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Defamation Slander

1 Defamation Slander

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.”).

A false and unprivileged oral communication attributing to a person specific misdeeds or  certain unfavorable characteristics or qualities, or uttering certain other derogatory statements regarding a person, constitutes slander.

Shively v. Bozanich, 31 Cal. 4th 1230, 1242 (2003).

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”).

A defamation claim against a public figure, a public official and government defendants requires publication with actual malice, meaning “knowledge of falsity or reckless disregard of the truth.” Nadel v. Regents of Univ. of Cal., 28 Cal. App. 4th 1251, 1254-1255 (1994) (citing N.Y. Times v. Sullivan, 376 U.S. 254, 279-280 (1964)).

“A private person need prove only negligence (rather than malice) to recover for defamation.” Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 742 (1989) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974)).

CALIFORNIA STATE COURTS

California Supreme Court:  Shively v. Bozanich, 31 Cal. 4th 1230, 1242 (2003).

California 1st Dist.:  Comstock v. Aber, 212 Cal. App. 4th 931, 948 n.12 (2012) (definition of slander); Summit Bank v. Rogers, 206 Cal. App. 4th669, 695 (2012) (elements of defamation).

California 2d Dist.:  Tamkin v. CBS Broadcasting, Inc., 193 Cal. App. 4th 133, 145 (2011) (definition of slander).

California 3d Dist.:  Burrill v. Nair, 217 Cal. App. 4th 357, 382-83 (2013).

California 4th Dist.:  Sanders v. Walsh,219 Cal. App. 4th 855, 862 (2013) (elements of defamation); City of Costa Mesa v. D’Alessio Investments, LLC, 214 Cal. App. 4th 358, 375 (2013) (definition of slander).

California 5th Dist.:  None.

California 6th Dist.:Wong v. Jing, 189 Cal. App. 4th 1354, 1369 (2010) (elements of defamation); Monterey Plaza Hotel v. Hotel Employees Local 483, 69 Cal. App. 4th 1057, 1064 (1999) (definition of slander).

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit:  Phoenix Trading, Inc. v. Loops LLC, 732 F.3d 936, 944 (9th Cir. 2013) (elements of defamation); Crowe v. County of San Diego, 608 F.3d 406, 442 (9th Cir. 2010) (definition of slander).

Central District:  Perlow v. Mann, No. 2:13-cv-00749-ODW(SHx), 2013 U.S. Dist. LEXIS 151860, at *12 (C.D. Cal. Oct. 22, 2013) (definition of slander);Meza v. Meza, No. SA CV 12-01777-GAF (VBK), 2013 U.S. Dist. LEXIS 77225, at *36-37 (C.D. Cal. May 2, 2013) (elements of defamation).

Eastern District:  Gorrell v. Sneath, No. 1:12-cv-00554 - JLT, 2013 U.S. Dist. LEXIS 142712, at *27 (E.D. Cal. Sept. 30, 2013) (elements of defamation); Collins v. Walgreen Co., No. 1:12-cv-1780 AWI-BAM, 2013 U.S. Dist. LEXIS 81422, at *13 (E.D. Cal. June 10, 2013) (definition of slander).

Northern District:  Hutchins v. Bank of America, N.A., No. 13-cv-03242-JCS, 2013 U.S. Dist. LEXIS 154495, at *54-55 n.3 (N.D. Cal. Oct. 28, 2013) (definition of slander); Rieger v. Wells Fargo Bank, N.A., No. 3:13-CV-00749 JSC, 2013 U.S. Dist. LEXIS 103032, at * 15-16 (N.D. Cal. July 23, 2013) (elements of defamation).

Southern District:  Visant Corp. v. Barrett, No. 13cv389 WQH (WVG), 2013 U.S. Dist. LEXIS 95696, at *14 (S.D. Cal. July 9, 2013) (elements of defamation); Carvajal v. Pride Indus., No. 10CV2319-GPC(MDD), 2013 U.S. Dist. LEXIS 57435, at *32-33 (S.D. Cal. Apr. 22, 2013) (definition of slander).

2 Defenses to Claim for Defamation Slander

(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 duties.  SeeKilgore 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.   SeeHagberg 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).

(1)   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).

(10) 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).