IN THE CALIFORNIA COURT OF APPEAL
FIRST APPELLATE DISTRICT, DIVISION THREE
WILLIAM T. O'CONNOR, M.D.,
Plaintiff and Appellant,
vs.
CALIFORNIA MEDICAL ASSOCIATION et al.,
Defendants and Respondents.
No. A054061
Superior Court No. 889166 (San Francisco County)
Appeal from Superior Court of California, County of San
Francisco, Hon. Ira A. Brown, Jr., Judge
Presiding
RESPONDENTS' BRIEF
COOPER, WHITE & COOPER
CHARLES W. KENADY
MARTIN KASSMAN
201 California Street, 17th Floor
San Francisco, CA 94111
(415) 433-1900
Attorneys for Defendants and Respondents CALIFORNIA MEDICAL ASSOCIATION, MARK L. MADSEN and LAURENS P. WHITE, M.D.
TABLE OF CONTENTS
I. Appellant's Advocacy Before Government Bodies
II. "AIDS: the Alarming Reality"
III. The Fight Over the LaRouche Initiative
IV. Appellant's Efforts to Publicize His Paper
II. Appellant Is a Public Figure for Purposes of This Action.
IV. The First Amendment Also Defeats Appellant's Claim of False Light Invasion of Privacy.
V. The Trial Court Was Not Required to Grant Appellant Leave to Amend His Complaint.
This case is an outgrowth of a disagreement over public health policy. The plaintiff and appellant, William T. O'Connor, M.D., is a Vacaville physician who became a strident public advocate of draconian measures to control the spread of acquired immune deficiency syndrome (AIDS). As "a strong critic of public health policies" that he believed were an inadequate response to AIDS, CT(1) 2 (Complaint at ¶ 2), appellant butted heads with members of the medical establishment, including defendants and respondents Mark L. Madsen and Laurens P. White, M.D., who acted as spokespersons for defendant and respondent California Medical Association ("CMA").
Nearly a year after Madsen was quoted in a newspaper article as criticizing appellant's public activities, appellant filed this action for defamation and false light invasion of privacy. He complained of four alleged statements by Madsen: (1) that CMA had received copies of news articles about presentations by appellant, (2) that CMA had received complaints about appellant, (3) that appellant was spreading misinformation, and (4) that appellant was spreading public hysteria. CT 2 (Complaint at ¶ 6).
Respondents moved for summary judgment on the ground that appellant was a public figure for purposes of the alleged statements and that there was no evidence of constitutional malice.(2) The trial court granted respondents' motion and entered judgment for respondents, from which appellant has taken this appeal.
The trial court's judgment should be affirmed. In actions for defamation and false light invasion of privacy, "summary judgment is a favored remedy" because of the chilling effect of protracted litigation on the exercise of the First Amendment right of free speech. Aisenson v. American Broadcasting Co., 220 Cal. App. 3d 146, 154 (1990) (emphasis in original). As one who voluntarily thrust himself into public controversy over the issues to which the alleged statements related, appellant could not maintain an action seeking redress for those statements unless he could prove by clear and convincing evidence that they were made with knowledge of their falsity or with reckless disregard as to whether they were false.(3) Appellant did not produce any evidence in this regard. Summary judgment for respondents not only was permissible but was the only result consistent with the law and the evidence before the trial court.
Appellant William T. O'Connor, M.D., is a physician at the Vacaville Community Clinic in Solano County. Some years ago, appellant apparently came to the conclusion that medical authorities and the media were lying about how AIDS was transmitted and that extreme measures were needed to protect the public. Appellant took it upon himself to spread this message.
I. Appellant's Advocacy Before Government Bodies
One of the avenues of publicity chosen by appellant was advocacy at public meetings of government bodies. On April 9, 1986, appellant travelled more than 100 miles to the small town of Corning in Tehama County to speak at a school board meeting. Appellant urged the school board to exclude all students with AIDS from physical attendance at district schools. He told his audience that the established medical community had been hiding the truth about AIDS. CT 43-44 (Declaration of Martin H. Mathisen ("Mathisen Decl.") at ¶¶ 2-3). Print and broadcast media reported on appellant's presentation. CT 44, 47 (Mathisen Decl. at ¶ 4 & Exhibit 1). On other occasions, appellant gave testimony on AIDS issues to government panels. CT 131 (Declaration of William T. O'Connor, M.D. in Opposition to Motion for Summary Adjudication of Issues ("O'Connor Decl.") at ¶ 2).
