CACI No. 1723. Common Interest Privilege - Malice (Civ. Code, § 47(c))

Judicial Council of California Civil Jury Instructions (2023 edition)

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1723.Common Interest Privilege - Malice (Civ. Code, § 47(c))
[Name of plaintiff] cannot recover damages from [name of defendant], even
if the statement(s) [was/were] false, unless [name of plaintiff] also proves
1. That in making the statement(s), [name of defendant] acted with
hatred or ill will toward [him/her/nonbinary pronoun], showing
[name of defendant]’s willingness to vex, annoy, or injure [him/her/
nonbinary pronoun]; or
2. That [name of defendant] had no reasonable grounds for believing
the truth of the statement(s).
New September 2003; Revised June 2014
Directions for Use
This instruction involves what is referred to as the “common interest” privilege of
Civil Code section 47(c). This statute grants a privilege against defamation to
communications made without malice on subjects of mutual interest. The defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove malice. (Lundquist v. Reusser (1994) 7
Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875 P.2d 1279].)
Sources and Authority
Common-Interest Privilege: Civil Code section 47(c).
Malice Not Inferred: Civil Code section 48.
“So, defendants contended, any publication was protected by the common
interest privilege in Civil Code section 47, subdivision (c), which extends a
privilege to statements made ‘without malice, to a person interested therein, (1)
by one who is also interested, or (2) by one who stands in such a relation to the
person interested as to afford a reasonable ground for supposing the motive for
the communication to be innocent, or (3) who is requested by the person
interested to give the information.’ (Barker v. Fox & Associates (2015) 240
Cal.App.4th 333, 353 [192 Cal.Rptr.3d 511].)
“Civil Code section 47 ‘extends a conditional privilege against defamation to
statements made without malice on subjects of mutual interests. [Citation.] This
privilege is “recognized where the communicator and the recipient have a
common interest and the communication is of a kind reasonably calculated to
protect or further that interest.” [Citation.] The “interest” must be something
other than mere general or idle curiosity, such as where the parties to the
communication share a contractual, business or similar relationship or the
defendant is protecting his own pecuniary interest. [Citation.] Rather, it is
restricted to ‘proprietary or narrow private interests.” [Citations.]’ (Hui v.
Sturbaum (2014) 222 Cal.App.4th 1109, 1118-1119 [166 Cal.Rptr.3d 569].)
“This definition is not exclusive, however, and the cases have taken an ‘eclectic
approach’ toward interpreting the statute.” (Klem v. Access Ins. Co. (2017) 17
Cal.App.5th 595, 617 [225 Cal.Rptr.3d 711].)
“Communications made in a commercial setting relating to the conduct of an
employee have been held to fall squarely within the qualified privilege for
communications to interested persons.” (Cornell v. Berkeley Tennis Club (2017)
18 Cal.App.5th 908, 949 [227 Cal.Rptr.3d 286].)
‘Ordinarily, the common interest of the members of a church in church matters
is sufficient to give rise to a qualified privilege to communications between
members on subjects relating to the church’s interest.’ This reasoning applies by
analogy to communications between parents of parochial school children and
church authorities overseeing the school on subjects relating to the school.”
(Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1177 [252 Cal.Rptr.3d 578].)
“For the purposes of section 47’s qualified privilege, ‘malice’ means that the
defendant (1) “was motivated by hatred or ill will towards the plaintiff,” or
(2) “lacked reasonable grounds for [its] belief in the truth of the publication
and therefore acted in reckless disregard of the plaintiff’s rights.” (Schep v.
Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1337 [220 Cal.Rptr.3d 408].)
“The malice required to defeat the common interest privilege is actual malice.”
(Hicks, supra, 39 Cal.App.5th at p. 1178.)
“[M]alice [as used in Civil Code section 47(c)] has been defined as ‘a state of
mind arising from hatred or ill will, evidencing a willingness to vex, annoy or
injure another person.’ (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711,
723 [257 Cal.Rptr. 708, 771 P.2d 406], internal citation omitted.)
“[M]alice focuses upon the defendant’s state of mind, not his [or her] conduct.”
(Cornell, supra, 18 Cal.App.5th at p. 951.)
“[M]alice may not be inferred from the mere fact of the communication.”
(Barker, supra, 240 Cal.App.4th at p. 354.)
“For purposes of establishing a triable issue of malice, ‘the issue is not the truth
or falsity of the statements but whether they were made recklessly without
reasonable belief in their truth.’ A triable issue of malice would exist if
[defendant] made a statement in reckless disregard of Employee’s rights that
[defendant] either did not believe to be true (i.e., he actually knew better) or
unreasonably believed to be true (i.e., he should have known better). In either
case, a fact finder would have to ascertain what [defendant] subjectively knew
and believed about the topic at the time he spoke.” (McGrory v. Applied Signal
Technology, Inc. (2013) 212 Cal.App.4th 1510, 1540 [152 Cal.Rptr.3d 154],
internal citation omitted.)
“[M]aliciousness cannot be derived from negligence. Malice entails more than
sloppiness or, as in this case, an easily explained typo.” (Bierbower v. FHP, Inc.
(1999) 70 Cal.App.4th 1, 9 [82 Cal.Rptr.2d 393].)
“[I]f malice is shown, the privilege is not merely overcome; it never arises in the
first instance. . . . [T]he characterization of the privilege as qualified or
conditional is incorrect to the extent that it suggests the privilege is defeasible.”
(Brown, supra, 48 Cal.3d at p. 723, fn. 7.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 92, 655, 690-704
Chin et al., California Practice Guide: Employment Litigation, Ch. 5(I)-E,
Employment Torts And Related Claims - Defamation, 5:471 et seq. (The Rutter
4 Levy et al., California Torts, Ch. 45, Defamation, § 45.12 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.66
(Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation),
§ 142.53 (Matthew Bender)
California Civil Practice: Torts §§ 21:40-21:41 (Thomson Reuters)

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