The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

FREE – No credit card or payment required. Testimonials

Invasion of Privacy - False Light

1 Elements and Case Citations

The elements of a “False Light” claim are not set out consistently.

Some courts hold that "to state a claim for the tort of false light invasion of privacy plaintiff must plead that

(1)   the defendant caused to be generated publicity of the plaintiff that was false or misleading; and
(2)   the publicity was offensive to a reasonable person.

Scott v. Saxon Mortg. Servs., 2013 U.S. Dist. LEXIS 146988, at *17 (N.D. Cal. Oct. 10, 2013).

Others hold that to prevail on a false light claim the party must show that:

(1) The defendant disclosed to one or more persons information about or concerning the plaintiff that was presented as factual but that was actually false or created a false impression about him;
(2) The information was understood by one or more persons to whom it was disclosed as stating or implying something highly offensive that would have a tendency to injure the plaintiff’s reputation;
(3) By clear and convincing evidence, the defendant acted with constitutional malice; and
(4) The plaintiff was damaged by the disclosure.

Solano v. Playgirl, Inc., 292 F.3d 1078, 1082 (9th Cir. 2002); but see Fleming v. City of Oceanside, No. 10cv1090-LAB (BLM), 2010 U.S. Dist. LEXIS 132179, at *9-10 (S.D. Cal. Dec. 14, 2010) (unlike defamation, “[a] false light tort, . . . ‘must be accompanied by publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few.’”).

While one court has explained that “[t]he requirement to show malice applies only to public figures, which plaintiffs are not” (M. G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 636 (2001)), some of the cases including the actual malice element do not involve “public figures.”  See, e.g., Ren v. Wells Fargo Bank, N.A., No. 13-0272 SC, 2013 U.S. Dist. LEXIS 80575, at *10-11 (N.D. Cal. June 7, 2013).

With regard to the distinction between “false light” and defamation claims, one court, while noting that “California courts have largely collapsed ‘false light’ causes of action into libel but then explained:

False light invasion of privacy “is the wrong inflicted by publicity which puts the plaintiff . . . in a false but not necessarily defamatory position in the public eye.” . . . “[A] false light claim still requires the invasion of some type of privacy interest.  “The right of privacy concerns one’s own peace of mind, while the right of freedom from defamation concerns primarily one’s reputation.”

Cort v. St. Paul Fire & Marine Ins. Cos., 311 F.3d 979, 987 (9th Cir. 2002); accord Kennedy Funding, Inc. v. Chapman, No. C 09-01957 RS, 2010 U.S. Dist. LEXIS 116038, at *13 (N.D. Cal. Nov. 1, 2010) (“The two torts are distinct, however, in that false light involves an invasion of privacy, not just harm to reputation.”).  However, “[w]hen . . . an invasion of privacy claim rests on the same allegations as a claim for defamation, the former cannot be maintained as a separate claim if the latter fails as a matter of law.”  Alszeh v. Home Box Office, 67 Cal. App. 4th 1456, 1464 (1998).

CALIFORNIA STATE COURTS

Supreme Court of California: None.

California 1st Distirct: Porten v. University of San Francisco, 64 Cal. App. 3d 825, 828 (1976) (“the tort must be accompanied by publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few[MMD1]).

California 2d Distirct: None.

California 3d District:  Price v. Operating Engineers Local Union No. 3, 195 Cal. App. 4th 962, 970 (2011) (including requirement of knowledge or “reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed” in case by non-public figure).

California 4thDistrict: M. G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 636 (2001[MMD2]) (with regard to false light claim, “[t]he requirement to show malice applies only to public figures”).

California 5th District:  None.

California 6th District: None.

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit: Solano v. Playgirl, Inc., 292 F.3d 1078, 1082 (9th Cir. 2002) (including malice element for public figure).

Central District: Vahanyan v. Unifund Corp., No. CV 12-01849 DMG (CWx), 2012 U.S. Dist. LEXIS 145385, at *13 (C.D. Cal. July 13, 2012) (including requirement of knowledge or “reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed” in case by non-public figure); Lee v. Penthouse Int’l, No. CV 96-7069 SVW (JGx), 1997 U.S. Dist. LEXIS 23893, at *21 (C.D. Cal. Mar. 20, 1997)  (“To state a cause of action for false light, Plaintiffs must each plead and prove (1) that the defendant disclosed (2) to one or more persons (3) information about or concerning Plaintiffs that was presented as factual but that is actually false or created a false impression about Plaintiffs, and (4) that the information was understood by one or more of the persons to whom it was disclosed as stating or implying something that would have a tendency to injure Plaintiffs”); Dworkin v. Hustler Magazine, Inc., 668 F. Supp. 1408, 1419 (C.D. Cal. 1987) (including element of malice for public figure).

