Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 1323 (9th Cir. 1989)

Phillip Michael THOMAS, et al., Plaintiffs-Appellants,v.NATIONAL ENQUIRER, INC., et al., Defendants-Appellees.

No. 87-2638.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 1989.Decided July 21, 1989.

Before FARRIS, DAVID R. THOMPSON and TROTT, Circuit Judges.


MEMORANDUM* 

Plaintiffs are a show business celebrity, his mother, and his brother. They object to two articles published by the National Enquirer--the first focussing on Marcus A. Thomas's multiple rape convictions, and the second focussing on the family's modest beginnings. Plaintiffs seek damages for libel, invasion of privacy, and emotional distress. The trial court dismissed all of plaintiffs' claims on the pleadings. We affirm.

Plaintiffs first maintain that the trial court erred in holding that most of the claims arising out of the first article were time barred. They argue that their claims did not accrue until the publication date listed on the first article, and that they were entitled to bring suit any time within one year thereafter. See California Code of Procedure Sec. 340(3). The trial court properly held that the cause of action accrued on the date of "the first general distribution of the article to the public." Fleury v. Harper & Row, Publishers, Inc., 698 F.2d 1022, 1027 (9th Cir.), cert. denied, 464 U.S. 846 (1983). See also McGuiness v. Motor Trend Magazine, 129 Cal. App. 3d 59, 180 Cal. Rptr. 784, 786 (1982). Under this rule, plaintiffs recognize that their claims were untimely.

Plaintiffs next argue that the trial court erred in dismissing the remainder of their claims on the pleadings. The libel claims were properly dismissed on the grounds that each of the challenged statements was either substantially true, see Alioto v. Cowles Communications, Inc., 623 F.2d 616, 619 (9th Cir. 1980), cert. denied, 449 U.S. 1102 (1981), or not defamatory as a matter of law. See Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir. 1986), cert. denied, 479 U.S. 1091 (1987). The claims for invasion of privacy must fail because each of the challenged disclosures was either a matter of public record or of legitimate public concern. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 494-95 (1975). Finally, in California, emotional distress does not give rise to a separate theory of liability for an allegedly libelous publication. See Grimes v. Carter, 241 Cal. App. 2d 694, 50 Cal. Rptr. 808, 811, 813 (1966).

Each side will bear its own costs on appeal.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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