California Civil Jury Instructions (CACI) (2017)

1703. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Public Concern)

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1703.Defamation per quod—Essential Factual Elements (Private
Figure—Matter of Public Concern)
[Name of plaintiff] claims that [name of defendant] harmed [him/her] by
making [one or more of] the following statement(s): [insert all claimed
per quod defamatory statements]. To establish this claim, [name of
plaintiff] must prove all of the following:
Liability
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 defendant] failed to use reasonable care to
determine the truth or falsity of the statement(s);
6. 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
7. That the statements [was/were] a substantial factor in causing
[name of plaintiff]’s harm.
Actual Damages
If [name of plaintiff] has proved all of the above, then [he/she] is entitled
to recover if [he/she] proves 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.
Punitive Damages
[Name of plaintiff] may also recover damages to punish [name of
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defendant] if [he/she] 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]
acted with malice, oppression, or fraud.
[For specific provisions, see CACI Nos. 3940–3949.]
New September 2003; Revised April 2008, December 2009, June 2016, December
2016
Directions for Use
Special verdict form VF-1703, Defamation per quod (Private Figure—Matter of
Public Concern), 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].)
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. 1701, Defamation per quod—Essential Factual Elements (Public Offıcer/Figure
and Limited Public Figure).
Sources and Authority
• Libel per se. Civil Code section 45a.
Special Damages. Civil Code section 48a(4)(b).
• “Libel is recognized as either being per se (on its face), or per quod (literally
meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm
Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73].)
• “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
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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, supra, 73 Cal.App.4th at p. 5, 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, footnote omitted.)
• “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].)
• “A defamatory publication not libelous on its face is not actionable unless the
plaintiff alleges that he has suffered special damages as a result thereof.”
(Selleck v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1130 [212 Cal.Rptr.
838].)
• “The question whether a statement is reasonably susceptible to a defamatory
interpretation is a question of law for the trial court. Only once the court has
determined that a statement is reasonably susceptible to such a defamatory
interpretation does it become a question for the trier of fact whether or not it
was so understood.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647 [85
Cal.Rptr.2d 397], internal citations omitted.)
• 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].)
• “ ‘[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], quoting
Waldbaum v. Fairchild Publications, Inc. (D.C. Cir. 1980) 627 F.2d 1287,
1297.)
• If the language is not defamatory on its face, there is no distinction between
libel and slander: “In either case, the fact that a statement is not defamatory on
its face requires only that the plaintiff plead and prove the defamatory meaning
and special damages.” (Savage v. Pacific Gas & Electric Co. (1993) 21
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Cal.App.4th 434, 447 [26 Cal.Rptr.2d 305].)
• A plaintiff must prove that the defendant was at least negligent in failing to
ascertain the truth or falsity of the statement. (Gertz v. Robert Welch, Inc.
(1974) 418 U.S. 323, 345–347 [94 S.Ct. 2997, 41 L.Ed.2d 789].)
• “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.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 529–555, 613–615
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,
§§ 340.11, 340.13 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§§ 142.30–142.40 (Matthew Bender)
California Civil Practice: Torts §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson
Reuters)
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