Ravalese v. Lertora , 186 Conn. App. 722 ( 2018 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
DAVID RAVALESE v. JOANNE M. LERTORA
(AC 40044)
DiPentima, C. J., and Alvord and Lavery, Js.
Syllabus
The plaintiff sought to recover damages for, inter alia, defamation, claiming
that that the defendant, who is a psychologist, authored a report that
unfairly characterized him as a child abuser and a sociopath. The plaintiff
and R were involved in protracted and contentious postdissolution cus-
tody and visitation proceedings. During the course of those proceedings,
R’s attorney forwarded R an e-mail requesting that she ask the defendant,
who had provided psychotherapy to the minor child of the plaintiff and
R, to draft a report summarizing the defendant’s insights regarding the
appropriate custody and visitation arrangements for the child. R asked
the defendant to compose the requested report, and the defendant subse-
quently authored a report and provided a copy of that report to R.
Thereafter, the plaintiff commenced the present action, and the defen-
dant filed a motion for summary judgment on the plaintiff’s defamation
claim, which the trial court granted. From the judgment rendered
thereon, the plaintiff appealed to this court, claiming, inter alia, that the
trial court erred in holding that the defendant’s report was prepared for
the purpose of litigation and, thus, that the defendant’s statements
therein were protected by absolute immunity. Held that the trial court
properly rendered summary judgment in favor of the defendant and
determined that the defendant’s publication of her report for the antici-
pated purpose of serving as an aid to the court and the guardian ad litem
in the postdissolution custody proceedings was protected by absolute
immunity; a postdissolution proceeding, such as the one in the present
case, is judicial in nature, and the defendant’s report was sufficiently
relevant to the issues involved in the present proceeding so as to qualify
for the litigation privilege, as the report was made at the request of R’s
attorney, who sought to use the report to assist the trial court and the
guardian ad litem in the custody proceedings, the plaintiff and R signed
an agreement to make the report available to their attorneys and to the
guardian ad litem, the report pertained to factors relevant to the court’s
consideration of the child’s best interests, and although the report was
not admitted as an exhibit during the postdissolution proceedings, there
was no genuine dispute of a material fact that the defendant prepared
it for the purpose of resolving the continuing postdissolution litigation
between the plaintiff and R.
Argued September 12—officially released December 18, 2018
Procedural History
Action to recover damages for, inter alia, defamation,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where the court, Elgo,
J., granted the defendant’s motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiff appealed to this court. Affirmed.
Keith Yagaloff, for the appellant (plaintiff).
Michael R. McPherson, for the appellee (defendant).
Opinion
LAVERY, J. The plaintiff, David Ravalese, appeals
from the summary judgment rendered by the trial court
in favor of the defendant, Joanne M. Lertora, on his
complaint sounding in defamation. On appeal, the plain-
tiff sets forth two main claims: (1) the court improperly
held that a report authored by the defendant was made
for the purpose of litigation and, therefore, that the
plaintiff’s action for defamation was barred by the doc-
trine of absolute immunity; and (2) the court improperly
held that the statute of limitations barred the action.1
We affirm the judgment of the court.
The following facts and procedural history are rele-
vant to our decision. In 2000, the court dissolved the
marriage of the plaintiff and Kimberly Ravalese, whom
we refer to jointly as the Ravaleses. Following the disso-
lution of their marriage, the Ravaleses were involved
in protracted and contentious postjudgment custody
and visitation proceedings. In February, 2004, the court
appointed a guardian ad litem for their minor child.
Between 2004 and 2012, the Ravaleses were involved
in numerous court proceedings, including, inter alia,
various motions for contempt that had been filed by
the plaintiff, a court-ordered appointment of a new
guardian ad litem for the minor child, and a court-
ordered study for parental alienation. The defendant is
a psychologist, who provided individual psychotherapy
to the minor child on or about September, 2004 through
December, 2010.
During the course of these proceedings, in early 2010,
Kimberly Ravalese’s attorney, Fatima Lobo, forwarded
to Kimberly Ravalese an e-mail, requesting that she
ask the defendant to draft a report summarizing the
defendant’s insights regarding the appropriate custody
and visitation arrangements for the child. Kimberly
Ravalese then gave the defendant a hard copy of this
e-mail and asked the defendant to compose the
requested report.
