Sukumar v. Ballard
Filed 7/18/13 Sukumar v. Ballard CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
PONANI SUKUMAR,
Plaintiff and Appellant,
v.
JAMES R. BALLARD et al.,
Defendants and Respondents.
D061178
(Super. Ct. No. 37-2011-00050243- CU-DF-CTL)
APPEAL from
an order of the Superior Court
of
County, Joan M. Lewis, Judge. Affirmed.
Brownstein
Hyatt Farber Schreck, Barry B. Langberg, Chad
P. Seber and Deborah Drooz for Plaintiff and Appellant.
Butz Dunn
& DeSantis, Douglas M. Butz and David D. Cardone for Defendants and
Respondents.
INTRODUCTION
Ponani
Sukumar (Ponani) appeals from an order granting the special motion of James R.
Ballard and Schwartz Semerdjian Ballard & Cauley LLP (collectively Ballard)
to strike his defamation complaint
under Code of Civil Procedure section 425.16,
commonly referred to as the anti-SLAPP (strategic lawsuit against public
participation) statute. (
(2002) 29 Cal.4th 53, 57, fn 1.) Ponani
contends the anti-SLAPP statute does not apply to his complaints because the
alleged defamatory statements were commercial speech. He also contends the trial court erred by
determining his claims were time-barred, by weighing evidence to find the alleged
defamatory statements were true, and by sustaining Ballard's objections to the
declaration of his linguistics expert.
We conclude
the anti-SLAPP statute applies and
Ponani's claims are time-barred. We, therefore,
affirm the order.
BACKGROUND
I
Prior Malicious
Prosecution Action
This case
stems from Ballard's prior successful handling of a malicious prosecution
action. For context, we repeat the
background summary from our decision affirming the judgment in the action.
"Ponani
and Sara [Sukumar] were born in India. In 1970, they were married. In April 1978, Sara moved to the United
States to begin her job as a cancer
researcher in Maryland. In January 1979, Ponani and their two
children joined her in the United States. Ponani began a two-year master's degree
program at the Wharton School of Business and lived in Philadelphia,
while Sara and their children lived in Maryland. While in graduate school, Ponani met
[Shih-Hua Alan] Lee, a classmate, and they became close personal friends. After Ponani obtained his degree, he remained
in Philadelphia for two more years
working as a financial advisor and insurance agent. In 1982, Lee returned home to Singapore. In 1983, Ponani and Sara moved into a home
they purchased in Maryland. During the following four years, Sara worked
as a medical researcher and Ponani worked as a broker. Ponani also served as Lee's financial
advisor.
"In
1987, Sara accepted a research position with the Salk Institute in San
Diego. In
November 1987, Ponani and Sara moved with their children to San
Diego. During
the following three years, Ponani worked at various firms as a broker, but
earned less money than before. In July
1991, Ponani stopped working as a broker and told Sara he would start working
out of their home. However, apparently
he was never able to do so.
"Between
1990 and 1994, Ponani made various telephone calls to Lee requesting financial
assistance. [Fn. omitted.] Ponani wrote purportedly contemporaneous
letters summarizing each telephone call and the terms of the purported loan Lee
would make to him. [Fn. omitted.] Following each request, Lee transferred money
to [a] joint account with Sara. However,
Sara was unaware of Ponani's requests or Lee's money transfers.
"In
October 1994, Sara moved to Maryland
to begin her new job with Johns Hopkins
University as an associate
professor and director of breast cancer research. Ponani remained in San
Diego.
"In
February 1995, Sara filed a petition for the dissolution of her marriage to
Ponani. Apparently following through on
his prior threats to financially and emotionally 'break' Sara if she filed for
divorce, Ponani declared he had no source of income and succeeded in obtaining
a court order that she pay him spousal support.
Furthermore, Ponani declared the purported 'loans' (i.e., the money
transfers) Lee made to him were community debts. On reviewing that declaration, Sara learned
about Lee's money transfers for the first time and took the position that she
had no obligation to repay those purported debts. Ponani also submitted a
letter from Lee in which Lee stated he would not be able to continue making
loans to Ponani in the future.
