Opinion
FBTCV146042748S
09-14-2016
Randy L. Rasmussen v. William Katts et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
Richard E. Arnold, Judge.
The defendants have moved for summary judgment as to Counts One and Two of the plaintiff's Amended Revised Complaint dated October 12, 2015. The defendants argue summary judgment is appropriate because any statements they made to the Easton Police Department regarding the plaintiff's alleged criminal behavior are subject to a qualified privilege which presumes good faith. In support, the defendants have submitted a memorandum of law dated June 3, 2016. The plaintiff has filed his opposition and a memorandum of law, which is dated June 18, 2016. In response to the plaintiff's objection, the defendants have filed a reply memorandum of law. The court heard oral argument on the motion for summary judgment on June 27, 2016.
Before proceeding further, a brief summary of prior proceedings addressed to the plaintiff's Amended Revised Complaint is necessary. The Amended Revised Complaint consists of two counts. Count One alleges slander per se against the defendant William Katts and Count Two alleges slander per se against the defendant Kathy Katts. Count One consisting of six paragraphs alleges William Katts on several occasions between August 2012, and December 2012, falsely and maliciously stated to Easton Police Officers that the plaintiff had sexually molested a minor child. Count Two, consisting of twelve paragraphs alleges that Kathy Katts on various occasions between August 2012, and October 2013, falsely and maliciously stated to various individuals, including Easton Police Officers that the plaintiff had sexually molested a minor child. On March 28, 2016, the court (Wenzel, J.). granted a motion to strike directed to both counts of the Amended Revised Complaint. As a result of the court's ruling, many of the paragraphs of each count were ordered stricken. Thus, all that remains of both Counts One and Two are similar allegations that in August 2012, the defendants made false and malicious statements to Easton Police Officers that the plaintiff had sexually molested a minor child. The defendants have filed the motion for summary judgment arguing that the only allegations of Counts One and Two remaining viable are allegations that each defendant made statements regarding the plaintiff to Easton Police Officers, and these statements by the defendants are protected by qualified privilege that can only be overcome by the plaintiff if the plaintiff can offer evidence of malice or malice in fact, which the plaintiff has not done. Therefore, the defendants argue they are entitled to summary judgment. The defendants have submitted sworn affidavits in their own behalf, as well as, a sworn affidavit from Richard Doyle, identifying himself, Mark Pastor and Thomas Ceccarelli as Easton Police Officers, to whom the defendants spoke to in August 2012.
In granting the motion to strike, the court (Wenzel, J.) issued an electronic order dated March 28, 2016. The court found that additional allegations contained in various paragraphs within Counts One and Two that the court viewed as new claims for slander brought more than two years after their publication. The court stated, the " additional paragraphs allege new causes of action for slander brought outside the period of limitations." The court ruled these additional allegations were on their face barred by the statute of limitations and ordered them stricken.
The plaintiff has submitted excerpts from three depositions. Two of the deposition excerpts are from depositions taken in another case where the present defendants were not parties; were not present; and were not represented. Additionally, neither defendant received notice regarding the scheduling or taking of these depositions. The defendants argue that neither of these deposition excerpts can be considered by the court pursuant to Practice Book § 13-31(a) which does not allow the use of deposition transcripts against a party not present or represented at the deposition. A third deposition excerpt of the testimony of the defendant Kathy Katts can be considered. Other than these deposition transcripts excerpts, the plaintiff has not submitted further documentary evidence or sworn affidavits.
Plaintiff's Exhibit 1 is deposition testimony of Allison Kovac, taken on June 4, 2015, in the case of Randy L. Rasmussen v. Allison Kovac et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FBT CV 13 6039947 S, . Exhibit 2 is deposition testimony of Kimberly Fox Santora taken on July 20, 2015, in the same case as Exhibit 1.
Plaintiff's Exhibit 3 is deposition testimony of the defendant Kathy Katts taken on February 12, 2015, in the present matter.
Standard of Law: Summary Judgment
" Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312-13, 77 A.3d 726 (2013).
" On a motion for summary judgment, the moving party " 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 . . . A material fact is a fact that will make a difference in the result of the case . . . [T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute . . . The party opposing summary judgment must present a factual predicate for his [or her] argument to raise a genuine issue of fact . . . Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate." Valente v. Securitas Security Services, U.S.A., Inc., 152 Conn.App. 196, 202-03, 96 A.3d 1275 (2014).
" The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn.App. 188, 193, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008).
