Opinion
HHDCV136042237
01-04-2017
David Ravalese v. Joanne Lertora
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court is a motion for summary judgment filed by the defendant, Joanne Lertora, who is being sued for defamation by the plaintiff, David Ravalese. This defamation action arises out of a dissolution action in which Lertora, a psychologist, was retained by the plaintiff's ex-wife, Kimberly Ravalese, to provide therapeutic services for their son over the course of the couple's highly contentious custody litigation. The plaintiff has sued Lertora because of an allegedly defamatory letter, which she wrote in response to a request by Kimberley Ravalese's attorney, Fatima Lobo, who intended to use the letter in the custody proceedings. In moving for summary judgment, the defendant argues that the action is barred by absolute immunity and by the statute of limitations. The plaintiff asserts that the action is not barred by the statute of limitations due to the continuing course of conduct doctrine nor is defendant protected by absolute immunity.
The standard governing the court's review of a motion for summary judgment is well settled. " Summary judgment is a method of resolving litigation when pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015); see also Practice Book § 17-49 (summary judgment standard).
FACTS
Retained by Kimberley Ravalese to provide therapeutic services for the plaintiff's son, the defendant wrote a letter, dated May 25, 2010, at the behest of Attorney Lobo. The letter documented, among other things, Lertora's opinion that the plaintiff's behavior warranted a diagnosis of Antisocial Personality Disorder, and included instances of the plaintiff's abusive behavior toward the plaintiff's child, as well as Lertora's recommendations regarding visitation. There is no dispute that Lobo received the letter on June 2, 2010, and that Lobo was unsuccessful in introducing the letter into evidence because Emily Moskowitz, the child's guardian ad litem, had asserted the child's psychologist/patient privilege. The letter was subsequently entered into evidence in grievance proceedings, which Kimberley Ravalese initiated against Moskowitz on August 18, 2011, resulting in a February 22, 2013 decision in which the letter was referenced.
There is no dispute that Lertora did not know of, nor did she authorize, the " publication" of the letter in the grievance proceedings. Nevertheless, the plaintiff argues that Lertora failed to prevent the publication of the letter in these proceedings as well as in subsequent proceedings, in which the substance of the letter and the weight it should be given was the subject of litigation. The plaintiff served Dr. Lertora with process in this action on May 28, 2013.
The plaintiff claims that the defendant should be liable for the manifold ways in which the letter was used, referenced and hence " published" by others including Dr. James Black, a court-ordered psychologist, who referenced his review of the letter in April 2011, and which led to his written report on May 14, 2012. Kimberley Ravalese also gave the letter to subsequent attorneys, Peter Barry and then Susan Boyan, both of whom attempted to use the letter on behalf of their client's interest in the custodial proceedings by seeking to ensure Dr. Black had the letter to consider in his alienation study. The plaintiff also asserts that the letter was published again when it was referenced in Kimberly Ravalese's expert witness disclosure, filed on May 24, 2012, in the dissolution action.
DISCUSSION
" 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." Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004). Given the undisputed facts, the defendant argues that she should prevail on summary judgment because the plaintiff can only establish that the defendant published the allegedly defamatory statement to Lobo and Kimberley Ravalese on or about May 25, 2010. Because the defendant was served on May 28, 2013, the defendant argues that the action was commenced well beyond the two-year statute of limitations.
Statute of Limitations
As the plaintiff concedes, the tort of defamation has a two-year statute of limitations from the date of publication. General Statutes § 52-597; see also Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. 224. The plaintiff, however, emphasizes the number of times the letter was used in subsequent proceedings, including the grievance proceeding against Moskowitz, and then was subsequently referenced throughout the ongoing custody proceedings. The plaintiff characterizes those instances as " re-publication" in order to fashion an argument that those subsequent dates are part of a continuing course of conduct, notwithstanding the fact that Lertora had no role in how or whether it was used. Nevertheless, the plaintiff argues that Lertora had " a duty to prevent re-publication." While arguing that the defendant cites to no authority that Lertora herself must publish the statement in each instance of publication, the plaintiff also fails to cite to any authority for his own extraordinary claim. This is because, of course, there is no authority for the plaintiff's assertion that the defendant is somehow responsible for thrusting herself into the subsequent grievance and ongoing custodial proceedings where she is not a party, and where her patient, the son of the plaintiff and Kimberley Ravalese, is represented by a guardian ad litem, and where her patient's parents are actively engaged in the litigation and are also represented by counsel.