"On February 27, 1997, while the
Sukumars' dissolution proceeding was ongoing, Lee filed an action against
Ponani and Sara for breach of contract based on the 'loans' he allegedly made
to Ponani. Lee sought total damages of
$1,410,805. Sara filed a cross-complaint
against Lee and Ponani, alleging she had no knowledge of the purported loans
and Ponani should alone be declared responsible for paying any judgment. She sought equitable indemnity from
Ponani. On his attorneys' advice, Ponani
filed a cross-complaint against Sara for equitable indemnity and declaratory
relief.
"Because
Ponani agreed with Lee's claims regarding the loans, he entered into a
stipulated judgment with Lee in the amount of $888,000. It provided that Ponani would pay Lee in
installments and, if Lee demanded, he would transfer to Lee his interest in a
Maryland property and his San Diego home.
Ponani's judgment obligation would be reduced by any amounts Lee
recovered from Sara in the ongoing breach of contract action.
"Before
trial, Ponani voluntarily dismissed his cross-complaint against Sara. On September 4, 1998, following a bench
trial, the trial court issued a statement of decision rejecting Lee's claim
that Sara owed him money on his purported loans. Although the court believed Lee transferred
substantial amounts of money to Ponani, it concluded Lee intended those
transfers to be gifts and not loans. The
court found Sara's testimony to be highly credible, and found Lee's testimony
inherently incredible and his claim that the transfers were intended to be
loans unsupported by evidence and unbelievable.[
The court noted Lee 'had difficulty
maintaining a straight face as he answered questions of the Court about his
motivation in making these transfers.'
It noted that in applying for a line of credit, Ponani did not list any
loans from Lee. Although Lee presented
copies of Ponani's letters regarding the purported loan requests, they
contained no fax legend showing they were faxed by Ponani and/or received by
Lee. It further found Lee did not
maintain any documents or other records to memorialize the purported
loans. Furthermore, after Lee filed his
action against Ponani and Sara, Lee transferred substantial amounts of money to
Ponani's 90-year-old father without any realistic hope of recovering that
money. The court concluded Lee's breach
of contract action was very likely orchestrated by Ponani to gain a tactical
advantage in his marital dissolution case with Sara. The court believed the evidence of loans
presented by Lee (e.g., copies of Ponani's letters) 'may very likely have been
fabricated for trial.' The court stated:
" 'The terms of the alleged loans are vague and
change over time. There was no
collateral, and Mr. Lee has neither seriously demanded any repayment nor has he
ever received even one cent in repayment since 1981. Inherent in the evidence is a donative
intent. These were voluntary transfers
without consideration. Civil Code
[section] 1146. Accordingly, the Court
finds that these cash transfers from Mr. Lee to [Ponani] are gifts and not
loans.' "
Accordingly, the court entered judgment for Sara.[
"On
February 8, 2002, Sara filed [an] action for malicious prosecution against Lee
and Ponani. [Fn. omitted.] On November 14, 2003, she filed her operative
first amended complaint, alleging Lee maliciously filed and prosecuted his
breach of contract action, and Ponani maliciously filed and prosecuted his
cross-complaint for indemnity, without probable cause. She sought general, special, and punitive
damages. On December 12, the trial court
denied Lee's and Ponani's SLAPP motions to strike the complaint pursuant to
Code of Civil Procedure section 425.16.[
"Following
the evidentiary portion of the jury trial, the trial court granted Ponani's
motion for nonsuit, finding that, as a matter
of law, he had probable cause to file his cross-complaint for indemnity
against Sara in the underlying lawsuit for breach of contract. The court denied Lee's motion for a directed
verdict, finding there were disputed issues of fact for the jury to decide before
it could determine whether Lee had probable cause to file his breach of
contract action against Sara. The jury
answered, 'Yes' to the question: 'Has
[Sara] proved that at the time Mr. Lee filed the original complaint on January
10, 1997, that he knew that his claim that he loaned money to the Sukumars on
or about April 8, 1991 was false[?]'
[Fn. omitted.] The jury also
answered, 'Yes' to that question regarding other subsequent loans purportedly
made by Lee. The jury also answered,
'Yes' to the question: 'Has [Sara]
proved that during the pendency of the lawsuit, Mr. Lee knew that his claim
that he loaned money to the Sukumars on or about April 8, 1991 was
false[?]' [Fn. omitted.] The jury also answered, 'Yes' to that
question regarding other subsequent loans purportedly made by Lee.
