False Defenses in Defamation ©

by

Christopher H. Whelan, Esq.

 

 

 

 

 

 

Christopher H. Whelan, Inc.
11246 Gold Express Drive, #100
Gold River, CA 95670
Telephone (916) 635-5577
Fax: (916) 635-9159

TABLE OF CONTENTS: FALSE OR INEFFECTIVE DEFENSES YOU MAY SEE IN NON-MEDIA DEFAMATION CASES

FALSE DEFENSE #1. Denial of Publication

FALSE DEFENSE #2. No Belief by Recipient.

FALSE DEFENSE #3. Accurate Repetition of Statement by Others

FALSE DEFENSE #4. Possible Innocent Meaning

FALSE DEFENSE #5. Explicit Language Innocent, Only Inference Defamatory

FALSE DEFENSE #6. Plaintiff Cannot Prove Falsity

FALSE DEFENSE #7. Hearsay Is the Only Evidence of Publication

FALSE DEFENSE #8. Plaintiff Is the Only Witness to Publication

FALSE DEFENSE #9. Self-Publication Equals Consent and Therefore No Liability

FALSE DEFENSE #10. Worker’s Compensation Exclusivity

FALSE DEFENSE #11. No Evidence of Damages

FALSE DEFENSE #12. Publisher Believed the Statement.

FALSE DEFENSE #13. Defendant Did Not Intend Harm (i.e. Joke, Good Faith or Innocent Motives in Publication)

FALSE DEFENSE #14. Defendant Had No Animosity or Hatred of Plaintiff.

FALSE DEFENSE #15. The Publication Was a Mistake

FALSE DEFENSE #16. The Publication Was Mistakenly Understood In a Defamatory Sense

FALSE DEFENSE #17. Evidence of Lack of Injury Inadmissible in Some Circumstances.

FALSE DEFENSE #18. C.C. § 47(b) Prevents The Introduction of Any Evidence of an Absolutely Privileged Statement.

FALSE DEFENSE #19. If Defamation Caused a Termination in an At-Will Employment There Can Be No Wage Loss Since Plaintiff Could Be Terminated At Any Time.

FALSE DEFENSE #20. The Statute of Limitations Has Passed as To Similar But Long Past Publications and All Similar Publications Are Time-Barred

FALSE DEFENSE #21. The Statute of Limitations Has Passed for Some Long Ago Published But Hidden Defamatory Statement

 

FALSE OR INEFFECTIVE DEFENSES YOU MAY SEE

IN NON-MEDIA DEFAMATION CASES

 

INTRODUCTION

Set forth below are a number of false defenses you may encounter in a non-media defamation case. Also, included are explanations of why these defenses are contrary to the law and/or are ineffective. For tactical purposes, you may either want to expose and explain the false defense to defense counsel immediately, or wait for trial to explain that the law does not support the defense. At that time, you may want to soften the shock by agreeing that defamation is "...a forest of complexities, overgrown with anomalies, inconsistencies and perverse rigidities." McNair v. Worldwide Church of God (1987) 197 Cal.App.3d 363, 375.

FALSE DEFENSE #1. Denial of Publication.

At times the defendant for misguided tactical reasons may deny publishing and/or belief in the statements alleged to be defamatory. This tactic can be costly since to do so can result in the conditional privilege being removed from the case and therefore plaintiffs need to prove malice in a defamation per se case. The reasoning behind this apparent drastic result is clear when the purpose of the conditional privilege is recognized.

The conditional privilege arises to protect, ". . . one who makes a statement, in a reasonable manner and for a proper purpose, to persons having a common interest with him in the subject matter of the communication, when the publication is of a kind reasonably calculated to protect or further it. (Civ. Code, sec. 47 subd. 3; 3 Rest., Torts, sec. 596; Prosser on Torts, sec. 94, p. 837; see also 3 Rest., Torts, sects. 594, 595.)" Emde v. San Joaquin Cnty. Cent. Lab. (1943) 23 Cal.2d 146, 154.