In response, the defendant composed a report sum-
marizing her assessment. Both the plaintiff and Kimb-
erly Ravalese signed an agreement authorizing the
defendant to make the report available to their respec-
tive attorneys and to the child’s guardian ad litem, Emily
Moskowitz. The defendant attests that she provided a
copy of her report only to Lobo and to Kimberly
Ravalese.2
In the report, the defendant discussed, among other
things, the child’s reports of the plaintiff’s engaging
in abusive behavior, the defendant’s opinion that the
plaintiff’s behavior warranted a personality disorder
diagnosis, and the defendant’s recommendations
regarding visitation between the plaintiff and his minor
child. Lobo attempted to introduce the report into evi-
dence at a July 8, 2010 postdissolution court hearing,
but was unsuccessful because the child’s guardian ad
litem, Moskowitz, asserted the psychologist-patient
privilege, and the court, thereafter, declined to admit
the report.3 In August, 2011, Kimberly Ravalese filed a
grievance against Moskowitz with the Statewide Griev-
ance Committee (grievance committee). The plaintiff
alleges in his operative complaint that during the griev-
ance proceedings, Kimberly Ravalese provided the
defendant’s report to the grievance committee.
The plaintiff filed a complaint, dated May 28, 2013,
in the Superior Court against the defendant, sounding
in defamation and several other theories of liability.4
The plaintiff alleged in relevant part that the defendant,
in the report she had authored, unfairly characterized
him as a child abuser and a sociopath. In the operative
complaint, the plaintiff describes two separate
instances that he alleges constitute defamation: (1)
when the defendant provided the report to Kimberly
Ravalese in June, 2010; and (2) when Kimberly Ravalese
allegedly submitted the report to ‘‘the grievance com-
mittee, and to attorneys representing the parties in that
matter, to various individuals involved in the hearing,
including mental health professionals.’’
In response to the plaintiff’s operative complaint, the
defendant pleaded several special defenses, namely,
that the statements in the report are truthful, that they
are statements of opinion, that they are absolutely privi-
leged because they were published in connection with
judicial or quasi-judicial proceedings, that they were
published in good faith, with the health and welfare of
a child in mind, and, therefore, that they are protected
by a qualified privilege, that the plaintiff’s defamation
count is barred by the statute of limitations contained
in General Statutes § 52-597, and that the plaintiff failed
to mitigate any potential harm.
Following a lengthy series of pretrial motions, on
May 31, 2016, the defendant filed a motion for summary
judgment on the remaining count in the operative com-
plaint, the defamation count, which was argued before
the court on September 6, 2016.
On January 4, 2017, the court issued a memorandum
of decision in which it granted the defendant’s motion
for summary judgment, and rendered judgment in favor
of the defendant. The court analyzed both the defen-
dant’s statute of limitations and absolute immunity
defenses. As to the defendant’s statute of limitations
defense, the court considered the plaintiff’s claim that
the defendant was liable for the publication of the report
when it was presented to the grievance committee. The
court reasoned that the defendant could not be held
responsible for the alleged publication of the report to
the grievance committee because there was no dispute
that the defendant, herself, had not published the report
to that committee.5 Moreover, the court determined that
the only publication by the defendant had occurred long
before the grievance committee proceeding. Accord-
ingly, the court held that the plaintiff’s May, 2013 action
was barred by the applicable statute of limitations; see
General Statutes § 52-597 (‘‘[n]o action for libel or slan-
der shall be brought but within two years from the date
of the act complained of’’); because the only potentially
actionable instance of publication was when the defen-
dant delivered her report to Kimberly Ravalese in June,
2010, which occurred outside the applicable two year
statute of limitations.
Additionally, the court determined that the state-
ments made by the defendant in her report were pro-
tected by absolute immunity. Reasoning 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 chill-
ing effect of the threat of litigation,’’ the court held,
alternatively, that the defamation action also was
barred by the doctrine of absolute immunity. This
appeal followed.
On appeal, the plaintiff claims, in relevant part, that
the court erred in holding that the defendant’s report
was prepared for the purpose of litigation and that
the defendant’s statements therein are cloaked with
absolute immunity. Although the plaintiff agrees that
Connecticut has long recognized the doctrine of abso-
lute immunity, which also is referred to as the litigation
privilege; see Simms v. Seaman, 308 Conn. 523, 531–40,
69 A.3d 880 (2013); the plaintiff contends that the defen-
dant was not court appointed and her report was not
prepared for the purpose of litigation and, thus, should
not have been considered privileged. We disagree.