"The
jury also returned a special verdict finding Lee brought his breach of contract
action against Sara primarily for a purpose other than succeeding on the merits
of the action, Sara was harmed thereby, and Lee's conduct was a substantial
factor in causing her harm. The jury
found Sara's economic damages (e.g., attorney fees and costs in the underlying
action) were $160,000 and her noneconomic damages (e.g., mental suffering) were
$800,000. The jury also found Lee acted
with malice, oppression or fraud to justify an award of punitive damages. The trial court then concluded that, based on
the facts found by the jury, Lee did not have probable cause to file or
prosecute his breach of contract action against Sara. The court noted the jury found Lee knew his
claim that he loaned money was false and, considering that finding, its ruling
on probable cause was compelled. After
presentation of evidence in the punitive damages phase of the trial, the jury
awarded Sara $5,000,000 in punitive damages against Lee. On November 13, 2006, the court entered
judgment against Lee based on the jury's verdict. On December 7, 2006, the court entered a
separate judgment for Ponani based on its order granting his motion for
nonsuit.
"On
November 30, Lee filed motions for judgment notwithstanding the verdict (JNOV)
and for a new trial. Lee argued he had
probable cause to file his action and the amount of punitive damages awarded by
the jury was excessive. The trial court
denied the motion for a new trial and granted the JNOV motion in part, reducing
the amount of the punitive damages to $1,454,000, and denied that motion in all
other respects. The court stated:
" 'Mr. Lee argues that the Court abdicated its duty
[to decide the issue of probable cause] by relying on the jury's findings. The jury specifically found that Lee knew his
claim for each loan was false when he filed the Complaint and knew that his
claim for each loan was false during the pendency of the lawsuit. Since Lee was the so-called lender, his
knowledge would be paramount. If Lee
knew the claims were false, then there could not be any probable cause for
filing a suit to collect on loans.
" 'Nevertheless, [Lee] urges the Court to make an
independent inquiry. The Court has done
so. The Court finds the testimony of Mr. Lee not credible.
. . . The Court has not gone into all the instances of
Mr. Lee's unbelievable testimony, such as his testimony regarding why he had a
hand puppet at the deposition. . . . [T]he testimony of
Mr. Lee simply is not credible. In the
view of the Court, there was never an intent to make a loan, and at the time
the lawsuit was filed and through the pendency of the lawsuit, there was no
enforceable loan and Mr. Lee was well aware there was no enforceable loan.
Therefore, there was no probable cause to file the suit.' " [Fn. omitted.]
On February 23, 2007, the trial court entered an amended
judgment on the jury verdict, which was basically the same as the original
judgment except for the court's reduction in the punitive damages awarded from
$5,000,000 to $1,454,000." (
2009) [nonpub. opn.].)
II
Instant Libel and
Slander Action
In October
2008 while the appeal of the malicious
prosecution action was pending, Ballard received an "Outstanding Trial
Lawyer" of the year award from the Consumer Attorneys of San Diego
(Consumer Attorneys) for his efforts in the action. Ballard supplied the organization with descriptions
of the malicious prosecution action, which the organization synopsized and
published in its program for the awards ceremony. The published summary read:
"[Ballard]
was lead counsel on a malicious prosecution case entitled Sukumar v. Shih-Hua Alan Lee.
[Ballard's] client, Dr. Sara Sukumar, is a world-renowned research
scientist in the field of breast cancer.
Alan Lee, the co-defendant and friend of Sara's husband, Ponani, is the
son of one of the richest families in Singapore.
"Ponani
and Lee's relationship grew extremely close and they engaged in secretive
financial affairs unbeknownst to Sara.
Ponani convinced his family that he was a successful stock broker
managing Lee's wealth. In truth, Ponani
and his family were living off of large sums of money gifted by Lee, totaling
approximately $1.4 million.
"Ponani
refused to pay taxes and the IRS attached Sara's income. When Sara asked to separate her finances from
Ponani, he became verbally and physically abusive. He said that if she were to leave him, he
would make her pay for the rest of her life.