The impact of a denial of publication and belief was addressed in Russell v. Geis (1967) 251 Cal.App.2d 560, where the court at pages 566-567 and 572 stated:

"The persons to whom defendant allegedly made the accusations against plaintiffs were unquestionably ‘interested persons’ with the rationale of section 47. The court took the issue from the jury, which at first blush would appear to be error, but a review of the record reflects that the trial judge had no choice but to rule out the defense of conditional privilege. Defendant had flatly denied ever making defamatory or accusatory statements about either plaintiff at any time. Additionally, at least twice when asked whether he believed the girls had taken any money from him, defendant unequivocally answered ‘No, sir.’ "

"Every authority we find discussing the subject of conditional privilege, whether a judicial opinion, Restatement of the Law, textbook or treatise, is in accord that for one to assert the defense of conditional privilege he must believe the defamatory matters to be true. [Citations omitted.] We learn from Prosser, Law of Torts (3d ed.) page 822, the reason for the rule is that "there is no social advantage in the publication of a deliberate lie, the privilege is lost if the defendant does not believe what he says."

"Even were we to interpret defendant’s answers to questions concerning his belief that plaintiffs took his money to mean merely that he did not know whether they had, still he could not avail himself of conditional privilege which requires belief in the truth of the defamatory matters. If there was uncertainty in his mind, it was his duty to have the books audited to ascertain the facts. . . ."

"In view of defendant’s uncontradicted testimony that he never believed plaintiffs took his money, we find no error in taking the defense of conditional privilege from the jury and determining that issue as a matter of law." (Russell v. Geis (1967) 251 Cal.App.2d 560, 566-567, 572.) [Emphasis added.] Also see 5 Witkin, Summary of California Law, Torts sec. 522, page 612 (9th ed. 1996), which cites this principle in Russell v. Geis, supra, with approval.

FALSE DEFENSE #2. No Belief by Recipient.

Damages are presumed for defamation per se. Therefore it is unnecessary for plaintiff, in order to establish liability, to show anyone believed the statements or that their impressions of plaintiff or conduct towards plaintiff changed as a result. "In order that the defendant’s words may be defamatory, they must be understood in a defamatory sense. It is not necessary that anyone believe them to be true, since the fact that such words are in circulation at all concerning the plaintiff must be to some extent injurious to his reputation -- although obviously the absence of belief will bear upon the amount of the damages." Arno v. Stewart (1966) 245 Cal.App.2d 955, 962-963. [Emphasis added.] Also see Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App. 3d 543, 555 which is in agreement.

In Clay v. Lagiss (1956) 143 Cal.App.2d 441, at page 448 the court considers this issue and states,

"However, as we have already noted, plaintiff pleaded general, not special, damages and where, as here, the utterance is slanderous per se, damages are presumed and evidence tending to show lack of injury to the reputation is inadmissible." . . . "The fact that the person to whom the slander may have been uttered was not influenced thereby or had subsequently regained his confidence in the plaintiff, would not be such a `mitigating circumstance,’ " [and therefore not admissible.]

FALSE DEFENSE #3. Accurate Repetition of Statement by Others.

Sometimes a defendant may incorrectly claim there is no liability for merely republishing a defamatory statement that originated with someone else. However, "[w]hen one person repeats another’s defamatory statement, he may be held liable for republishing the same libel or slander." Frommoethelydo v. Fire Ins. Exchange (1986) 42 Cal.3d 208, 217. On this same issue the court in Ray v. Citizen-News Co. (1936) 14 Cal.App.2d 6, 8-9 held,

"A false statement is not less libelous because it is the repetition of rumor or gossip or of statements or allegations that others have made concerning the matter. As said in Waite v. San Fernando Pub. Co., 178 Cal. 303 [Cit. Iamb.], a defamatory article which would be libelous per se, if its matter was directly stated, does not lose its quality in this regard because it is couched in the form of an interview with another person, or because it seeks to avoid its otherwise obvious character as a libel per se by the statement that it is reported or asserted or believed to be true." [Emphasis added.]

In Di Giorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268 at page 273 the court identifies, ". . . the general rule that every repetition of the defamation is a separate publication and hence a new and separate cause of action though the repeater states the source (Prosser, Torts (2d ed.)"

Also see Arditto v. Putnam (1963) 214 Cal.App.2d 633, 639 fn.2, "A false statement is not less libelous because it is the repetition of rumor or gossip or of statements or allegations that others have made concerning the matter."

FALSE DEFENSE #4. Possible Innocent Meaning.

