Generally

Civil Code, sections 44-48 set forth the definitions of the two forms of defamation, libel (written) and slander (oral), and the privilege exceptions to defamation.

The elements for defamation are:

1. a publication that is
2. false,
3. defamatory,
4. unprivileged, and
5. has a natural tendency to injure or causes special damage.

Taus v. Loftus (2007) 40 Cal.4th 683, 720; see also Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645. Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” Id.

Pleading Rule

“In defamation cases California follows a… pleading rule, under which ‘the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.’” Glassdoor, Inc. v. Super. Ct. (2017) 9 Cal.App.5th 623, 635.

In slander cases, “[l]ess particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense. Okun v. Superior Court (1981) 29 Cal.3d 442, 458 citing Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825. Nor is the allegation defective for failure to state the exact words of the alleged slander... [S]lander can be charged by alleging the substance of the defamatory statement.” Id.

“Where the words or other matters which are the subject of a defamation action are of ambiguous meaning, or innocent on their face and defamatory only in the light of extrinsic circumstances, the plaintiff must plead and prove that as used, the words had a particular meaning, or ‘innuendo,’ which makes them defamatory. Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645-646. Where the language at issue is ambiguous, the plaintiff must also allege the extrinsic circumstances which show the third person reasonably understood it in its derogatory sense (the ‘inducement’).” Id.

“A statement is not defamatory unless it can reasonably be viewed as declaring or implying a provably false factual assertion... and it is apparent from the ‘context and tenor’ of the statement ‘that the [speaker] seriously is maintaining an assertion of actual fact.’” Carver v. Bonds (2005) 135 Cal.App.4th 328, 344. “‘Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot “‘reasonably [be] interpreted as stating actual facts’ about an individual.”... Thus, “rhetorical hyperbole,” “vigorous epithet[s],” “lusty and imaginative expression[s] of... contempt,” and language used “in a loose, figurative sense” have all been accorded constitutional protection.’” Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809 (citations omitted).

Libel

Libel is a type of defamation that requires “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” Civ. Code Secs. §§ 44, 45. When alleged defamatory statements are “ambiguous, the plaintiff must also allege the extrinsic circumstances which show the third person reasonably understood it in its derogatory sense the inducement.” Smith v. Maldonado (1999) 72 Cal.App.4th 637, 646.

Slander

Slander is a form of defamation (Civ. Code Sec. 44) consisting of a false and unprivileged oral publication (Civ. Code Sec. 46).

To establish a prima facie case for slander, a plaintiff must demonstrate:

1. an oral publication
2. to third persons
3. of specified false matter
4. that has a natural tendency to injure or
5. that causes special damage."

Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106.

Public Figure

“If the person defamed is a public figure, he cannot recover unless he proves, by clear and convincing evidence..., that the libelous statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Reader’s Digest Assn. v. Super. Ct. (1984) 37 Cal.3d 244, 256 (citation omitted); see Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 84. “The rationale for such differential treatment is, first, that the public figure has greater access to the media and therefore greater opportunity to rebut defamatory statements, and second, that those who have become public figures have done so voluntarily and therefore ‘invite attention and comment.’” Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 398.

Defamatory Statements vs. Opinions

Because a defamatory statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Jackson v. Mayweather (2017) 10 Cal.App.5th 1261 (citations omitted) “Though mere opinions are generally not actionable... a statement of opinion that implies a false assertion of fact is....” Hawran v. Hixson (2012) 209 Cal.App.4th 256, 289. Thus, the “inquiry is not merely whether the statements are fact or opinion, but ‘whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.’” Id. at 289; see Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 (“the question is not strictly whether the published statement is fact or opinion, but [r]ather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact”).