‘‘[S]ummary 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. . . . The
party moving for summary judgment has the burden of
showing . . . that the party is . . . entitled to judg-
ment as a matter of law. . . . Our review of the trial
court’s decision to grant the defendant’s motion for
summary judgment is plenary.’’ (Internal quotation
marks omitted.) Hopkins v. O’Connor, 282 Conn. 821,
829, 925 A.2d 1030 (2007). Additionally, whether abso-
lute immunity applies is a question of law over which
our review is plenary. See Simms v. Seaman, supra,
308 Conn. 530.
We next set forth the relevant law applicable to defa-
mation and the litigation privilege. ‘‘A defamatory state-
ment is defined as a communication that tends to harm
the reputation of another as to lower him in the estima-
tion 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 dem-
onstrate 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.) Hopkins v. O’Con-
nor, supra, 282 Conn. 838. As our Supreme Court has
stated on several occasions, and as the court in this
matter recognized, ‘‘if, however, the communications
are uttered or published in the course of judicial pro-
ceedings, even if they are published falsely and mali-
ciously, they nevertheless are absolutely privileged
provided they are pertinent to the subject of the contro-
versy.’’ Id.Connecticut has long recognized the litigation privi-
lege. See Simms v. Seaman, supra, 308 Conn. 536–40
(discussing history of litigation privilege in Connecti-
cut). ‘‘[T]he 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 occasion-
ally abuse the privilege by making false and malicious
statements. . . . Put simply, absolute immunity fur-
thers 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 [of absolute immunity] 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 pro-
ceedings 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 cer-
tain retaliatory civil actions . . . .’’ (Internal quotation
marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn.
616, 627–28, 79 A.3d 60 (2013).
‘‘The rationale underlying the privilege is grounded
upon the proper and efficient administration of justice.
. . . 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 per-
mitting 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 allegedly defamatory statements are
sufficiently relevant to the issues involved in a proposed
or ongoing judicial proceeding, so as to qualify for the
[litigation] 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.
Accordingly, we must determine whether the pro-
ceedings at issue in this case were judicial or quasi-
judicial in nature and, if so, we then must consider
whether the report is sufficiently relevant to the issues
involved in those proceedings. See Kelley v. Bonney,
221 Conn. 549, 566, 571, 606 A.2d 693 (1992). ‘‘The judi-
cial proceeding to which [absolute] immunity attaches
has not been defined very exactly. It includes any hear-
ing before a tribunal which performs a judicial function,
ex parte or otherwise, and whether the hearing is public
or not. It includes for example, lunacy, bankruptcy, or
naturalization proceedings, and an election contest. It
extends also to the proceedings of many administrative
officers, such as boards and commissions, so far as
they have powers of discretion in applying the law to
the facts which are regarded as judicial or quasi-judicial,
in character.’’ (Internal quotation marks omitted.) Id.,
566.
A postdissolution proceeding, such as the one in the
present case, is judicial in nature. Neither party disputes
that fact. The plaintiff’s central argument is that the
defendant was not performing a judicial function
because she was not requested by the court to author
the report in question, the report never was admitted
as an exhibit during the postdissolution proceedings,
and the defendant published the report to Kimberly
Ravalese in addition to the attorneys and the guardian
ad litem, which was beyond the scope of the agreement
between the plaintiff and Kimberly Ravalese.6
First, although we agree that the court did not request
the report, it is clear from the facts set forth in the
defendant’s affidavit that the purpose of her report was
to aid the guardian ad litem and the court in the
Ravaleses’ continuing custody matter, upon the request
of Lobo. Second, although the report was not admitted
as an exhibit, it, nonetheless, remains clear that the
defendant prepared the report to further the purpose
of resolving the Ravaleses’ continuing postdissolution
litigation.
Under the doctrine of absolute immunity, ‘‘[t]he
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. . . . 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 proceed-
ings. To make such preparations and presentations
effective, there must be an open channel of communica-
tion 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, supra, 282 Conn.
832. To this end, our Supreme Court has held that alleg-
edly defamatory written statements drafted for submis-
sion to the state board of education incident to a
complaint that had been filed with that board and com-
munication with a potential witness for the purpose
of marshaling evidence for use in the state board of
education proceedings were absolutely privileged. Kel-
ley v. Bonney, supra, 221 Conn. 572–74.
