A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Jenkins v. JP Morgan Chase Bank, NA (2013) 216 Cal.App.4th 497, 506. In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. The degree of detail required depends on the extent to which the defendant in fairness needs such detail which can be conveniently provided by the plaintiff. Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.

Defamation involves speaking or writing base and defamatory words, and is recognized as either being per se (on its face), or per quod (literally meaning, “whereby”) – each requiring different standards of pleading. If a defamatory meaning appears from the language itself without the necessity of explanation or the pleading of extrinsic facts, and charges (1) commission of an indictable crime, (2) affliction with a loathsome, communicable disease, (3) incompetence/dishonesty in one’s office, trade, business or profession, or (4) unchastity, it is generally considered slander per se. Civil Code §§ 45a, 46. All other defamatory words are not actionable in the absence of special damages.

If the defamatory meaning would appear only to listeners/readers who might be able to recognize it through some knowledge of specific facts and/or circumstances, not discernible from the words alone, then the defamation may be per quod. Whether a statement can reasonably be given any defamatory interpretation is a legal question that courts must resolve by determining the sense or meaning of the statements, under all the circumstances attending the publication, according to the natural and popular construction which would be ascribed to them by the average person. MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549; Barnes–Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 386. To constitute defamation, the words complained of must have been false and published to a third person. The plaintiff must plead with particularity the actual words spoken (or at least their substance), their application to the plaintiff, falsity, fact of publication, and malice, where applicable. Where the words are not defamatory per se, the plaintiff must, in addition to the above, allege facts and circumstances showing the defamatory nature of the spoken words under the circumstances which render them injurious to plaintiff. Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 235; Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645; Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 951.

Here, some of the allegations relate to slander, some to libel, but only the slander claims appear to relate to plaintiff. The allegedly libelous communications appear not to be false, but more importantly make no reference to plaintiff at all. Perhaps plaintiff is the alter ego of TDAOC, but the operative pleading does not allege this. Since the only allegation of special damages is tethered to the slander allegations (“don’t sign off on plaintiff’s application”), the libel claims may fail on their face absent additional averments.

As for the slander claims, defendant points out that the original complaint tied those to June and July of 2012 and as such the slander cause of action would have been time-barred. In the FAC, plaintiff tied the slander claims to activity in December of 2012, which is not time-barred on its face. See CCP §340(c). The “sham pleading” doctrine provides that a party will be bound by a prior, unfavorable allegation absent a satisfactory plead-around (ie, explanation) for the change. See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751; State ex rel Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412. A pleading is not subject to dismissal merely because it is a sham; instead, the “sham” elements are ignored and the original pleading is assessed for defects. The doctrine is inapplicable here since to qualify as a “sham” allegation it must be inconsistent with an earlier claim, and there is nothing factually inconsistent between different dates for communications. In other words, it may be that defendant slandered plaintiff in June, July and December – making at least part of the claim viable.

In the end, plaintiff has stated something, but defamation claims must be pled with particularity and plaintiff’s FAC is simply not specific enough for either the slander or libel claims. The claims should actually be pled separately since they appear to involve different primary rights (slander relates to renewal of plaintiff’s license, whereas libel apparently relates to TDAOC). If this is not the case, then the complaint is uncertain.

Demurrer sustained, 20 days leave to amend.