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Defamation. Defamation constitutes an injury to reputation; the injury may occur by means of libel (written) or slander (spoken). (Civ. Code § 44.) Liability for defamation can extend to those who publish the defamatory remarks of others. The generic elements of defamation are:

  1. False statement that is expressly implied to be factual. Statements are not defamatory if they are true.

  2. Intentionally published to a third party. One of the elements of the tort of defamation is "publication." In general, each time the defamatory statement is communicated to a third person who understands its defamatory meaning as applied to the plaintiff, the statement is said to have been "published," although a written dissemination, as suggested by the common meaning of that term, is not required. Each publication ordinarily gives rise to a new cause of action for defamation. Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed. (Hellar v. Bianco (1952) 111 Cal.App.2d 424, 426.) (See Haley v. Casa Del Rey; Ruiz v. Harbor View.)

  3. Not privileged. Officers, directors and managing agents are generally protected against liability for defamation when they publish information to the membership about the association's finances, delinquencies, rules violations, etc., even if the information is inaccurate, provided the publication was done without malice and the publication was to persons who have an interest in the communication, i.e., the membership. (Civ. Code § 47; see Damon v. Ocean Hills; Healy v. Tuscany Hills.)

  4. Causes damage.

Libel. 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 occupation. (Civ. Code § 45.) A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face, or libel per se. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549.)

Slander. Slander is a false and unprivileged spoken publication against a person which:

  1. Charges that person with a crime, or with having been indicted, convicted, or punished for crime;

  2. Imputes existence of an infectious, contagious, or loathsome disease;

  3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

  4. Imputes impotence or a want of chastity;

  5. Causes actual damage.

Truth and Opinions. The essential condition of recovery for defamation is the existence of falsehood. For a statement to be defamatory, it must be false. “Truth... is an absolute defense to defamation.” (Campanelli v. Regents of Univ. of Cal. (1996) 44 Cal.App.4th 572.) Because the statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. That does not mean that statements of opinion enjoy blanket protection. On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. The critical question is not whether a statement is fact or opinion, but ‘“whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1370.)

Anti-SLAPP Motion. If someone is sued for the purpose of quashing their free speech rights, an anti-SLAPP motion can be filed. However, if communications to the membership are defamatory on their face, an anti-SLAPP motion can be denied. (Silk v. Feldman.) See Anti-SLAPP Motions.

Litigation Privilege. The litigation privilege is a type of immunity given to statements in connection to litigation. (Civ. Code § 47(b); Code Civ. Proc. § 425.16.) The protections are construed broadly to protect the right of litigants to the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions. Thus, a communication is absolutely immune from any tort liability if it has some relation to judicial proceedings. (Healy v. Tuscany Hills.)

Limited Purpose Public Figure. The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues. (Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1092.) Limited purpose public figures have the burden of proving both that the challenged statements are false, and that defendants acted with actual malice. In this context, a defendant acts with actual malice when publishing a knowingly false statement or where he entertained serious doubts as to its truth. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 81.) Falsity must be established only by a preponderance of the evidence, but malice must be established by clear and convincing evidence.

Malice. Traditionally, malice has included not only deliberate falsehoods but also false statements made without reasonable grounds to believe them true. (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 718.) To establish malice, plaintiff was required to show that defendant made the allegedly defamatory statements with knowledge, or reckless disregard, of the falsity of the statements. (Cabrera at p. 1093.) Malice may be inferred where, for example, a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous sources.

HOA Action for Defamation. An association can sue homeowners for defaming directors if it can be shown that the defamation is related to how the director performed his/her duties and responsibilities "so as to have a natural tendency to affect the corporation disadvantageously in its business." (Palm Springs Tennis Club v. Rangle.) If the ostensibly defamatory statements cannot be reasonably interpreted as having been made against the association, the association has no cause of action for defamation, the action is personal to the director.

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