83 Hawai'i 28, Dunlea v. Dappen, 18614

• Citation: 924 P.2d 196,83 Hawaii 28
• Decision Date: 19 September 1996
• Docket Number: No. 18614,18614
• Parties: 83 Hawai'i 28 Sandra DUNLEA, Plaintiff-Appellant, v. Howard DAPPEN, Defendant-Appellee, and John Doe Natural Persons 1-10; John Doe Corporate Entities 1-10; John Doe Governmental Entities 1-10; John Doe Partnerships 1-10; John Doe Joint Ventures 1-10, Defendants.
• Court: Supreme Court of Hawai'i

Page 196

924 P.2d 196

83 Hawai'i 28

Sandra DUNLEA, Plaintiff-Appellant, v. Howard DAPPEN, Defendant-Appellee and John Doe Natural Persons 1-10; John Doe Corporate Entities 1-10; John Doe Governmental Entities 1-10; John Doe Partnerships 1-10; John Doe Joint Ventures 1-10, Defendants.

No. 18614.

Supreme Court of Hawai'i.

Sept. 19, 1996.

[83 Hawai'i 30] C. Bryan Fitzgerald, Hilo, for plaintiff-appellant Sandra Dunlea.

Roy F. Hughes and Deborah S. Jackson, Honolulu, for defendant-appellee Howard Dappen.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

OPINION

MOON, Chief Justice.

Plaintiff-appellant Sandra Dunlea appeals from the circuit court's: (1) July 27, 1993 order granting defendant-appellee Howard Dappen's motion to dismiss her claim of childhood sexual abuse (CSA) with prejudice on the basis that the claim was barred by the statute of limitations; (2) February 9, 1994 order granting Dappen's motion for summary judgment with respect to Dunlea's claims of defamation and intentional and/or negligent infliction of emotional distress; and (3) October 31, 1994 final judgment in favor of Dappen. Dunlea also appeals from certain of the circuit court's rulings regarding discovery matters.

For the reasons discussed below, we: (1) vacate the circuit court's order dismissing Dunlea's claim of CSA and remand this case for trial on the CSA claim; (2) affirm the order granting summary judgment in favor of Dappen on Dunlea's defamation and negligent and intentional infliction of emotional distress claims. Because we are remanding this case for trial, we also provide guidance with respect to the discovery matters.

I. BACKGROUND

Dunlea, who was born in 1947, alleges that she was the victim of incestuous rape at the hands of her natural father, Dappen. She has direct and detailed memory of sexual assaults that occurred between 1961 and 1964, when she was between the ages of fourteen and seventeen years old, while living with her father in Ventura, California. She also alleges memories, beginning at age five, of heinous assaults by a faceless attacker whom she now realizes was Dappen.

In 1964, Dunlea reported the incestuous rape to a California Highway Patrolman. After an investigation, she was removed from Dappen's custody and placed in a foster home. Dappen, apparently, was never prosecuted.

In 1991, Dappen told Dunlea's sister that he was still angry with Dunlea and would never forgive her for what happened in 1964. When the statement was repeated to Dunlea, it triggered a severe emotional reaction because Dunlea had interpreted her father's statement as blaming her for falsely accusing him of incest. One week later, she called Dappen at his Maui residence to confront him about the statement. Dappen was "very angry" and repeated to Dunlea that he would never forgive her for what she did to him. The conversation with Dappen prompted Dunlea to begin therapy.

Although Dunlea "has been haunted by depression, thoughts of suicide, shame, disgust, and denial," which have "greatly damaged every facet of [her] life," it was only through therapy that she allegedly discovered that these feelings were symptomatic of a psychological illness caused by her father's incestuous rape.

On December 19, 1992, Dunlea filed a three-count complaint in the Circuit Court of the Third Circuit. ¹ She alleged that: (1) the statement made by Dappen to Dunlea's sister was defamatory (count I); (2) the statements made by Dappen to Dunlea's sister and Dunlea directly constituted intentional and/or negligent infliction of emotional distress (count II); and (3) she suffered damages as a result of CSA (count III). Relying on the California Code of Civil Procedure (Cal.C.C.P.) Section 340.1, ² Dunlea asserted in count III of her complaint that the substantive law of California should be applied because the incestuous rape occurred in California. Dunlea's prayer for relief sought "special, general, and punitive damages caused her, in an amount to be proven at trial[.]"

On January 22, 1993, Dappen timely filed his answer to the complaint, essentially denying, or claiming lack of sufficient information to admit or deny, each and every allegation of the complaint, except that he admitted the allegation regarding his current address. On April 4, 1993, Dunlea filed a motion to compel answers to interrogatories, seeking information regarding Dappen's assets. The court denied the motion on the basis that the information sought was not relevant where the record did not establish a reasonable basis for punitive damages.

