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- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
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Defamation Per Se

1 Elements and Case Citations

General elements of Defamation:

  1. Defendant intentionally publishes a statement of fact that is:
  2. False;
  3. Defamatory;
  4. Has a natural tendency to injure or which causes special damage; and
  5. The defendant’s fault in publishing the statement (negligence or actual malice, depending on the person’s status as private or public figure).

See also Cal. Civ. Code § 44 (“Defamation is effected by either of the following:  (a) Libel. (b) Slander.”).

Impact of Defamation Per Se

In an action for damages for defamation per se, . . . the law presumes general damages, and it has been declared unnecessary to segregate the exact or any proportion between the two classes of damages.

Finney v. Lockhart, 35 Cal. 2d 161, 163 (1950) (referring to compensatory and exemplary damages); see also Albertini v. Schaefer, 97 Cal. App. 3d 822, 829 (1979) (if statements are defamatory per se, they are actionable without proof of special damage).

If the defamation is neither libel per se or slander per se, it is defamation per quod, and requires allegations and proof of special damages.  See Burrill v. Nair, 217 Cal. App. 4th 357, 382 (2013) (libel is per quod “if the defamatory character is not apparent on its face and requires an explanation of the surrounding circumstances (the ‘innuendo’) to make its meaning clear”); see Palm Springs Tennis Club v. Rangel, 73 Cal. App. 4th 1, 5 (1999) (“If . . . the 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.”).

Definition of Slander Per Se

“[T]he slander statute [Civil Code section 46] expressly limits slander per se to four categories of defamatory statements, “including statements

(1) charging the commission of crime, or
(2) tending directly to injure a plaintiff in respect to the plaintiff’s [profession, trade, or] business by imputing something with reference to the plaintiff’s [profession, trade, or] business that has a natural tendency to lessen its profits.”

Burrill v. Nair, 217 Cal. App. 4th 357, 382-83 (2013) (noting that “libel per se is not so limited”).  “Words which fall within the purview of Civil Code section 46 are deemed to constitute slander per se.” Albertini v. Schaefer, 97 Cal. App. 3d 822, 829 (1979); see Regalia v. The Nethercutt Collection, 172 Cal. App. 4th 361, 362 (2009) (“unlike libel, which is per se when defamatory on its face . . . ‘[t]he extrinsic fact issue is irrelevant’ for slander in connection with the per se and per quod distinction.”)

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.

Cal. Civ. Code § 46 (“Slander defined”).

Definition of Libel Per Se

Where a libelous statement “is defamatory on its face, it is said to be libelous per se, and actionable without proof of special damage.”

Burrill v. Nair, 217 Cal. App. 4th 357, 382 (2013); see also Palm Springs Tennis Club v. Rangel, 73 Cal. App. 4th 1, 5 (1999) (“If a defamatory meaning appears from the language itself without the necessity of explanation or the pleading of extrinsic facts, there is libel per se.”).

A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.

Cal. Civ. Code § 45a; see Slaughter v. Friedman, 32 Cal. 3d 149, 153-54 (1982) (discussing difference between libel per se and per quod as set forth in Cal. Civ. Code § 45a).

CALIFORNIA STATE COURTS

California Supreme Court:Slaughter v. Friedman, 32 Cal. 3d 149, 153-54 (1982) (discussing difference between libel per se and per quod as set forth in Cal. Civ. Code § 45a); Finney v. Lockhart, 35 Cal. 2d 161, 163 (1950) (impact of finding that defamation is per se); Clark v. McClurg, 215 Cal. 279, 284 (1932) (“The law presumes that general damages follow from the utterance or publication of matter slanderous or libelous per se. Hence where, as here, the publication is slanderous or libelous per se, and is false and unprivileged, a cause of action for actual or compensatory damages is conclusively established.”).

California 1st Dist.:  Dible v. Haight Ashbury Free Clinics, Inc., 170 Cal. App. 4th 843, 853 (2009) (slander per se); Contento v. Mitchell, 28 Cal. App. 3d 356, 359 (1972) (nature of damages for defamation per se); Arno v. Stewart, 245 Cal. App. 2d 955, 960 (1966) (libel per se).

California 2d Dist.:  Regalia v. The Nethercutt Collection, 172 Cal. App. 4th 361, 362 (2009); Albertini v. Schaefer, 97 Cal. App. 3d 822, 829 (1979) (explaning slander per se); Palm Springs Tennis Club v. Rangel, 73 Cal. App. 4th 1, 5 (1999) (discussing libel per se and libel per quod);

California 3d Dist.:  Burrill v. Nair, 217 Cal. App. 4th 357, 382-83 (2013) (discussing libel per se, libel per quod, slander per se, slander per quod).

