CACI 1704 Defamation per se—Essential Factual Elements (Private Figure—Matter of Private Concern)

California Civil Jury Instructions CACI

1704 Defamation per se—Essential Factual Elements (Private Figure—Matter of Private 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 [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

Even if [name of plaintiff] has not proved any actual damages for harm to reputation or shame, mortification, or hurt feelings, the law assumes that [he/she/nonbinary pronoun] has suffered this harm. 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] acted with malice, oppression, or fraud.

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

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

Crowdsource Lawyers

Directions for Use

Special verdict form VF-1704, Defamation per se—Affirmative Defense—Truth (Private Figure—Matter of Private Concern), may be used in this type of case.

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].)

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).

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 [or not] 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.)

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].)

“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.” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 747 [257 Cal.Rptr. 708, 771 P.2d 406].)

“The First Amendment trumps the common law presumption of falsity in defamation cases involving private-figure plaintiffs when the allegedly defamatory statements pertain to a matter of public interest.” (Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375 [54 Cal.Rptr.2d 781].)

“Thus, in a defamation action the burden is normally on the defendant to prove the truth of the allegedly defamatory communications. However, in accommodation of First Amendment considerations (which are implicated by state defamation laws), where the plaintiff is a public figure, the ‘public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation.’ ” (Stolz, supra, 30 Cal.App.4th at p. 202, internal citations omitted.)

“Since the statements at issue here involved a matter of purely private concern communicated between private individuals, we do not regard them as raising a First Amendment issue. ‘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], quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, 760 [105 S.Ct. 2939, 86 L.Ed.2d 593], internal citation omitted.)

“We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.” (Dun & Bradstreet, Inc., supra, 472 U.S. at p. 763.)

“When the speech is of exclusively private concern and the plaintiff is a private figure, as in Dun & Bradstreet, the constitutional requirements do not necessarily force any change in at least some of the features of the common-law landscape.” (Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 775 [106 S.Ct. 1558, 89 L.Ed.2d 783].)

“[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.)

“In defamation actions generally, factual truth is a defense which it is the defendant’s burden to prove. In a defamation action against a newspaper by a private person suing over statements of public concern, however, the First Amendment places the burden of proving falsity on the plaintiff.” (Eisenberg v. Alameda Newspapers (1999) 74 Cal.App.4th 1359, 1382 [88 Cal.Rptr.2d 802].)

Secondary Sources

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