It is well established that a statement made as a
preliminary step in litigation does not disqualify it from
being absolutely privileged. See Hopkins v. O’Connor,
supra, 282 Conn. 832. In determining whether a commu-
nication is protected by absolute immunity, ‘‘the court
must decide as a matter of law whether the allegedly
defamatory statements are sufficiently relevant to the
issues involved in a proposed or ongoing judicial pro-
ceeding . . . .’’ Id., 839.
A court in a postdissolution proceeding has the
authority to ‘‘make or modify any proper order regard-
ing the custody, care, education, visitation and support’’
of any minor children. General Statutes § 46b-56 (a).
Pursuant to § 46b-56 (c), ‘‘the court shall consider the
best interests of the child,’’ and in doing so, may con-
sider the following relevant factors: ‘‘(1) The tempera-
ment and developmental needs of the child; (2) the
capacity and the disposition of the parents to under-
stand and meet the needs of the child . . . (5) the past
and current interaction and relationship of the child
with each parent . . . (7) any manipulation by or coer-
cive behavior of the parents in an effort to involve the
child in the parents’ dispute; (8) the ability of each
parent to be actively involved in the life of the child
. . . (11) the stability of the child’s existing or proposed
residences, or both; (12) the mental and physical health
of all individuals involved . . . (14) the effect on the
child of the actions of an abuser, if any domestic vio-
lence has occurred between the parents or between a
parent and another individual or the child; [and] (15)
whether the child or a sibling of the child has been
abused or neglected . . . .’’
The defendant’s report was made at the request of
Lobo, who sought to use the report to assist the court
and the guardian ad litem in the custody proceedings.
Both parties to the dissolution signed an agreement to
make the report available to their attorneys and to the
child’s guardian ad litem. Thus, even though the defen-
dant’s report ultimately was not admitted as an exhibit,
it is clear that there is no genuine dispute of material
fact that the defendant prepared it for that purpose. It
is also clear that the report pertained to factors relevant
to the court’s consideration of the child’s best interests.
Therefore, we agree with the court’s conclusion that the
defendant’s publication of her report for the anticipated
purpose of serving as an aid to the court and the guard-
ian ad litem in the postdissolution custody proceedings
was protected by absolute immunity. Accordingly, the
court properly rendered summary judgment in favor of
the defendant.7
The judgment is affirmed.
In this opinion the other judges concurred.
1
The primary focus of the plaintiff’s brief is on his claim that the court
improperly determined that the defendant was entitled to absolute immunity
for the statements set forth in her report. The plaintiff also briefly addresses
his claim that the court improperly held that the statute of limitations barred
the action, which was an alternative basis for the court’s rendering summary
judgment. Any other issues mentioned in the plaintiff’s brief are not briefed
adequately and, therefore, do not merit our review. Estate of Rock v. Univer-
sity of Connecticut, 323 Conn. 26, 33, 144 A.3d 420 (2016) (‘‘[c]laims are
inadequately briefed when they are merely mentioned and not briefed
beyond a bare assertion’’ [internal quotation marks omitted]).
2
In his complaint, the plaintiff alleges that the defendant provided the
report to the attorneys, the guardian ad litem, and Kimberly Ravalese. This
discrepancy between the defendant’s affidavit and the allegation in the
plaintiff’s complaint is not crucial to our decision. The plaintiff argues that
the releases signed by him and Kimberly Ravalese did not authorize delivery
of the report to either himself or to Kimberly Ravalese, and that Kimberly
Ravalese should not have received or read the report.
3
Nonetheless, in 2012, the Ravaleses entered into a formal agreement,
which became a court order, in which they agreed that the defendant’s report,
among other reports, ‘‘shall be made available to the Family Treatment
Coordinator and to any other mental health professionals working with the
Ravalese family, at the discretion of said Family Treatment Coordinator and
the Guardian Ad Litem.’’
4
On May 30, 2013, the plaintiff filed his initial complaint in the Superior
Court sounding in defamation and several other theories of liability. After
the plaintiff filed a revised complaint, the defendant filed a motion to strike
all the counts, with the exception of the defamation count. The court granted
this motion to strike. The plaintiff subsequently filed a revised substitute
complaint to which the defendant again moved to strike each theory of
liability except defamation. The court again granted the defendant’s motion
to strike, and the plaintiff elected not to replead. Accordingly, the operative
complaint is the plaintiff’s revised substitute complaint, and the only
remaining count in that complaint is the count sounding in defamation.
