Opinion
CV1306039947S
01-25-2016
Randy Rasmussen v. Allison Kovac et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
William J. Wenzel, J.
This action comes before the court on the motion of defendant Allison Kovac for Summary Judgment on Counts 1, 5, 6, 7 and 8 of the Amended Complaint, dated February 23, 2015 (#137). The Amended Complaint (" Complaint") in question alleged a total of eight counts against two defendants, Ms. Kovac and the Weston Board of Education. The counts all assert claims for relief based on certain alleged defamatory statements made by Ms. Kovacs on five separate dates to five distinct individuals. This motion seeks summary judgment on the specified counts only.
On August 17, 2015, plaintiff withdrew the action as to defendant Weston Board of Education. Whether this withdrawal fully resolved Count 4, which alleged actions jointly and severally against both defendants, was not immediately clear to the court.
THE STANDARD OF REVIEW
Section 17-49 of the Connecticut Practice Book states that summary judgment shall be rendered when " the pleadings, affidavits and other proof submitted shows that there is no genuine issue as to any material fact." Of course, not every factual dispute will be material nor should it preclude the entry of summary judgment. " A material fact is a fact that will make a difference in the result of the case." Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004). Once the movant has established the absence of any genuine dispute as to a set of facts which clearly entitles him to judgment, regardless of whatever else might be in dispute, he is entitled to summary judgment. The burden on the moving party is a heavy one. This court must view the evidence in a light most favorable to the nonmoving party; Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 198, 931 A.2d 916 (2007); and the movant must present sufficient factual evidence to demonstrate the absence of any genuine dispute. Barasso, supra, 81 Conn.App. at 803. If the moving party has not met this burden, the failure of the nonmoving party to submit opposing evidence does not entitle the movant to judgment. Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).
Once the moving party has met this burden, however, the party opposing the motion cannot simply rest on its allegations or denials; it must " provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Tuccio Development, Inc. v. Neumann, 114 Conn.App. 123, 126, 968 A.2d 956 (2009).
DISCUSSION
All of the counts addressed in this motion assert claims for defamation.
Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation . . . Libel per se . . . is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. [The plaintiff] is required neither to plead nor to prove it . . . Whether a publication is libelous per se is a question for the court. (Internal quotation marks omitted.) Lowe v. Shelton, 83 Conn.App. 750, 765-66, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004). In general, there are two classes of libel that are actionable per se: '(1) libels charging crimes and (2) libels which injure a man in his profession and calling . . . To fall within the category of libels that are actionable per se because they charge crime, the libel must be one which charges a crime which involves moral turpitude or to which an infamous penalty is attached.'Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 850-51, 863 A.2d 735 (2005). (quoting from, Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 853, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).
As pled, each of the five counts assert a separate and distinct claim for defamation, as each count alleges a distinct statement made on a specific date to a specific person. Each statement furnishes a separate cause of action and each statement requires proof of each of the essential elements required for a claim of defamation. Gleason v. Smolinski, 319 Conn. 394, 431, 125 A.3d 920 (2015).
A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement.Gambardella, 86 Conn.App. at 848, (quoting Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004)).
Defendant claims in this motion that under facts which are not genuinely in dispute, she is entitled to judgment on the basis of one or more of the defenses pled: 1) the statements in question were substantially true; 2) the statements were opinions and not statements of fact; 3) the statements were not defamatory as a matter of law; and, 4) the statements were not made with actual malice. In support of her motion, Kovac has submitted her own affidavit setting out what she stated (and did not state) to the persons in question on the dates in question. Defendant has also provided excerpts from deposition transcripts from the various persons to whom the statements in question were allegedly made.
The court notes that these transcripts are presented simply as copies of the pages in question as well as the caption page and the certificate page from each of the reporters taking the deposition. Plaintiff has also presented parts from the very same transcripts in opposition to the motion. Neither party has filed the original transcripts nor offered formal authentication. No objection to the form or admissibility of any of these papers has been made by either party and, absent such, the court has considered them in evaluating this motion.
Plaintiff, in opposition to the motion, argues first that discovery has not yet been completed as defendant has refused to produce copies of emails relevant to this case. Second, defendant argues that the content of the respective statements was sufficient to meet the essential elements required for the tort of defamation. Plaintiff has also presented deposition testimony as to the content of the statements in question. Finally as to the Count 1, concerning the statement to Mr. O'Brien, plaintiff presents affidavits and a letter from the custodian of records, concerning the content of the statement in question.
As to these materials, defendant has raised concerns about the admissibility of these materials and whether or not they can be considered in this motion. These points will be addressed during the discussion of the specific count to which they apply.