In determining the merits of the motion for summary judgment and the written submissions of the parties, the court notes that each party has presented non-certified excerpts from transcripts of deposition testimony, in support of and in opposition to the motion. See Practice Book § 17-45; New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005) (" [O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment"; preliminary showing of genuineness required, citing Conn. Code of Evidence § 9-1). However, our Supreme Court has stated that parties may " knowingly waive compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003) . Also, our Supreme Court has stated, " [w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, where each party has asked the court to consider non-certified deposition testimony, and no objection was raised on that basis to such consideration, the court, in the exercise of its discretion, has the ability to review excerpts of deposition testimony.
The parties have not objected on the basis that the deposition copies submitted to the court by each side are non-certified copies. However, the defendants have objected to the plaintiff's submission of certain deposition testimony copies pursuant to Practice Book 13-31(a).
Discussion
The dispositive issue raised is whether statements made to the Easton Police by the defendants in connection with a criminal investigation of the plaintiff are qualifiedly privileged in the absence of malice or knowledge of the defendants that their statements were false when they made them. The defendants argue that summary judgment should be granted in their favor on Counts One and Two alleging slander per se, respectively, because the statements made to the police in connection with a criminal investigation are protected by a qualified privilege, and the plaintiff cannot overcome that privilege because he cannot demonstrate that their statements were made with malice.
" Defamation is comprised of the torts of libel and slander . . . Slander is oral defamation . . . Libel . . . is written defamation." (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn.App. 283, 297, 955 A.2d 550 (2008). " 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." (Internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009). " [L]ibel is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business . . . Slander is actionable per se if it charges incompetence or dishonesty in office, or charges a professional person with general incompetence . . . Libel or slander is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached." (Citations omitted; internal quotation marks omitted.) Miles v. Perry, 11 Conn.App. 584, 602, 529 A.2d 199 (1987).
" The essential elements of [a qualified privilege] defense are good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion and publication in a proper manner to proper parties." Decker v. Martin, Superior Court, judicial district of Middlesex, Docket No. CV-09-6000884-S, (January 19, 2010, Bear, J.). " A defendant may shield himself from liability for defamation by asserting the defense that the communication is protected by a qualified privilege . . . When considering whether a qualified privilege protects a defendant in a defamation case, the court must resolve two inquiries . . . The first is whether the privilege applies, which is a question of law . . . The second is whether the applicable privilege nevertheless has been defeated through its abuse, which is a question of fact." (Citations omitted.) Gambardella v. Apple Health Care, Inc., supra, 291 Conn. at 628-29.
" For the defense of [qualified] privilege to attach, a defendant must assert an objective interest sufficiently compelling to warrant protection of an otherwise defamatory communication." Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985). A qualified privilege " may be abused or lost if the defendant published or broadcast the defamatory remarks with malice, improper motive, or bad faith . . . [T]he presence of a qualified privilege does not preclude a subsequent finding that the defendant did not act in good faith." (Citation omitted; emphasis in original; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545 n.24, 733 A.2d 197 (1999). Our Supreme Court has recognized that complaints that report crimes to the police, if made in good faith and without malice, are sufficiently compelling to warrant a qualified privilege against a defamation claim. See Gallo v. Barile, 284 Conn. 459, 471-73, 935 A.2d 103 (2007). Such statements, even if false, are protected in the absence of showing actual malice. Id., 463 n.6.
" A qualified privilege protects false statements that are not made maliciously. In other words, [a]lthough a qualified privilege insulates many defamatory statements and shields many defendants from liability, the privilege does not protect a defendant who makes statements that are both defamatory and malicious. Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 545, 733 A.2d 197 (1999); see also Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236 (1985) (" [e]ven when a legitimate interest is at stake, a claim of conditional privilege is defeated if the defendant acts with malice in making the defamatory communication at issue"). " Furthermore, . . . the malice required to overcome a qualified privilege in defamation cases is malice in fact or actual malice. Gallo v. Barile, supra, 284 Conn. 463 n.6; Hopkins v. O'Connor, 282 Conn. 821, 845, 925 A.2d 1030 (2007). " Actual malice requires that the statement, when made, be made with actual knowledge that it was false or with reckless disregard of whether it was false . . . A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth . . . Malice in fact is sufficiently shown by proof that the [statement was] made with improper and unjustifiable motives." (Citations omitted; internal quotation marks omitted.) Id., 463 n.6. A prima facie showing of good faith must be rebutted with evidence of malice, as opposed to personal opinion about the defendants' motives. Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 540, 906 A.2d 14 (2006). " The plaintiff is required to come forward with solid circumstantial evidence of malice to overcome summary judgment." Id.
