General elements of Defamation:
- Defendant intentionally publishes a statement of fact that is:
- Has a natural tendency to injure or which causes special damage; and
- 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).