The possible-innocent-meaning theory was recognized and renounced by the Supreme Court in MacLeod v. Tribune Pub. Co. Inc. (1959) 52 Cal.2d 536. At page 547 the court held, "[a] defendant is liable for what is insinuated, as well as for what is stated explicitly." The court at page 549 held,

"The fact that an implied defamatory charge or insinuation leaves room for an innocent interpretation as well does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but when it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it in its defamatory sense."

The court continued its discussion of this issue at pages 550-551 and stated, "Such hair-splitting analysis of language" [to find an innocent meaning] "has no place in the law of defamation, dealing as it does with the impact of communications between ordinary human being." It is inconsistent with the rule that "the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader." (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549-551.) [Emphasis added.]

The rejection of the possible-innocent-meaning theory was reiterated in Mullins v. Thieriot (1971) 19 Cal.App.3d 302, at page 304,

"MacLeod goes on to disapprove the ‘possible innocent meaning’ rule, pointing out (p. 550) that `hair-splitting analysis of language’ in an effort to discover such an innocent meaning `has no place in the law of defamation.’ Obeying the mandate of MacLeod, we do not seek a possible innocent meaning, nor do we require, as did some earlier cases, that such a meaning be negated by the article itself."

Also on this point is Okun v. Superior Court (1981) 29 Cal.3d 442, which stated at page 450, "Nonetheless a writing’s susceptibility to innocent meaning does not in itself preclude a finding that an ordinary reader would understand it in a libelous sense."

FALSE DEFENSE #5. Explicit Language Innocent, Only Inference Defamatory.

This issue was considered and resolved many years ago in MacLeod v. Tribune Publishing Co. Inc. (1959) 52 Cal.2d 536 where the court stated at page 547, "[a] defendant is liable for what is insinuated, as well as for what is stated explicitly." The same issue was involved in Cameron v. Wernick (1967) 251 Cal.App.2d 890, where the court stated at page 893,

"A person may be liable for what he insinuates as well as for what he says explicitly." (Cit. Omitted.) "An article may be libelous on its face even though it is susceptible to an innocent interpretation." (Cit. Omitted.) . . . "It is error for the court to rule that a publication cannot be defamatory on its face when by any reasonable interpretation the language is susceptible of a defamatory meaning."

Also see Maidman v Jewish Publications, Inc. (1960) 54 Cal.2d 643, 651,

"The fact that an implied defamatory charge or insinuation leaves room for an innocent interpretation as well does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but when it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it in its defamatory sense. (MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d at p. 549.)"

Another case that clearly explains this issue is Kapellas v. Kofman (1969) 1 Cal.3d 20, where the court at page 33 states:

"We have long recognized that false inferences of implications raised by the arrangement and phrasing of apparently non-libelous statements can be as injurious as explicit epithets; we have upheld libel actions founded on such implications. (See, e.g., Bates v. Campbell (1931) 213 Cal. 438, 442 [2 P.2d 383] ("A defendant is liable for what is insinuated, as well as for what is stated explicitly"); Bettner v. Holt, 70 Cal. 270, 274 [11 P. 713] ("[N]ot only is the language employed to be regarded with reference to the actual words used, but according to the sense and meaning under all the circumstances attending the publication which such language may fairly be presumed to have conveyed to those to whom it was published."); Cameron v. Wernick (1967) 251 Cal.App.2d 890, 893 [60 Cal.Rptr. 102]; Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 411 [46 Cal.Rptr.135].)"

Recently the court in James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, again confirmed this principle at page 12:

"‘[I]f the defendant juxtaposes [a] series of facts so as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication . . . he [she] may be held responsible for the defamatory implication, . . . even though the particular facts are correct.’ [Citation.] [Citation.] Therefore, ‘it is the defamatory implication -- not the underlying assertions giving rise to the implication -- which must be examined . . .’"

FALSE DEFENSE #6. Plaintiff Cannot Prove Falsity.

In a non-media defamation per se case, which is the typical defamation in employment case, the plaintiff or former employee does not have to plead or prove falsity of the complained of statements. "The burden of proof with respect to the issue of truth or falsity is on the defendant." Lipman v. Brisbane Elem. Dist. (1961) 55 Cal.2d 224, 233. "Truth, of course, is a defense to an asserted libel. Being an affirmative defense the burden is on the defendant to establish it." Fairfield v. Hagan (1967) 248 Cal.App.2d 194, 203.

