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1996 CA Trials Statistics Glossary of Terms
CAN I SUE SOMEONE WHO SAYS OR WRITES SOMETHING DEFAMATORY ABOUT ME?In order to prove defamation, you have to be able to prove that what was said or written about you was false. If the information is true, or if you consented to publication of the material, you will not have a case. However, you may bring an defamatory action if the comments are so reprehensible and false that they effect your reputation in the community or cast aspersions on you.
§ 46. Slander, false and unprivileged publications which constitute
Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
PENAL CODE (SLANDER):
§ 258.Definition; punishment; privilege
Slander is a malicious defamation, orally uttered, whether or not it be communicated through or by radio or any mechanical or other means or devise whatsoever, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or disclose the actual or alleged defects of one who is living, or of any educational, literary, social, fraternal, benevolent or religious corporation, association or organization, and thereby to expose him or it to public hatred, contempt, or ridicule. Every person who willfully, and with a malicious intent to injure another, utters any slander, is punishable by a fine not exceeding ten thousand dollars ($10,000), or imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. Words uttered in the proper discharge of an official duty, or in any legislative or judicial proceeding, or in any other official proceeding authorized by law, shall be privileged and shall never be deemed a slander within the meaning of this section. (Added by Stats.1929, c. 682, p. 1174, § 1. Amended by Stats.1983, c. 1092, § 255, urgency, eff. Sept. 27, 1983, operative Jan. 1, 1984.) [Emphasis added.]
A defamation action must be brought within one year of the accrual of the cause of action. Generally, a cause of action for libel or slander accrues when the defamatory matter is published, and a cause of action accrues each time the defamatory matter is published. See Schneider v. United Airlines, Inc., 208 Cal.App.3d 71, 78, 256 Cal.Rptr. 71, 76 (1st Dist. 1989) (referring to "the well-established rule that a new cause of action arises from republication of defamatory matter"). There is authority for the proposition that if a former employee repeats false statements regarding that former employee's dismissal to a prospective employer, the statement itself constitutes a "republication" for which the former employer may be held liable. McKinney v. County of Santa Clara, 110 Cal.App.3d 787, 168 Cal.Rptr. 89 (1st Dist. 1980). The argument underlying the McKinney case is that when the employer has reason to believe that the defamed employee will be under a "strong compulsion" to disclose the contents of a defamatory communication to a third person, the employer may be held liable for the republication. Under these circumstances, it is difficult to perceive any applicable statute of limitations, for the employee may be under a "strong compulsion" to republish defamatory matter to all future employers, and each such republication gives rise to a fresh cause of action and a concomitant new statute of limitations.
"Truth is an absolute defense to an action for defamation, regardless of the existence of malice or bad faith." Hejmadi v. AMFAC, Inc., 202 Cal.App.3d 525, 552-553, 249 Cal.Rptr. 5, 21 (1st Dist. 1988).
Prior to the United States Supreme Court's decision last summer in Milkovich, federal and California courts had determined many defamation cases based upon a basic distinction between statements of fact and statements of opinion. Under a long line of cases, including that of the California Supreme Court in Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, cert. denied, 479 U.S. 1032 (1986), the First Amendment was held to protect statements of opinion, and accordingly, statements of opinion were not actionable. In Milkovich v. Lorain Journal Co., 110 S. Ct. 2695 (1990), the United States Supreme Court held that the First Amendment does not require a separate privilege for "opinion" which would limit the application of state defamation laws. The Court reasoned that expressions of "opinion" often imply an assertion of objective fact, and that the First Amendment does not require the "creation of an artificial dichotomy between 'opinion' and fact."
After Milkovich, the California Court of Appeal considered a case involving a defamation action by a high school teacher in which the teacher was alleged to have been referred to in the high school newspaper as a "babbler" and the "worst teacher" at the high school. The Court of Appeal upheld the trial court's order sustaining a demurrer brought by the defendant school district. Moyer v. Amador Valley Joint Union High School District, 225 Cal.App.3d 720, 275 Cal.Rptr. 494 (1st Dist. 1990). The Court of Appeal in Moyer reviewed the Supreme Court's decision in Milkovich, and stated: "the dispositive question for the court is whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion." None of the statements, according to the Court of Appeal, alleged to have been said about the high school teacher could have been reasonably understood to be stating actual facts about the high school teacher.
Under Milkovich, "opinion" is no longer a First Amendment defense to a defamation cause of action. Nevertheless, rhetorical hyperbole and other statements which do not imply a provably false factual assertion are not actionable. See Letter Carriers v. Austin, 418 U.S. 264, 94 S. Ct. 2770 (1974) (use of the word "traitor" in definition of union "scab" may not constitute basis for defamation action under federal labor law).
There are contradictory decisions by the Court of Appeal in considering whether a report to a police department is absolutely privileged under Civil Code § 47(2). In Williams v. Taylor, supra, such communications were held to be absolutely privileged. More recently, however, the Fourth District Court of Appeal declined to follow Williams v. Taylor, and held that knowingly false reports to a police department are not absolutely privileged under Civil Code § 47(2) but rather are subject to a qualified privilege under § 47(3). Fenelon v. Superior Court, 223 Cal.App.3d 1476, 273 Cal.Rptr. 367 (4th Dist. 1990). Fenelon has been criticized. Braun v. Chronicle Publishing Co., 52 Cal. App. 4th 1036 (1997), review denied (Jun. 11, 1997). See also Prevost v. First Western Bank, 193 Cal.App.3d 1492, 239 Cal.Rptr. 161 (4th Dist. 1987) (Civil Code § 47(2) not applicable to bank's report to its bonding company regarding alleged unlawful activities of an employee, although the report was required by law).
The absolute privilege has been held not to apply in sexual harassment investigations; only a qualified privilege applies, which, in some cases requires trial on the issue of the malice behind some statements in the investigation.
If the absolute privilege afforded by Civil Code §47(2) is not applicable, the employer may argue that the qualified privilege to a "person interested" applies, and that the communication to that interested person was made without malice, pursuant to Civil Code § 47(3). At times, the only communications at issue are those made within the corporation itself and among co-employees. A demurrer, motion for judgment on the pleadings or motion to dismiss based upon the qualified privilege of Civil Code § 47(3) depends, of course, on the expressly asserted allegations in the complaint. Since § 47(3) specifically provides a privilege only to communications made "without malice", [see discussion of malice in fact, below] courts often simply look to the bare allegations of malice in order to defeat such a motion. For example, in Kelly v. GTE, 136 Cal.App.3d 278, 186 Cal.Rptr. 184 (2d Dist. 1982), a cause of action for slander was attacked by demurrer. The employer-defendant argued that the qualified privilege of Civil Code § 47(3) applied. The plaintiff, a former employee, alleged that a supervisor had told other employees of the employer-defendant that the plaintiff had "misused company funds by buying materials without the proper authorization" and that the plaintiff had falsified invoices. The complaint further alleged that the supervisor "harbored ill-will and hatred for the plaintiff in that he has a history in being active with his union." By those allegations, the Court of Appeal held that the plaintiff had sufficiently pleaded malice, and that the trial court had wrongfully sustained the employer-defendant's demurrer to the cause of action for slander. See also BAJI § 7.05 ("the privilege is lost, however, if the person making the statement was motivated by hatred or ill-will toward the plaintiff which induced the publication or was without a good faith belief in the truth of the statement").