On June 22, 1993, Dappen filed a "Motion to Dismiss the Complaint,[ ³] or, in the Alternative, for Summary Judgment." Subsequent to the hearing on the motion, which was held on July 13, 1993, the court granted the motion to dismiss with respect to count III (the CSA claim), ruling that the claim was barred by Hawai'i's statute of limitations. Although not clearly articulated, the court, in so ruling, ⁴ necessarily rejected Dunlea's argument that, under the "discovery rule," her cause of action did not accrue until she knew, or reasonably should have known, not only of the abuse, but also of the resulting injury and the causative link between the two.

With respect to counts I and II (Dunlea's defamation and emotional distress claims), Dappen argued that, because both counts were based solely on the CSA allegations, those claims could not survive the dismissal of count III (the CSA claim). The court disagreed and denied Dappen's motion, but suggested that, because Dappen's motion had not addressed whether the statements were, in fact, defamatory, a second motion for summary judgment should be brought. At the same hearing, the court denied Dunlea's second "Motion to Compel Answers to Interrogatories and for Sanctions Filed July 6, 1993," explaining that if counts I and II survived the anticipated motion for summary judgment discovery relevant to punitive damages would be allowed at that time.

Thereafter, on November 2, 1993, Dappen brought a second motion, seeking summary judgment on the defamation and emotional distress claims, which the court granted.

At the same hearing, on January 20, 1994, the court considered Dunlea's motion to compel the deposition testimony of Dappen and his wife, Lillian Dappen. The motion, which was filed on October 13, 1993, was prompted by defense counsel's instructions to Dappen and his wife not to answer questions at least forty-five times during their depositions on September 17, 1993. In light of the summary dismissal of Dunlea's remaining claims, the motion to compel was denied as moot. Final judgment in favor of Dappen was entered on October 31, 1994, and Dunlea timely appealed.

II. DISCUSSION

A. Dunlea's CSA Claim

Dappen's motion to dismiss the CSA claim relied exclusively on the ground that the applicable statute of limitations had run and, therefore, that the complaint had failed to state a claim. The circuit court granted the motion on that basis alone; ⁵ therefore, we need not consider the other defenses raised in Dappen's answer to the complaint. ⁶

It is well settled that:

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief. Ravelo v. County of Hawaii, 66 Haw. 194, 198, 658 P.2d 883, 886 (1983) (quoting Midkiff [v. Castle & Cooke, Inc.], 45 Haw. [409,] 414, 368 P.2d [887,] 890 [ (1962) ] ); Marsland v. Pang, 5 Haw.App. 463, 474, 701 P.2d 175, 185-86, cert denied, 67 Haw. 686, 744 P.2d 781 (1985). We must therefore view a plaintiff's complaint in a light most favorable to him or her in order to determine whether the allegations contained therein could warrant relief under any alternate theory. Ravelo, 66 Haw. at 199, 658 P.2d at 886. For this reason, in reviewing the circuit court's order dismissing the plaintiffs' complaint in this case, our consideration is strictly limited to the allegations of the complaint, and we must deem those allegations to be true. Au [v. Au], 63 Haw. [210,] 214, 626 P.2d [173,] 177 (1981).

Baehr, 74 Haw. at 545, 852 P.2d at 52.

Thus, accepting the allegations of Dunlea's complaint as true, we must decide whether it appears beyond doubt that she can prove no set of facts in support of her claim of CSA that would entitle her to relief under any theory. Although count III of the complaint alleged a cause of action under a California statute, we note that the circuit court's determination that Hawai'i law applies with respect to the statute of limitations is not challenged on appeal. Whether Hawai'i or California law applies, however, is not necessarily dispositive because the California statute appears to be a codification of the discovery rule that this court has judicially adopted. ⁷

Under Hawai'i law, damage to persons or property is governed by HRS § 657-7, which provides that "[a]ctions for the recovery of compensation for damage for injury to persons or property shall be instituted within two years after the cause of action accrued, and not after, except as provided in section 657-13." ⁸ HRS § 657-7. As this court noted in Yoshizaki v. Hilo Hospital, 50 Haw. 150, 151, 433 P.2d 220, 221 (1967), "[c]learly, the determining word in the statute is 'accrued'."

The time of accrual of a cause of action for CSA is an issue of first impression in Hawai'i. In other contexts, however, we have employed the "discovery rule," holding that a cause of action accrues when the plaintiff discovers, or reasonably should have discovered, the elements giving rise to the claim. See e.g., Yoshizaki, 50 Haw. at 154, 433 P.2d at 223 (holding that cause of action does not accrue until plaintiff knew or should have known of defendant's negligence, thus, medical malpractice action brought in 1963 based upon negligent diagnosis in 1959 not barred by statute of limitations where plaintiff learned of...