It is important to understand the defendant’s burden of truth goes to the defamatory implications of a defamatory statement and not just innocent or minor possible meaning. The court in Mercado v. Hoefler (1961) 190 Cal.App.2d 12, addressed this issue at page 22 and stated, "[t]he jury was instructed that if they found implications from the remarks made, such as unethical conduct, or lack of requisite qualities for business, the appellants’ burden on the defense of truth carried to these implications."

FALSE DEFENSE #7. Hearsay Is the Only Evidence of Publication.

The "operative fact" of the act of publication can be proven by hearsay since plaintiff is not attempting to prove the truth of the statements, but only the fact of publication. "Where the fact of statements having been made is in controversy, rather than the truth of their contents, such are excepted from the hearsay rule." Mercado v. Hoefler (1961) 190 Cal.App.2d 12, 19.

In Russell v. Geis (1967) 251 Cal.App.2d 560 the trial court allowed the plaintiff to testify as to the defamatory statement repeated to her by her daughter, who had heard it from some other school children, to prove the act of publication and damages against defendant, plaintiff’s former employer. At pages 571-572 the court stated,

"While it is true these and similar statements were hearsay, they were admitted not for the purpose of determining the truth of the statements, but to prove that the statements were, in fact, made. The distinction is set forth in Witkin, California Evidence (2d ed. 1966) section 463, page 425, as follows: ‘There is a well-established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in these cases the words or acts are admissible not as hearsay but as original evidence.’ (Cit. Omitted.) ‘In these situations the words themselves, written or oral, are ‘operative facts,’ and an issue in the case is whether they were uttered or written.’ "

Also see E. A. Heafey, Jr., California Trial Objections, sec. 19.6 at pages 173 (4th ed. 1996), "Another typical example of non-hearsay is evidence of an allegedly slanderous remark. If offered only to prove that the defendant made a particular remark, the evidence is not hearsay. The plaintiff’s purpose in offering the remark is obviously not to prove the truth of the matter stated." Also see B. E. Witkin, California Evidence., sec. 590, at page 563 (3d ed. 1986).

FALSE DEFENSE #8. Plaintiff Is the Only Witness to Publication.

"We can find no precedent for defendant’s contention that a slandered individual’s testimony of publication is insufficient, as a matter of law, without corroboration. [Citation omitted.] The slander heard by one person is no less a slander than that heard by a multitude." Cunningham v. Simpson (1969) 1 Cal.3d 301, 307.

FALSE DEFENSE #9. Self-Publication Equals Consent and Therefore No Liability.

Sometimes a defendant may look to republication of the defamatory words by the plaintiff himself as evidence of waiver or consent to the defamation. However, in situations commonly occurring in the work place, republication by the defamed employee is a foreseeable new tort and cause of additional injury for which the defendant is liable. The test for defendant’s additional liability is, was it reasonable to anticipate that the plaintiff would republish in those circumstances, and was plaintiff under a "strong compulsion" to republish under those circumstances. Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1285; Davis v. Consolidated Freightways (1994) 29 Cal.App.4th 354, 373.

One of these employment related situations in which the courts have found republication to be foreseeable is when a terminated employee has to respond to inquiries about the termination made by potential new employers. McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 795. If plaintiff can make a showing that the republication was "coerced" or "compelled," the original publisher is responsible for the foreseeable republication even by the person defamed. Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1284-1285.

"The rationale for making the originator of a defamatory statement liable for its foreseeable republication is the strong causal link between the actions of the originator and the damage caused by the republication. This causal link is no less strong where the foreseeable republication is made by the person defamed operating under a strong compulsion to republish the defamatory statement and the circumstances which create the strong compulsion are known to the originator of the defamatory statement at the time he communicates it to the person defamed." McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 797-798.

 

Such a foreseeable republication is ". . . usually where a plaintiff is compelled to republish the statements in aid of disproving them. Thus, where a derogatory statement is placed in a personnel file, the employee must explain the statement to subsequent employers, who will surely learn of it if they investigate his or her past employment." [Emphasis added.] Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1285.

The court in Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, at page 967 discussed the foreseeability of both the discharged employee, and the former employer, having to disclose the defamatory circumstances of the termination to potential employers and stated, "[i]t is expected that fired employees may have difficulty in obtaining new employment and that allegations surrounding their discharge may be spread to others. When an employer discharges an employee it is not unusual for the employer to defend the termination by reasserting the stated reasons for it."

