CACI No. 1702. Defamation per se - Essential Factual Elements (Private Figure - Matter of Public Concern)

Judicial Council of California Civil Jury Instructions (2023 edition)

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1702.Defamation per se - Essential Factual Elements (Private
Figure - Matter of Public Concern)
[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 se defamatory statement(s)]. To establish
this claim, [name of plaintiff] must prove all of the following:
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 [this person/these people] reasonably understood the
statement(s) to mean that [insert ground(s) for defamation per se,
e.g., “[name of plaintiff] had committed a crime”];]
4. That the statement(s) [was/were] false; and
5. That [name of defendant] failed to use reasonable care to
determine the truth or falsity 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 [his/her/nonbinary pronoun] actual damages
if [he/she/nonbinary pronoun] proves that [name of defendant]’s wrongful
conduct was a substantial factor in causing any of the following:
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.
Assumed Damages
If [name of plaintiff] has not proved any actual damages for harm to
reputation or shame, mortification, or hurt feelings but proves by clear
and convincing evidence that [name of defendant] knew the statement(s)
[was/were] false or that [he/she/nonbinary pronoun] had serious doubts
about the truth of the statement(s), then the law assumes that [name of
plaintiff]’s reputation has been harmed and that [he/she/nonbinary
pronoun] has suffered shame, mortification, or hurt feelings. Without
presenting evidence of damage, [name of plaintiff] is entitled to receive
compensation for this assumed harm in whatever sum you believe is
reasonable. You must award at least a nominal sum, such as one dollar.
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] either knew the statement(s) [was/were]
false or had serious doubts about the truth of the statement(s), and that
[he/she/nonbinary pronoun] acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940-3949.]
New September 2003; Revised April 2008, October 2008, December 2009, June
2016, December 2016, January 2018
Directions for Use
Special verdict form CACI No. VF-1702, Defamation per se (Private
Figure - Matter of Public Concern), should be used in this type of case.
For statutes and cases on libel and slander and on the difference between defamation
per se and defamation per quod, see the Sources and Authority to CACI No. 1700,
Defamation per se - Essential Factual Elements (Public Offıcer/Figure and Limited
Public Figure).
Use the bracketed element 3 only if the statement is not defamatory on its face (i.e.,
if the judge has not determined that the statement is defamatory as a matter of law).
For statutory grounds of defamation per se, see Civil Code sections 45 (libel) and
46 (slander). Note that certain specific grounds of libel per se have been defined by
case law.
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].)
Sources and Authority
“Defamation is an invasion of the interest in reputation. The tort involves the
intentional publication of a statement of fact that is false, unprivileged, and has a
natural tendency to injure or which causes special damage.” (Smith v. Maldonado
(1999) 72 Cal.App.4th 637, 645 [85 Cal.Rptr.2d 397].)
“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.)
“Our accommodation of the competing values at stake in defamation suits by
private individuals allows the States to impose liability on the publisher or
broadcaster of defamatory falsehood on a less demanding showing than that
required by New York Times. This conclusion is not based on a belief that the
considerations which prompted the adoption of the New York Times privilege for
defamation of public officials and its extension to public figures are wholly
inapplicable to the context of private individuals. Rather, we endorse this
approach in recognition of the strong and legitimate state interest in
compensating private individuals for injury to reputation. But this countervailing
state interest extends no further than compensation for actual injury. For the
reasons stated below, we hold that the States may not permit recovery of
presumed or punitive damages, at least when liability is not based on a showing
of knowledge of falsity or reckless disregard for the truth.” (Gertz v. Robert
Welch, Inc. (1974) 418 U.S. 323, 348-349 [94 S.Ct. 2997, 41 L.Ed.2d 789].)
‘[I]f the issue was being debated publicly and if it had foreseeable and
substantial ramifications for nonparticipants, it was a public controversy.’
(Copp v. Paxton (1996) 45 Cal.App.4th 829, 845 [52 Cal.Rptr.2d 831].)
“[T]he jury was instructed that if it found that defendant published matter that
was defamatory on its face and it found by clear and convincing evidence that