Fearing for her safety as well as that of her children, Sara left Ponani
in October 1994. In an effort to exact
revenge, Ponani and Lee devised a plan to ruin Sara financially by claiming
that the money from Lee was a loan, and as such, a community debt requiring
Sara to repay half. Lee then filed suit
against Sara and Ponani for unpaid loans.
Sara was forced to pay spousal support and potentially close to a
million dollars of debt to Lee. Sara was eventually forced to file for
bankruptcy protection.
"Meanwhile,
Ponani and Lee remained close friends.
Lee continued to transfer money to Ponani to fund his legal defense
expenses. During Lee's lawsuit against
Sara, he appeared at his deposition with a panda bear hand-puppet which he
consulted with and testified through.
Eventually, Sara defeated Lee's claims for unpaid loans. The judge also found the lawsuit was
orchestrated by Ponani to gain a tactical advantage in the divorce action. Sara then filed this malicious prosecution
action against Lee and Ponani.
"During
the litigation [Ballard] withstood motions to strike, demurrers, SLAPP motions,
appeals of the SLAPP motions, motion for summary judgment and every other
imaginable motion and procedural hurdle before finally getting a jury. The jury returned a verdict of $960,000 in
compensatory and $5,000,000 in punitive damages. Following the verdict, Defendant Lee filed a
JNOV and motion for new trial. The
verdict was upheld, but punitives were cut to $1,454,000. The total award is in excess of $2.3
million. The Defendant has filed an
appeal which is pending."
In January
2011 Ponani filed the instant action against Ballard for libel and
slander. The complaint alleged Ballard's
oral and written statements to Consumer Attorneys and the written statements
contained in the awards ceremony program falsely implied a court found Ponani
liable for malicious prosecution and guilty of conduct resulting in a punitive
damages award against him.
name="_ftnref5" title="">[5]
Ballard filed
a special motion to strike Ponani's complaint under the anti-SLAPP
statute. Ballard argued the challenged
statements were protected speech because they constituted a " 'written or
oral statement or writing made in connection with an issue under consideration
or review by a . . . judicial body' as well as a 'written
or oral statement or writing made in a . . . public forum
in connection with an issue of public interest.' [§ 425.16, subd. (e)(2)-(3).]" Ballard further argued Ponani had no
likelihood of prevailing on the merits of his claims because the claims were
time-barred, the statements were absolutely privileged, and the statements were
true.
Ponani
opposed the motion, arguing the anti-SLAPP statute did not apply because the
challenged statements were commercial speech, not protected speech. He additionally argued he was likely to
prevail on the merits because the statements were false, defamatory and caused
him damages. He also argued the
statements were not privileged and the statute of limitations was tolled by the
delayed discovery rule.
The court
granted the anti-SLAPP motion, finding the challenged statements were protected
speech rather than commercial speech.
The court also found Ponani had not shown a probability of prevailing on
the merits of his claims because the delayed discovery rule did not apply, his
claims were time-barred, and the challenged statements were true.
On appeal,
Ponani reasserts his contention the anti-SLAPP statute does not apply to his
claims because the challenged statements were commercial speech. He additionally contends the court erred by
determining the delayed discovery rule did not apply to his claims, by weighing
evidence to find the statements were true, and by sustaining Ballard's
objections to the declaration of Ponani's linguistics expert. We need not address the latter two
contentions as we conclude the challenged statements were protected speech and
Ponani's claims are time-barred.
DISCUSSION
"Section
425.16, subdivision (b)(1), provides: 'A
cause of action against a person arising from any act of that person in
furtherance of the person's right of petition or free speech under 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.' The analysis of an anti-SLAPP
motion thus involves two steps. '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).) If
the court finds such a showing has been made, it then must consider whether the
plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]
'Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from
protected speech or petitioning and
lacks even minimal merit—is a SLAPP, subject to being stricken under the
statute.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811,
819-820.) "We review an order
granting or denying a motion to strike under section 425.16 de novo." (Id.
at p. 820.)
I
Arising From
Protected Activity Prong
A
"A
defendant can meet his or her burden of making a threshold showing that a cause
of action is one arising from protected activity by demonstrating the acts
underlying the plaintiff's cause of action fall within one of the categories of
section 425.16, subdivision (e).
