SAGAN v. APPLE COMPUTER, INC.
874 F.Supp. 1072 (1994)
United States District Court, C.D. California.
June 27, 1994.
The constitutional defense of privileged opinion is applied before analyzing whether the statement in question is actionable under state law. Ault v. Hustler Magazine, Inc.,860 F.2d 877, 880 (9th Cir.1988).
1. Federal Law
The Supreme Court held in Milkovich v. Lorain Journal Co.,497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), that Gertz, supra, did not "create a wholesale defamation exemption for anything that might be labeled `opinion.'" Milkovich, 497 U.S. at 18, 110 S.Ct. at 2705. The Court recognized that expressions of opinion may often imply an assertion of objective fact. Id. Thus, the dispositive question in determining whether a statement of opinion can form the basis of a state libel action is "whether a reasonable factfinder could conclude that the statements imply an assertion [of fact]." Id. at 21, 110 S.Ct. at 2707.
In the Ninth Circuit, courts analyze the following conditions set forth in Milkovich:
(1) whether the defendant used figurative or hyperbolic language that would negate the impression that he was seriously maintaining an assertion of fact;
(2) whether the general tenor of the communication negated the assertion of fact; and
(3) whether the assertion is susceptible of being proved true or false.