Vondran Legal® - Defamation Legal Counsel - [Defamation per se under California Law].  If you are dealing with libel or slander either as a Plaintiff or Defendant call us at (877) 276-5084.

Introduction

I have recently heard one of the worst stories of defamation per se that I have heard in a long time.  It really made me sad about the state of humanity.  A person was accused of giving a girl a date rape drug and them raping her.  This was all TOTALLY FALSE.  It caused substantial damages including lost opportunity, lost wages, and worse, caused my client to be shunned and ridiculed all for a LIE.  These are the types of things that should be pursued in a court of law.  Make the false accuser explain what they did, why they did it, and hit them for substantial damages.  If the accusation is malicious and oppressive, opportunities for PUNITIVE DAMAGES may exist. 

Another malicious scenario that can arise is under California trade secrets law.  Say a company loses one of its top valued employees.  For example, a sales executive, engingeer, or other key employee.  When these employees leave (many times due to a hostile work environment, sexually charged or discriminatory environment, or lack of fair play) and move on to a new competing company, the former employer may try to improperly and unlawfully interfere with the new employment and have them, or their counsel send a defamatory letter to the new employer accusing the former employee of stealing trade secrets, committing crimes, and sending documents to themselves after they leave.  If this is untrue, it can constitute defamation/libel per se, and lead to a claim for punitive damages.  I am dealing with such a case now, and it is both sad and unfortunate for the former employee who is merely trying to move on to greener pastures applying their skill, knowledge, training and experience.

This blog will explain the difference under California law between LIBEL PER SE and SLANDER PER SE and discuss the potential legal remedies.

Elements to prove defamation per se in California

There are two types of defamation.  Libel (printed or written defamation) and Slander (spoken defamation).  Here are the elements to prove each in California.

A.  Libel per se (written defamation)

Section 45 of the Civil Code defines libel as "a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation".

The code definition of libel is very broad and has been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation. ( Schomberg v. Walker, 132 Cal. 224 [64 Pac. 290]; Stevens v. Snow, 191 Cal. 58, 62 [214 Pac. 968];  Tonini v. Cevasco, 114 Cal. 266, 272 [46 Pac. 103].) 

In the determination of this question, the alleged libelous publication is to be construed "as well from the expressions used, as from the whole scope and apparent object of the writer". ( Stevens v. Storke, 191 Cal. 329, 334 [216 Pac. 371, 373]; Bettner v. Holt, 70 Cal. 270 [11 Pac. 713, 715].) The case last above cited states that "not only is the language employed to be regarded with reference to the actual words used, but according to the sense and meaning under all the circumstances attending the publication which such language may fairly be presumed to have conveyed to those to whom it was published.

So that in such cases the language is uniformly to be regarded with what has been its effect, actual or presumed, and its sense is to be arrived at with the help of the cause and occasion of its publication. And in passing upon the sufficiency of such language as stating a cause of action, a court is to place itself in the situation of the hearer or reader, and determine the sense or meaning of the language of a complaint for libelous publication according to its natural and popular construction".  

That is to say, the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader. A defendant is liable for what is insinuated, as well as for what is stated explicitly. ( Schomberg v. Walker, supra, p. 227.)

Publications falling within the statutory definition above set out are libelous per se, thus obviating the necessity for an averment of special damage. ( Layne v. Kirby, 208 Cal. 694, 696 [284 Pac. 441].) Should the alleged libelous publication be ambiguous and susceptible of two meanings, one of them harmless and the other injurious, it is necessary for the plaintiff to plead by innuendo the facts upon which he relies to point out the injurious meaning of the writing. ( Mellen v. Times-Mirror Co., 167 Cal. 587 [Ann. Cas. 1915C, 766, 140 Pac. 277]; Ousdal v. Sansum, 86 Cal. App. 119, 122 [260 Pac. 322]; Vedovi v. Watson & Taylor, 104 Cal. App. 80, 84 [285 Pac. 418].) 

However, it is not the purpose of an innuendo to "beget an action", and the meaning of the language complained of may not be enlarged or extended thereby. ( Chavez v. Times-Mirror Co., 185 Cal. 20, 25 [195 Pac. 666]; Grand v. Dreyfus, 122 Cal. 58, 61 [54 Pac. 389]; Hearne v. De Young, 119 Cal. 670 [52 Pac. 150]; Des Granges v. Crall, 27 Cal. App. 313, 315 [149 Pac. 777].) In other words, it is the office of the innuendo to merely explain or interpret, without enlarging, the alleged libelous publication.  See Bates v. Campbell (1931) 213 Cal. 438, 441-443 [2 P.2d 383].)

CACI 1704 Jury Instructions

evidence that [name of defendant] acted with malice, oppression, or fraud.

