CACI 1702 Defamation per se—Essential Factual Elements (Private Figure—Matter of Public Concern)

California Civil Jury Instructions CACI

1702 Defamation per se—Essential Factual Elements (Private Figure—Matter of Public Concern)

[Name of plaintiff] claims that [name of defendant] harmed [him/her/nonbinary pronoun] by making [one or more of] the following statement(s): [list all claimed per se defamatory statement(s)]. 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 [this person/these people] reasonably understood the statement(s) to mean that [insert ground(s) for defamation per se, e.g., “[name of plaintiff] had committed a crime”];]

4.That the statement(s) [was/were] false; and

5.That [name of defendant] failed to use reasonable care to determine the truth or falsity of the statement(s).

Actual Damages

If [name of plaintiff] has proved all of the above, then [he/she/nonbinary pronoun] is entitled to recover [his/her/nonbinary pronoun] actual damages if [he/she/nonbinary pronoun] proves that [name of defendant]’s wrongful conduct was a substantial factor in causing any of the following:

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.

Assumed Damages

If [name of plaintiff] has not proved any actual damages for harm to reputation or shame, mortification, or hurt feelings but proves by clear and convincing evidence that [name of defendant] knew the statement(s) [was/were] false or that [he/she/nonbinary pronoun] had serious doubts about the truth of the statement(s), then the law assumes that [name of plaintiff]’s reputation has been harmed and that [he/she/nonbinary pronoun] has suffered shame, mortification, or hurt feelings. Without presenting evidence of damage, [name of plaintiff] is entitled to receive compensation for this assumed harm in whatever sum you believe is reasonable. You must award at least a nominal sum, such as one dollar.

Punitive Damages

[Name of plaintiff] may also recover damages to punish [name of defendant] if [he/she/nonbinary pronoun] proves by clear and convincing evidence that [name of defendant] either knew the statement(s) [was/were] false or had serious doubts about the truth of the statement(s), and that [he/she/nonbinary pronoun] acted with malice, oppression, or fraud.

[For specific provisions, see CACI Nos. 3940–3949.]

New September 2003; Revised April 2008, October 2008, December 2009, June 2016, December 2016, January 2018

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Directions for Use

Special verdict form CACI No. VF-1702, Defamation per se (Private Figure—Matter of Public Concern), should be used in this type of 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. 1700, Defamation per se—Essential Factual Elements (Public Officer/Figure and Limited Public Figure).

Use the bracketed element 3 only if the statement is not defamatory on its face (i.e., if the judge has not determined that the statement is defamatory as a matter of law). For statutory grounds of defamation per se, see Civil Code sections 45 (libel) and 46 (slander). Note that certain specific grounds of libel per se have been defined by case law.

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].)

Sources and Authority

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645 [85 Cal.Rptr.2d 397].)

“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.)

“Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 348–349 [94 S.Ct. 2997, 41 L.Ed.2d 789].)

“ ‘[I]f the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy.’ ” (Copp v. Paxton (1996) 45 Cal.App.4th 829, 845 [52 Cal.Rptr.2d 831].)

“[T]he jury was instructed that if it found that defendant published matter that was defamatory on its face and it found by clear and convincing evidence that defendant knew the statement was false or published it in reckless disregard of whether it was false, then the jury ‘also may award plaintiff presumed general damages.’ Presumed damages ‘are those damages that necessarily result from the publication of defamatory matter and are presumed to exist. They include reasonable compensation for loss of reputation, shame, mortification, and hurt feeling. No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for presumed damages, and no evidence of actual harm is required. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for presumed damages, you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence. You may in the exercise of your discretion award nominal damages only, namely an insignificant sum such as one dollar.’ [¶¶] … [T]he instant instruction, which limits damages to ‘those damages that necessarily result from the publication of defamatory matter,’ constitutes substantial compliance with [Civil Code] section 3283. Thus, the instant instructions, ‘if obeyed, did not allow the jurors to “enter the realm of speculation” regarding future suffering.’ ” (Sommer v. Gabor (1995) 40 Cal.App.4th 1455, 1472–1473 [48 Cal.Rptr.2d 235], internal citations omitted.)

The jury should be instructed that the defendant’s negligence is an element of libel if the plaintiff is a private figure. (Carney v. Santa Cruz Women Against Rape (1990) 221 Cal.App.3d 1009, 1016 [271 Cal.Rptr. 30].)

“When the speech involves a matter of public concern, a private-figure plaintiff has the burden of proving the falsity of the defamation.” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747 [257 Cal.Rptr. 708, 771 P.2d 406].)

“Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.” (Gertz, supra, 418 U.S. at p. 350.)

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 only required to prove 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].)

“A private-figure plaintiff must prove at least negligence to recover any damages and, when the speech involves a matter of public concern, he must also prove New York Times malice … to recover presumed or punitive damages. This malice must be established by ‘clear and convincing proof.’ ” (Brown, supra, 48 Cal.3d at p. 747, internal citations omitted.)

When the court is instructing on punitive damages, it is error to fail to instruct that New York Times malice is required when the statements at issue involve matters of public concern. (Carney, supra, 221 Cal.App.3d at p. 1022.)

“To prove actual malice … a plaintiff must ‘demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement.’ ” (Khawar, supra, 19 Cal.4th at p. 275, internal citation omitted.)

“Because actual malice is a higher fault standard than negligence, a finding of actual malice generally includes a finding of negligence … .” (Khawar, supra, 19 Cal.4th at p. 279.)

“The inquiry into the protected status of speech is one of law, not fact.” (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375 [54 Cal.Rptr.2d 781], quoting Connick v. Myers (1983) 461 U.S. 138, 148, fn. 7 [103 S.Ct. 1684, 75 L.Ed.2d 708].)

“For the New York Times standard to be met, ‘the publisher must come close to willfully blinding itself to the falsity of its utterance.’ ” (Brown, supra, 48 Cal.3d at p. 747, internal citation omitted.)

“ ‘While such speech is not totally unprotected by the First Amendment, its protections are less stringent’ [than that applying to speech on matters of public concern].” (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 445 [26 Cal.Rptr.2d 305], internal citation omitted.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 623–654, 719–721
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, 340.18 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation), §§ 142.30–142.40, 142.87 et seq. (Matthew Bender)
California Civil Practice: Torts, §§ 21:1–21:2, 21:22–21:25, 21:51 (Thomson Reuters)