California Civil Jury Instructions (CACI)

1707. Fact Versus Opinion

For [name of plaintiff] to recover, [name of defendant]’s statement(s) must have been statements of fact, not opinion. A statement of fact is a statement that can be proved to be true or false. An opinion may be considered a statement of fact if the opinion suggests that facts exist.

In deciding this issue, you should consider whether the average [reader/listener] would conclude from the language of the statement and its context that [name of defendant] was making a statement of fact.

New September 2003

Directions for Use

This instruction may not be necessary in all cases: “The critical determination of whether an allegedly defamatory statement constitutes fact or opinion is a question of law for the court and therefore suitable for resolution by demurrer. If the court concludes the statement could reasonably be construed as either fact or opinion, the issue should be resolved by a jury.” (Campanelli v. Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572, 578 [51 Cal.Rptr.2d 891], internal citations omitted.)

Sources and Authority

  • The statutory definitions of libel in slander “can be meaningfully applied only to statements that are capable of being proved as false or true.” (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 445 [26 Cal.Rptr.2d 305].)
  • “Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expressions[s] of . . . contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401 [88 Cal.Rptr.2d 843].)
  • “If a speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18 [110 S.Ct. 2695, 111 L.Ed.2d 1].)
  • California courts use a “totality of the circumstances” test to determine if a statement is one of fact or of opinion. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 [228 Cal.Rptr. 206, 721 P.2d 87].) “The court must put itself in the place of an average reader and decide the natural and probable effect of the statement.” (Hofmann Co. v. E.I. Du Pont de Nemors & Co. (1988) 202 Cal.App.3d 390, 398 [248 Cal.Rptr. 384].)
  • “[S]ome 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], internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 546, 547, 549

4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.05—45.06 (Matthew Bender)

30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.16 (Matthew Bender)

14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation), § 142.86 (Matthew Bender)

1 California Civil Practice: Torts (Thomson West) §§ 21:20—21:21