McCarthy v. Yempuku

• Decision Date: 21 February 1984
• Docket Number: No. 9199,9199
• Citation: 678 P.2d 11,5 Haw.App. 45
• Parties: Michael F. McCARTHY and Curtis J. Bernhardt, Plaintiffs-Appellants, v. Roy Y. YEMPUKU and Shackley F. Raffetto, Defendants-Appellees, and R. Patrick Jaress, John Does 1 through 10, John Doe Partnerships 1 through 10, and John Doe Corporations 1 through 10, Defendants.
• Court: Hawaii Court of Appeals

Page 11

678 P.2d 11

5 Haw.App. 45

Michael F. McCARTHY and Curtis J. Bernhardt, Plaintiffs-Appellants, v. Roy Y. YEMPUKU and Shackley F. Raffetto, Defendants-Appellees and R. Patrick Jaress, John Does 1 through 10, John Doe Partnerships 1 through 10, and John Doe Corporations 1 through 10, Defendants.

No. 9199.

Intermediate Court of Appeals of Hawai'i.

Feb. 21, 1984.

Syllabus by the Court

1. Under Rule 56(c), Hawaii Rules of Civil Procedure (HRCP), summary judgment is proper where, from the record, there is no genuine issue as to any material fact and the moving party clearly demonstrates that he should prevail as a matter of law.

2. An attorney is absolutely privileged to publish defamatory matter concerning another in communications preliminary to, or in the institution of, or during the course of, and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

To avail himself of the absolute privilege, an attorney has the burden of proving (1) that the defamatory statement was made preliminary to, in the institution of, or during the conduct of a judicial proceeding and (2) that the statements were related, material, and pertinent to that proceeding.

3. Summary judgment should not be granted unless the entire record so clearly shows a right to judgment as to leave no room for controversy. Thus, where the record is inadequate, summary judgment is improper.

4. Where the lower court's conclusion is correct, its decision will not be disturbed on the ground that it gave a wrong reason for its action. Therefore, an appellate court may affirm a summary judgment on any ground appearing in the record even if the lower court did not rely on it.

5. Rule 56(e), HRCP, requires that facts set forth in an affidavit be admissible in evidence. Consequently, inadmissible hearsay statements in an affidavit may not be considered for purposes of summary judgment.

6. Where the defendant himself has not published the defamatory matter, the plaintiff must plead and prove that the defendant through a third party directed or procured its publication.

Allan F. Suematsu, Honolulu (Michael F. McCarthy on opening brief and Boyce R. Brown, Jr., Honolulu, with him on reply brief; Brown & Durant, Honolulu, of counsel), for plaintiffs-appellants.

James F. Ventura, Honolulu (Faye M. Koyanagi, Honolulu, with him on brief; Libkuman, Ventura, Ayabe & Hughes, Honolulu, of counsel), for defendant-appellee Roy Y. Yempuku.

John S. Edmunds, Honolulu (Ronald J. Verga, Honolulu, with him on brief; John S. Edmunds, A Law Corp., Honolulu, of counsel), for defendant-appellee Shackley F. Raffetto.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

Plaintiffs Michael F. McCarthy (McCarthy) and Curtis J. Bernhardt (Bernhardt) (collectively Appellants) appeal the summary judgment in favor of defendants Roy Y. Yempuku (Yempuku) and Shackley F. Raffetto (Raffetto) (collectively Appellees), two attorneys at law, in a defamation action. The issue before us is whether, based on the record in the case, the granting of summary judgment was proper. We answer no and reverse, except that as to Raffetto only regarding Counts II and III of the complaint we answer yes and affirm.

On April 7, 1982, Appellants filed a complaint alleging that Appellees and R. Patrick Jaress (Jaress) had uttered defamatory statements against them. Count I alleged that Jaress had made statements indicating that Bernhardt "had been involved in illegal transfers of money from the mainland to Hawaii." ¹ In Count II, Appellants alleged that at a meeting with Blake T. Okimoto (Okimoto) on March 4, 1982, Appellees stated that Bernhardt "had made his money by dealing in drugs and had used his business to launder the money derived from drug operations." Count III alleged that at the same March 4 meeting Appellees stated that Appellants "were under investigation by the Drug Enforcement Administration, FBI and Internal Revenue Service" and that McCarthy "had been involved in the utilization of American Resources, Inc. to launder money derived from Mr. Bernhardt's alleged drug operations." Count IV alleged that on March 16, 1982, in the presence of McCarthy and others, Raffetto stated that McCarthy "was guilty of 'rip offs' and that he had 'ripped off the loan company.' "

Appellees and Jaress filed their respective answers which interposed, inter alia, the defense of privilege. Subsequently, Appellees filed their respective motions for summary judgment. The trial court orally ruled at the December 9, 1982 hearing that summary judgment would be granted since the statements made by Appellees, if, in fact, "... Raffetto made any of [the] statements, were made in the process ... or in anticipation of judicial proceedings" and were "absolutely privileged." Transcript of December 9, 1982 Proceedings at 11-12.