Eastern District:  Carson v. Bank of Am., N.A., No. 2:12-cv-01487-MCE-CMK, 2012 U.S. Dist. LEXIS 149805, at *23 (E.D. Cal. Oct. 17, 2012) (including malice as element for non-public figure plaintiff); Clark v. County of Tulare, 755 F. Supp. 2d 1075, 1094-95 (E.D. Cal. 2010) (not including malice as an element); Flores v. Von Kleist, 739 F. Supp. 2d 1236, 1259 (E.D. Cal. 2010) (including malice as element for public figure plaintiff).

Northern District: Scott[MMD3] v. Saxon Mortg. Servs., 2013 U.S. Dist. LEXIS 146988, at *17 (N.D. Cal. Oct. 10, 2013) (no malice element); Ren v. Wells Fargo Bank, N.A., No. 13-0272 SC, 2013 U.S. Dist. LEXIS 80575, at *10-11 (N.D. Cal. June 7, 2013) (includes malice element for non-public figure plaintiff); Brahmana v. Lembo, No. C 09-0106 PSG, 2011 U.S. Dist. LEXIS 48585, at *28 (N.D. Cal. May 4, 2011) (malice not required for non-public figure, but adding requirement that the defendant “acted negligently in failing to learn whether the publicized fact placed [the plaintiff] in a false light”).

Southern District:  Lorenzo v. United States, 719 F. Supp. 2d 1208, 1213 (S.D. Cal. 2010) (not including malice element); Fleming v. City of Oceanside, No. 10cv1090-LAB (BLM), 2010 U.S. Dist. LEXIS 132179, at *9-10 (S.D. Cal. Dec. 14, 2010) (discussing some elements).

2 Issues and Defenses to Claim for Invasion of Privacy – Public Disclosure of Private Facts

(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:  The statute of limitations for invasion of privacy is one year.  Ion Equipment Corp. v. Nelson, 110 Cal. App. 3d 868, 880 (1980) (citing Cal. Civ. Proc. Code § 340(3)).

(3) First Amendment.

(4) Single Publication Rule: California Civil Code § 3425.3’s “single-publication” that governs the statute of limitations analysis where a statement made in a mass communication forms the basis of a tort action applies to claims based on “false light” invasion of privacy.  Roberts v. McAfee, Inc., 660 F.3d 1156, 1166-67 (9th Cir. 2011),

(5) Under California law “[a] ‘false light’ cause of action is in substance equivalent to a libel claim, and should meet the same requirements of the libel claim, including proof of malice.”  Aisenson v. Am. Broad. Co., 220 Cal. App. 3d 146, 161 (1990).   While “it is not necessary that the plaintiff be defamed, publicity placing one in a highly offensive false light will in most cases be defamatory as well.”  Fellows v. Nat’l Enquirer, 42 Cal. 3d 234, 239 (1986).  “Where a false-light invasion of privacy claim is in substance equivalent to an accompanying defamation claim, the false-light claim should be dismissed as superfluous.”  Cannon v. City of Petaluma, No. C 11-0651 PJH, 2011 U.S. Dist. LEXIS 83558, at *9 (N.D. Cal. July 29, 2011) (citing Kapellas v. Kofman, 1 Cal. 3d 20, 35 n.16 (1969)).

(6) Truth: “Even if they place the person in a less than flattering light, the published facts are not actionable if they are true or accurate.”  Pacini v. Nationstar Mortgage, LLC, No. C 12-04606 SI, 2013 U.S. Dist. LEXIS 84215, at *25 (N.D. Cal. June 13, 2013).

(7) “Photographs are not actionable if they are fair and accurate depictions of the person and scene in question, even if they place the person in a less than flattering light, so long as the photographs do not surpass the limits of decency by being highly offensive to persons of ordinary sensibilities.”  Aisenson v. Am. Broad. Co., 220 Cal. App. 3d 146, 161 (1990).

(8) Because it involves a right to privacy, “a false light claim may be maintained only by individuals.”  Holomaxx Techs. v. Microsoft Corp., 783 F. Supp. 2d 1097, 1107 (N.D. Cal. 2011).

(9) The “statutory and common law restrictions on libel and slander actions have been applied to nondefamation claims when such claims were based on defamatory language.”  Fellows v. Nat’l Enquirer, 42 Cal. 3d 234, 244 (1986).

(10) Specifically, a plaintiff can only recover special damages in connection with a false light claim unless he or she complies with the notice and request for retraction provisions contained in Civil Code § 48a.  Selleck v. Globe Int’l, 166 Cal. App. 3d 1123, 1134 (1985).

(11)  “Expressions of opinion are constitutionally privileged and cannot form the basis of a false-light claim.”  Silva v. Hearst Corp., No. CV 97-4142 DDP (BQRx), 1997 U.S. Dist. LEXIS 22653, at *8 (C.D. Cal. Aug. 25, 1997).