[Citation.] [¶] Section 425.16, subdivision (e) provides in
relevant part: 'As used in this section,
"act in furtherance of a person's right of petition or free speech under
the United States or California Constitution in connection with a public
issue" includes . . . 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.' " (
Inc. (2007) 152 Cal.App.4th 1043, 1054-1055.) "A statement is 'in connection with'
litigation under [section 425.16, subd. (e)(2)] if it relates to
is directed to persons having some
interest in the litigation (need not be parties or potential
parties)." (Weil & Brown, Cal.
Practice Guide: Civil Procedure Before
Trial (The Rutter Group 2013) ¶ 7:720, p. 7(II)-28, citing Contemporary Services Corp. v. Staff Pro, Inc.,
(2011) 198 Cal.App.4th 1153, 1168.)
In this
case, the parties do not dispute that the malicious prosecution action was
under review by this court at the time the challenged statements were
made. In addition, the record shows the
challenged statements related to substantive issues in the litigation because
the statements conveyed the background, claims, and status of the litigation. The record also shows the statements were
made to persons having some interest in the litigation because Consumer
Attorneys "is an organization of trial lawyers in San Diego who work to
preserve and protect legal rights of consumers" and the purpose of the
awards ceremony was "to recognize the accomplishments of its members and
to highlight the particular cases in which the recipients successfully
advocated on behalf of their clients."
We, therefore, conclude Ballard met his threshold burden of showing
Ponani's claims arose from protected activity.
B
Commercial Speech
Exemption
Ponani
nonetheless asserts the anti-SLAPP statute does not apply to his claims because
the challenged statements were commercial speech. "Section 425.17, subdivision (c) exempts
a cause of action arising from commercial speech from the anti-SLAPP law when
'(1) the cause of action is against a person primarily engaged in the business
of selling or leasing goods or services; (2) the cause of action arises from a
statement or conduct by that person consisting of representations of fact about
that person's or a business competitor's business operations, goods, or
services; (3) the statement or conduct was made either for the purpose of
obtaining approval for, promoting, or securing sales or leases of, or
commercial transactions in, the person's goods or services or in the course of
delivering the person's goods or services; and (4) the intended audience for
the statement or conduct meets the definition set forth in section 425.17[,
subdivision] (c)(2) [(i.e., an actual or potential buyer or customer, or a
person likely to repeat the statement to, or otherwise influence, an actual or
potential buyer or customer)].' " (
256, 270.) Courts must construe the
commercial speech exemption narrowly and the party seeking the benefit of it
has the burden of proving its applicability.
(Simpson Strong-Tie Co., Inc. v.
Gore (2010) 49 Cal.4th 12, 22, 26; Hawran
v. Hixson, supra, at p. 270.)
In this
case, the parties do not dispute that Ballard is primarily engaged in the
business of selling services, satisfying the first requirement. We need not decide whether Ponani satisfied
the second or third requirements because we conclude he has not satisfied the
fourth requirement. The record shows
that, while the awards ceremony was open to anyone who bought a ticket for it,
the majority of attendees were members of Consumer Attorneys or affiliated with
the honorees. There is no evidence the
audience included actual or potential clients.
In
addition, there is no evidence the awards ceremony program or its contents were
distributed to actual or potential clients.
Consumer Attorneys advertised the awards ceremony to its membership, but
did not distribute the awards ceremony program or its contents to anyone before
or after the event. Ballard also did not
keep a copy of the program or send a copy of it to anyone.
Further,
there was no evidence the attendees of the awards ceremony were
statements to, or otherwise influence, actual or potential clients. "Likely" means "having a high
probability of occurring or being true: very probable." (Merriam-Webster's Collegiate Dict. (11th ed.
2006) p. 721.) While Ballard may have
viewed the award as "good recognition" and the awards ceremony may
have provided him with an opportunity to network, there is no evidence Ballard
received or had a high probability of receiving any referrals from the other
honorees or attendees. Ballard
specifically testified at his deposition the award had not had any effect on
his business and no client "has said to me that I want you because you
received this [award], or that I saw you receive this [award]." In addition, when asked whether he or his
firm had ever received a referral from a Consumer Attorneys member, he
testified, "we certainly get referrals from attorneys, but I have no idea
if they are in [Consumer Attorneys]."
