Christakis v. Goodman

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

YOCHANAN CHRISTAKIS, Plaintiff/Appellant,

v.

YOSEPH GOODMAN, et al., Defendants/Appellees.

No. 1 CA-CV 20-0174
FILED 2-2-2021

Appeal from the Superior Court in Maricopa County
No. CV2019-004364
The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Yochanan Christakis, Mesa
Plaintiff/Appellant

Jones, Skelton & Hochuli, P.L.C., Phoenix
By Josh M. Snell, Petra L. Emerson
Counsel for Defendants/Appellees Yoseph and Shulamit Goodman

Emord & Associates, P.C., Gilbert
By Peter A. Arhangelsky, Eric J. Awerbuch
Counsel for Defendants/Appellees Uri and Albina Sukhodolsky
 CHRISTAKIS v. GOODMAN, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined.

W I N T H R O P, Judge:

¶1 Yochanan Christakis appeals the superior court’s order
granting summary judgment to Uri Sukhodolsky, Albina Sukhodolsky,
Yoseph Goodman, and Shulamit Goodman (collectively, “Defendants”)
based on the expiration of the statute of limitations on his defamation
claims. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On March 28, 2019, Christakis filed the subject lawsuit for
defamation based on statements allegedly made via speech, emails, text
messages, and WhatsApp messages beginning in November or December
2017. Christakis alleged he discovered publication of the statements on or
about April 3, 2018.

¶3 Defendants moved for summary judgment, arguing the
claims were barred by the one-year statute of limitations set forth in
Arizona Revised Statutes (“A.R.S.”) section 12-541(1). Christakis filed an
amended complaint in which he reasserted claims based on
communications made beginning on December 21, 2017, again
emphasizing that he did not discover the specific statements until April 3,
2018. In his response to Defendants’ motion for summary judgment,
Christakis argued the discovery rule tolled the statute of limitations until
he discovered the specific statements on April 3, 2018, during the pendency
of a defamation lawsuit he had filed in 2017 against Jason Bedrick and
fictitious defendants, Christakis v. Bedrick, et al., CV2017-008056 (“the Bedrick
case”).1

¶4 At oral argument on the motion for summary judgment,
Christakis specified as the basis of his claims against Defendants a string of
WhatsApp messages allegedly sent on December 21, 2017, but not

1 Pursuant to a notice of voluntary dismissal, the superior court
dismissed the Bedrick case on September 23, 2018.

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Decision of the Court

discovered by Christakis until April 3, 2018, during discovery in the Bedrick
case. The superior court took judicial notice of the filings in the Bedrick case
and questioned Christakis about these WhatsApp messages and the
allegations he made in that litigation.

¶5 Specifically, the court noted that on February 14, 2018,
Christakis alleged in an amended complaint in the Bedrick case that, “[u]pon
information and belief, . . . Bedrick and other unknown Defendants began”
making defamatory statements about him in late 2017 “via mass emails,
mass text messages and mass WhatsApp messages.” The court found that,
based on Christakis’ filings in the Bedrick case, his claims relating to the
allegedly defamatory communications made by unknown persons accrued
no later than February 14, 2018. Because Christakis filed the subject lawsuit
on March 28, 2019, the court found these claims barred by the one-year
statute of limitations. See A.R.S. § 12-541(1). The court granted Defendants’
motion for summary judgment and entered final judgment on all claims
pursuant to Arizona Rule of Civil Procedure (“Rule”) 54(c). Christakis
moved for a new trial, which the court summarily denied.

¶6 We have jurisdiction over Christakis’ timely appeal pursuant
to A.R.S. § 12-2101(A)(1) and (A)(5)(a).

ANALYSIS

¶7 We review de novo the grant of summary judgment, “viewing
the facts and reasonable inferences in the light most favorable” to
Christakis, against whom summary judgment was taken. See BMO Harris
Bank, N.A. v. Wildwood Creek Ranch, LLC, 236 Ariz. 363, 365, ¶ 7 (2015). We
will affirm a grant of summary judgment when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law. Rule 56(a); see also Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990).

¶8 On appeal, Christakis argues the superior court should have
determined that the alleged defamatory statements were published in a
secretive manner in the private, members-only WhatsApp group chat and
that the discovery rule applied to toll the statute of limitations. On this
record, we disagree.

