Opinion
Case No. 20060906-CA.
Filed: June 1, 2007. NOT FOR OFFICIAL PUBLICATION.
Appeal from Second District, Farmington Department, 060700193, 060700194, The Honorable Darwin C. Hansen.
Cari Allen, Bountiful, Appellant Pro Se.
Mary C. Corporon and Allison R. Librett, Salt Lake City, for Appellees.
Before Judges Bench, McHugh, and Thorne.
MEMORANDUM DECISION
Cari Allen appeals the dismissal of her complaints against Appellees Diane Dimeo and Danielle Ferrari (Defendants). We affirm in part and reverse and remand in part.
Allen filed separate complaints against Dimeo and Ferrari. Because the issues were identical in each case, the two cases were consolidated on appeal.
Allen asserts that the trial court erred in dismissing her complaints based on the judicial proceedings privilege. In each complaint, Allen asserted causes of action for slander and libel. Both libel claims were based on similar facts: Both Dimeo and Ferrari had written letters to a Guardian Ad Litem (GAL) representing children in their parents' divorce case and custody proceedings. The information in the letters was eventually presented to the district court in the form of affidavits in support of a motion for a temporary restraining order and modification of visitation. The letters and affidavits included information about Allen and her conduct around and influence on the children.
In addition, each complaint also contained a cause of action for slander independent of the letters and affidavits. In separate incidents, both Dimeo and Ferrari stated that Allen was unchaste. Neither of the incidents were included in or related to the written information provided to the district court.
Rather than filing an answer to the complaints, Defendants filed motions to dismiss the complaints based on the judicial proceedings privilege, asserting that the claims were based on affidavits provided to a court. After a hearing on Defendants' motions to dismiss the complaints, the district court determined that the affidavits were absolutely privileged and dismissed the complaints in their entirety for failure to state a claim. Allen appeals the dismissal of her complaints.
When reviewing whether a trial court properly granted a motion to dismiss for failure to state a claim, this court "accept[s] the factual allegations in the complaint as true and consider[s] them, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party." Coroles v. Sabey, 2003 UT App 339, ¶ 2 n. 1, 79 P.3d 974. Dismissal under Utah Rule of Civil Procedure 12(b)(6) is warranted "only in cases in which, even if the factual assertions in the complaint were correct, they provide no legal basis for recovery."Mackey v. Cannon, 2000 UT App 36, ¶ 13, 996 P.2d 1081. The trial court's grant of a motion to dismiss is a question of law reviewed for correctness. See id. at ¶ 9.
The judicial proceedings privilege is an absolute privilege protecting those involved in litigation against suits arising from statements made related to the litigation. See Price v. Armour, 949 P.2d 1251, 1256 (Utah 1997). "The general rule is that judges, jurors, witnesses, litigants, and counsel in judicial proceedings have an absolute privilege against defamation." Id. "To establish the judicial proceeding privilege, the statements must be (1) made during or in the course of a judicial proceeding; (2) have some reference to the subject matter of the proceeding; and (3) be made by someone acting in the capacity of judge, juror, witness, litigant, or counsel." Krouse v. Bower, 2001 UT 28, ¶ 8, 20 P.3d 895.
The district court correctly dismissed Allen's libel causes of action based on the judicial proceedings privilege. First, the statements by Defendants in the letters and affidavits were made in the course of a judicial proceeding. The requirement that a statement be made in the course of a judicial proceeding is interpreted broadly. See Pratt v. Nelson, 2007 UT 41, ¶ 29. The privilege may apply to statements made preliminary to a proposed judicial proceeding. See id. Here, the divorce case between the children's parents was the primary proceeding. The GAL appointed to protect the children's interests brought a motion for a temporary restraining order and modification of the father's visitation rights within the context of the pending divorce. The letters and affidavits were presented to the trial court as support for the GAL's motion. The letters, from which the affidavits were drafted, were statements preliminary to a proceeding, specifically the GAL's motion. Thus, the statements were made in the course of a judicial proceeding.
