CACI No. 1707. Fact Versus Opinion

Judicial Council of California Civil Jury Instructions (2017 edition)

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1707.Fact Versus Opinion
For [name of plaintiff] to recover, [name of defendant]’s statement(s) must
have been [a] statement(s) of fact, not opinion. A statement of fact is one
that can be proved to be true or false. In some circumstances, [name of
plaintiff] may recover if a statement phrased as an opinion implies that
a false statement of fact is true.
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 implying that a false statement of
fact is true.
New September 2003; Revised June 2013
Directions for Use
Give this instruction only if the court concludes that a statement could reasonably
be construed as implying a false assertion of fact. (See Campanelli v. Regents of
Univ. of Cal. (1996) 44 Cal.App.4th 572, 578 [51 Cal.Rptr.2d 891].)
Sources and Authority
• “ ‘Because [a defamatory] statement must contain a provable falsehood, courts
distinguish between statements of fact and statements of opinion for purposes of
defamation liability. Although statements of fact may be actionable as libel,
statements of opinion are constitutionally protected. [Citation.]’ That does not
mean that statements of opinion enjoy blanket protection. On the contrary,
where an expression of opinion implies a false assertion of fact, the opinion can
constitute actionable defamation. The ‘crucial question of whether challenged
statements convey the requisite factual imputation is ordinarily a question of
law for the court. [Citation.]’ ‘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.
[Citations.]’ ” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695–696
[142 Cal.Rptr.3d 40], internal citations omitted.)
• “Thus, our inquiry is not merely whether the statements are fact or opinion, but
‘ “whether a reasonable fact finder could conclude the published statement
declares or implies a provably false assertion of fact.” ’ ” (Hawran v. Hixson
(2012) 209 Cal.App.4th 256, 289 [147 Cal.Rptr.3d 88].)
• “In defining libel and slander, Civil Code sections 45 and 46 both refer to a
‘false . . . publication . . . .’ This statutory definition 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].)
• “Deprecatory statements regarding the merits of litigation are “nothing more
than ‘the predictable opinion’ of one side to the lawsuit” and cannot be the
basis for a defamation claim.” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220
Cal.App.4th 141, 156 [162 Cal.Rptr.3d 831].)
• “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].)
• “[W]hen a communication identifies non-defamatory facts underlying an
opinion, or the recipient is otherwise aware of those facts, a negative statement
of opinion is not defamatory. As explained in the Restatement Second of Torts,
a ‘pure type of expression of opinion’ occurs ‘when both parties to the
communication know the facts or assume their existence and the comment is
clearly based on those assumed facts and does not imply the existence of other
facts in order to justify the comment. The assumption of the facts may come
about because someone else has stated them or because they were assumed by
both parties as a result of their notoriety or otherwise.’ Actionable statements of
opinion are ‘the mixed type, [where] an opinion in form or context, is
apparently based on facts regarding the plaintiff or his conduct that have not
been stated by the defendant [but] gives rise to the inference that there are
undisclosed facts that justify the forming of the opinion.’ ” (John Doe 2 v.
Superior Court (2016) 1 Cal.App.5th 1300, 1314 [206 Cal.Rptr.3d 60], internal
citation omitted.)
• “Even if an opinion can be understood as implying facts capable of being
proved true or false, however, it is not actionable if it also discloses the
underlying factual bases for the opinion and those statements are true.” (J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87,
100 [201 Cal.Rptr.3d 782].)
• “California courts have developed a ‘totality of the circumstances’ test to
determine whether an alleged defamatory statement is one of fact or of opinion.
First, the language of the statement is examined. For words to be defamatory,
they must be understood in a defamatory sense. Where the language of the
statement is ‘cautiously phrased in terms of apparency,’ the statement is less
likely to be reasonably understood as a statement of fact rather than 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.)
• “Whether a challenged statement ‘declares or implies a provable false assertion
of fact is a question of law for the court to decide . . . , unless the statement is
susceptible of both an innocent and a libelous meaning, in which case the jury
must decide how the statement was understood.’ ” (Overhill Farms, Inc. v.
Lopez (2010) 190 Cal.App.4th 1248, 1261 [119 Cal.Rptr.3d 127].)
• “We next turn to the broader context of his statements—posting on an Internet
site under an assumed user name. [Defendant] contends Internet fora are
notorious as ‘places where readers expect to see strongly worded opinions
rather than objective facts,’ and that ‘anonymous, or pseudonymous,’ opinions
should be ‘ “discount[ed] . . . accordingly.” ’ However, the mere fact speech is
broadcast across the Internet by an anonymous speaker does not ipso facto
make it nonactionable opinion and immune from defamation law.” (Bently
Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 429 [160 Cal.Rptr.3d
423], internal citation omitted.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 546, 547, 549
4Levy et al., California Torts, Ch. 45, Defamation, §§ 45.05–45.06 (Matthew
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)
California Civil Practice: Torts §§ 21:20–21:21 (Thomson Reuters)

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