The court will first address the general objection to considering this motion on the basis that discovery has been obstructed by the defendant. Plaintiff states that " discovery in this litigation has not been completed because of the defendant's continuing refusal to produce any of her emails during the relevant time period which directly concern the plaintiff." Plaintiff has not supported this claim by any affidavit, documentation or evidence. Representations by counsel are not evidence and are entitled to no weight. Dionne v. Dionne, 115 Conn.App. 488, 493, 972 A.2d 791 (2009). Notwithstanding the failure of plaintiff to support this broad claim, the court has reviewed the record in this matter. On March 7, 2014, the defendant filed an objection to the production request seeking the emails in question. (#108.) After various motions and rulings, it appears that the court has sustained the objection, refused to impose sanctions or order further compliance. Most importantly, notwithstanding the objection, defendant has suited in response to the request that no such emails exist. See, Response No. 4 to Plaintiff's Request for Production, attached to Objection to Motion for Sanctions (Doc. #133). Plaintiff has not addressed the matter in over one year. Plaintiff has not tried to address the problem or asked for any further assistance from the court and the time for completion of all discovery under the scheduling order has long since passed. In short, this objection is without merit.
COUNTS 5, 6, 7 and 8
These counts are similar enough in nature to be addressed together. In each count, plaintiff alleges that Kovac made a specific statement to a specific person on or about a specific date or time period.
In Count 5, plaintiff alleges that defendant made the following statement to Stacy Varvaro: " that the plaintiff was an accused child molester and was under investigation by the police." Revised Second Amended Complaint, Count 5, par. 3, (" Complaint"). In defendant's affidavit, Exhibit A, par. 4 (" Defendant's Affidavit") to Defendant's Motion For Summary Judgment (#149) (" Motion"), Ms. Kovac says that in January of 2013, she " spoke to Stacey Varvaro and stated that there was an open investigation against Randy Rasmussen for an alleged act involving a child." The transcript of Ms. Varvaro's deposition describes the statement made to her as follows: " [Ms. Kovac] just said that she wanted to let me know that Randy was being investigated for molestation of a child." Motion, Exhibit D at 14. In opposition to the motion, plaintiff has quoted the exact same words from the deposition transcript of Ms. Varvaro.
In Count 6, plaintiff alleges a statement made to Sarah O'Brien " that the plaintiff was an accused child molester, that the evidence against him was very compelling and that she hoped he would be arrested soon." Complaint, Count 6, par. 3. In Defendant's Affidavit, par. 3, she states, " I spoke to Sarah O'Brien [about] Randy Rasmussen. I stated that I had heard that there was an open investigation against him regarding a child." In Ms. O'Brien's deposition she states that defendant " called to tell me that, . . . I ought to know that Randy Rasmussen was being investigated for alleged child molestation Those are her exact words." Motion, Exhibit C at 8. The testimony of Ms. O'Brien was also that Ms. Kovac also stated plaintiff " was innocent until he's proven guilty" and " the evidence [against plaintiff] was very compelling." In opposition to the motion, plaintiff quotes the same portion of the transcript. Plaintiff also cites some additional discussion between the defendant and Ms. O'Brien. Nothing in that additional discussion accuses plaintiff of any crime or improper acts.
The " story" of the " incident" has nothing to do with any accusation or investigation of the plaintiff; it concerns an unsuccessful meeting between parents of children involved in a " shoving" incident at school. Motion, Exhibit C at 10.
In Count 7, plaintiff alleges that a statement was made to Jennifer Lockwood " that the plaintiff was an accused child molester and was under investigation by the police." Complaint, Count 7, par 3. In Defendant's Affidavit, par. 5, she describes her statement to Ms. Lockwood, " that there was an open investigation against Randy Rasmussen for an alleged act involving a child." In her deposition, Ms. Lockwood's description of the statement was that in January 2013, defendant " called me to tell me that he [Rasmussen] was being criminally investigated for a crime having to do with a child." Motion, Exhibit E at 8. Ms. Lockwood described the reason for the call being both Rasmussen and Ms. Lockwood had children who played together and Ms. Kovac " was just making me aware that there was a case open." Id. at 9. Ms. Lockwood denied she was given any more detail than that and denied she was told Rasmussen was going to be arrested. Id. In opposition to the motion, plaintiff quotes the same discussion. Plaintiff quotes some additional portion of the deposition transcript, but that deals solely with problems the alleged child victim was having at school and does not pertain to plaintiff.
