California Civil Jury Instructions (CACI)
1705. Defamation per quod—Essential Factual Elements (Private Figure—Matter of Private 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:
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 [name of defendant] failed to use reasonable care to determine the truth or falsity of the statement(s);
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.
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.
[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-1705, Defamation per quod (Private Figure—Matter of Private 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.
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
- 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 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.”
- “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 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 required to prove only 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].)
- 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 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.)
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 529—555, 615
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, §§ 340.12—340.13 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation), §§ 142.20—142.32 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) §§ 21:1—21:2, 21:22—21:25, 21:51