II. "AIDS: the Alarming Reality"
By August of 1986, appellant had committed his views on AIDS to writing in a twenty-five-page (single-spaced) paper entitled AIDS: the Alarming Reality. The paper charged that the public was too complacent about AIDS, partly "due to the inadequate and misconceived response on behalf of [p]ublic [h]ealth [o]fficials as well as an incessant preponderance of biased information being disseminated by the media." CT 55 (O'Connor, AIDS: the Alarming Reality, at 1).(4) Appellant set forth what he called "drastic proposals" that he believed should be adopted. CT 74. He advocated mandatory AIDS testing for "all homosexuals, Haitians, hemophiliacs, bisexuals, or any person known to have sexual contact with a HLTV-III antibody positive person or any recipient of blood products," among others. Id. Appellant wrote that all persons who have the AIDS virus in their blood should be quarantined. CT 74-75. He advised parents to discourage their children from "playing with other children whose parents are drug abusers, homosexuals, hemophiliacs, [or] any other known AIDS risk factor group." CT 77-78 (enumerated item no. 13). He recommended "not taking care of the animals of a high risk group member." CT 78 (enumerated item no. 17).(5)
Appellant recognized that his statements were "fear[-]producing and controversial" and that his suggested precautions "may seem hysteria[-]generating and over and beyond the reasonable means necessary to prevent infection." CT 79. Appellant explained: "Perhaps it is time for unleashing some hysteria as a means of successfully combating this disease with the emotional content it deserves." Id.
III. The Fight Over the LaRouche Initiative
During that summer of 1986, the established medical community in California was engaged in a heated political battle with proponents of Proposition 64, an initiative measure placed on the November 1986 election ballot by supporters of perennial presidential candidate Lyndon LaRouche.(6) Proposition 64 would have made AIDS testing mandatory for certain groups of people, expanded the government's power to quarantine AIDS victims, and required public health officials to exercise with respect to AIDS the powers they possess with respect to infectious diseases. CMA took the position that the measure would be counterproductive from a public health perspective, since the fear of quarantine would cause AIDS victims to hide their condition and would discourage voluntary testing.
In an August 23, 1986, letter to Gladden V. Elliott, M.D., then CMA president, appellant reported that he was "distressed" by CMA's stance and charged that it was borne of "ignorance." Enclosing his paper, "AIDS: the Alarming Reality," appellant asked for "critical commentary" and challenged Dr. Elliott "or anyone to find fault" with it. Appellant also stated:
By this letter, I am formally requesting that I be afforded the opportunity to openly debate this issue before the members of the California Medical Association and the public at large so that both sides of the quarantine issue can be heard since you have obviously taken a position on AIDS without the opportunity of comment from the membership at large. Should you decide not to allow me that opportunity, at least I can demonstrate an attempt to approach this epidemic with objectivity by continuing to distribute the enclosed report which you had the opportunity to scientifically refute.
CT 49, 53 (Declaration of Mark L. Madsen in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues ("Madsen Decl.") at ¶ 3 & Exhibit 1).
Madsen was in charge of coordinating the response to appellant's letter and paper. As director of CMA's Department of Physician Education and senior staff for CMA's Committee (now called "Task Force") on AIDS and Sexually Transmissible Diseases, Madsen was (and is) CMA's point person on AIDS. He read appellant's paper and turned it over to the Committee, which concluded and told Madsen that the paper was not based on scientific or medical realities and that it would not have a favorable impact on public policy or public health. CT 40-41, 48-49, unnumbered page between 80 and 81 (Declaration of Laurens P. White, M.D. ("White Decl.") at ¶¶ 2-3; Madsen Decl. at ¶¶ 2-4 & Exhibit 2).
