CACI No. 1701. Defamation per quod - Essential Factual Elements (Public Officer/Figure and Limited Public Figure)

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary pronoun] 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/nonbinary pronoun] occupation [or to
expose [him/her/nonbinary pronoun] to hatred, contempt, ridicule,
or shame] [or to discourage others from associating or dealing
with [him/her/nonbinary pronoun]];
4. That the statement(s) [was/were] false;
5. That [name of plaintiff] suffered harm to [his/her/nonbinary
pronoun] 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/nonbinary
pronoun] is entitled to recover if [he/she/nonbinary pronoun] 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;
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c. Harm to [name of plaintiff]’s reputation; or
d. Shame, mortification, or hurt feelings.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
defendant] if [he/she/nonbinary pronoun] 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, January
2018
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 the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);
Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780-787 [214 Cal.Rptr.3d 358]
[litigation privilege].)
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.
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• 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].)
• “ ‘ “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, 351352 [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].)
• “ ‘The purpose of the rule requiring proof of special damages when the
defamatory meaning does not appear on the face of the language used is to
protect publishers who make statements innocent in themselves that are
defamatory only because of extrinsic facts known to the reader.’ ‘In the libel
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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’).” [Citation.]
“The office of an innuendo is to declare what the words meant to those to whom
they were published.” “In order to plead . . . ambiguous language into an
actionable libel . . . it is incumbent upon the plaintiff also to plead an
inducement, that is to say, circumstances which would indicate that the words
were understood in a defamatory sense showing that the situation or opinion of
the readers was such that they derived a defamatory meaning from them.
[Citation.]” ’ ” (Bartholomew v. YouTube, LLC. (2017) 17 Cal.App.5th 1217,
1227 [225 Cal.Rptr.3d 917], original italics, internal citations omitted.)
• “For libel per quod, which [plaintiff] herself emphasizes is the cause of action at
issue here, it is ‘necessary that the words should have been published concerning
the plaintiff and should have been understood by at least one third person to
have concerned him [or her]. [Citations.] “Defamatory words to be actionable
must refer to some ascertained or ascertainable person, and that person must be
plaintiff [citations]. If the words used really contain no reflection upon any
particular individual, no averment can make them defamatory. It is not necessary
that plaintiff should be mentioned by name if the words used in describing the
person meant, can be shown to have referred to him and to have been so
understood [citation].” [Citation].’ ‘ “It is the office of the inducement to narrate
the extrinsic circumstances which, coupled with the language published, affect its
construction and render it actionable, where, standing alone and not thus
explained, the language would appear either not to concern the plaintiff, or, if
concerning him, not to affect him injuriously. [Citation.]” ’ ” (Bartholomew,
supra, 17 Cal.App.5th at p. 1231, internal citation 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.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623-654, 705-718
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)
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California Civil Practice: Torts, §§ 21:1-21:2, 21:22-21:25, 21:44-21:52 (Thomson
Reuters)
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