 

Directions for Use

 

Special verdict form VF-1704, Defamation per se - Affırmative Defense - Truth

(Private Figure - Matter of Private Concern), may be used in this type of 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 the privilege of Civil Code section 47(d) for a privileged publication or broadcast

is at issue, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M

Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201

Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or

instruction targeting that privilege will be required. (See, e.g., Civ. Code, § 47(b);

Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780-787 [214 Cal.Rptr.3d 358]

[litigation privilege].)

 

 

B.  Slander per se (oral defamation)

Slander per se requires:

(1) a false and unprivileged publication;

(2) orally uttered to a person;

and

(3) naturally tending directly to injure a person, in respect to office, profession, trade, or business (slander per se), or special damages.

See Mann v. Quality Old Time Service, Inc, (2004) 120 Cal.App.4th 90, 106; Howry v. Benjamin, 2021 Cal. Super. LEXIS 65938.

In another case, Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 367-368 [90 Cal.Rptr.3d 882].) the court held:

A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and requires no proof of actual damages. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 107 [15 Cal. Rptr. 3d 215].)

A slander that does not fit into those four subdivisions is slander per quod, and special damages are required for there to be any recovery for that slander. (5 Witkin, Summary of Cal. Law  (10th ed. 2005) Torts, §§ 552–555, pp. 807–814.)

One authority has stated that unlike libel, which is per se when defamatory on its face (see Civ. Code, § 45a), “[t]he extrinsic fact issue is irrelevant” for slander in connection with the per se and per quod distinction. (2 Smolla, Law of Defamation (2d ed. 2008) § 7:25, p. 7-34; see Correia v. Santos (1961) 191 Cal.App.2d 844, 852–853 [13 Cal. Rptr. 132]; Jimeno v. Commonwealth Home Builders (1920) 47  Cal.App. 660, 663 [191 P. 64] [“many charges which if merely spoken of another would not be actionable without proof of special damages will be libelous per se when written or printed and published”]; 1 Sack on Defamation (3d ed. 2006) § 2.8.3.2, p. 2-112 [“As a practical matter, words that, uttered orally, are slanderous per se are usually also libelous per se when written. But the reason they are slanderous per se normally has little to do with the reason they are libelous per se”]; 2 Dobbs, The Law of Torts (2001) § 408, pp. 1140–1144.) 3

Subdivisions 1 (crime) and 3 (occupation) of Civil Code section 46 “have been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation [citations]; and words clearly conveying a meaning within one of the statutory categories are actionable per se.” (Washer v. Bank of America (1943) 21 Cal.2d 822, 827 [136 P.2d 297], italics added, disapproved on other grounds by MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 551 [343 P.2d 36].) 

In connection with subdivision 3 of Civil Code section 46, “to be actionable per se, a defamatory statement must tend ‘directly' to injure the person defamed in respect to his office, profession, trade or business … .” (Correia v. Santos, supra, 191 Cal.App.2d at p. 852.)

Whether a statement “upon its face … clearly convey[s] a meaning” within subdivision 3 (Washer v. Bank of America, supra, 21 Cal.2d at p. 827) so as to be a slander per se is a question for the court. (Mercado v. Hoefler (1961) 190 Cal.App.2d 12, 21 [11 Cal. Rptr. 787] [“The judge's determination that the language used constituted slander per se in respondent's instruction number 7 was part of his judicial function … .”]; 1 Sack on Defamation, supra, § 2.8.4, p. 2-115

[“It is a question of law, for the court to determine, whether a communication is libelous or slanderous per se. But it remains within the province of the jury to determine whether the reader understood the article, in light of relevant extrinsic facts, if any, to be defamatory”]; Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 410 [46 Cal. Rptr. 135] [libel]; Correia v. Santos, supra, 191 Cal.App.2d at pp. 853–854 [“Whether an oral statement is susceptible of a slanderous interpretation is a question for the court although the issue as to whether it was so understood is a question for the trier of fact.”]; cf. MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d at p. 546.)

Types of damages that may be recoverable

A Defamation plaintiff may be able to seek the following types of damages/remedies:

• Published retraction
• Actual damages
• Punitive damages
• Lost profits
• Lost opportunities
• General suffering

Common Defenses in California Defamation Case

Here are a few common defense if faced with a defamation per se lawsuit.

• Truth is a defense to defamation
• Failure to publicate to a third party
• Privilege (including litigation privilege)
• Consent
• Fair Comments/Public affairs
• Public figure at issue (no actual malice)
• No injury/damages to reputation

Contact a California Defamation Law Firm

If you are involved in a defamation situation, contact us to discuss your case in confidence.  We represent Plaintiff and Defendant litigants.  Call us at (877) 276-5084 or fill out our contact form and we will contact you.