IV. Appellant's Efforts to Publicize His Paper
Notwithstanding CMA's opinion, appellant set about publicizing AIDS: the Alarming Reality. He submitted it to the local daily newspaper, the Vacaville Reporter, and followed up with staff writer Kathleen Grubb, urging her to write a story about it. When she initially failed to do so, appellant angrily told her that her inaction would be the cause of many deaths from AIDS. CT 86 (Declaration of Kathleen Grubb ("Grubb Decl.") at ¶¶ 3-4). Ms. Grubb eventually interviewed appellant and persons who disagreed with his views, and the Reporter published an article under her byline about the controversy on February 8, 1987, quoting both from her interview with appellant and from his paper. CT 86, 116 (Grubb Decl. at ¶ 4 & Exhibit 2).
Appellant followed up Ms. Grubb's article by writing a lengthy letter to the editor, which the Reporter published on February 19, 1987. In that letter, appellant criticized CMA for discounting the possibility that AIDS could be transmitted by insects. CT 86, 118 (Grubb Decl. at ¶ 5 & Exhibit 3).
Appellant arranged to speak on "AIDS: the Alarming Reality" before Soroptimists International of Dixon.(7)On March 8, 1987, the Reporter ran an article that publicized appellant's upcoming speech and quoted him as saying, "It is time for people to begin to respond to this disease with their emotions, politically and self-defensively." CT 86, 120 (Grubb Decl. at ¶ 5 & Exhibit 4).
V. Madsen's Reaction to Appellant's Publicity Campaign
Madsen was aware of appellant's activities and views. He received a copy of the March 8 article. Previously, Madsen had received a copy of the Corning Daily Observer article about appellant's presentation to the school board in Corning. He also had received some, and had been informed of other, phone calls to CMA from health care professionals who complained that appellant was hurting their efforts to stop the spread of AIDS. There also were calls from laypersons frightened by appellant's views. CT 50 (Madsen Decl. at ¶ 5). As was mentioned supra p. 6, Madsen also had received appellant's paper and letter and had been told by the CMA committee that it was unsound.
As a result of all that Madsen had seen and heard, by the time Ms. Grubb called him for comment on appellant's views shortly before March 18, 1987, Madsen was convinced that appellant was misinformed and that his public pronouncements were impairing health professionals' ability to control AIDS. CT 41, 50 (White Decl. at ¶ 4; Madsen Decl. at ¶ 6). Madsen expressed strong disagreement with appellant's views, fully believing in the truth of everything he told Ms. Grubb. CT 50-51 (Madsen Decl. at ¶¶ 6-7).(8) The Vacaville Reporter published an article by Ms. Grubb quoting Madsen on March 18, 1987. CT 3, 7 (Complaint at ¶ 7 & Exhibit A).
Nearly a year later, on March 7, 1988, appellant filed this action against CMA, Madsen and "Does One through Thirty" for defamation and false light invasion of privacy. CT 1. Appellant complained of four statements (described in Introduction, supra p. 1) attributed by Ms. Grubb to CMA or Madsen; he alleged that Madsen had made the statements at CMA's behest. CT 2-3, 7 (Complaint at ¶¶ 6-7 & Exhibit A). Appellant did not complain of any other statements; specifically, with regard to the Doe defendants, appellant alleged only that they were "legally responsible in some manner for the acts herein alleged and for the damages proximately caused by said acts as hereinafter alleged." CT 1-2 (Complaint at ¶ 1) (emphasis added). On February 28, 1990, appellant filed an amendment that named White as "Doe 1" but contained no additional allegations. CT 8.
Respondents filed a motion for summary judgment on December 26, 1990. CT 15 (Notice of Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues at 1). After a hearing on January 22, 1991, see Reporter's Transcript of Proceedings, the trial court granted the motion, CT 152, and entered judgment for respondents on April 12, 1991. CT 154-55.
I. This Court's Review of the Record Must Be Informed by Policy Interests That Favor Speedy Resolution of Defamation Cases.
Respondents agree with appellant that the summary judgment motion raised questions of law that are subject to independent review by this Court. Indeed, in defamation cases, "reviewing courts must independently examine the entire record to determine whether the action impermissibly infringes or threatens to infringe free expression." Kahn v. Bower, 232 Cal. App. 3d 1599, 1607-08 (1991), petition for review pending; see Moyer v. Amador Valley Joint Union High School Dist., 225 Cal. App. 3d 720, 724 (1990). Respondents also have no quarrel with appellant's statement of the rules that usually apply to summary judgment motions; however, appellant fails to acknowledge that the "public interest in resolving defamation cases promptly," Reader's Digest Ass'n v. Superior Court, 37 Cal. 3d 244, 252 (1984), cert. denied, 478 U.S. 1009 (1986), requires that a plaintiff opposing a summary judgment motion in such a case shoulder some of the burden of proof.
