Defamation, Litigation Privilege, Opinions

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

  • A false statement that is expressly implied to be factual. Statements are not defamatory if they are true.
  • A statement intentionally published to a third party. One of the elements of the tort of defamation is "publication". 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". Each publication ordinarily gives rise to a new cause at action for defamation. Publication of defamatory matter is the communication intentionally or by a negligent act to one other than the person defamed.
  • A statement 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, and rules violations 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.
  • Causes damage.



Libel is a false and unprivileged publication by'writing, printing, picture, effigy, or other fixed representation to the eye, that exposes a person to hatred, contempt, ridicule, or obloquy, or which causes him or her to be shunned or avoided, or which has a tendency to injure him or her in his or her occupation, (California Civil Code Section 45). A libel which is defamatory of 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.



Slander is a false and unprivileged spoken publication against a person that: Charges that person with a crime, or with having been indicted, convicted, or punished for a crime;

  • Charges that person with a crime, or with having been indicated, convicted, or punished for a crime;
  • Imputes the existence of an infectious, contagious, or loathsome disease;
  • Tends directly to injure him or her with respect to his office, profession, trade or business, either by imputing to him or her general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing ting something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
  • Imputes impotence or a lack of chastity: and
  • Causes actual damage.


Statements of Opinion

Statements of Opinion. The essential condition of recovery for defamation is the existence of falsehood. Since 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. To 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 i.9Jplies a provably false assertion of fact.



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.


Litigation Privilege

The litigation privilege is a type of immunity given to statements in connection to litigation. The protections are construed broadly to protect the right of litigants to the maximum freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions. Thus, a communication is immune from tort liability if it has some relation to judicial proceedings.


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. Limited purpose public figures have the burden of proving both that the challenged statements are false, and that the defendant acted with actual malice. In this context a defendant acts with actual malice when publishing a knowingly false statement or where he or she entertained serious doubts as to its truth. Falsity must be established only by a preponderance of the evidence, but malice must be established by clear and convincing evidence.



Historically, malice has included not only deliberate falsehoods but also false statements made without reasonable grounds to believe them true. Malice may be inferred where, a story is fabricated by the defendant, is the product of his or her imagination, or is based wholly on an unverified anonymous source.

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 or her duties and responsibilities "so as to have a natural tendency to affect the corporation disadvantageously in its business". 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.

Michael Chulak