man is to lose his money, the next worst is his
health, the next worst his reputation.”
For employees, having false, nega-
tive statements made about them can be
as damaging as losing their job.
In
California, a body of defamation law
exists to protect an employee’s reputation
and to provide civil liability for the publi-
cation of false, negative statements.
Defamation may consist of either
libel or slander. (Civ.Code, § 44.) Libel is
“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 occupa-
tion.” (Civ. Code, § 45.) Slander involves
“a false and unprivileged publication,
orally uttered,” which either charges a
person with a crime, loathsome disease
or want of chastity, or “[t]ends directly to
injure [any person] in respect to his
office, profession, trade, or business,
either by imputing to him general dis-
qualification in those respects which the
…occupation peculiarly requires, or by
— Samuel Butler
imputing something with reference to
his… profession, trade or business that
has a natural tendency to lessen its prof-
its.” (Civ. Code, § 46(3).)
Where the defamation is clear with-
out the need of any explanation, it is
considered defamation per se, and dam-
ages are presumed. (Contento v. Mitchell
(1972) 28 Cal.App.3d 356, 358 [“in an
action for damages based on language
defamatory per se, damage to the plain-
tiff ’s reputation is conclusively pre-
sumed and he need not introduce any
evidence of actual damages in order to
obtain or sustain an award of dam-
ages.”].) Where the defamation is not
per se, and some explanation is needed
to show why the statement was defama-
tory, the plaintiff is required to allege
and prove that he or she suffered spe-
cial damages, such as harm to reputa-
tion, shame or economic damages. (Civ.
Code, §§ 45, 48a(4).)
Pleading defamation
In pleading defamation, a plaintiff
should allege (a) a publication, (b) that
the published statement is false, (c) that
the published statement is defamatory,
(d) that the published statement is not
privileged or was motivated by malice
and (e) that the statement has a natural
tendency to injure, or caused special
damage. (Taus v. Loftus (2007) 40 Cal.4th
683, 720; Lundquist v. Reusser (1994) 7
Cal.4th 1193, 1202; CACI 1700-1705.)
Note that it is the defendant’s burden to
prove that a particular statement is privi-
leged, but the plaintiff ’s burden to prove
the statement was made with malice, in
order to overcome a claimed conditional
privilege. (Lundquist v. Reusser, supra, 7
Cal.4th at 1203.) Privileges and malice
are discussed in greater detail later in
this article.
One question that often arises is the
level of specificity needed to plead a
defamation claim. It is not uncommon
for a defendant to demur where a plain-
tiff has not specified the name of the
individual to whom the defamatory state-
ment was published. In opposing such a
demurrer, the plaintiff should point out
to the court that the defendant has “con-
fused the rules of pleading with the rules
of evidence.” (Semple v. Andrews (1938) 27
Cal. App.2d 228, 233 [drawing a distinc-
tion between what facts are necessary to
plead a cause of action for defamation
and what facts the plaintiff would ulti-
mately need to prove at trial].)
Several courts have rejected the
argument that a complaint for slander
must specify the persons who heard the
defamatory statements. For example, in
Schessler v. Keck, the court of appeal held
that the trial court had erred in sustain-
ing a demurrer to a cause of action for
defamation where the complaint did not
specifically identify the individual who
heard the defamatory statements, but
rather pled that the statements were
made “at various times and places to
numerous persons.” (Schessler v. Keck
(1959) 125 Cal.App.2d 827, 835-836.)
The court explained that “less particular-
ity is required in the allegations of the
complaint where, from the nature of the
matters alleged, the adverse party has a
knowledge of the facts superior to the
party pleading them.” (Id. at 835-836;
Okun v. Superior Court (1981) 29 Cal.3d
442, 458.)
Thus, while it is best to put as much
specificity as possible in the complaint,
the failure to do so should not be fatal.
Defendants will have the opportunity
during discovery to obtain greater detail
about what was said, by whom and to
whom.
It should also be noted that different
standards apply depending on whether
the plaintiff is a private figure or a public
figure, whether the published statements
involve matters of public concern or mat-
ters of private concern, and whether the
defendant is a media defendant or a
non-media defendant. The types of dif-
ferences include who bears the burden of
proving whether the statement at issue is
true or false, and whether and how much
malice must be proven. For example, in
matters involving private plaintiffs and
matters of private concern, it is the
defendant’s burden to prove that the
statement at issue is false. In such cases,
truth is a defense. (Moyer v. Amador Valley
Joint Union High School District (1990) 225
Cal.App.3d 720, 724, n. 2; CACI 1720.)
