California Civil Jury Instructions (CACI) (2017)

1701. Defamation per quod—Essential Factual Elements (Public Officer/Figure and Limited Public Figure)

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1701.Defamation per quod—Essential Factual Elements (Public
Officer/Figure and Limited Public Figure)
[Name of plaintiff] claims that [name of defendant] harmed [him/her] by
making [one or more of] the following statement(s): [list all claimed per
quod defamatory statements].
Liability
To establish this claim, [name of plaintiff] must prove that all of the
following are more likely true than not true:
1. That [name of defendant] made [one or more of] the statement(s)
to [a person/persons] other than [name of plaintiff];
2. That [this person/these people] reasonably understood that the
statement(s) [was/were] about [name of plaintiff];
3. That because of the facts and circumstances known to the
[listener(s)/reader(s)] of the statement(s), [it/they] tended to
injure [name of plaintiff] in [his/her] occupation [or to expose
[him/her] to hatred, contempt, ridicule, or shame] [or to
discourage others from associating or dealing with [him/her]];
4. That the statement(s) [was/were] false;
5. That [name of plaintiff] suffered harm to [his/her] property,
business, profession, or occupation [including money spent as a
result of the statement(s)]; and
6. That the statement(s) [was/were] a substantial factor in causing
[name of plaintiff]’s harm.
In addition, [name of plaintiff] must prove by clear and convincing
evidence that [name of defendant] knew the statement(s) [was/were] false
or had serious doubts about the truth of the statement(s).
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she] is entitled
to recover if [he/she] proves it is more likely true than not true that
[name of defendant]’s wrongful conduct was a substantial factor in
causing any of the following actual damages:
a. Harm to [name of plaintiff]’s property, business, trade, profession,
or occupation;
b. Expenses [name of plaintiff] had to pay as a result of the
defamatory statements;
c. Harm to [name of plaintiff]’s reputation; or
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d. Shame, mortification, or hurt feelings.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she] proves by clear and convincing evidence that [name
of defendant] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, June 2016, December 2016
Directions for Use
Special verdict form CACI No. VF-1701, Defamation per quod (Public Offıcer/
Figure and Limited Public Figure), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per
quod case.
An additional element of a defamation claim is that the alleged defamatory
statement is “unprivileged.” (Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118
[166 Cal.Rptr.3d 569].) If this element presents an issue for the jury, an instruction
on the “unprivileged” element should be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove that the statement was made with malice.
(Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d
1279].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege—Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim. If some other privilege is at issue, an
additional element or instruction targeting that privilege will be required. (See, e.g.,
Civ. Code, § 47(d); J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016)
247 Cal.App.4th 87 [201 Cal.Rptr.3d 782] [privileged publication or broadcast].)
See also the Sources and Authority to CACI No. 1700, Defamation per
se—Essential Factual Elements (Public Offıcer/Figure and Limited Public Figure).
Sources and Authority
• Defamation. Civil Code section 44.
Libel Defined. Civil Code section 45.
• Libel per se. Civil Code section 45a.
• Slander Defined. Civil Code section 46.
• Special Damages. Civil Code section 48a(4)(b).
• “The elements of a defamation claim are (1) a publication that is (2) false, (3)
defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes
special damage.” (Wong v. Jing (2011) 189 Cal.App.4th 1354, 1369 [117
Cal.Rptr.3d 747].)
DEFAMATION CACI No. 1701
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• “ ‘ “If no reasonable reader would perceive in a false and unprivileged
publication a meaning which tended to injure the subject’s reputation in any of
the enumerated respects, then there is no libel at all. If such a reader would
perceive a defamatory meaning without extrinsic aid beyond his or her own
intelligence and common sense, then . . . there is a libel per se. But if the
reader would be able to recognize a defamatory meaning only by virtue of his
or her knowledge of specific facts and circumstances, extrinsic to the
publication, which are not matters of common knowledge rationally attributable
to all reasonable persons, then . . . the libel cannot be libel per se but will be
libel per quod,” requiring pleading and proof of special damages.’ ” (Barker v.
Fox & Associates (2015) 240 Cal.App.4th 333, 351−352 [192 Cal.Rptr.3d 511].)
• “If [a] defamatory meaning would appear only to readers who might be able to
recognize it through some knowledge of specific facts and/or circumstances, not
discernible from the face of the publication, and which are not matters of
common knowledge rationally attributable to all reasonable persons, then the
libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis
Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73], internal citation
omitted.)
• “The question whether challenged statements convey the requisite factual
imputation is ordinarily a question of law for the court. However, . . . , some
statements are ambiguous and cannot be characterized as factual or nonfactual
as a matter of law. ‘In these circumstances, it is for the jury to determine
whether an ordinary reader would have understood the article as a factual
assertion . . . .’ ” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608 [284
Cal.Rptr. 244].)
• “In pleading a case of libel per quod the plaintiff cannot assume that the court
has access to the reader’s special knowledge of extrinsic facts but must
specially plead and prove those facts.” (Palm Springs Tennis Club, supra, 73
Cal.App.4th at p. 7.)
• “A libel ‘per quod,’ . . . requires that the injurious character or effect be
established by allegation and proof.” (Slaughter v. Friedman (1982) 32 Cal.3d
149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
• “In the libel context, ‘inducement’ and ‘innuendo’ are terms of art: ‘[W]here the
language is ambiguous and an explanation is necessary to establish the
defamatory meaning, the pleader must do two things: (1) Allege his
interpretation of the defamatory meaning of the language (the “innuendo,”
. . . ); (2) support that interpretation by alleging facts showing that the readers
or hearers to whom it was published would understand it in that defamatory
sense (the “inducement”).’ ” (Barnes-Hind, Inc. v. Superior Court (1986) 181
Cal.App.3d 377, 387 [226 Cal.Rptr. 354], internal citations omitted.)
• “A slander that falls within the first four subdivisions of Civil Code section 46
is slander per se and requires no proof of actual damages. A slander that does
not fit into those four subdivisions is slander per quod, and special damages are
CACI No. 1701 DEFAMATION
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required for there to be any recovery for that slander.” (The Nethercutt
Collection v. Regalia (2009) 172 Cal.App.4th 361, 367 [90 Cal.Rptr.3d 882],
internal citations omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 529–555, 601–612
4Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.10–340.75 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.24–142.27 (Matthew Bender)
California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:44–21:52 (Thomson
Reuters)
DEFAMATION CACI No. 1701
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