FALSE DEFENSE #10. Worker’s Compensation Exclusivity.

It is now generally recognized in California that defamation was not part of the "bargained-for exchange" which gave rise to the workers’ compensation scheme; and, therefore, defamation damages, including emotional distress damages, do not come within the workers’ compensation exclusivity rule. Meninga v. Raley’s, Inc. (1989) 216 Cal.App.3d 79, 83-84.

The courts have recognized a number of well-reasoned theories in support of this exception to the workers’ compensation exclusivity rule. One of them is that defamation is based upon "proprietary rights" and, therefore, was never part of the "compensation bargain" of the workers’ compensation scheme set up to expeditiously handle claims of industrial "personal physical injury or death." The workers’ compensation statutory scheme clearly excludes, or does not even concern, property rights (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 756-757, fn. 9; Davaris v. Cubaleski (1993) 12 Cal.App.4th 1582, 1590-1592), or other theories unique to defamation such as presumed damages, which allows an award of damages without any evidence of actual injury or harm (Contento v. Mitchell (1972) 28 Cal.App.3d 356, 358; Hanley v. Lund (1963) 218 Cal.App.2d 633, 644-645). The seminal California case on this issue, Howland v. Balma (1983) 143 Cal.App.3d 899, stated at p. 904:

"The gist of an action for slander, however, is damage to reputation. (Civ. Code, § 46; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 271, p. 2542.) The harm flowing therefrom is not a ‘personal injury’ (i.e., medical or physical injury to the body) or a risk of employment within the purview of the workers’ compensation law. [Citation omitted.] `In fact, an injury to reputation affects a proprietary interest and as such is not a personal injury at all, any concomitant physical or mental injury notwithstanding.’ " [Citation omitted.] [Emphasis added.]

The Supreme Court in Shoemaker v. Myers, supra, 52 Cal.3d 1, confirmed Howland v. Balma and ruled at p. 16:

"However, in Cole we also identified a number of instances in which the exclusive remedy provisions are not applicable. First, the fundamental basis of workers’ compensation is an injury sustained in and arising out of the course of employment when the injury is ‘personal, physical injury or death.’ (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d 148, 160.) Conversely, the exclusive remedy provisions apply only in cases of such industrial personal injury or death. (See, e.g., Howland v. Balma (1983) 143 Cal.App.3d 899 [worker’s compensation not exclusive remedy for defamation]; . . ." [Emphasis added.]

The Supreme Court stated in Livitsanos, supra, 2 Cal.4th at 757, fn. 9:

"A number of courts have apparently determined that the gravamen of an action for libel or slander is damage to ‘reputation,’ a ‘proprietary’ as distinct from a physical or mental injury, and therefore have concluded that defamation does not lie within the purview of the workers’ compensation law." (See, e.g., Howland v. Balma (1983) 143 Cal.App.3d 899 [192 Cal.Rptr. 286] [Citations omitted.]

The Supreme Court in Livitsanos v. Superior Court reversed the Court of Appeal’s ruling upholding a demurrer to a defamation cause of action. In doing so, the Supreme Court recognized other theories, in addition to the "proprietary interest" theory, to support a finding that defamation is outside any workers’ compensation exclusivity. These theories include the obvious conclusion that defamation by an employer or co-employee is "outside the course and scope of employment" and not within the "normal risks of employment." Livitsanos, supra, at 757.

Also, Davaris v. Cubaleski, supra, 12 Cal.App.4th at 1591:

"Patently, however, defamatory statements which have no other purpose than to damage an employee’s reputation are neither a ‘normal part of the employment relationship’ nor a risk of employment within the exclusivity provision of the Workers’ Compensation Act. (Howland v. Balma, supra, 143 Cal.App.3d 899, 905)." [Emphasis added.]

FALSE DEFENSE #11. No Evidence of Damages.

If the employee’s case is based on defamation per se, it is unnecessary to present any evidence of damages to the jury. The jury can make its award based upon presumed damages, it believes naturally flows from such a publication.

