years later. “Not to put it crassly,” Chief Justice Ronald George told Shively’s attorney, Whittier solo practitioner Gregory Hill, but isn’t the suit an attempt to “bootstrap” the original statements onto the subsequent book in order to bring a cause of action? Shively had originally been called as a witness in the grand jury hearings in Simpson’s murder trial. She told jurors and later the TV show “Hard Copy” that she had seen the former football star in his white Bronco at a time and location on the night Simpson’s ex-wife and her friend were killed that would have contradicted Simpson’s own testimony about his whereabouts. Shively was abruptly dropped as a witness, finding out only through Joseph Bosco’s 1996 book “A Problem of Evidence” that L.A. Deputy DA Peter Bozanich had told prosecutor Marcia Clarke that Shively was an unreliable “felony probationer” with a history of lying. Shively sued, but Los Angeles County Superior Court Judge Reginald Dunn held that Shively had missed the one-year statute of limitations for filing suit. The appeal court reversed in 2000, saying the discovery rule tolls the statute of limitations in defamation actions against “a non-mass media defendant,” when the statements are later republished “in the mass media.” The ruling shocked media groups including the three major TV networks and The New York Times, particularly because the appeal court in a footnote suggested the rule of discovery should apply to mass-media publications as well. Case law nationwide has normally held that the statute of limitations accrues on the publication date in the mass media and isn’t tolled by a claim that the statements weren’t noticed until much later. On Tuesday, Kelli Sager, who represented the media groups in an amici curiae brief, argued that the court should set a bright-line rule that says the discovery rule doesn’t apply in defamation cases. Otherwise, argued Sager, a partner in the Los Angeles office of Seattle’s Davis Wright Tremaine, California “will become the court of last resort for raising defamation claims that plaintiffs could not raise in any other court.” Most of the justices seemed sympathetic to Sager and co-counsel Cindy Lee, of Glendale’s Franscell, Strickland, Roberts & Lawrence who represented Bozanich and L.A. County. George pounded Shively’s lawyer with questions about Shively’s motivations for filing suit against the original source of the comments. “The real injury,” he said, “comes from a widely distributed book and not these initial statements.” Several of the justices, including George, Joyce Kennard and Kathryn Mickle Werdegar, asked all three lawyers what kind of bright-line rule they should set for a statute of limitations, as well as a definition for “mass media.” There were only 6,800 copies of the book in California at the time Shively found a copy, they noted, but it also was put out by a major publisher, William Morrow & Co. “It wasn’t something that someone had done privately for their own friends,” George noted. “Why wouldn’t this be wide distribution to the general public?” “Does it have to make The New York Times best-seller list?” George asked. Lee argued that the discovery rule shouldn’t apply when the alleged comments are subsequently published in a form that’s available to the general public. She also said the discovery rule should apply if the published comments are the type that are “truly, inherently undiscoverable” by the average person. Lee also noted that the appeal court ruling would have the odd effect of giving private individuals whose comments are republished in a mass-media publication no protection against belated defamation claims, while letting the mass media live by the terms of a strict statute of limitations. The statute of limitations, she argued, should start on the date of publication. Otherwise, she said, plaintiffs could claim ignorance of publication “for an unlimited amount of time.” The case is Shively v. Bozanich, S094467. The court should rule within 90 days.

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