The courts have determined that because protracted litigation would have a chilling effect on First Amendment rights, speedy resolution of defamation and invasion of privacy cases is desirable, and summary judgment is a favored remedy. Moreover, even where the defendant is the moving party, the burden lies on the plaintiff opposing the motion to affirmatively establish by clear and convincing evidence that a genuine issue of fact exists as to whether actual malice can be proven at trial.
Aisenson v. American Broadcasting Co., 220 Cal. App. 3d 146, 154 (1990) (emphasis in original). As respondents explain in Part III of this Argument, infra pp. 13-16, appellant did not carry his burden.
II. Appellant Is a Public Figure for Purposes of This Action.
The requirement that a libel plaintiff prove constitutional malice applies where the plaintiff is a public official or a public figure. Reader's Digest, 37 Cal. 3d at 253. One type of public figure is "the 'limited purpose' or 'vortex' public figure, an individual who 'voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.'" Id. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)).
A court that is called upon to make a determination of public figure status should look for evidence of affirmative actions by which the purported public figure has thrust himself into the forefront of a particular public controversy. Id. at 254-55. Plaintiffs treated by California courts as public figures for purposes of their defamation actions include an applicant for a horse racing license who had made public statements as to why he, rather than a competing applicant, should get the license, Mosesian v. McClatchy Newspapers, 233 Cal. App. 3d 1685, 1701 (1991); a developer whose representative had been quoted in a newspaper article that also contained the statements of which the developer complained, Hofmann Co. v. E.I. DuPont de Nemours and Co., 202 Cal. App. 3d 390, 405 (1988); and a landlord who, through an attorney, had opposed a zoning request before a planning commission and a board of supervisors, as reported in the local press, Kaufman v. Fidelity Federal Savings & Loan Ass'n, 140 Cal. App. 3d 913, 921 (1983).
As the California Supreme Court has explained:
While any person or organization has the right to engage in publicity efforts and to attempt to influence public and media opinion regarding their cause, such significant, voluntary efforts to inject oneself into the public arena require that such a person or organization be classified as a public figure in any related defamation actions.
Reader's Digest, 37 Cal. 3d at 256.
Although appellant's opening brief is far from clear on the point, he appears to concede that his successful efforts to make his views heard rendered him a limited-purpose public figure; however, he asserts that the allegedly defamatory statements did not relate to the controversy into which he had injected himself. AOB at 3:22-4:6, 5:27-6:2. If one reads the exhibit to appellant's complaint, the article containing the statements at issue, it is obvious that the statements relate exclusively to that controversy. The article, entitled "Doctor's AIDS views draw fire from peers," described appellant's "campaign to attack public health policies" on AIDS, appellant's accusations ("in an interview with The Reporter") against CMA, and Madsen's rebuttal to appellant's pronouncements. CT 7.(9)
Appellant vaguely suggests that "personal" attacks on limited-purpose public figures do not receive First Amendment protection. Appellant does not cite any authority for this proposition; nor does he explain how a defamatory remark about an individual could be anything other than "personal." Puzzlingly, appellant likens himself to the plaintiff in Montandon v. Triangle Publications, Inc., 45 Cal. App. 3d 938, cert. denied, 423 U.S. 893 (1975). In that case, the court stated that the plaintiff "was a public figure at the time of the publication" and thus had to prove constitutional malice. Id. at 946. There was no suggestion that the defamatory remarks went beyond the scope of the plaintiff's public-figure status.
III. Appellant Failed to Establish by Clear and Convincing Evidence That a Triable Issue of Fact Existed as to Constitutional Malice.
A defamation plaintiff who is a public figure "cannot recover unless he proves, by clear and convincing evidence, that the libelous statement was made with '"actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not.'" Reader's Digest, 37 Cal. 3d at 256 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). Reckless disregard can be found only if the defendant in fact entertained serious doubts as to the truth of his publication. Id. As was discussed in Part I of this Argument, supra p. 3, a defendant's summary judgment motion puts the burden on the plaintiff to affirmatively establish constitutional malice.
