What is the test for a jury to determine whether a statement is a provably false assertion of fact?

California, United States of America


The following excerpt is from Juarez v. Dish Network Cal. Serv. Corp., B256235 (Cal. App. 2015):

"The ' "crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court." ' [Citation.]" (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 427.) Only if a statement "is 'ambiguous and cannot be characterized as factual or nonfactual as a matter of law' " should a jury be permitted to determine whether the statement contains an actionable assertion of fact. (Ibid.) " 'The allocation of functions between court and jury with respect to factual content is analogous to the allocation with respect to defamatory meaning in general. On the latter issue, the court must first determine as a question of law whether the statement is reasonably susceptible of a defamatory interpretation; if the statement satisfies this requirement, it is for the jury to determine whether a defamatory meaning was in fact conveyed to the listener or reader. [Citations.] Similarly, it is a question of law for the court whether a challenged statement is reasonably susceptible of an interpretation which implies a provably false assertion of actual fact. If that question is answered in the affirmative, the jury may be called upon to determine whether such an interpretation was in fact conveyed.' " (Id. at p. 428.)

Page 15

B. "Subjective Judgments" Are Not Provably False Statements of Fact

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