¶9 The one-year statute of limitations for defamation begins to
accrue on publication. A.R.S. § 12-541(1); Lim v. Superior Court, 126 Ariz.
481, 482 (App. 1980); Clark v. Airesearch Mfg. Co. of Ariz., Inc., 138 Ariz. 240,
241 (App. 1983); Boatman v. Samaritan Health Servs., Inc., 168 Ariz. 207, 213
(App. 1990). The discovery rule applies to toll the statute of limitations in
the limited circumstance in which the alleged defamatory statement is

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Decision of the Court

“peculiarly likely to be concealed from the plaintiff” or “published in a
particularly secretive manner which would make [it] unlikely to come to
the attention of the injured party,” such as in a credit report or a confidential
business memorandum. Clark, 138 Ariz. at 242-43. “The plaintiff has the
burden of establishing that the discovery rule should apply to delay the
statute of limitations.” Wyckoff v. Mogollon Health All., 232 Ariz. 588, 591,
¶ 9 (App. 2013).

¶10 Here, rather than explicitly making a finding that publication
on WhatsApp was not secret or concealed and that the discovery rule did
not apply, the superior court focused its inquiry on when Christakis
knew—or had a good faith belief formed after an inquiry to satisfy Rule
11—that his defamation claims existed. The court specifically noted:

[I]t is unnecessary for this Court to decide on what date
Plaintiff’s claims accrued between December 21, 2017 (the
date of publication) and February 14, 2018 (the date Plaintiff
made these statements in [the Bedrick case]). Because both
dates are more than one year before Plaintiff initiated this
case, the precise date in this range is immaterial to this
decision.

The superior court did not err by declining to specifically find that the
statements were published in a secretive manner or determine precisely
when the statute of limitations began to accrue. As evidenced by
Christakis’ filings in the Bedrick case and concessions made at oral argument
in the summary judgment hearing, the record supports the court’s explicit
finding that Christakis knew in February 2018 that allegedly defamatory
statements were made about him in late 2017 on WhatsApp by unknown
individuals.

¶11 Christakis argues that the allegations he made in the Bedrick
case did not refer to the specific December 2017 statements made by
Defendants, that the superior court failed to “liberally construe” his Bedrick
case allegations, and that there is a genuine factual dispute about when he
actually discovered the specific statements made by these particular
Defendants. We find these arguments unavailing. The statute of
limitations is not tolled in a defamation action when the plaintiff learns that
negative things are being said about him but cannot learn the identity of the
alleged defamer. See Lim, 126 Ariz. at 482-83 (finding the statute of
limitations was not tolled when the plaintiff could not identify the authors
of an anonymous, allegedly defamatory letter); Clark, 138 Ariz. at 242-43
(declining to apply the discovery rule when the plaintiff was led to believe

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Decision of the Court

negative things were being said about him before the expiration of the
statute of limitations but did not see the negative comments in writing until
reading a deposition transcript during the pendency of a related lawsuit).

¶12 When a plaintiff knows about an allegedly defamatory
statement but does not know the identity of the alleged defamer, a
“complaint naming fictitious defendants” should be filed, and a
“subsequent amendment to name the alleged defamers once their identity
[is] determined” should follow. Lim, 126 Ariz. at 483. Here, during the
pendency of the Bedrick case, Christakis learned of negative comments
being made about him on WhatsApp by unknown individuals in late 2017.
While he claims he did not know the specific identity of the alleged
defamers, or the exact date when the statements were made, he affirmed to
the superior court that he knew statements had been made and that the
statements were defamatory. In light of these uncontested facts, the proper
procedure was to amend the existing Bedrick complaint, not dismiss that
lawsuit and file a new one after the expiration of the statute of limitations.
See id.

¶13 Because Christakis’ defamation claims against Defendants
accrued at the latest by February 14, 2018, the superior court properly
granted summary judgment to Defendants.

CONCLUSION

¶14 For the foregoing reasons, we affirm the superior court’s
ruling. In our discretion, we decline Defendants’ request to award
attorneys’ fees as sanctions. We award Defendants their taxable costs upon
compliance with Arizona Rule of Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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