In this case, appellant could not raise so much as a reasonable doubt as to whether the allegedly defamatory statements were made with actual malice, much less prove by clear and convincing evidence that they were. Appellant appears to concede this in his opening brief; his purported argument on malice (AOB at 6:17-7:14) is mostly a rehash of his argument that he is not a public figure.(10)
Although respondents were not obliged to establish lack of constitutional malice, they did. The evidence adduced by respondents shows that Madsen had every reason to believe the four statements of which appellant complains (CT 2-3, Complaint at ¶ 6):
1. That CMA had received copies of news articles about presentations by appellant. Madsen had received at his CMA office copies of the Corning Daily Observer article about appellant's presentation to the school board in Corning and of the Vacaville Reporter article about appellant's upcoming presentation to Soroptimists International of Dixon. CT 50.
2. That CMA had received complaints about appellant. Madsen himself had fielded calls from health care professionals complaining that appellant was impairing their efforts to control AIDS, and CMA staffers had informed him of other calls. Id.(11)
3. That appellant was spreading "misinformation." Madsen's job required him to keep current on medical knowledge about AIDS. Madsen had read appellant's paper and so knew firsthand what appellant was saying about AIDS. He also had read articles and received phone calls about appellant's public pronouncements. Appellant's statements contradicted medical authority that Madsen deemed reliable, and an authoritative CMA committee of doctors had told Madsen that appellant's views were unscientific. CT 41, 48-50, unnumbered page between 80 and 81.
4. That appellant was spreading public hysteria. Appellant himself had admitted in his paper, which Madsen had read, that he was doing so. Indeed, appellant's paper bitterly criticized "those who feel the need to protect the public from hysteria[-]generating information." CT 55 (O'Connor, AIDS: the Alarming Reality, at 1). Appellant wrote: "If hysteria itself can be viewed as a survival mechanism or selection advantage sequestered deep within the brain's primitive limbic system, possibly releasing it as a defense is the only hope humanity has for surviving such a profoundly threatening menace." CT 79 (O'Connor, AIDS: the Alarming Reality, at 25). Moreover, Madsen had received calls from members of the public frightened by appellant's pronouncements -- direct evidence that appellant's effort to generate hysteria was succeeding, at least in part. CT 50.
Appellant cannot point to any evidence that Madsen entertained serious doubts about the truth of what he said. All of Madsen's statements were based on solid facts, and Madsen declared under oath that he believed his words. Appellant had no hope of proving actual malice by clear and convincing evidence.
IV. The First Amendment Also Defeats Appellant's Claim of False Light Invasion of Privacy.
The constitutional protection against defamation claims also applies to claims for invasion of privacy. Reader's Digest, 37 Cal. 3d at 265. "A 'false light' cause of action is in substance equivalent to a libel claim, and should meet the same requirements of the libel claim, including proof of malice." Aisenson, 220 Cal. App. 3d at 161. Thus, appellant's cause of action for "false light" invasion of privacy had to fall with his cause of action for defamation.
V. The Trial Court Was Not Required to Grant Appellant Leave to Amend His Complaint.
Appellant suggests that the trial court, upon seeing that appellant's opposition to the summary judgment motion referred to allegedly defamatory statements not mentioned in the complaint, should have sua sponte given appellant leave to amend. Not surprisingly, none of the cases cited by appellant stands for this proposition. Evidence filed in response to a defendant's motion for summary judgment is "not a substitute for an amendment to the pleadings." Craig v. Earl, 194 Cal. App. 2d 652, 656 (1961); accord Willard v. Hagemeister, 121 Cal. App. 3d 406, 414 (1981) (plaintiff who did not allege "patient abandonment" in complaint or first amended complaint could not defeat motion for summary judgment by asserting it).(12)
For the foregoing reasons, the trial court's judgment for
respondents should be affirmed.
Dated: November 13, 1991.
COOPER, WHITE & COOPER
CHARLES W. KENADY
MARTIN KASSMAN
By ________[signed]________
Martin Kassman
Attorneys for Defendants and Respondents CALIFORNIA MEDICAL ASSOCIATION, MARK L. MADSEN and LAURENS P. WHITE, M.D.