Second, the statements were related to the subject matter of the judicial proceeding. The requirement that a statement has some reference to the judicial proceeding is broadly construed. See Krouse, 2001 UT 28 at ¶ 12. "A statement need not be relevant or pertinent to the judicial proceeding from an evidentiary point of view for the privilege to apply." Id. (citation omitted). "Statements are relevant for purposes of the privilege if they simply have some relationship to the cause or subject matter involved." Id. (citations omitted); see also Pratt, 2007 UT 41 at ¶ 30. The determination of whether a statement has a sufficient reference to the subject matter of the litigation is a question of law. See Allen v. Ortez, 802 P.2d 1307, 1312 n. 8 (Utah 1990).
Here, the statements had more than a simple reference to the subject matter of the proceeding, they had a direct evidentiary relevance to the proceeding. The statements were from persons who observed the conditions of the children's visitation with their father and the impact on the children. The information provided was relevant to the issues brought forward by the GAL in seeking a modification of visitation.
Third, the statements were made by witnesses in the judicial proceeding. The affidavits were the method of providing the witness testimony of Defendants. The affidavits were offered as evidentiary support for the motion before the court. Therefore, the statements in the letters and affidavits are absolutely privileged under the judicial proceedings privilege. Accordingly, the trial court properly dismissed the causes of action based on the letters and affidavits.
Allen argues that the statements are not within the judicial proceedings privilege because nothing was reported to the Division of Child and Family Services as required under statutes providing a qualified privilege for such reports. The statutory reporting requirements, however, have no relevance to the judicial proceedings privilege. Allen also asserts that there was no privilege because she was not a party to any judicial proceeding. This, too, is irrelevant. The privilege applies to statements made in a judicial proceeding. There is no requirement that a statement must regard only parties to the same proceeding to qualify for the privilege. See, e.g., Pratt, 2007 UT 41 at ¶ 30 (noting that statements must have some relationship to the subject matter and that any doubt of relevancy should be resolved in favor of having a reference to the proceeding).
Finally, Allen argues that Defendants were not witnesses underAllen v. Ortez, 802 P.2d 1307 (Utah 1990). In Allen, the supreme court held that a social worker was not protected by the judicial proceeding privilege when she sent letters to the father's attorney and the court commissioner at the father's request. The court noted that nothing in the record indicated that the social worker was designated as an actual or prospective witness and that neither the attorney nor the commissioner requested the letters. See id. at 1313.
Here, however, the record indicates that the GAL investigated the children's circumstances and sought out the information. The letters were a method of providing information and the information in the letters was later reformatted into formal affidavits to present to the court in support of the motion. So, in contrast to Allen, Defendants here were requested to provide information by an involved attorney pursuing her clients' interests, and the information was formally provided as evidence in a judicial proceeding. In sum, the trial court properly dismissed Allen's libel causes of action because the statements made were absolutely privileged under the judicial proceedings privilege.
In her complaints, Allen also asserted causes of action for slander based on events independent from the judicial proceeding on the motion for a temporary restraining order. In separate incidents, both Dimeo and Ferrari stated that Allen was unchaste. Taking the facts alleged in the complaints as true, Dimeo imputed unchastity to Allen in front of several adults and children, and Ferrari told a child of Allen's past unchaste conduct.
These incidents were irrelevant to the child custody and visitation proceeding. The letters and affidavits did not contain any reference to these events. Information about these events was not provided to the divorce court in any manner. Neither Dimeo nor Ferrari were acting as witnesses in any proceeding when they made the comments to others. Therefore, the trial court erred in dismissing Allen's slander claims under the judicial proceedings privilege. Accordingly, the dismissal of the slander claims is vacated.
In sum, the trial court properly dismissed Allen's libel claims based on the judicial proceedings privilege. The trial court's dismissal of Allen's slander claims is vacated and this matter is remanded to the trial court for further proceedings.
Defendants' request for attorney fees on appeal is denied.
Russell W. Bench, Presiding Judge. Carolyn B. McHugh, Judge. William A. Thorne Jr., Judge.