CACI 1705 Defamation per quod—Essential Factual Elements (Private Figure—Matter of Private Concern)
California Civil Jury Instructions CACI
1705 Defamation per quod—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): [insert all claimed per quod defamatory statements]. 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 because of the facts and circumstances known to the [listener(s)/reader(s)] of the statement(s), [it/they] tended to injure [name of plaintiff] in [his/her/nonbinary pronoun] occupation [or to expose [him/her/nonbinary pronoun] to hatred, contempt, ridicule, or shame] [or to discourage others from associating or dealing with [him/her/nonbinary pronoun]];
4.That [name of defendant] failed to use reasonable care to determine the truth or falsity of the statement(s);
5.That [name of plaintiff] suffered harm to [his/her/nonbinary pronoun] property, business, profession, or occupation [including money spent as a result of the statement(s)]; and
6.That the statement(s) [was/were] a substantial factor in causing [name of plaintiff]’s harm.
If [name of plaintiff] has proved all of the above, then [he/she/nonbinary pronoun] is entitled to recover if [he/she/nonbinary pronoun] proves that [name of defendant]’s wrongful conduct was a substantial factor in causing any of the following actual damages:
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.
[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
Directions for Use
Special verdict form VF-1705, Defamation per quod (Private Figure—Matter of Private Concern), should be used in this type of case.
Presumed damages either are not available or will likely not be sought in a per quod 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].)
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. 1701, Defamation per quod—Essential Factual Elements (Public Officer/Figure and Limited Public Figure).
Sources and Authority
•Libel per se. Civil Code section 45a.
•Special Damages. Civil Code section 48a(4)(b).
•“Libel is recognized as either being per se (on its face), or per quod (literally meaning, ‘whereby’), and each requires a different standard of pleading.” (Palm Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 5 [86 Cal.Rptr.2d 73].)
•“If [a] defamatory meaning would appear only to readers who might be able to recognize it through some knowledge of specific facts and/or circumstances, not discernible from the face of the publication, and which are not matters of common knowledge rationally attributable to all reasonable persons, then the libel cannot be libel per se but will be libel per quod.” (Palm Springs Tennis Club, supra, 73 Cal.App.4th at p. 5, internal citation omitted.)
•“In pleading a case of libel per quod the plaintiff cannot assume that the court has access to the reader’s special knowledge of extrinsic facts but must specially plead and prove those facts.” (Palm Springs Tennis Club, supra, 73 Cal.App.4th at p. 7, footnote omitted.)
•“A libel ‘per quod’ … requires that the injurious character or effect be established by allegation and proof.” (Slaughter v. Friedman (1982) 32 Cal.3d 149, 153–154 [185 Cal.Rptr. 244, 649 P.2d 886].)
•“In the libel context, ‘inducement’ and ‘innuendo’ are terms of art: ‘[W]here the language is ambiguous and an explanation is necessary to establish the defamatory meaning, the pleader must do two things: (1) allege his interpretation of the defamatory meaning of the language (the “innuendo,” … ); (2) support that interpretation by alleging facts showing that the readers or hearers to whom it was published would understand it in that defamatory sense (the “inducement”).’ ” (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 387 [226 Cal.Rptr. 354].)
•“A defamatory publication not libelous on its face is not actionable unless the plaintiff alleges that he has suffered special damages as a result thereof.” (Selleck v. Globe Int’l, Inc. (1985) 166 Cal.App.3d 1123, 1130 [212 Cal.Rptr. 838].)
•“The question whether a statement is reasonably susceptible to a defamatory interpretation is a question of law for the trial court. 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.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647 [85 Cal.Rptr.2d 397], internal citations omitted.)
•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 required to prove only 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].)
•If the language is not defamatory on its face, there is no distinction between libel and slander: “In either case, the fact that a statement is not defamatory on its face requires only that the plaintiff plead and prove the defamatory meaning and special damages.” (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 447 [26 Cal.Rptr.2d 305].)
•A plaintiff must prove that the defendant was at least negligent in failing to ascertain the truth or falsity of the statement. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 345–347 [94 S.Ct. 2997, 41 L.Ed.2d 789].)
•“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.)