California Civil Jury Instructions (CACI)
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].
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).
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
d. Shame, mortification, or hurt feelings.
[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.]
Directions for Use
Special verdict form 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.
Sources and Authority
- Civil Code section 44 provides:
Defamation is effected by either of the following:
- Civil Code section 45 provides: “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”
- Civil Code section 45a provides: “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.”
- Civil Code section 46 provides:
Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.
- Civil Code section 48a(4)(b) provides: “ ‘Special damages’ are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other.”
- “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].)
- “ ‘ “The sine qua non of recovery for defamation . . . is the existence of falsehood.” . . . Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected…’ That does not mean that statements of opinion enjoy blanket protection. On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. The critical question is not whether a statement is fact or opinion, but ‘ “whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” ’ ” (Wong, supra, 189 Cal.App.4th at p. 1370, internal citations omitted.)
- “ ‘To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicates or implies a provably false statement of fact… Under the totality of the circumstances test, “[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense… [¶] Next, the context in which the statement was made must be considered.” . . .’ ” (Wong, supra, 189 Cal.App.4th at p. 1370.)
- “Whether a challenged statement ‘declares or implies a provable false assertion of fact is a question of law for the court to decide . . . , unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.’ ” (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1261 [119 Cal.Rptr.3d 127].)
- “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.)
- “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 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.)
- “The question whether a plaintiff is a public figure is to be determined by the court, not the jury.” (Stolz v. KSFM 102 FM (1994) 30 Cal.App.4th 195, 203—204 [35 Cal.Rptr.2d 740], internal citation omitted.)
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 529—555, 601—612
4 Levy 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)
1 California Civil Practice: Torts, §§ 21:1—21:2, 21:22—21:25, 21:44—21:52 (Thomson Reuters West)