Filed 9/19/17 Truong v. Nguyen CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| ROBERT LEE TRAN TRUONG,
Plaintiff and Appellant,
v.
SANG KIM NGUYEN,
Defendant and Respondent.
|
G052988
(Super. Ct. No. 30-2013-00695266)
O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed.
Robert Lee Tran Truong, in pro. per., for Plaintiff and Appellant.
Kelley Drye & Warren, Lee S. Brenner and Catherine D. Lee, for Defendant and Respondent.
Robert Lee Tran Truong appeals from the judgment entered against him after the trial court sustained a demurrer, without leave to amend, to his complaint for defamation. The court concluded the complaint was barred by the one-year statute of limitations set forth in Code of Civil Procedure[1] section 340, subdivision (c) (section 340(c)).
Although Truong does not contend he filed his lawsuit within one year of when the allegedly defamatory statements about him were published in newspapers, he argues the judgment should nonetheless be reversed because he has been gravely wronged by the slander alleged in his complaint. He asks that we “disregard[] the ‘normal interpretations’” of the statute of limitations so that he may prove the merit of his complaint. We cannot do that. Section 340(c) requires that all lawsuits for defamation be filed within one year, no matter how egregious the statement, or how much harm it has caused. We have no power to change the statute, nor can we disregard it. We consequently affirm the judgment.
FACTS
Truong filed his complaint on December 27, 2013, naming as defendants “Carter Hotel Billionaire (Companies), Mr. Tran Dinh Truong & Madame Nguyen Kim Sang.” However, the complaint suggests defendant Tran Dinh Truong is deceased and identifies Sang Kim Nguyen[2] as his widow.
The complaint alleges defendants defamed Truong in newspaper articles published on June 8, 2012, and June 9, 2012, but does not set forth the words or substance of the alleged defamatory statements.
Nguyen demurred to the complaint in July 2014, arguing it failed to allege facts sufficient to state a cause of action, and it was barred by the statute of limitations set forth in section 340(c). Truong filed no opposition to the demurrer, and in September 2014, it was sustained with leave to amend.
In March 2015, Truong filed an amended complaint, giving some hint as to the nature of the alleged defamation. The amended complaint described him as the heir to the “Royal Family of Vietnam,” and alleged defendant had “made reckless and damaging public statements in the newspapers that (a) undermine our Royal Family’s efforts to recoup our reputation and some portion of [the family fortune] left behind, when . . . the family left communist Vietnam [and] (b) repudiate our family’s royalty.” Truong’s amended complaint did not allege any additional facts that might explain why his cause of action qualified as timely; instead, it simply omitted any reference to the dates on which the allegedly damaging newspaper statements had been published.
Nguyen demurred to the amended complaint, again relying on section 340(c). And again, Truong filed no opposition. The trial court sustained the demurrer, but without granting leave to amend.
As the trial court explained: “The original complaint, filed 12/27/13, stated that the allegedly defamatory statements were published in newspapers in June 2012. Admissions in an original complaint superseded by an amended pleading remain within the court’s cognizance and the alteration of such statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff’s case will not be accepted. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1043, fn. 25.) The F[irst] A[mended] C[omplaint] now omits all dates, but does not allege facts to suggest that the action could somehow be timely. Nor does it appear that [Truong] could amend to do so.” The court subsequently entered judgment against Truong.
DISCUSSION
Part 2, Title 2 of the Code of Civil Procedure prescribes the time periods within which civil lawsuits must be filed. As stated in section 312, “Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.”
Section 340(c) provides the statutory limitations period for claims based on defamation, specifying a limitation of “one year” for “[a]n action for libel [or] slander.”[3] And when a defamatory statement is published in a book or newspaper, the limitations period begins to run from the date of publication, without regard to when the plaintiff becomes aware of the publication. (Shively v. Bozanich, supra, 31 Cal.4th at pp. 1247, 1251.)
In this case, Truong’s original complaint explicitly alleged the relevant defamatory statements had been published in newspapers on June 8, 2012 and June 9, 2012, respectively. That meant he had one year from each of those dates within which to file a defamation claim based on the corresponding publication. However, Truong did not file his complaint until December 2013, 18 months after the two publications. That was six months too late.
The trial court properly gave Truong the opportunity to amend his original complaint, to see if he could allege additional facts demonstrating his cause of action was timely. Unfortunately, Truong responded with an amended complaint that simply omitted the publication dates he had originally alleged, without explanation. As the trial court concluded, that is an ineffective strategy for avoiding the statute of limitations.
“Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) Thus, “f a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.” ([i]Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.) That is just what the trial court did in this case, and properly so.
However, in concluding Truong’s defamation complaint was barred by the statute of limitations, the trial court was not passing any judgment on the merits of his claim. Neither are we. Rather, the statute of limitations prevents the courts from even considering the merits of a case that is not filed within the specified time limit. Like the trial court, we have no choice but to apply that limitation in this case, and to affirm the judgment.
DISPOSITION
The judgment is affirmed. Nguyen is to recover her costs on appeal.
O’LEARY, P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
[2] The documents filed by this defendant, both in the trial court and on appeal, reflect her name as Sang Kim Nguyen. We refer to her as Nguyen.
[3] “Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander. [Citation.]” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.)