However, where the plaintiff is a public
figure or where the published statement
involves matters of public concern, it is
the plaintiff ’s burden to prove that the
statement was false. (Nizam-Aldine v. City
of Oakland (1996) 47 Cal.App.4th 364,
26
373; Brown v. Kelly Broadcasting Co. (1989)
48 Cal.3d 711, 747.)
Defamation per se in the employment
context
In connection with employment
cases, the defamatory statements are
often tied to employment issues, such as
false statements about an employee’s
work performance or ethics.
The definitions set forth in Civil
Code section 46 “have been held to
include almost any language which, upon
its face, has a natural tendency to injure
a person’s reputation, either generally,
or with respect to his occupation . . .”
(Washer v. Bank of America (1943) 21
Cal.2d 822, 827, disapproved on other
grounds in MacLeod v. Tribune Publishing
Co., Inc. (1959) 52 Cal.2d 536, 551.)
Thus, criticism of work performance
or ethics can be defamation per se.
Examples of statements about employees
relating to their work performance or
ethics abound in the case law. Following
are the types of statements that have
been found by the courts to be defamato-
ry:
• An employer’s statement that an
employee made a $100,000 mistake in
estimating a bid was found to be defama-
tory, since it tended to impute to the
employee incompetence in his trade.
(Gould v. Maryland Sounds Ind., Inc.
(1995) 31 Cal.App.4th 1137, 1154.)
• Statements that conveyed that an
employee was “dishonest,” an “unsatis-
factory” worker, “inefficient” and “insub-
ordinate” were also found to be defama-
tory per se as they related to the plain-
tiff ’s qualifications as an employee.
(Washer v. Bank of America, supra, 21
Cal.2d at 828-829.)
• Similarly, the statement that a business-
man was “out for a fast buck” in describ-
ing a businessman of questionable ethics
was held to constitute slander per se.
(Cameron v. Wernick (1967) 251
Cal.App.2d 890, 894.)
• A corporate officer who was accused of
being “a black sheep,” “unscrupulous,”
“proud, snobbish and vain” and “irre-
sponsible” and using “lies and
hypocrisies,” was also able to state a
claim for defamation per se. (Correia v.
Santos (1961) 191 Cal.App.2d 844, 854.)
• Statements that an employee was fired
“for not doing things properly and for
not following office rules” and that other
employees had also had trouble with the
plaintiff impugned the plaintiff ’s voca-
tional capacity and was found to be slan-
derous per se. (Mercado v. Hoefler (1961)
190 Cal.App.2d 12, 21.)
• Publications that an engineer lacked
job knowledge and failed to cooperate
have also been held to support a defama-
tion claim. (Agarwal v. Johnson (1979) 25
Cal.3d 932, 944-945, disapproved on
other grounds in White v. Ultramar (1999)
21 Cal.4th 563, 574 n. 4.)
Notably, internal publications within
a company are actionable. Employers
may try to argue that since the defamato-
ry statements were internally published
within the company, there was no publi-
cation. That argument would be legally
inaccurate. Publication of defamation can
be completely internal, that is, published
and received solely by other employees
of the employer. (Kelly v. General
Telephone Co. (1982) 136 Cal.App.3d
278, 284-285 [publication applies to an
employee’s statement to a fellow employ-
ee].) See also, Agarwal v. Johnson, supra,
25 Cal.3d at 944 [recognizing that wholly
internal company statements can be
deemed publications].) In fact, even false
criticisms in a performance review can
form the basis of a defamation claim if
they accuse the employee of “criminal
conduct, dishonesty, incompetence or
reprehensible personal characteristics or
behavior.” (Jensen v. Hewlett-Packard Co.
(1993) 14 Cal.App.4th 958, 965.) Thus,
the fact that the defamatory statements
may have been made by one employee of
the employer to another does not bar the
plaintiff ’s defamation claim.