He also testified he did not join Consumer Attorneys because it was a
possible referral source and noted Consumer Attorneys is "a plaintiff's
organization, and most of my trial victories have been for
defendants." Consequently, while it
was possible Ballard might have received a referral from someone who attended
the awards ceremony, Ponani has not shown Ballard was likely to have done
so. Accordingly, Ponani has not shown
the commercial speech exemption applies to his claims.
II
Probability of
Prevailing on Claim Prong
A
Having
concluded Ballard met the threshold burden of showing Ponani's claims arise
from protected activity, we next consider whether Ponani met his burden of
establishing a probability of prevailing on the merits. " 'To establish a probability of
prevailing, 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." [Citations.] For purposes of this inquiry, "the trial
court considers the pleadings and evidentiary submissions of both the plaintiff
and the defendant (§ 425.16, subd. (b)(2)); though the court does not
probative strength of competing evidence, it should grant the motion if, as a
matter of law, the defendant's evidence supporting the motion defeats the
plaintiff's attempt to establish evidentiary support for the claim."
[Citation.] In making this assessment it
is "the court's responsibility . . . to accept as true
the evidence favorable to the plaintiff . . . ." [Citation.]
The plaintiff need only establish that his or her claim has
"minimal merit" [citation] to avoid being stricken as a SLAPP.'
" (Hawran v. Hixson, supra,
209 Cal.App.4th at pp. 273-274.)
B
Statute of
Limitations and Delayed Discovery Rule
Below,
Ballard argued and the court agreed Ponani's claims were time-barred. In reaching its decision, the court
determined the delayed discovery rule did not apply in this case. Ponani contends the court was mistaken in
this determination. We disagree.
Defamation
claims are subject to a one-year statute of limitations. (Civ. Proc. Code, § 340, subd. (c).) "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." (
1230, 1237 (Shively).) Here, the record shows the challenged
statements were communicated at or before the awards ceremony, which was held
on October 3, 2008. Ponani did not file his
complaint until January 10, 2011, more than two years later.
"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." (
894 [delayed discovery rule does not apply to defamation claims unless the
defamatory statement was hidden from view because it was communicated in an
inherently secretive manner]; Christoff
v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 483 [same]; cf.
(1979) 88 Cal.App.3d 725, 727, 731 [delayed discovery rule may apply to libel
claim based on contents of letter placed in a confidential file in defendant's
personnel office and not discovered by plaintiff until almost 16 years later].)
However,
the delayed discovery rule does not apply to defamatory statements governed by
the single publication rule. (
person shall have more than one cause of action for damages for libel or
slander . . . founded upon any single publication or
exhibition or utterance, such as one issue of a newspaper or book or magazine
or any one presentation to an audience."
(Civ. Code, § 3425.3.) The rule
applies even when the publication, exhibition, utterance, or presentation has a
limited circulation or audience. (
supra, 42 Cal.4th at p. 893;
are based on statements contained in the awards ceremony program or
disseminated at the awards ceremony, the delayed discovery rule does not apply
and his claims are time-barred.
To the
extent Ponani's claims are based on the information Ballard supplied to
Consumer Attorneys before the awards ceremony, the claims are likewise
time-barred. Even assuming Ballard
provided the information in confidence, the rationale for applying the delayed
discovery rule to the information ceased to exist once the information was
published in the awards ceremony brochure.
(Shively, supra, at 31 Cal.4th p. 1253.)
Given our
conclusion, we need not address Ponani's contention the court improperly
weighed evidence when it determined the challenged statements were true. We also need not address Ponani's contention
the court improperly sustained Ballard's objections to the declaration of
Ponani's linguistics expert.
DISPOSITION
The order
is affirmed. Respondents are awarded
appeal costs.
McCONNELL,
P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.
name="_ftn1" title="">[1] Further statutory references are also to the Code of Civil
Procedure unless otherwise stated.
name="_ftn2" title="">[2] "Ponani invoked his constitutional right against
self-incrimination and did not testify at trial.