"The general rule is that the victim of a defamation which is actionable per se can recover the general damages without proof of loss or injury which is conclusively presumed to result from the defamation. He is not required, in order to recover the general damages, to make proof of any special damages that may have accompanied them, although he is at liberty to prove them if he desires . . ." DiGiorgio Fruit Corp. v. AFL-CIO (1963) 215 Cal.App.2d 560, 577.

And see Albertini v. Schaefer (1979) 97 Cal.App.3d 822, at page 829: "Words which fall within the purview of Civil Code section 46 are deemed to constitute slander per se (Cit. Omitted.) with the effect that the utterance of such words is actionable without proof of special damage."

In Douglas v. Janis (1974) 43 Cal.App.3d 931, at page 940 the court this well known principle, "[t]his being a case of slander which is libelous per se (charging the crime of theft), general damages are presumed as a matter of law." (Emphasis added.) Also, Clay v. Lagiss (1956) 143 Cal.App.2d 441, 448.

FALSE DEFENSE #12. Publisher Believed the Statement.

" ‘The mere profession of a defendant that he believed in good faith that his statements were true does not automatically entitle him to a verdict in his favor.’ (Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 435 [Cit. Omitted.], citing St. Amant v. Thompson (1968) 390 U.S. 727, 732-733 [Cit. Omitted.].)." Fisher v. Larsen (1982) 138 Cal.App.3d 627, 640; Readers Digest Assn. Inc. v. Superior Court (1984) 37 Cal.3d 244, 257.

"[A] defamatory article which would be libelous per se, if its matter was directly stated, does not lose its quality in this regard because it is couched in the form of an interview with another person, or because it seeks to avoid its otherwise obvious character as a libel per se by the statement that it is reported or asserted or believed to be true." Ray v. Citizen- News Co. (1936) 14 Cal.App.2d 6, 9. [Emphasis added.]

FALSE DEFENSE #13. Defendant Did Not Intend Harm (i.e. Joke, Good Faith or Innocent Motives in Publication).

"The fact that the defamer intends his language to be understood only as a joke is immaterial if, by a reasonable construction thereof, it is not so understood." . . . In California the courts have recognized that the jocular intent of the publisher will not relieve him from liability if it is reasonable to not understand the utterance as a joke." Arno v. Stewart (1966) 245 Cal.App. 955, 963, 964.

Also see Menefee v. Codman (1957) 155 Cal.App.2d 396, 409; San Francisco Bay Guardian, Inc. v. Superior Court (1993) 17 Cal.App.4th 655, 662, the question is, was the statement recognizable to the average reader as a joke. The publisher’s intent does not control.

If the publisher knows the statements to be false but publishes for "innocent motives" this is no excuse. "The deliberate publication of known false and defamatory statements cannot be excused upon the claim they were made in good faith and from innocent motives. Such abuse of the privilege destroys it." Patton v. Royal Industries, Inc. (1968) 263 Cal.App.2d 760, 766.

The long established rule has been that innocence or good faith of the publisher is not a defense, although it may be shown in mitigation of damages. (See 5 Witkin, Summary of California Law, Torts sec. 554, page 651 (9th ed 1996). "It is well established that inadvertence or mistake affords no defense to a charge of libel, where the defamatory publication does, in fact, refer to the

plaintiff." Kirby v. Hal Roach Studios (1942) 53 Cal.App.2d 207, 213.

FALSE DEFENSE #14. Defendant Had No Animosity or Hatred of Plaintiff.

One way of establishing malice for purposes of overcoming the conditional privilege, based upon the New York Times line of cases, is to show the publisher had serious doubts of the truth or falsity of the statements. This can be established even if the publisher had no personal animosity, hatred or ill will towards the plaintiff.

This method of establishing malice, without focusing on the publisher’s personal feeling towards plaintiff, was addressed in Widener v. P.G.& E. (1977) 75 Cal.App.3d 415 at page 434, where the court stated,

"[a]ctual malice, under New York Times, concentrates on the defendant’s attitude toward the truth or falsity of the material published, and does not focus on the defendant’s attitude toward the plaintiff." In those circumstances, ‘[e]vidence of negligence, of motive and of intent may be adduced for the purpose of establishing, by cumulation and by appropriate inferences, the fact of a defendant’s recklessness or of his knowledge of falsity.’"