Moreover, because a new cause of action arises with each publication, our courts have rejected the continuing course of conduct doctrine in defamation claims. Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. 224; see also Brady v. Bickford, Superior Court, judicial district of New London, Docket No. CV-11-6007541-S, (March 13, 2015, Zemetis, J.) (discussing persistent course of conduct); Time Was Garage, LLC v. Giant Steps, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-10-6002895-S, (December 20, 2013, Danaher, J.) (reasoning that where defendants allegedly made false and derogatory statements about plaintiffs over number of years, each alleged defamatory statement was a distinct event which gave rise to separate cause of action); Hechtman v. Connecticut Dept. of Public Health, Superior Court, judicial district of Hartford, Docket No. CV-09-4043516-S (December 3, 2009, Prescott, J.) (49 Conn.L.Rptr. 261, 267-68, ) (reasoning that reposting allegedly libelous information on website gave rise to new claim for libel as separate and distinct publication). Therefore, for the defendant to be liable for each new publication, the plaintiff must establish the first element of the cause of action, i.e., that the defendant published the defamatory statement.
Finally, the assertion that the defendant has a duty to prevent re-publication of her statement in the context of litigation where she is not a party turns, on its head, the whole point of litigation and the truth-seeking function of our courts. Lertora's letter was potential evidence, Lertora herself was a potential witness, and her opinion was advanced by Kimberley Ravalese and her attorneys, disputed vigorously by David Ravalese and his counsel, and ultimately offered to and/or considered by Moscowitz, the court, and Dr. Black. Whatever merit and weight that should have been given to Lertora's opinion, and whether it should be admitted at all, played itself out in the courts and in those proceedings, as is the essence and core function of our judicial system. This court cannot fathom how the defendant could have become otherwise involved in those proceedings to " prevent" re-publication of her letter.
Since each publication gives rise to a new cause of action and the plaintiff does not dispute that the defendant herself did not publish the letter in the instances subsequent to when she gave the letter to Lobo and Kimberley Ravalese, this court finds that the action is barred by the statute of limitations.
Absolute Immunity
The court also finds in favor of the defendant to the extent that her statements and the letter are privileged by the doctrine of absolute immunity. " Absolute immunity for defamatory statements made in the course of judicial proceedings has been recognized by common-law courts for many centuries and can be traced back to medieval England . . . The privilege arose soon after the Norman Conquest and the introduction of the adversary system, and has been deemed as old as the law itself . . . The rationale articulated in the earliest privilege cases was the need to bar persons accused of crimes from suing their accusers for defamation.
" Like other jurisdictions, Connecticut has long recognized the litigation privilege. In Blakeslee & Sons v. Carroll, 64 Conn. 223, 29 A. 473 (1894) ( Blakeslee ), an action in slander for allegedly false and malicious testimony by a witness, the court explained: The general rule is that defamatory words spoken upon an occasion absolutely privileged, though spoken falsely, knowingly, and with express malice, impose no liability for damages recoverable in an action in slander . . ." Relying on English authorities, including Munster, Dawkins, and Kennedy v. Hilliard, 10 Ir. C.L. Rep. 195 (1859) (considering absolute immunity with respect to statement in affidavit by witness), the court added that the privilege extends to judges, counsel and witnesses participating in judicial proceedings.
" Connecticut courts have adopted the privilege for all of the same reasons articulated by courts in other jurisdictions. In Blakeslee, the court explained that the privilege was founded upon the principle that in certain cases it is advantageous for the public interest that persons should not be in any way fettered in their statements, but should speak out the whole truth, freely and fearlessly . . . The court described the privilege as being rooted in the public policy that " a judge in dealing with the matter before him, a party in preparing or resisting a legal proceeding, [or] a witness in giving evidence in a court of justice, shall do so with his mind uninfluenced by the fear of an action for defamation or a prosecution for libel.
