What is the test for qualified privilege in a defamation action?

The qualified privilege will not apply, however, where the plaintiff establishes the communication at issue was made with actual malice, i.e., where the speaker had " ' "a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person." ' " (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 914; see Taus, supra, 40 Cal.4th at p. 721; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723, fn. 7.) Malice may also be established by a showing that the speaker lacked reasonable grounds to believe in the truth of his statements and thus acted in reckless disregard of the plaintiff's rights. (Taus, at p. 721.)

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Whether the privilege arises is ordinarily a question of law. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 108.) A defendant has the initial burden of showing that allegedly defamatory statements were made on a privileged occasion, which if shown shifts the burden to the plaintiff to establish the defendant made the statements with malice. (Taus, supra, 40 Cal.4th at p.721.)