1. "CT" is used herein for reference to the Clerk's Transcript on Appeal.
2. Respondents also pointed out that the alleged statements were neither defamatory nor offensive to a reasonable person. CT 33 (Memorandum of Points and Authorities in Support of Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Issues at 9 nn.5 & 6). That is an independent ground for affirmance. So long as the trial court's decision is correct, an appellate court will affirm it, regardless of the trial court's grounds for the decision. Kahn v. Bower, 232 Cal. App. 3d 1599, 1610 (1991), petition for review pending.
3. The mental state that defamation plaintiffs who are public officials or public figures must prove is referred to in various opinions as "actual malice," "constitutional malice," and "New York Times malice," the last being a reference to New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), in which the United States Supreme Court set forth the standard.
4. Appellant's paper was an exhibit to two declarations filed in support of respondents' motion for summary judgment. CT 54-79, 89-114. To avoid unnecessary repetition, portions of the paper are cited in this discussion simply by reference to their first appearance in the clerk's transcript.
5. Not surprisingly, appellant's paper was critical of public schools' allowing students with AIDS to attend. CT 71-72. He urged parents to warn their children "not to have any physical contact" with such students. CT 77 (enumerated item no. 10).
6. To the extent that the events regarding Proposition 64 are not reflected in the record, respondents request that this Court take judicial notice of them. See Cal. Evid. Code §§ 452(g)-(h), 459(a).
7. Appellant spoke before the Soroptimists on March 19, 1987. See CT 143 (Further Supplemental Answers to Designated Interrogatories at 4:10-11).
8. Neither defendant Laurens P. White, M.D. nor anyone else had told Madsen what to say about appellant. CT 41, 50 (White Decl. at ¶ 4; Madsen Decl. at ¶ 6).
9. In his opening brief, appellant accuses respondents of "misstating his ideas in front of meetings with numerous colleagues in attendance" and of "indicating that there were complaints lodged against Dr. O'CONNOR with governing medical boards," and states that White "accused Dr. O'CONNOR of having a mental condition requiring treatment." AOB at 2:25-3:9. Since appellant did not include these allegations in his complaint, they could not raise issues of material fact so as to defeat a summary judgment motion. See Robinson v. Hewlett-Packard Corp., 183 Cal. App. 3d 1108, 1132 (1986) (opposition to summary judgment motion may not create issues outside pleadings); Cochran v. Linn, 159 Cal. App. 3d 245, 250 (1984) (movant for summary judgment need not refute liability on theory not included in pleadings).
10. The rest of appellant's argument is that respondents "knew there were no complaints against his practice and they also knew Dr. O'CONNOR was never mentally ill." AOB at 7:10-12. Of course, appellant never offered, and does not point to, any evidence that respondents knew those things. In any event, appellant's complaint did not allege that anyone stated that there were complaints against his practice or that he was mentally ill.
11. Appellant offered hearsay evidence, in the form of two letters, purporting to demonstrate that CMA had not received any complaints about him. CT 137-38. Assuming arguendo that the letters were admissible, they at most demonstrate that CMA did not forward any written complaints about appellant to the Solano County Medical Society and that CMA's "standard practice" would have been to do so if it had received any. This does not raise any issue as to the truth of Madsen's statement; Madsen did not say that the complaints were written.
In any event, appellant offered the letters to prove the truth of the matter stated in them; accordingly, they were hearsay, and they were inadmissible unless appellant established an exception to the hearsay rule. See Cal. Evid. Code § 1200. Appellant's purported argument regarding hearsay, AOB at 3 n.1, actually is directed at authentication of appellant's copies of the letters, which respondents never questioned.
12. Even if it would otherwise have been appropriate to consider granting leave to amend, the trial court would have abused its discretion by granting leave. By appellant's own testimony, his would-be allegations against White are based on remarks made by White in appellant's presence in 1987. CT 140-43 (Further Supplemental Answers to Designated Interrogatories). White's identity never was unknown to appellant; thus, he was not a proper Doe defendant. The one-year limitation period on defamation actions had expired by the time appellant named White in an amendment to the complaint in 1990. Cal. Civ. Proc. Code § 340(3); CT 8.