On February 2, 1983, the trial court filed its order granting Appellees' motions and directing the entry of final judgment pursuant to Rule 54(b), Hawaii Rules of Civil Procedure (HRCP) (1981). This appeal followed.

I.

It is well settled in this jurisdiction that under Rule 56(c), HRCP (1981), summary judgment is proper "where, from the record, there is no genuine issue as to any material fact and movants clearly demonstrate they should prevail as a matter of law." Hulsman v. Hemmeter Development Corp., 65 Haw. 58, 61, 647 P.2d 713, 716 (1982). See Molokai Homesteaders Cooperative Ass'n v. Cobb, 63 Haw. 453, 629 P.2d 1134 (1981); Vlasaty v. Pacific Club, 4 Haw.App. 556, 670 P.2d 827 (1983); Bank of Honolulu v. Anderson, 3 Haw.App. 545, 654 P.2d 1370 (1982). The evidence in the record and the inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Fernandes v. Tenbruggencate, 65 Haw. 226, 649 P.2d 1144 (1982); Silver v. George, 64 Haw. 503, 644 P.2d 955 (1982); Costa v. Able Distributors, Inc., 3 Haw.App. 486, 653 P.2d 101 (1982). Additionally in reviewing a summary judgment, an appellate court will not examine evidentiary documents which were not specifically called to the attention of the trial court. Munoz v. Yuen, 66 Haw. 603, 670 P.2d 825 (1983).

Appellants contend that summary judgment was improper since (1) the alleged defamatory statements were not absolutely privileged as a matter of law and (2) genuine issues of material fact exist.

II.

The resolution of the issues raised by Appellants requires (1) a delineation of the essential elements comprising the absolute privilege applied by the trial court and (2) a determination of whether the evidence viewed in the light most favorable to Appellants proves the requisite elements of the privilege.

A.

The privilege claimed by Appellees is set forth in Restatement (Second) of Torts § 586 (1977) (Restatement § 586) as follows:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

Our supreme court has adopted an absolute privilege for attorneys by its holding in Ferry v. Carlsmith, 23 Haw. 589, 591 (1917), that "attorneys, in the conduct of judicial proceedings, are privileged from prosecution for libel or slander in respect to words or writings, used in the course of such proceedings, ... when such words and writings are material and pertinent to the question involved."

The absolute privilege is grounded on the important public policy of "securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients." Restatement § 586 comment a. Thus, it not only protects attorneys in the pursuit of their profession, but also ensures the public's right to zealous legal representation. Counterbalancing this, however, is the equally important policy of protecting individuals from defamatory statements which are unrelated to the judicial proceeding involved. Consequently, "the privilege does not cover the attorney's publication of defamatory matter that has no connection whatever with the litigation." Restatement § 586 comment c.

To avail himself of the absolute privilege, an attorney has the burden of proving the following essential elements: (1) that the defamatory statements were made in the course of a judicial proceeding and (2) that the statements were related, material, and pertinent to that proceeding.

Regarding the first element, the Restatement construes "the course of a judicial proceeding" as follows:

The publication of defamatory matter by an attorney is protected not only when made in the institution of the proceedings or in the conduct of litigation before a judicial tribunal, but in conferences and other communications preliminary to the proceeding.

Restatement § 586 comment a.

To prove the second element, it must be shown that there is a sufficient connection between the defamatory statements and the judicial proceeding. See Restatement § 586 comment c. For the court to find such a connection, the statements must be (1) "reasonably related" to the proceeding, Romero v. Prince, 85 N.M. 474, 477, 513 P.2d 717, 720 (1973); Johnston v. Cartwright, 355 F.2d 32 (8th Cir.1966); Larmour v. Campanale, 96 Cal.App.3d 566, 158 Cal.Rptr. 143 (1979); Rader v. Thrasher, 22 Cal.App.3d 883, 99 Cal.Rptr. 670 (1972), which means that the statements must "have some connection or logical relation to the judicial proceeding," Bradley v. Hartford Accident & Indemnity Co., 30 Cal.App.3d 818, 824, 106 Cal.Rptr. 718, 722 (1973) (emphasis in original), and (2) "made to achieve the objects of the litigation." Romero v. Prince, 85 N.M. at 477, 513 P.2d at 720; Izzi v. Rellas, 104 Cal.App.3d 254, 163 Cal.Rptr. 689 (1980); Lerette v. Dean Witter Organization, Inc., 60 Cal.App.3d 573, 131 Cal.Rptr. 592 (1976).

B.

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