Defamation has been described as “. . . a forest of complexities, overgrown with anomalies, inconsistencies, and perverse rigidities.” (McNair v. Worldwide Church Of God (1987) 197 Cal.App.3d 363, 375.) One of the many reasons for this is that malice, a key defamation issue, is a synonym for three very different concepts. If you are not careful in a defamation case, you can mistakenly agree to a more difficult definition of malice and a higher burden of proof.
- Malice in a Private Person Plaintiff, Private Matter, Non-media Defendant Defamation Case.
This type of defamation case is commonly seen in the employment setting where a false accusation or pretext is used to justify a termination of someone in a protected group. For instance, a pretextual accusation (e.g. theft) is sometimes used to cause or justify the termination of a recently disabled employee. Another common example is a subordinate, facing discipline or termination, racing to the Human Resources department with a defamatory accusation (e.g. sexual harassment) against the dissatisfied supervisor. (Cruey v. Gannett (1998) 64 Cal. App. 4th 356).
In private person/matter defamation cases, malice is not an element of defamation. It is a response to an affirmative defense of conditional privilege, see Civ. Code § 47(c), which the defendant has the burden to plead and prove. (Fairfield v. Hagan (1976) 248 Cal. App. 2d 194, 204) The malice necessary to overcome a conditional privilege is not the same as the malice necessary to prove punitive damages. The former type of malice is defined as “a state of mind arising from hatred and ill will evidencing an intent to vex, annoy or injure.” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal. 3d 711,745; Agarwal v. Johnson (1979) 25 Cal.3d 932, 944-945) Plaintiff’s must prove this type malice merely by a preponderance of evidence, not by clear and convincing evidence, (Roemer v. Retail Credit Co. 44 Cal. App.3d 926, 933; Ev. C. § 115) and its existence can be established circumstantially. (Khawar v. Globe Internat., Inc. (1998) 19 Ca1.4th 254, 275).
The courts have found malice can be circumstantially established in many ways, including through evidence of a reckless investigation into the truth or falsity of the claimed defamatory material (Widener v. PG&E (1977) 75 Cal.App.3d 415, 434-435), a publication motivated by anger, hostility, ill will, or any prior grudge, dispute or rivalry (Larrick v. Gilloon (1959) 176 Cal.App. 2d 408, 416); or a lack of reasonable grounds for belief in the truth of the publication (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 552; Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 418), or a lack of reasonable grounds to believe the statement to be true (Cuenca v. Safeway S.F. Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 997) a failure to interview obvious witnesses, or to consult relevant documents that could have confirmed or disproved the statements (Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 276), or a publication based on information from a source known to be hostile to the subject against whom the material is used. (Fisher v. Larsen (1982) 138 Cal. App. 3d 627, 640)
- Malice in a Public Figure/Official, Matter of Public Concern, or Media Defendant Case
In this type of defamation case, the courts have determined First Amendment rights are involved, and therefore greater protection for this speech is justified. (Brown v. Kelly Broadcasting Co., supra, 721-723) Unlike private figure/matter cases in a First Amendment case, malice is an element of defamation that the plaintiff must prove, not merely a response to an affirmative defense. (Masson v. New Yorker Magazine (1991) 501 U.S. 496, 510; Khawar v. Globe Internat., supra, 273-774) Malice in these cases means “that the defamatory statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. Reckless disregard, in turn, means that the publisher ‘in fact entertained serious doubts as to the truth of his publication.’” (Khawar v. Globe Internat.(1998) 19 Cal. 4th 254, 275) (citation and internal quotation marks omitted). To prove this malice, also known as “actual malice,” “New York Times,” or “constitutional malice,” a plaintiff must demonstrate with clear and convincing evidence (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 342) “that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement.” (Khawar v. Globe Internat., supra, p. 275)
- A Third Definition of Malice for Punitive Damages
Frequently, punitive damages under Civil Code § 3294 are involved in defamation cases, and this introduces a third possible definition of malice into the case. For punitive damages, malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294 (b)) Punitive damages can be awarded only when a jury finds malice, oppression or fraud by clear and convincing evidence. (Civ. Code § 3294 (a); Stewart v. Union Carbide Corp. (2010) 190 Cal. App. 4th 23, 34)
- Confusion Caused by the Use of the Same Term to Describe Different Concepts Has Long Been Recognized By the Courts
The courts have recognized this confusion and have repeatedly addressed the malice “jumble.” For instance, in Burnett v. Nat’l Enquirer (1983) 144 Cal. App. 3d 991, the court stated at p. 1006 n.7:
So, it has been remarked that: ‘The jumble in some modern text books on slander and libel concerning malice, actual malice, malice in law, malice in fact, implied malice, and express malice (all derived from judicial utterances, it is true) is a striking testimony of the limitations of the human mind.’ (Cites omitted.)
Further attempts to correct the problem include those by the court in Masson v. New Yorker Magazine, supra, which stated at p.510-11,
Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will. (Cite omitted.)We have used the term actual malice as a shorthand to describe the First Amendment protections for speech injurious to reputation, and we continue to do so here. But the term can confuse as well as enlighten. In this respect, the phrase may be an unfortunate one. (Cite omitted.) In place of the term actual malice, it is better practice that jury instructions refer to publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity.
- Conclusion
Battles over the definition of malice and the appropriate burden of proof for defamation frequently arise for the first time at the jury instruction conference, hours before the jury is instructed. At that point, everyone’s patience for fine legal points is impeded by the fog of war, exhaustion, and a need to focus on other matters such as final arguments. That is not the time to trace one hundred years of confusing legal decisions. Therefore, to avoid the potential damage caused by the application of erroneous definitions and burdens of proof, you need to alert the court, provide the correct authorities, and discuss these issues at the earliest possible time.
Avoiding this confusion is critical in performing our important duty of protecting our clients’ reputations that were “built up by a lifetime of conduct” and are “probably the dearest possession that a man has, and once lost is almost impossible to regain.” (McCoy v. Hearst Corp. (1986), 42 Cal.3d 835, 858, fn 22)
CHRISTOPHER WHELAN has been recognized as one of the best lawyers in America by his mother since 1978 and by Best Lawyers in America since 1999. He has won fourteen punitive damage awards and fourteen seven-and-eight figure jury verdicts. His nine published opinions include Richard v. CH2MHill, State Dept. of Health Services v. Superior Court and Roby v. McKesson.