Moreover, it is important to note
that the employer is liable for statements
made by its employees in the scope of
employment. This is true even if the
statement was not made for the employ-
er’s benefit, and even if the employer was
unaware that the statement was made.
(Sanborn v. Chronicle Publishing Co. (1976)
18 Cal.3d 406, 411; Kelly v. General
Telephone Co., supra, 136 Cal.App.3d at
284; Rivera v. Nat’l Railroad Passsenger
Corp. (9th Cir. 2003) 331 F.3d 1074,
1080.)
To be actionable, the statement must
not be privileged
If the statement at issue was privi-
leged, then a defamation claim cannot
survive. Thus, in response to a defama-
tion claim, the employer will inevitably
argue that the slanderous statements are
privileged.
A publication may be absolutely
privileged, meaning there can be no lia-
bility for the publication, regardless of
the harm caused and regardless of
whether the publisher knew the state-
ment to be false. The types of statements
that are absolutely privileged are set
forth in Civil Code section 47. These
include statements made in the proper
discharge of an official duty or in a leg-
islative, judicial, or other official pro-
ceeding. (Civ. Code, § 47.)
Other types of publications may be
conditionally privileged. A publication is
privileged where made:
In a communication, without malice,
to a person interested therein, (1) by
one who is also interested, or (2) by
one who stands in such a relation to
the person interested as to afford a
reasonable ground for supposing the
motive for the communication to be
innocent, or (3) who is requested by
the person interested to give the infor-
mation.
(Civ. Code, § 47(c) (emphasis added).)
With respect to defamation in the
workplace, the employer will inevitably
argue that the defamatory statements
were published within the company
among managers or employees who had
a reason to be given the information, and
that the publications are therefore non-
actionable because of the “common
interest” privilege. However, the privilege
afforded by Civil Code section 47(c) is a
conditional privilege which is lost if the
privilege is abused, or if the publication
was motivated by malice. (Deaile v.
General Tel. Co. of Calif. (1974) 40
Cal.App.3d 841, 847; McMann v. Wadler
(1961) 189 Cal.App.2d 124, 129.) Thus,
in order to overcome or eliminate any
conditional privilege, a plaintiff need
only show some evidence of either malice
or abuse of privilege. (Ibid.)
The existence or nonexistence of
malice is a question of fact for the jury.
(Agarwal v.Johnson, supra, 25 Cal.3d at
944-945 (factual issue whether publica-
tion was motivated by hatred or ill will
towards the plaintiff); Larrick v. Gilloon
(1959) 176 Cal.App.2d 408, 416, disap-
proved on other grounds by Field
Research Corp. v. Superior Court (1969)
71 Cal.2d 110, 114 [“the question of
whether a publication was inspired by
actual malice is essentially and peculiarly
a question of fact.”]) Malice may be evi-
denced by showing such things as:
That the defendant bore a long-
standing grudge against the plaintiff,
that there were former disputes
between them, that defendant had for-
merly been in the plaintiff ’s employ,
and was dismissed for misconduct. Any
previous quarrel, rivalry or ill-feeling
between plaintiff and defendant – in
short, almost everything defendant has
ever said or done with reference to the
plaintiff – may be urged as evidence of
malice.
(Larrick v. Gilloon, supra, 176 Cal.App.2d
at 416.)
The key to establishing malice is
demonstrating that the publication was
“motivated by hatred or ill will toward
plaintiff or by any cause other than the
desire to protect the interest for the pro-
tection of which the privilege is given.”
(Mamou v. Trendwest Resorts, Inc. (2008)
165 Cal.App.4th 686, 729.) Malice suffi-
cient to defeat the conditional privilege
has been found in the following situations:
• Where there has been a failure to
investigate thoroughly and verify the
facts stated. (Widener v. Pacific Gas &
Electric Co. (1977) 75 Cal.App.3d 415,
434-35, disapproved on other grounds by
McCoy v. Hearst Corp. (1986) 42 Cal.3d
835, 846 n. 9.)
• Where the investigation was grossly
inadequate under the circumstances.
(Fisher v. Larsen (1982) 138 Cal.App.3d
627, 640.)
• Where there has been purposeful
avoidance of the truth or a deliberate
decision not to investigate facts.
(Antonovich v. Superior Court (1991) 234
Cal.App.3d 1041, 1048.)