Prior to deciding the merits of the motion for summary judgment, the court must first determine if the deposition testimony of Allison Kovac and Kimberly Fox Santora, taken in another matter, can be considered by the court in the present matter. As noted earlier herein, the defendants argue that neither of these deposition transcripts can be considered by the court pursuant to Practice Book § 13-31(a) which does not allow the use of deposition transcripts against a party not present or represented at the deposition. Practice Book § 13-31(a) states in relevant part as follows:
At the trial of a civil action, probate proceeding or administrative appeal, or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were there present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, . . .
The defendants argue they were not present and were not represented at the depositions of Kovac and Santora; nor were they even notified that the depositions were occurring. See Robichaud v. Hewlett-Packard Co., Superior Court, Docket No. X01 CV010165706S(Oct. 25, 2002, Hodgson, J.) [33 Conn.L.Rptr. 38, ] (sustaining plaintiffs' objection pursuant to P.B. § 13-31, to the defendant's use of depositions taken when the plaintiffs were not present or represented at any of these depositions, when determining the merits of an application for class certification).
The plaintiff acknowledges certain statements the defendants made regarding the plaintiff were beyond the statute of limitations and cannot be the subject of further independent litigation. However, statements the defendants made to Kovac and Fox, which are testified to by Kovac and Santora at their depositions in a separate case, show evidence of the defendants' motives and state of mind at the time the defendants repeated the accusations to the Easton Police, and thus, the accusations made by the defendants should be admissible for that purpose. See. National R.R. Passenger Corp. v Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072, 153 L.Ed.2d 106 (2002) (" Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges . . . The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence to support a timely claim").
The plaintiff states that the defendants made statements to third parties, other than the police, contemporaneously with their statements to the police, with reckless disregard of the truth or falsity thereof with improper and unjustifiable motives, and that these statements are borne out by the deposition testimony of Kovac and Santora in their depositions in another case. These statements, therefore, permit the trier of fact to infer that the accusations by the defendants against the plaintiff were made with a reckless disregard for the truth. However, the plaintiff never addresses the plain language of Practice Book § 13-31(a), which does not permit the use of deposition testimony where the defendants were not present, not represented and were not noticed of the depositions. See Gianetti v. Anthem Blue Cross & Blue Shield of Connecticut, 111 Conn.App. 68, 73, 957 A.2d 541 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009); see also, Accredited Home Lenders, Inc. v. Zayas, Superior Court, judicial district of New London, No. CV076000575, (Sept. 3, 2010, Martin, J.) (allowing use of deposition testimony where party was notified of the proposed deposition, prior to the deposition being held).
The court will not consider the deposition testimony of Kovac and Santora. " The admissibility of a deposition into evidence under Practice Book [§ 13-31] is permissive in nature, leaving the ultimate determination to the trial judge . . . The party making the claim of error has the burden of showing that the court clearly abused its discretion." (Internal quotation marks omitted.) Mack v. La Valley, 55 Conn.App. 150, 153, 738 A.2d 718, cert. denied, 251 Conn. 928, 742 A.2d 363 (1999).
The court presently has before it a two-count complaint containing only allegations that in August 2012, the defendants made false and malicious statements to Easton Police Officers that the plaintiff had sexually molested a minor child. The defendants have asserted an objective interest sufficiently compelling to warrant protection because the statements at issue are protected by the interest set forth in Gallo, shielding statements made to the police in connection with a criminal investigation. The defendants' statements are protected by qualified privilege that can only be overcome by the plaintiff if the plaintiff can offer admissible and competent evidence of malice or malice in fact, which the plaintiff has not done. The motion for summary judgment is granted as to Counts One and Two of the plaintiff's Amended Revised Complaint.
The defendants have argued that even if the depositions of Kovac and Santora were considered by the court, the testimony regarding the conversations the defendants had with Kovac and Santora occurred after the defendants reported to the police what their minor son had told them regarding the alleged behavior of the plaintiff. Thus, the conversations, after the fact, with Kovac and Santora, could not form the basis for an improper motive or avoidance of the truth when the defendants spoke to the Easton Police Officers on an earlier date. The statements to the police were the reporting to law authorities what the defendants had been informed of by their minor son, and therefore were not made reckless disregard or improper or unjustifiable motives.