Should I include the "Date of Discovery"on my defamation suit

[dgilly]

Hi there. It came to my attention 3 months ago that someone published numerous defamatory remarks about me. The catch is this. It was published over a year ago (13 months). but I didn't see it till 3 months ago. I am moving forward with my complaint. Here's the question: In the complaint should I include the "Date of Discovery" angle, or leave it out of the complaint to see if the defendant even realizes it? Or, will the judge realize it himself and throw it out if he does not see the "Date of Discovery" information? I appreciate the help. Thanks.

 

[fredrikklaw]

No Anticipation of Defenses Allowed!

There is no problem, or rather, you will not be facing any objection by the defendant about the complaint being untimely filed; better known as the statute of limitation argument. Technically and by virtue of the California Code of Civil Procedure, you will have had two years to file your legal action and as yet only 13 months have passed, you are in good shape for another nine months.

Now a word to the wise about the most central part of your upcoming litigation, which is THE COMPLAINT; a sort of long-winded droll as my way of answering your question about whether to mention the time lapse and so on.

Needless to overemphasize and to mention the obvious here, a plaintiff more often than not lives and dies (so to speak) by his complaint, so be very, very careful, because although the Code may make it sound like a cake walk by instructing that it be "Liberally Constructed" and to contain "plain and simple account of the facts complained of…," a complaint is anything but.

The Statement of Facts is THE central part of any complaint in which you will be setting out your stool and regaling the court and asunder with your gripe about the defendant, but, all you are restricted in saying are the facts, the whole facts, and nothing but the facts. Basically, you will be telling it like it is, or was; no more, no less. So there will be no embellishment, exaggerations, personal opinions, commentary, psychoanalysis, and things of that nature. But there are two things in the complaint specifically, the mentioning of which will really set the skids under your case and those are Making Legal Conclusions and Anticipating Defenses.

So just talk, plain talk, identify the parties, recite the facts, and only the facts, then state your causes of action, say your prayer for relief, file it, have it served, and then step back and let the law take its course.

And one other caveat; the statutes of limitation are said to commence accruing from the time the defendants actions cause damages or injures the plaintiff. The Discovery Rule tolling S.O.L. is a tool used mainly in Medical Malpractice Cases and cases involving prima facie fraud where the defendants' fraudulent misrepresentations had prevented timely discovery of the injuries and the damages.

So, it is not enough just to have "discovered" a (perceived) defamatory commentary; for it to be actionable, it must also have caused plaintiff to suffer some manner of measurable and cognizable damages. So think of your damages as well when writing the complaint.

fredrikklaw