California 4th Dist.:  Nguyen-Lam v. Cao, 171 Cal. App. 4th 858, 867 n.2 (2009) (slander per se); McGarry v. University of San Diego, 154 Cal. App. 4th 97, 112 (2007) (libel per se).

California 5th Dist.:  None.

California 6th Dist.:  Barnes-Hind, Inc. v. Superior Court, 181 Cal. App. 3d 377, 381-82 (1986) (libel per se).

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit:  Crowe v. County of San Diego, 608 F.3d 406,444-45 (9th Cir. 2010) (slander per se); Crowe v. County of San Diego, 593 F.3d 841, 879 (9th Cir. 2010) (same); Gravitt v. Brown, 74 Fed. Appx. 700, 705 (9th Cir. 2003) (slander per se); Religious Technical Center. v. Scott, No. 94-55781, No. 94-55920, 1996 U.S. App. LEXIS 8954, at *23-24 (9th Cir. Apr. 11,1996) (libel per se).

Central District:  Perlow v. Mann, No. 2:13-cv-00749-ODW(SHx), 2013 U.S. Dist. LEXIS 151860, at *12-13 (C.D. Cal. Oct. 22, 2013) (libel per se); Epicor Software Corp. v. Alternative Technology Solutions, Inc., No. SACV 13-00448-CJC(RNBx), 2013 U.S. Dist. LEXIS 109278, at *14-15 (C.D. Cal. June 21, 2013) (defamation per se); Oakley, Inc. v. McWilliams, No. CV 09-07666 DDP (RNBx), 2012 U.S. Dist. LEXIS 149604, at *8-9 (C.D. Cal. Oct. 17, 2012) (libel per se); Diversified Communs. Servs. v. Landmark Am. Ins. Co., No. CV 08-7703 PSG (Ssx), 2009 U.S. Dist. LEXIS 27930, at *13 (C.D. Cal. Mar. 17, 2009) (slander per se).

Eastern District:  Gonzalez v. City of McFarland, No. 1:13-cv-00086 - JLT, 2013 U.S. Dist. LEXIS 72004, at *14-17 (E.D. Cal. May 21, 2013) (defamation and libel per se); Rangel v. Am. Med. Response West, No. 1:09-cv-01467-AWI-BAM, 2013 U.S. Dist. LEXIS 59579 at *20-22 (E.D. Cal. Apr. 25, 2013).

Northern District:  Trindade v. Reach Media Group, LLC, No. 12-CV-4759-PSG, 2013 U.S. Dist. LEXIS 107707, at *43-44 & *46 (N.D. Cal. July 31, 2013) (libel per se); Duste v. Chevron Prods., No. C 08-3980 MEJ, 2012 U.S. Dist. LEXIS 2236, at *9-12 & n.1 (N.D. Cal. Jan. 9, 2012) (slander per se and per quod).

Southern District:  Visant Corp. v. Barrett, No. 13cv389 WQH (WVG), 2013 U.S. Dist. LEXIS 95696, at *20-21 (S.D. Cal. July 9, 2013) (libel per se); Carvajal v. Pride Indus., No. 10CV2319-GPC(MDD), 2013 U.S. Dist. LEXIS 57435, at *33-34 & n.7 (S.D. Cal. Apr. 22, 2013) (slander per se).

2 Defenses to Claim for Defamation Per Se

(1)   Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses.  See Chapter ­­1 for all defenses.

(2)   Statute of Limitations: Cal. Code Civ. Proc. § 340(c) (one year).

(3)   Truth:  “Truth, of course, is an absolute defense to any libel action. . . . In order to establish the defense, the defendant need not prove the literal truth of the allegedly libelous accusation, so long as the imputation is substantially true so as to justify the ‘gist or sting’ of the remark.” Campanelli v. Regents of the Univ. of Cal., 44 Cal. App. 4th 572, 581-582 (1996).

(4)   Consent:  “"The privilege conferred by the consent of the person about whom the defamatory matter is published is absolute. The protection given by it is complete, and is not affected by the ill will or personal hostility of the publisher or by any improper purpose for which he may make the publication . . .  By its very definition, an absolute privilege cannot be overcome by a showing of actual malice; malice is simply not the proper subject of inquiry in such a case. is an absolute defense to a defamation matter.”   Royer v. Steinberg, 90 Cal. App. 3d 490, 499 (1979).