Also evidence of malice based upon the recklessness of the publication can be established by " ‘ . . . a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.’ (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 936 [Cit omitted.]; see also White v. State of California, supra, 17 Cal.App.3d 621, 628-629.)’ (Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413 [cit. omitted.])" Frommoethelydo v. Fire Ins. Exchange (1986) 42 Cal.3d 208, 217.

FALSE DEFENSE #15. The Publication Was a Mistake.

"It is well established that inadvertence or mistake affords no defense to a charge of libel, where the defamatory publication does, in fact, refer to the plaintiff." Kirby v. Hal Roach Studios (1942) 53 Cal.App.2d 207, 213. Also see Montandon v. Triangle Publications, Inc. (1975) 45 Cal.App.3d 938 where defendant claimed unintended changes to the final draft of an article resulted in the inference that plaintiff was a call girl. The court stated at page 949,

"While this result [the unintended inference plaintiff was a call girl] was apparently not intentional, it was one which those responsible should have foreseen and one which showed a reckless disregard for the truth or falsity of the statement. The conduct of those responsible for the publication was more than negligence, it amounted to an indifference to the impression being given to the general public."

FALSE DEFENSE #16. The Publication Was Mistakenly Understood In a Defamatory Sense.

The publisher is responsible for the defamatory meaning reasonably conveyed by the statements, even unintended or mistaken, but reasonable understandings. See Washburn v Wright (1968) 261 Cal.App.2d 789, 799, "[w]e are, however, to view the language used with the eyes only which a reasonable man would read it. In the law of libel, the meaning of a communication is one that the recipient correctly, or mistakenly but reasonably, understands that it was intended to express." (3 Rest., Torts, sec. 563, p. 147.) "In the words of Restatement Second of Torts, section 563, ‘[t]he meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.’ " Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 447.

FALSE DEFENSE #17. Evidence of Lack of Injury Inadmissible in Some Circumstances.

Defendant may want to present evidence that plaintiff has not lost any wages, or possibly has secured a higher paying job after he was defamed and terminated in order to argue by inference the general damages should be minimal. However, if the plaintiff pleads only general damages and does not seek special damages, evidence of a lack of injury is inadmissible. In Clay v. Lagiss (1956) 143 Cal.App.2d 441, 448, the court stated, "However, as we have already noted, plaintiff pleaded general, not special, damages and where, as here, the utterance is slanderous per se, damages are presumed and evidence tending to show lack of injury to the reputation is inadmissible." (Emphasis added.) Also see Rosenberg v. J. C. Penney Co. (1939) 30 Cal.App.2d 609, where the court rule on the same issue and said at page 625,

"It was urged at trial that the trial court erred in rejecting evidence which was offered to prove that the business of plaintiffs had suffered no loss or detriment as a result of the display. The answer to this objection is that plaintiffs pleaded no special damages and therefore defendants should not be permitted to introduce evidence that there was in fact no special damage sustained."

FALSE DEFENSE #18. C.C. § 47(b) Prevents The Introduction of Any Evidence of an Absolutely Privileged Statement.

An absolute privilege under C.C. 47(b) is a liability privilege not an evidentiary privilege. Therefore, the fact that a party may not face liability for a statement privileged under Civil Code sec. 47(b) [formerly C.C. 47(2)] does not mean that statement cannot be used as evidence to supply or prove an element of a cause of action. This aspect of C.C. 47(b) was addressed in Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 were the court explained,

"‘The privileges of Civil Code section 47, unlike evidentiary privileges which function by the exclusion of evidence (see Evid. Code, sec. 900 et seq.), operate as limitations upon liability.’ (Italics added.) Indeed, on brief reflection, it is quite clear that section 47(2) has never been thought to bar the evidentiary use of every ‘statement or publication’ made in the course of a judicial proceeding. . . .’ Thus, while section 47(2) bars certain tort causes of action which are predicated on a judicial statement or publication itself, the section does not create an evidentiary privilege for such statements. Accordingly, when allegations of misconduct properly put an individual’s intent at issue in a civil action, statements made during the course of a judicial proceeding may be used for evidentiary purposes in determining whether the individual acted with the requisite intent. (Cit. Omitted)" [Original emphasis.]

Thus a malicious statement that would otherwise establish liability for defamation, but which is privileged under Civil Code sec. 47(b), may still be used to establish malice for a subsequent non-privileged statement. (See McMann v. Wadler (1961) 189 Cal.App.2d 124, where the court states at page 129, "[t]he existence or non existence of malice is a question of fact for the jury and the evidence of prior defamation of similar import in this case was sufficient to justify submission of the question to the jury." (Emphasis added.) ).