defendant knew the statement was false or published it in reckless disregard of
whether it was false, then the jury ‘also may award plaintiff presumed general
damages.’ Presumed damages ‘are those damages that necessarily result from the
publication of defamatory matter and are presumed to exist. They include
reasonable compensation for loss of reputation, shame, mortification, and hurt
feeling. No definite standard or method of calculation is prescribed by law by
which to fix reasonable compensation for presumed damages, and no evidence of
actual harm is required. Nor is the opinion of any witness required as to the
amount of such reasonable compensation. In making an award for presumed
damages, you shall exercise your authority with calm and reasonable judgment
and the damages you fix shall be just and reasonable in the light of the evidence.
You may in the exercise of your discretion award nominal damages only, namely
an insignificant sum such as one dollar.’ [¶¶] . . . [T]he instant instruction,
which limits damages to ‘those damages that necessarily result from the
publication of defamatory matter,’ constitutes substantial compliance with [Civil
Code] section 3283. Thus, the instant instructions, ‘if obeyed, did not allow the
jurors to “enter the realm of speculation” regarding future suffering.’ (Sommer
v. Gabor (1995) 40 Cal.App.4th 1455, 1472-1473 [48 Cal.Rptr.2d 235], internal
citations omitted.)
The jury should be instructed that the defendant’s negligence is an element of
libel if the plaintiff is a private figure. (Carney v. Santa Cruz Women Against
Rape (1990) 221 Cal.App.3d 1009, 1016 [271 Cal.Rptr. 30].)
“When the speech involves a matter of public concern, a private-figure plaintiff
has the burden of proving the falsity of the defamation.” (Brown v. Kelly
Broadcasting Co. (1989) 48 Cal.3d 711, 747 [257 Cal.Rptr. 708, 771 P.2d 406].)
“Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed,
the more customary types of actual harm inflicted by defamatory falsehood
include impairment of reputation and standing in the community, personal
humiliation, and mental anguish and suffering. Of course, juries must be limited
by appropriate instructions, and all awards must be supported by competent
evidence concerning the injury, although there need be no evidence which
assigns an actual dollar value to the injury.” (Gertz, supra, 418 U.S. at p. 350.)
Private-figure plaintiffs must prove actual malice to recover punitive or presumed
damages for defamation if the matter is one of public concern. They are only
required to prove negligence to recover damages for actual injury to reputation.
(Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 273-274 [79 Cal.Rptr.2d 178,
965 P.2d 696].)
“A private-figure plaintiff must prove at least negligence to recover any damages
and, when the speech involves a matter of public concern, he must also prove
New York Times malice . . . to recover presumed or punitive damages. This
malice must be established by ‘clear and convincing proof.’ (Brown, supra, 48
Cal.3d at p. 747, internal citations omitted.)
When the court is instructing on punitive damages, it is error to fail to instruct
that New York Times malice is required when the statements at issue involve
matters of public concern. (Carney, supra, 221 Cal.App.3d at p. 1022.)
“To prove actual malice . . . a plaintiff must ‘demonstrate with clear and
convincing evidence that the defendant realized that his statement was false or
that he subjectively entertained serious doubts as to the truth of his statement.’
(Khawar, supra, 19 Cal.4th at p. 275, internal citation omitted.)
“Because actual malice is a higher fault standard than negligence, a finding of
actual malice generally includes a finding of negligence . . . .” (Khawar, supra,
19 Cal.4th at p. 279.)
“The inquiry into the protected status of speech is one of law, not fact.” (Nizam-
Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375 [54 Cal.Rptr.2d 781],
quoting Connick v. Myers (1983) 461 U.S. 138, 148, fn. 7 [103 S.Ct. 1684, 75
L.Ed.2d 708].)
“For the New York Times standard to be met, ‘the publisher must come close to
willfully blinding itself to the falsity of its utterance.’ (Brown, supra, 48 Cal.3d
at p. 747, internal citation omitted.)
‘While such speech is not totally unprotected by the First Amendment, its
protections are less stringent’ [than that applying to speech on matters of public
concern].” (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434,
445 [26 Cal.Rptr.2d 305], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623-654, 719-721
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.04, 45.13 (Matthew
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander,
§§ 340.12-340.13, 340.18 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.30-142.40, 142.87 et seq. (Matthew Bender)
California Civil Practice: Torts, §§ 21:1-21:2, 21:22-21:25, 21:51 (Thomson

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