• Where the employer has failed to inter-
view obvious witnesses who could have
confirmed or disproved the allegations.
(Khawar v. Globe Intern., Inc. (1998) 19
Cal.4th 254, 276.)
• Where the facts stated are “exaggerat-
ed, overdrawn, or colored to the detri-
ment of plaintiff, or are not stated fully
and fairly.” (Shumate v. Johnson Publishing
Co. (1956) 139 Cal.App.2d 121, 138.)
• Where the statement is made despite
the publisher having serious doubts of
the truthfulness of the statement he or
she is publishing. (Reader’s Digest Ass’n v.
Superior Court (1984) 37 Cal.3d 244, 256.)
• Where the statement is made despite
the knowledge of its falsity. (Roemer v.
Retail Credit Co. (1970) 3 Cal.App.3d 368,
371.)
If the employer is merely negligent
in its investigation of facts, by inadver-
tently overlooking something or making
an unintentional error, that alone does
not establish malice. (Bierbower v. FHP,
Inc. (1999) 70 Cal.App.4th 1, 9.) How-
ever, if the “negligence amounts to a
reckless or wanton disregard for the
truth, so as to reasonably imply a willful
disregard for or an avoidance of accuracy,
then malice is shown.” (Roemer v. Retail
Credit Co., supra, 3 Cal.App.3d at 372.)
Not much specificity is required to
plead malice. In Kelly v. General Telephone,
the Court of Appeal reversed the grant
of a demurrer on a slander cause of
action, finding that the plaintiff ’s bare
allegations that the statements were
made by the defendant with malice
because he bore ill will and hatred
toward the plaintiff was sufficient to
overcome a demurrer. (Kelly v. General
Telephone Co., supra, 136 Cal.App.3d at
285.) Nevertheless, it is best for counsel
to plead in the complaint specific facts
demonstrating malice.
It is important to note that the condi-
tional privilege only applies where the
defaming party admits making the state-
ment at issue, and believed it to be true at
the time it was uttered. The conditional
privilege is lost if the defaming party
denies having made the statements at all,
or did not believe the statements to be
true at the time they were made. (Russell v.
Geis (1967) 251 Cal.App.2d 560, 566-567.)
Opinion versus fact
Another argument employers may
use to try to defeat a defamation claim is
that the defamatory statements published
about the employee were statements of
opinion, rather than fact. In order to
constitute actionable defamation, the
offensive publication must consist of
statements of fact, rather than opinion.
(CACI 1707.) The statements at issue
should be carefully examined to deter-
mine if they are statements of fact or
opinion. Often, apparent expressions of
opinion imply an assertion of fact and
are therefore actionable. (Weller v.
American Broadcasting Companies, Inc.
(1991) 232 Cal.App.3d 991, 999.) Thus,
a statement in the form of an opinion
may be actionable if it is implied that it is
based on some undisclosed defamatory
facts. (Baker v. L.A. Herald Examiner
(1986) 42 Cal.3d 254, 266; Okun v.
Superior Court, supra, 29 Cal.3d at 451-
452.) The issue of whether the statement
is fact or opinion is then one for the jury.
(Slaughter v. Friedman (1982) 32 Cal.3d
149, 154.) The dispositive question for
the court is whether a reasonable fact
finder could conclude that the published
statements imply a provably false asser-
tion of fact. (Moyer v. Amador Valley Joint
Union High School District, supra, 225
Cal.App.3d at 724.)
To answer this question, the court
applies a “totality of the circumstances”
test, pursuant to which the court reviews
the meaning of the language in the total
context in which the statement was made.
Depending on the status of the defamer,
apparent expressions of opinion may
imply an assertion of fact where the
defamer’s expertise lends authority to his
or her statements that would cause the
average reader to assume they were
asserting facts and “carry a ring of
authenticity that reasonably might be
understood as being based on fact.”
(Slaughter v. Friedman, supra, 32 Cal.3d at
154). In Slaughter, accusations were made
that a dentist charged excessive fees or
performed unnecessary work. The Court
explained that such accusations by lay-
men might constitute mere opinion, but
such accusations by professional dental
plan administrators carry a ring of
authenticity and reasonably might be
understood as being based on fact.