(5)   Opinion:  Opinion is not actionable.  See Okun v. Superior Court, 29 Cal. 3d 442, 450 (1981). “‘An essential element of libel . . . is that the publication in question must contain a false statement of fact . . . . This requirement . . . is constitutionally based.  The reason for the rule, well stated by the high court, is that  “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”’”  Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974)).

(6)   Cal. Civ. Code § 47 identifies several privileges afforded to defendants as a matter of law:

  1. Civil Code section 47(a) affords an absolute privilege protects statements made by government officials in connection with their official dutiesSee Kilgore v. Younger, 30 Cal. 3d 770, 778 (1982).
  2. With certain enumerated exceptions Civil Code section 47 (b) provides an absolute privilege for statements made during a legislative proceeding, judicial proceeding or any other proceeding authorized by law.   See Hagberg v. Cal. Fed. Bank, 32 Cal. 4th 350, 360 (2004)
  3. Civil Code section 47(c) provides for a qualified privilege against defamation to communications made without malice on subjects of mutual interest.  This exception “includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant.”
  4. Civil Code section 47(d), with limited exceptions affords an absolute privilege for fair and true reports in a public journal  of “of (A) a judicial, (B) legislative, or
    (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.”  See Greenberg v. W. CPE, SACV 12-02074, 2013 U.S. Dist. LEXIS 56901, at *13 (C.D. Cal. Apr. 15, 2013).
  5. Under Civil Code section 47(e) a privilege extends to a fair and true report of “(1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.”  See Kilgore v. Younger, 30 Cal. 3d 770, 776 (1982).

(7)   Damages Limitations Under Civil Code section 48a if no retraction demanded: “In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast.”   Cal. Civ. Code § 48a(1).  Among the requirements, the demand must be served “within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.” See also Cal. Civ. Code 48.5 (“Liability of owners, licensees and operators of radio stations and networks for broadcast of defamatory statements”).

(8)   Non-Assignable and Non-Transferable:  “[T]he only causes or rights of action which are not transferable or assignable in any sense are those which are founded upon wrongs of a purely personal nature, such as slander, assault and battery, negligent personal injuries, criminal conversation, seduction, breach of marriage promise, malicious prosecution, and others of like nature.”  Essex Ins. Co. v. Five Star Dye House, Inc., 38 Cal. 4th 1252, 1260 (2006).

(9)   Limited Attorney Fees Provision:  Civil Code “section 1021.7 authorizes courts to award attorneys’ fees in actions for libel or slander only when a peace officer or an officer’s public employer is a party, and when the action arises out of the performance of an officer’s duties.”  Martin v. Szeto, 32 Cal. 4th 445, 452 (2004).

(10)   Single Publication Rule: “No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.”  Cal. Civ. Code § 3425.3.

“The single-publication rule limits tort claims premised on mass communications to a single cause of action that accrues upon the first publication of the communication, thereby ‘spar[ing] the courts from litigation of stale claims’ where an offending book or magazine is resold years later.” Roberts v. McAfee, Inc., 660 F.3d 1156, 1166-67 (9th Cir. 2011) (quoting Christoff v. Nestle USA, Inc., 47 Cal. 4th 468, 479 (2009)). “The rule likewise ‘provide[s] repose to defendants by precluding stale claims based on dated but still-lingering mass communications,’” id. at 1168, and also “protect[s] defendants from harassment through multiple suits.” Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1131 (9th Cir. 2006).

Doe v. Gangland Prods., No. 11-56325, 2013 U.S. App. LEXIS 19102, at *35-36 (9th Cir. Sept. 16, 2013).  “The language of [Civil Code] section 3425.3 is quite broad and applies by its terms to any action ‘for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.’”  Christoff v. Nestle USA, Inc., 47 Cal. 4th 468, 476 (2009).

(11)  Anti-SLAPP (“Strategic Lawsuit Against Public Participation”:  A lawsuit alleging defamation may be subject to a special motion to strike under California’s “Anti-SLAPP” statute.  Cal. Civ. Code § 425.16.  Such a motion may be granted in connection with “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”  Id. at § 425.16(a).

(12) At least two United States District Court in California have held that statements that falsely impute homosexuality are not defamation per se under California law.  See Carvajal v. Pride Indus., No. 10CV2319-GPC(MDD), 2013 U.S. Dist. LEXIS 57435, at *33-35 (S.D. Cal. April 22, 2013); Greenly v. Sara Lee Corp., No. CIV. S-06-1775 WBS EFB, 2008 U.S. Dist. LEXIS 35472, at *27 (E.D. Cal. Apr. 30, 2008)