CACI 1707 Fact Versus Opinion

California Civil Jury Instructions CACI

1707 Fact Versus Opinion

For [name of plaintiff] to recover, [name of defendant]’s statement(s) must have been [a] statement(s) of fact, not opinion. A statement of fact is one that can be proved to be true or false. In some circumstances, [name of plaintiff] may recover if a statement phrased as an opinion implies that a false statement of fact is true.

In deciding this issue, you should consider whether the average [reader/listener] would conclude from the language of the statement and its context that [name of defendant] was implying that a false statement of fact is true.

Directions for Use

Give this instruction only if the court concludes that a statement could reasonably be construed as implying a false assertion of fact. (See Campanelli v. Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572, 578 [51 Cal.Rptr.2d 891].)

Sources and Authority

“ ‘Because [a defamatory] statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. [Citation.]’ That does not mean that statements of opinion enjoy blanket protection. On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. The ‘crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. [Citation.]’ ‘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. [Citations.]’ ” (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695–696 [142 Cal.Rptr.3d 40], internal citations omitted.)

“ ‘In determining whether a statement is libelous we look to what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the communication.’ ‘ “ ‘[I]f the defendant juxtaposes [a] series of facts so as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication … he may be held responsible for the defamatory implication, … even though the particular facts are correct.’ ” ’ The ‘pertinent question’ is whether a ‘reasonable fact finder’ could conclude that the statements ‘as a whole, or any of its parts, directly made or sufficiently implied a false assertion of defamatory fact that tended to injure’ plaintiff’s reputation.” (Issa v. Applegate (2019) 31 Cal.App.5th 689, 703 [242 Cal.Rptr.3d 809], internal citations omitted.)

“In defining libel and slander, Civil Code sections 45 and 46 both refer to a ‘false … publication … .’ This statutory definition can be meaningfully applied only to statements that are capable of being proved as false or true.” (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 445 [26 Cal.Rptr.2d 305].)

“Thus, ‘rhetorical hyperbole,’ ‘vigorous epithet[s],’ ‘lusty and imaginative expressions[s] of … contempt,’ and language used ‘in a loose, figurative sense’ have all been accorded constitutional protection.” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401 [88 Cal.Rptr.2d 843].)

“Deprecatory statements regarding the merits of litigation are “nothing more than ‘the predictable opinion’ of one side to the lawsuit” and cannot be the basis for a defamation claim.” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156 [162 Cal.Rptr.3d 831].)

“If a speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18 [110 S.Ct. 2695, 111 L.Ed.2d 1].)

“[W]hen a communication identifies non-defamatory facts underlying an opinion, or the recipient is otherwise aware of those facts, a negative statement of opinion is not defamatory. As explained in the Restatement Second of Torts, a ‘pure type of expression of opinion’ occurs ‘when both parties to the communication know the facts or assume their existence and the comment is clearly based on those assumed facts and does not imply the existence of other facts in order to justify the comment. The assumption of the facts may come about because someone else has stated them or because they were assumed by both parties as a result of their notoriety or otherwise.’ Actionable statements of opinion are ‘the mixed type, [where] an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant [but] gives rise to the inference that there are undisclosed facts that justify the forming of the opinion.’ ” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1314 [206 Cal.Rptr.3d 60], internal citation omitted.)

“Even if an opinion can be understood as implying facts capable of being proved true or false, however, it is not actionable if it also discloses the underlying factual bases for the opinion and those statements are true.” (J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 100 [201 Cal.Rptr.3d 782].)

“California courts have developed a ‘totality of the circumstances’ test to determine whether an alleged defamatory statement is one of fact or of opinion. First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. Where the language of the statement is ‘cautiously phrased in terms of apparency,’ the statement is less likely to be reasonably understood as a statement of fact rather than opinion.” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 [228 Cal.Rptr. 206, 721 P.2d 87].)

“The court must put itself in the place of an average reader and decide the natural and probable effect of the statement.” (Hofmann Co. v. E.I. Du Pont de Nemors & Co. (1988) 202 Cal.App.3d 390, 398 [248 Cal.Rptr. 384].)

“[S]ome statements are ambiguous and cannot be characterized as factual or nonfactual as a matter of law. ‘In these circumstances, it is for the jury to determine whether an ordinary reader would have understood the article as a factual assertion … .’ ” (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608 [284 Cal.Rptr. 244], internal citations omitted.)

“Use of ‘hyperbolic, informal’ ‘ “crude, [or] ungrammatical” language, satirical tone, [or] vituperative, “juvenile name-calling” ’ provide support for the conclusion that offensive comments were nonactionable opinion. Similarly, overly vague statements, and ‘ “generalized” comments … “lack[ing] any specificity as to the time or place of” alleged conduct may be a “further signal to the reader there is no factual basis for the accusations.” ’ On the other hand, if a statement is ‘factually specific,’ ‘earnest’, or ‘serious’ in tone, or the speaker ‘represents himself as “unbiased,” ’ ‘ “having specialized” ’ or ‘ “first-hand experience,” ’ or ‘ “hav[ing] personally witnessed … abhorrent behavior” ’, this may signal the opposite, rendering the statement actionable.” (ZL Technologies, Inc. v. Does 1–7 (2017) 13 Cal.App.5th 603, 624 [220 Cal.Rptr.3d 569], internal citations omitted.)

“Whether a challenged statement ‘declares or implies a provable false assertion of fact is a question of law for the court to decide … , unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.’ ” (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1261 [119 Cal.Rptr.3d 127].)

“We next turn to the broader context of his statements—posting on an Internet site under an assumed user name. [Defendant] contends Internet fora are notorious as ‘places where readers expect to see strongly worded opinions rather than objective facts,’ and that ‘anonymous, or pseudonymous,’ opinions should be ‘ “discount[ed] … accordingly.” ’ However, the mere fact speech is broadcast across the Internet by an anonymous speaker does not ipso facto make it nonactionable opinion and immune from defamation law.” (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 429 [160 Cal.Rptr.3d 423], internal citation omitted.)

“Rather, a defendant’s anonymity, the name of the Internet forum, the nature, language, tone, and complete content of the remarks all are relevant.” (ZL Technologies, Inc., supra, 13 Cal.App.5th at p. 625.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 643–646
4 Levy et al., California Torts, Ch. 45, Defamation, §§ 45.05–45.06 (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.16 (Matthew Bender)
14 California Points and Authorities, Ch. 142, Libel and Slander (Defamation), § 142.86 (Matthew Bender)
California Civil Practice: Torts §§  21:20–21:21 (Thomson Reuters)