Similarly, where the defamer is a mana-
gerial employee, his or her expertise
regarding the plaintiff ’s competence or
performance in executing his or her job
duties may reasonably be understood as
being based on facts. In such a situation,
where the person to whom the statement
was published could have understood it
in either sense, it is for the jury to decide
whether the statement is fact or opinion.
(Id. at 154.) See also Good Government
Group of Seal Beach, Inc. v. Superior Court
(1978) 22 Cal.3d 672, 682.
Publication
Another argument employers often
make in response to a defamation claim
is that the statement was not published.
The first line of attack often is that the
statement was only made internally, and
therefore there was no publication. As
discussed more thoroughly above, that
is simply inaccurate. Publication of
defamation can be completely internal;
that is, published and received solely
by other employees of the employer.
(Kelly v. General Telephone Co., supra
136 Cal.App.3d at 284-285; Agarwal
v. Johnson, supra, 25 Cal.3d at 944.)
Moreover, even where the statements
were published only to the employee and
not to any third party, the defamation
may be actionable under the theory of
self-compelled publication, i.e., that the
employer had reason to know that the
person defamed would be under a strong
compulsion to disclose the defamatory
statement to a third person. (Schneider v.
United Airlines, Inc. (1989) 208
Cal.App.3d 71, 75.)
The seminal California case dealing
with compelled self publication in the
employment context is McKinney v.
County of Santa Clara (1980) 110
Cal.App.3d 787. In McKinney, the Court
of Appeal held that the originator of the
defamatory statement regarding the rea-
sons for the plaintiff ’s termination could
be held liable for re-publication by the
employee to prospective employers,
where it was foreseeable that the plaintiff
would have a strong compulsion to
republish wrongful grounds stated for his
termination to prospective employers.
(Id. at 797-798.) See also, Live Oak
Publishing Co. v. Cohagan (1991) 234
Cal.App.3d 1277, 1285 [Theory of com-
pelled self publication applies where an
employee must explain a derogatory
statement in his or her personnel file to
subsequent employers who will surely
learn of it if they investigate his or her
past employment].)
Thus, in addition to determining
whether the employer published defama-
tory statements to third parties, counsel
should also determine whether the
employee felt compelled to relay defama-
tory reasons for his or her termination to
a prospective employer in the course of
responding to direct questions in a job
interview.
Defamation claims are not subject to
workers’ compensation exclusivity
A claim for defamation is not barred
by the exclusivity provisions of the
Workers’ Compensation Act. (Howland v.
Balma (1983) 143 Cal.App.3d 899, 904-
905.) In Howland, the court explained
that injury to reputation is not the type
of injury contemplated by the Workers’
Compensation Act. Slander of an
employee by his employer is not a risk of employment or in any manner compen-
sable under the Act.
The conclusion reached by the
Howland court was cited with approval by
the California Supreme Court, confirm-
ing that actions for defamation, even
when occurring in the workplace,
are not preempted by the Workers’
Compensation Act. (Shoemaker v. Myers
(1990) 52 Cal.3d 1, 16.) See also, Davaris
v. Cubaleski (1993) 12 Cal.App.4th 1583,
1591 (“Patently, however, defamatory
statements which have no other purpose
than to damage an employee’s reputa-
tion are neither a ‘normal part of the
employment relationship’ nor a risk of
employment within the exclusivity provi-
sion of the Workers’ Compensation Act.”)
Notably, each publication of the
defamatory statement is a separate tort,
which triggers the running of the statute
of limitations and which entitles the
plaintiff to separate damages. (Schneider
v. United Airlines (1980) 208 Cal.App.3d
71, 77-78; Neal v. Gatlin (1973) 35
Cal.App.3d 871, 877 n. 4.)
Conclusion
There are several benefits to a
defamation claim. First, juries take harm
to reputation seriously and even conser-
vative juries who may have difficulty
awarding a plaintiff damages for wrong-
ful termination or discrimination may
have an easier time awarding damages
for harm to reputation. Second, defama-
tion can be asserted against the individ-
ual who published the statement, thus
allowing a local individual defendant to
be named to prevent diversity of citizen-
ship. Finally, inclusion of a defamation
claim may trigger insurance coverage.
Thus, in appropriate cases, counsel
should consider including a defamation
claim in employment lawsuits.
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