United States District Court, N.D. California
December 19, 2005.
RICHARD A. CANATELLA, Plaintiff(s),
JOHN VAN DE KAMP, ESQ., et al., Defendant(s).
The opinion of the court was delivered by: BERNARD ZIMMERMAN, Magistrate Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Plaintiff Richard Canatella filed this action on June 15, 2005
against the State Bar of California (erroneously sued as the
California Bar Journal (the "Bar Journal")) and several officers
of the State Bar,*fn1 alleging defendants violated
plaintiff's First, Fourth and Fourteenth Amendment
rights.*fn2 Defendants filed a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) on several grounds,
including that plaintiff's federal claims are time barred. The essence of plaintiff's complaint is that defendants
violated his civil rights when they published a summary of
plaintiff's discipline record (the summary) on the State Bar's
In their motion, defendants argue that because the summary was
published on their website in February 2000, plaintiff's
complaint, filed June 15, 2005, is time barred. Plaintiff argues
that the statute of limitations did not begin to run until July
17, 2004, when former defendant Martha Daetwyler cited the
summary in a court proceeding.
California personal injury law provides the statute of
limitations for plaintiff's § 1983 claim. Jones v. Blanas,
393 F.3d 918 (9th Cir. 2004). The current statute of limitations is
two years. Cal. Civ. P. Code § 335.1. Defendants argue that the
former one-year statute of limitations should apply.*fn3 The
more difficult question is when plaintiff's claim accrued.
Assuming that plaintiff states a federal civil rights
claim,*fn4 accrual is governed by federal law.*fn5 Maldonado v. Harris, 370 F.3d 945, 955
(9th Cir. 2004). "Under federal law, a claim accrues when the
plaintiff knows or has reason to know of the injury which is the
basis of the action." Id. (quoting TwoRivers v. Lewis,
174 F.3d 987, 992 (9th Cir. 1999)).
Plaintiff first challenges the date on which the summary
appeared on the State Bar's website. At a hearing on October 12,
2005, it became apparent that this threshold issue could not be
determined from the face of the complaint or from any matter of
which I could take judicial notice. Accordingly, as permitted by
Rule 12(b)(6), I gave the parties an opportunity to take limited
discovery on this issue and to submit matters outside the
pleadings to see if this potentially dispositive issue could be
resolved at the outset of the litigation. I otherwise stayed the
Defendants submitted additional declarations from Nancy
McCarthy, the Editor and General Manager of the Bar Journal and
its Senior Writer from March 1991 to November 2000, which
establish that the summary appeared on the State Bar's website in
February 2000 (McCarthy Decl. dated October 19, 2005, ¶ 2). In
her declarations, McCarthy explains the Bar Journal's practice of
posting the Bar Journal online and avers that the February 2000
issue of the Bar Journal was posted on the State Bar's website on or about February 1, 2000 (Id. ¶ 6). She
avers, "The State Bar's business practice around February 2000
was to check the website to make sure an edition of the
California Bar Journal had been posted before paying any invoice"
and "[t]o the best of [her] knowledge and the records of the
State Bar, no edition of the California Bar Journal has failed to
be posted at or around the same time as its physical publication"
(McCarthy Decl. dated November 22, 2005, ¶ 6). Plaintiff deposed
McCarthy. In her deposition, McCarthy again averred that the
February 2000 issue of the Bar Journal was posted online on or
about February 1, 2000 (Erlewine Decl., Exh. B 13:10-19,
19:1-11). She testified that "each month we'd just check to make
sure [the Bar Journal] was up" and "we would go online to see if
it was there" and she was never aware "that the edition for that
particular month had not been posted online in the month that the
hard copy had been mailed out" (Id. 85:12-86:9).
Neither of plaintiff's challenges to defendants' factual
showing create a disputed issue of material fact such that
summary adjudication of this issue is unwarranted. Plaintiff
first argues that he and his staff could not locate the summary
when they searched for it. Plaintiff relies heavily on the
declaration of Adriano Hrvatin, a law student working in his
office during the fall of 2002. Hrvatin declares that around
October 2002, while navigating the State Bar's website, he
"clicked on the link" entitled "Attorney Search" to "[c]heck an
attorney's bar membership" and then clicked on another link
entitled "Attorney/Member Search" and typed "Canatella, Richard A." The search yielded plaintiff's page,
which "noted that Mr. Canatella `has a public record of
discipline'" which could be obtained upon request (Hrvatin Decl.
¶ 4). Based on this search and others conducted between October
2002 and August 2003, Hrvatin declares he did not find the
summary on the State Bar's website (Hrvatin Decl. ¶¶ 4, 6).
Nowhere does Hrvatin declare that he logged on to that portion of
the State Bar's website which archives past editions of the Bar
Journal and that the summary was not in the February 2000
edition. Hrvatin does not establish that in 2002 the summary did
not exist online; he only establishes that the State Bar had not
yet provided a link between plaintiff's name and the summary.
This is consistent with evidence presented by both sides that
such a link was created in 2003.*fn6
Plaintiff also provides the declaration of Dr. Crittenden. Dr.
Crittenden does not offer any facts to controvert defendants'
showing. He merely opines that he believes it highly improbable
that the summary was posted when defendants assert.*fn7 His
opinion is not sufficient to create a disputed issue of material fact. Triton Energy Corporation v.
Square D Company, 68 F.3d 1216, 1222 (9th Cir. 1995)
("Therefore, we find that Bennett's expert opinion and the
inferences Triton seeks to draw from it are not of sufficient
quantum and quality to create genuine issues of material fact.").
Plaintiff has failed to show that there is a genuine issue as
to the material fact of when the summary in the February 2000
issue of the Bar Journal was posted online. Based on the record,
I conclude plaintiff's summary was available on the State Bar's
website in February 2000.