" One century later, the court in Rioux similarly declared: The purpose of affording absolute immunity to those who provide information in connection with judicial and quasi-judicial proceedings is that in certain situations the public interest in having people speak freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious statements . . . [T]he possibility of incurring the costs and inconvenience associated with defending a [retaliatory] suit might well deter a citizen with a legitimate grievance from filing a complaint . . . Put simply, absolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings. This objective would be thwarted if those persons whom the common-law doctrine was intended to protect nevertheless faced the threat of suit. In this regard, the purpose of the absolute immunity afforded participants in judicial and quasi-judicial proceedings is the same as the purpose of the sovereign immunity enjoyed by the state . . . As a result, courts have recognized absolute immunity as a defense in certain retaliatory civil actions in order to remove this disincentive and thus encourage citizens to come forward with complaints or to testify." (Citations omitted; internal quotation marks omitted.) Simms v. Seaman, 308 Conn. 523, 531, 535-39, 69 A.3d 880 (2013).
The evidence establishes, as propounded by the defendant and not disputed by the plaintiff, that Lobo sought the letter from the defendant for the purpose of supporting Kimberley Ravalese's claim for custody in the dissolution action. This court concludes that the fact that the statement was prepared for litigation cloaks it with absolute immunity. " The scope of privileged communication extends not merely to those made directly to a tribunal, but also to those preparatory communications that may be directed to the goal of the proceeding. As this court previously has recognized: The right of private parties to combine and make presentations to an official meeting and, as a necessary incident thereto, to prepare materials to be presented is a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings. To make such preparations and presentations effective, there must be an open channel of communication between the persons interested and the forum, unchilled by the thought of subsequent judicial action against such participants; provided always, of course, that such preliminary meetings, conduct and activities are directed toward the achievement of the objects of the litigation or other proceedings." (Internal quotation marks omitted.) Hopkins v. O'Connor, 282 Conn. 821, 832, 925 A.2d 1030 (2007). " The judicial proceedings privilege extends to any statement made in the course of a judicial proceeding, whether or not given under oath, so long as it is pertinent to the controversy . . . Thus it applies to statements made in pleadings or other documents prepared in connection with a court proceeding . It is not absolutely essential, [however] in order to obtain the benefits of absolute privilege, that the language claimed to be defamatory be spoken in open court or contained in a pleading, brief, or affidavit . . . [S]ee also Kelley v. Bonney, 221 Conn. 549, 572-74, 606 A.2d 693 (defendant's communication to alleged potential witness held absolutely immune because communication aimed at marshaling evidence against plaintiff)." (Citations omitted; emphasis added; internal quotation marks omitted.) McManus v. Sweeney, 78 Conn.App. 327, 339, 827 A.2d 708 (2003).
" Participants in a judicial process must be able to testify or otherwise take part without being hampered by fear of defamation suits. Therefore, in determining whether a statement is made in the course of a judicial proceeding, it is important to consider whether there is a sound public policy reason for permitting the complete freedom of expression that a grant of absolute immunity provides . . . In making that determination, the court must decide as a matter of law whether the alleged defamatory statements are sufficiently relevant to the issues involved in a proposed or ongoing judicial proceeding, so as to qualify for the privilege. The test for relevancy is generous, and judicial proceeding has been defined liberally to encompass much more than civil litigation or criminal trials." (Citations omitted; internal quotation marks omitted.) Hopkins v. O'Connor, supra, 282 Conn. 839.
At this stage of the proceedings, this court may not consider the merits of the plaintiff's claims nor the validity of the defendant's opinions as espoused in the letter. At the same time, as Hopkins v. O'Connor makes clear, this court is required to consider the public policy reasons for ensuring that witnesses are able to speak freely. This court finds that irrespective of the merits, not only was the content of the defendant's letter clearly relevant to the question of custody, but also that there is compelling public policy to ensure that those who are witnesses in dissolution actions, especially those in highly contentious proceedings where children are involved, must be able to speak freely without the chilling effect of the threat of litigation.
Because this court concludes that this action is barred by the statute of limitations and in the alternative, the doctrine of absolute immunity, the court enters judgment for the defendant. The motion for summary judgment is granted.