FALSE DEFENSE #19. If Defamation Caused a Termination in an At-Will Employment There Can Be No Wage Loss Since Plaintiff Could Be Terminated At Any Time.

Since a damaged reputation very often makes it difficult to obtain re-employment or comparable re-employment, damage to "employability" is recoverable for a defamation caused termination even if a wage claim for the termination of this former at-will employment is not possible.

"Respondent North American Aviation argues that loss of earnings could not be charged against it in any event, because the company could have terminated appellant’s employment at will. But the allegations as to damages against North American Aviation relate not to the loss of salary from North American Aviation but to loss of employability by others following appellant’s separation from his employer, a loss alleged to have been caused by the defamation." Rodriquez v. North American Aviation, Inc. (1967) 252 Cal.App. 2d 889, 894-895. [Emphasis added.]

FALSE DEFENSE #20. The Statute of Limitations Has Passed as To Similar But Long Past Publications and All Similar Publications Are Time-Barred.

"The general rule is that every repetition of a defamation is a separate publication and gives rise to a new cause of action." (Di Giorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268, 273)" Neal v. Gatlin (1973) 35 Cal.App.3d 871, 877. (Emphasis added.)

This issue, and the impact on the statute of limitations was addressed in Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71, at page 77:

If a plaintiff is aware of the facts giving rise to a cause of action which accrued before the cause of action on which he is suing based on the same defamatory matter as his earlier cause of action but based on a separate publication, the statute of limitations on the later cause of action does not run from the time of the accrual of the first cause of action. (See 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, Sec. 361, pp.388-389.) Therefore, the fact that appellants had knowledge that defamatory information was published by respondents when they supplied the credit information to TRW does not preclude the application of the rule that a party has a cause of action for libel each time the defamatory matter is published, even if the originator of the defamatory matter did not republish the defamatory matter, as long as republication should have been reasonably foreseeable by the originator. The person defamed suffers injury each time the defamatory matter is published (or republished) and therefore a separate cause of action accrues for each publication."

FALSE DEFENSE #21. The Statute of Limitations Has Passed for Some Long Ago Published But Hidden Defamatory Statement.

The late discovery rule applies in defamation cases. The result is plaintiffs may still have viable actions years after the publication if that publication was unknown to plaintiff. For instance, in a key case, Manguso v. Oceanside Unified School Dist. (1979) 88 Cal.App.3d 725, a defamatory statement was placed in the plaintiff’s [a teacher] personal file 16 years before she discovered it. The court held plaintiff had one year from the date of discovery to bring her action. "We hold the rule of discovery attends Code of Civil Procedure section 340, subdivision 3, in its application to actions for damages for libel." Manguso, supra, p 731.

Also, "[i]f a party could not reasonably have discovered the facts giving rise to the cause of action for libel (i.e., defamatory matter contained in a confidential file and communicated to persons of which plaintiff is unaware), the statute of limitation starts to run upon discovery of the publication of the defamatory matter." Schneider v. American Airlines, Inc. (1989) 208 Cal.App.3d 71, 77. (Emphasis added.)

However, be careful in pleading the late discovery exception since, "[i]n order to invoke this special defense to the statute of limitations, the plaintiff must specifically plead facts which show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence." [Cit. omitted.] "Mere conclusory assertions that delay in discovery was reasonable are insufficient and will not enable the complaint to withstand general demurrer." Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 297.

In some instances the case may involve a conspiracy to defame, which if properly plead, will also toll the running of the statute of limitations. This was recognized in Schessler v. Keck (1954) 125 Cal.App.2d 827, at page 832,

"However, plaintiff’s complaint alleges that all of the slanderous statements purportedly published by the defendants were committed in furtherance of a conspiracy formed by said defendants to defame and damage her." . . . "While a conspiracy is in existence, the statute of limitations will not begin to run until there is a cessation of the wrongful acts committed in furtherance of the conspiracy."

 

CONCLUSION

This information should be helpful in responding to these false defenses that sometimes confuse defense counsel or lull them into a false sense of security.

Dated: September 4, 1998

CHRISTOPHER H. WHELAN, ESQ.