In Count 8, plaintiff alleges that a statement was made to Eve Lasher " that the plaintiff was an accused child molester and was under investigation by the police." In Defendant's Affidavit par. 7, Ms. Kovac does not describe any statement made to Ms. Lasher; rather, she denies ever stating to Ms. Lasher " that Randy Rasmussen was an accused child molester and was under investigation by the police." Neither party has offered any deposition transcript or affidavit directly from Ms. Lasher. Plaintiff has presented an affidavit from one Ms. Burris, Plaintiff's Brief, Exhibit 4, which states that on January 27, 2013, she arrived at a conversation including Ms. Lasher and defendant where " [t]hey were discussing Randy Rasmussen and the allegations that were being made against him." No other content or detail concerning that conversation was offered.
The first defense asserted by defendant in this motion is that of truth. " It is well settled that " for a claim of defamation to be actionable, the statement must be false . . . and under the common law, truth is an affirmative defense to defamation . . . the determination of the truthfulness of a statement is a question of fact for the jury." Gleason, 319 Conn at 431, (quoting from Cweklinsky, 267 Conn. at 228-29).
The court further notes that for the purposes of the motion as it concerns Counts 5, 6, 7 and 8, the court will treat the content of the statements made exactly as plaintiff alleges in his operative complaint. The issue next considered is whether these statements were true. " Contrary to the common law rule . . . the modern rule is that only substantial truth need be shown to constitute the justification . . . [i]t is not necessary for the defendant to prove the truth of every word of the libel. If he succeeds in proving that the main charge, or gist, of the libel is true, he need not justify statements or comments which do not add to the sting of the charge or introduce any matter by itself actionable . . ." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 112-13, 448 A.2d 1317 (1982).
Of course this gives plaintiff the benefit of any doubt as to the content, even though it now appears that all sources of discovery as to what was actually said have been exhausted and, in some instances, there is no support for the statements as alleged. Regardless, it appears that the strongest claim for plaintiff is what was alleged and the court gives him the benefit of requiring defendant, in this motion, to prove that a claimed defense exists under facts not in dispute.
Here, the defendant has presented evidence to establish the truth of the statements addressed above. Specifically, defendant has presented deposition testimony of the plaintiff concerning these events. The transcript pages were presented as Exhibit B to the Motion. In his deposition, plaintiff himself establishes that in September of 2012, both the Connecticut Department of Children and Families (" DCF") and Easton Police Department (" EPD") were conducting investigations into a complaint against the plaintiff. Ex. B at 15-16. The original charge made was that plaintiff had shown pornographic pictures to a specific child but in September 2012, plaintiff learned the charge had changed. In the defendant's own words, " the complaint had now changed . . . [i]t had now morphed" into a charge that the plaintiff took the specific child " into the woods . . . and then . . . the molestation happened." Id. at 16. The plaintiff learned this information in September 2012 and while there is information the DCF investigation was closed as unsubstantiated in October of 2012, Plaintiff's Brief, Exhibit 5, the plaintiff's own sworn testimony on June 24, 2014 as regards the police investigation, was " it's still an ongoing investigation." Exhibit 5 at 87.
It should be noted here that the plaintiff learned this as he and his counsel cooperated with DCF and EPD in their investigation of these charges.
By the plaintiff's own sworn testimony, from the time he was first contacted by the police and learned of a complaint by the child's family in late August 2012, he knew he was under investigation. By the following month, when he met with the DCF investigator, plaintiff knew he was being investigated on a complaint that he " had sexually molested" a child and he knew this was a criminal investigation. Id. at 82-83.
As prior statements, given under oath and in the presence of his counsel, the testimony relied upon by defendant to support this motion is more than sufficient to carry the initial heavy burden on the movant to establish what the true state of facts was at the time of the statements alleged. In response to the strong showing, the plaintiff has not offered any evidence to contradict, change or modify in any way his own sworn testimony. He has not argued in his brief that any of his testimony was taken out of context or needs to be qualified in some form or fashion. Indeed, it would not appear from the court's reading of such testimony that the plaintiff's testimony was ever unclear or uncertain. In short, it does not appear that plaintiff has provided any evidentiary foundation to demonstrate the existence of a genuine issue of material fact on these matters as required by Tuccio, 114 Conn.App. at 126.
Based on this undisputed evidence, the court finds that the following facts have been established as not genuinely in dispute:
1. In January of 2013, the plaintiff was then under investigation by the EPD based upon an accusation involving a minor child. 2. The investigation was a criminal investigation. 3. The subject of the investigation was an accusation that the plaintiff had sexually molested a specific minor child. 4. At the time of each of the alleged defamatory statements the subject of this action, the criminal investigation was ongoing and still pending.
Throughout this motion, the parties have identified the alleged victim in this case by surname. There is no dispute here that the allegations all involve a single, specific minor child whose name and identity was known to both parties. The court has refrained from identifying the child in any fashion and would remind the parties that they should also avoid doing so unless specifically needed to resolve some contested issue in this case.