Plaintiff also appears to contend that the posting on the
internet was a separate publication or republication of the
summary which first appeared in the print version of the February
2000 Bar Journal. This contention has at least two problems.
First, at the hearing, plaintiff conceded that the online summary
was the same as the version published in the print edition. He
admitted that he did not have any problems with the print
version; his objection is to posting it on the internet (Transcr. of Proceedings on October 12, 2005, p.
7).*fn8 Plaintiff's contention that the mere act of posting
an unobjectionable summary of his discipline record on the
internet converted such summary into a false or misleading
publication is unconvincing. If the print version is not
defamatory or objectionable, it is hard to see how the electronic
version can be.*fn9 Second, even assuming that a later
publication of the same Bar Journal summary on a website
constitutes a republication intended to reach a different
audience, Kanarek v. Bugliosi, 108 Cal.App.3d 327 (1980),
plaintiff's claim still falls outside the applicable statute of
limitations. Under state law, the single publication rule applies
to postings on the internet, Traditional Cat Ass'n v.
Gilbreath, 118 Cal.App.4th 392, 403-404 (2004), so the latest
this summary would have been republished was February 2000.
Under federal law, "a claim accrues when a plaintiff knows or
has reason to know of the injury." Maldonado, 370 F.3d at 955
(emphasis added). Plaintiff knew or should have known that his discipline record would be public in 1999 when he
stipulated to discipline to resolve charges pending against him.
He concedes that he saw the summary in the print version of the
Bar Journal in February 2000 (Transcr. 11:17-20). As a member of
the State Bar, he should have received, and does not deny
receiving, a variety of materials from the State Bar informing
him that the Bar Journal was available on the internet (McCarthy
Decl. dated November 22, 2005, Exhs. 1-18). By the time the Bar
Journal published the summary in its February 2000 edition, the
State Bar had been making the Bar Journal available online for
four years, since January 1996. I find that he knew or should
have known in 2000 that his summary would be available to the
public, both in print and online. His attempts to check the State
Bar's website in 2002 to see if his discipline record had been
posted attest to this.
Plaintiff argues repeatedly that the statute of limitations
began to run only when he discovered the online version in 2004
after former defendant Daetwyler cited it in a court proceeding.
Plaintiff has provided no authority for this
proposition.*fn10 His reliance on cases such as Hobart v.
Hobart Estate Co., 26 Cal.2d 412 (1945) is misplaced since these cases interpret statutes of limitations which the
California legislature has by statute decreed do not begin to run
Plaintiff next argues that the statute of limitations in this
case was equitably tolled because on March 29, 2000 he filed a
federal suit challenging the constitutionality of State Bar
statutes and a rule of conduct and seeking an injunction
prohibiting the State Bar from taking disciplinary action against
plaintiff under the challenged disciplinary rules. See
Canatella v. State of California, 304 F.3d 843 (9th Cir. 2001).
Plaintiff argues that the March 2000 action gave defendants
timely notice of the need to defend against this claim,
defendants have not been prejudiced by his failure to file
earlier and he acted reasonably and in good faith in bringing the
present action, so that the statute of limitations in the present
action was equitably tolled.
The filing of plaintiff's March 2000 action challenging various
State Bar rules of discipline is not so related to the present
suit,*fn11 which involves the online publication of the
summary of plaintiff's discipline record, that defendants could
be said to have had notice of this action in March of 2000.
Nowhere does plaintiff explain how the filing of the March 2000
action put defendants on notice that the summary, which was not
objectionable in print version, would produce this lawsuit if the
summary were posted online. Nor is this a case where plaintiff had to file the March 2000 action as a
precondition to filing this suit. Conley v. Brotherhood of
Electrical Workers, 810 F.2d 913, 915 (9th Cir. 1987)
("Equitable tolling is most appropriate when the plaintiff is
required to avail himself of an alternate course of action as a
precondition to filing suit."). Courts have tolled the statute of
limitations in cases of fraudulent concealment or in cases where
plaintiff could not have reasonably discovered the facts giving
rise to his claim. Cusano, 264 F.3d at 949. Neither is the case
here. None of plaintiff's arguments establish a basis for
equitably tolling the statute of limitations in this case.
The summary of plaintiff's discipline record was available on
the State Bar's website in February 2000. Plaintiff did not file
his suit until June 15, 2005. Therefore, the statute of
limitations period for plaintiff's claim expired before plaintiff
filed his complaint.*fn12
IT IS HEREBY ORDERED:
1. Defendants' motion to dismiss, which has been
disposed of under Rule 56, is GRANTED. Plaintiff's
motion for summary adjudication is DENIED.
2. Since plaintiff's action is time barred,
plaintiff's motion for preliminary injunction is
DENIED as moot.
3. There being no opposition, defendants' request for judicial notice in support of their motion to
dismiss, submitted August 1, 2005 is GRANTED.
4. Defendants' request for judicial notice in support
of their motion to dismiss, or alternatively, motion
for summary judgment, submitted October 27, 2005 is
DENIED. Absent foundational information about how
the Internet Archive is constituted, I am not
satisfied that this is a source whose accuracy cannot
reasonably be questioned. See FRE 201.
5. Defendants' request for judicial notice in
opposition to plaintiff's motion for preliminary
injunction is DENIED as moot.
6. Plaintiff's request for judicial notice in support
of his motion for summary judgment is GRANTED IN
PART and DENIED IN PART. Plaintiff's request is
granted as to ¶¶ 1, 4 and 6 and denied as to ¶¶ 2, 3
and 5. Plaintiff's request as to ¶ 7 is granted,
except as to the summary, which has not been
7. Defendants' objections to the declarations of
Richard Canatella and Butler Crittenden are
OVERRULED. They go to the weight I attach to the
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