5
Specifically, the court stated: ‘‘There is no dispute that [the defendant]
did not know of, nor did she authorize, the ‘publication’ of the [report] in
the grievance proceedings.’’
6
The plaintiff also contends that the fact that the defendant published
the report to Kimberly Ravalese is problematic because Kimberly Ravalese
then published the report to the grievance committee. He argues that had
the defendant adhered to the Ravaleses’ agreement that the report could
be disseminated to the attorneys and the guardian ad litem, there would
have been no publication to that committee.
Attached to her motion for summary judgment, the defendant submitted an
affidavit in which she attested: ‘‘I had no knowledge that Kimberly Ravalese
intended to file a grievance complaint against Attorney Emily Moskowitz
with the Statewide Grievance Committee,’’ and that ‘‘I did not assist Kimberly
Ravalese in preparing or filing her grievance complaint against Attorney
Moskowitz, nor did I approve or authorize her to include my May 25, 2010
report with it.’’ The plaintiff provided no evidence to challenge the defen-
dant’s sworn statements. Moreover, as stated by the court in this case, there
is ‘‘no dispute that [the defendant] did not know of, nor did she authorize,
the ‘publication’ of the [report] in the grievance proceedings.’’
As part of the plaintiff’s argument that a genuine issue of material fact
exists as to whether the defendant may have provided Kimberly Ravalese
with a second copy of the report for purposes of sharing it with the grievance
committee, the plaintiff also argues that the defendant owed him a continuing
duty to either retract her statements or to prevent others from republishing
it. The court rejected this argument.
As specifically stated by the court: ‘‘[T]he plaintiff does not dispute that
the defendant herself did not publish the [report] in the instances subsequent
to when she gave the [report] to Lobo and Kimberly Ravalese . . . .’’
Although the actions of Kimberly Ravalese may have resulted in the defen-
dant’s report being presented to the grievance committee, the plaintiff offers
no evidence to challenge the defendant’s sworn statement that she did not
know that Kimberly Ravalese was going to file a grievance against the
guardian ad litem and that she neither encouraged, assisted, nor authorized
Kimberly Ravalese to provide a copy of the report to the grievance com-
mittee.
In this case, the record reveals that the plaintiff and Kimberly Ravalese
signed a release authorizing the defendant to disclose the contents of her
report to the attorneys representing each party to the dissolution and to
the minor child’s guardian ad litem. The defendant provided the report to
Lobo and to Kimberly Ravalese to assist the guardian ad litem and the court
in the custody proceedings. There is no evidence that the defendant had
any way of knowing that Kimberly Ravalese would use the report in any
manner inconsistent with its purpose, and, in fact, the evidence demonstrates
that she did not know that Kimberly Ravalese would use the report in a
manner inconsistent with the purpose for which it was written.
Therefore, we agree with the court’s conclusion that the defendant is not
liable for Kimberly Ravalese’s publication of the defendant’s report to the
grievance committee.
7
Furthermore, although our conclusion that the court properly rendered
summary judgment on the basis of absolute immunity is dispositive of this
case, because the court addressed the merits of the defendant’s statute of
limitations defense, and the parties have briefed this issue, we also conclude
that even if summary judgment was not proper on the basis of absolute
immunity, the action nonetheless would be barred under the applicable
statute of limitations.
As we discussed in footnote 6, we agree with the court’s determination
that the evidence demonstrated that the only actionable instance presented
in the plaintiff’s complaint is the defendant’s delivery of her May 25, 2010
report to Kimberly Ravalese and Lobo. As to that event, the defendant’s
affidavit provides that the defendant both mailed a copy of this report to
Lobo and gave a copy of this report to Kimberly Ravalese ‘‘sometime before
the Ravaleses’ family court hearing on June 2, 2010.’’ Accordingly, the statute
of limitations expired at the latest on June 2, 2012. Therefore, the May 28,
2013 date of service of process on the plaintiff’s initial complaint was outside
the time within which the plaintiff properly could bring suit. See General
Statutes § 52-597 (‘‘[n]o action for libel or slander shall be brought but within
two years from the date of the act complained of’’).