Based on these undisputed facts, the court finds that defendant is entitled to entry of summary judgment on Counts 5, 7 and 8, because the defendant has proven the truth of the very statements which plaintiff alleges. These counts assert that defendant stated the plaintiff was an accused child molester. At the time of the statements, he was so accused. The counts claim that defendant told persons the plaintiff was under investigation by the police. He was. In the best of all worlds, plaintiff is simply alleging that defendant was telling persons what he has already admitted was the then true and correct state of affairs. In other words, the defendant is accused of telling the truth.
The court is mindful that the statements alleged are not complimentary and may even be considered spiteful and cruel. Such statements may diminish the reputation or standing of the plaintiff in the community. Such nature does not make truthful statements actionable.
With regard to count 6, one additional matter needs to be resolved. In this count, plaintiff claims that defendant also stated " the evidence against him was very compelling, and that she hoped he would be arrested soon." Complaint, Count 6, par. 3. Defendant has not established that this portion of the statement was true and the court cannot grant summary judgment on the basis of that defense.
The court must next consider whether this portion of the statement was simply an opinion.
To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion. See Mr. Chow of New York v. Ste. Jour Azur S.A., 759 F.2d 219, 230 (2d Cir. 1985) (no liability where restaurant review conveyed author's opinion rather than literal fact); Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir. 1977) ('[a] writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be').Daley v. Aetna Life & Cas. Co., 249 Conn. 766, 795-96, 734 A.2d 112, 129 (1999).
Unfortunately, the line between statements of fact and mere opinions is not so easily drawn. Daley, 249 Conn. at 795. Whether the statement alleged, " the evidence against him was very compelling, " implies a factual statement as to what actually occurred or the guilt of the accused may turn on the context in while it was made and the understanding of an ordinary person hearing it. Where a court is not able to definitively characterize a particular statement as either one of the fact or opinion, the issue remains to be decided by the trier of fact. See Goodrich, 188 Conn. at 112, n.5.
For these reasons, summary judgment will enter on Counts 5, 7 and 8; summary judgment is denied as to Count 6.
COUNT ONE
With regard to Count One, there are a number of different factors to be considered in resolving the motion. First, in this count, plaintiff alleges a very different statement than those alleged in the other counts. Here defendant is alleged to have said that the plaintiff " is a child molester and that he was about to be arrested for child molestation." Such statement is not about an investigation or accusation; it is a statement that plaintiff did what he is accused of doing. With regard to this count, Defendant has not carried the heavy burden of showing the truth of this statement.
The argument which defendant advances with regard to this count is her claim that she never said the plaintiff was a child molester and she never said he was about to be arrested. While she has presented her own affidavit denying such statements, the court does not find this sufficient to carry the burden on a motion for summary judgment.
The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . .Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
Also, unlike several other counts where all possible sources of information have been canvassed, here there is no evidence from the alleged recipient, Gerard O'Brien, by way of deposition or affidavit. There is no other evidence offered by defendant as to what was said other than her own affidavit. Under these facts, such is not sufficient.
While the court is satisfied defendant has failed to show the absence of an issue on the content of what was said, it is appropriate to address one other matter.
In an attempt to rebut Defendant's affidavit as to the content of the statement to Mr. O'Brien, plaintiff has offered what is described as a transcription of a recording of that telephone conversation. Defendant has objected to the admissibility of such evidence on several grounds. These include an argument that evidence as to the content of the telephone conversation, in which the alleged defamatory statement was made, comes from a recording prohibited by Conn. Gen. Stat. § 52-570d and is thus inadmissible under § 52-184a. Plaintiff claims, however, such recording was proper under federal securities regulations. Without ruling of the question of admissibility, it would appear that if evidence of a conversation as claimed by the plaintiff is considered, there may well be contested factual issues needing resolution by the trier of fact.
The court will not on this motion resolve the issue of admissibility. First, no party has offered the recording to determine if it meets any of the exceptions allowed by statute. Second, the parties have not adequately briefed this multi-faceted issue and specifically have not addressed any potential conflict between the Connecticut statute and federal regulatory requirements.
Defendant has not carried the burden of showing that the statement was not a statement of fact but rather a statement of opinion. A statement that a person is guilty of a crime is not necessarily an opinion.
Defendant has not carried the burden of showing how this statement was not defamatory, because, as alleged, the statement clearly accuses the plaintiff of an act likely to damage his reputation in the community if not a direct accusation of a serious criminal offense.
Finally, the defendant has not established that the statement was not made with actual malice.
The court finds the defendant has failed to carry the heavy burden required for summary judgment on Count One, and the motion is denied as to that count.
In conclusion, summary judgment will enter in favor of Defendant Kovac and against Plaintiff on Counts 5, 7 and 8. The motion for summary judgment is denied as to Counts 6 and 1.