To survive demurrer, claims for defamation must set forth the exact language of the alleged statements claimed to be defamatory. Some Virginia judges (like Judge Charles E. Poston of Norfolk) refer to this requirement as a “heightened pleading” standard, but care should be taken not to confuse this terminology with the heightened pleading standard for fraud claims, which generally requires that fraud allegations identify the time, place, content, and maker of each alleged fraudulent statement. No such particularity is required for defamation claims in Virginia.
Judge Poston recently sustained a demurrer to a defamation claim that failed to allege the specific words spoken. In Owens v. DRS Automotive Fantomworks, Inc., Mr. and Mrs. Owens tasked DRS and Daniel Short with converting their 1960 Thunderbird into a 1960 Thunderbird Police Interceptor. The Owens paid DRS two deposits of $15,000 each which DRS used for restorations, repair work and part expenditures including the purchase of a Police Interceptor from Alexander Thiess. When the defendants refused to give the Owens documentation of the expenditures, the Owens asked DRS to return the vehicle. DRS demanded that the Owens pay an additional $3,313. The Owens refused and sued DRS. DRS filed a counterclaim alleging that the Owens defamed it in statements made to Mr. Theiss and his superiors. The Owens demurred to the defamation counterclaim, arguing that it failed to allege sufficient facts.
The allegedly defamatory statements were that the Owens described Mr. Short’s business practices as illegal, criminal, shady and not on the up-and-up; asserted that Mr. Short and DRS were under criminal and civil investigation and that they likely stole the Police Interceptor; claimed Mr. Short was a “liar” regarding the history of the Police Interceptor, and that he deceived and overcharged the Owens for the Interceptor. The counterclaim, however, contained only two verbatim quotes: that the Owens called Mr. Short a “liar” and that DRS sold vehicles with “open-titles.” The court found the vague allegations insufficient.
The court held that the counterclaim failed to meet the “heightened pleading” requirement for a defamation claim because (with two limited exceptions) DRS did not allege the exact words or phrases used. Words of an equivalent or similar nature, summaries and generalizations are not adequate. The heightened pleading requirement, the court held, is to ensure that parties do not frame statements to favor their claims, resulting in bias to the other party. Additionally, the two single-word quotations are not enough. The quotes lacked context and were so vague as to be meaningless.
The court also found that even if the alleged statements could be considered sufficiently specific, they constituted non-actionable opinion. A factual statement can be objectively characterized as true or false whereas an opinion is relative in nature and is dependent on the speaker’s viewpoint. Here, words such as “shady” and “overcharged” depend on the Owens’ viewpoint and, if those words were used at all, would be statements of opinion. The court found that the allegation that Mr. Short and DRS were “under criminal and civil investigation” is a generalization that would require the speaker to define those terms in order to state an actual fact. The noncommittal statement that the car was likely stolen was clearly meant as an opinion, and calling Mr. Short a “liar,” without alleging any context, was too vague to be considered an assertion of fact. Therefore, the court sustained the demurrer.