Momah v. Bharti

Citation182 P.3d 455,144 Wn. App. 731
Decision Date28 April 2008
Docket NumberNo. 59079-1-I.,No. 59271-8-I.,59079-1-I.,59271-8-I.
CourtCourt of Appeals of Washington
PartiesDennis MOMAH, M.D., a single man, Appellant, v. Harish BHARTI, Anoop Bharti; and Law Offices of Harish Bharti and Associates, LLC, a Washington State Limited Liability Company, Respondent.

Timothy Kent Ford, Attorney at Law, Mark Alan Johnson, Johnson & Flora PLLC, Seattle, WA, for Appellant.

Charles Kenneth Wiggins, Wiggins & Masters PLLC, Bainbridge Island, WA, Howard Mark Goodfriend, Edwards Sieh Smith & Goodfriend PS, Seattle, WA, for Respondent.

Stephen A. Smith, Kirkpatrick & Lockhart Preston Gates, Seattle, WA, for amicus curiae.


¶ 1 Dennis Momah sued Bharti, a plaintiff's attorney for actual damages based on defamation. The trial court concluded that Bharti's defamatory statements were protected by a public interest privilege derived from Alpine Indus. Computers, Inc. v. Cowles Publishing Co., 114 Wash.App. 371, 57 P.3d 1178 (2002), and applied an actual malice standard of fault. Bharti was granted summary judgment. Alpine creates no such privilege. The statements were not otherwise privileged. The proper standard of fault at summary judgment for defamation of a private party on an issue of public interest, where actual damages are sought, is negligence which is to be established by a preponderance of the evidence. We reverse and remand.


¶ 2 Dennis Momah and his twin brother, Charles Momah are both physicians. Charles1 was accused and subsequently, convicted of rape and sexual abuse of several patients in his OB/GYN practice. In addition, several of those patients brought civil suits against Charles. Harish Bharti is the attorney who filed these civil suits.

¶ 3 On September 19, 2003, the King County Journal published comments attributed to Bharti. Noel S. Brady, Bharti Published Comments, KING COUNTY J., Sept. 19, 2003. Bharti is quoted as saying, "Several of the victims claim that Charles Momah was permitting Dennis Momah, who is a physician to come and violate them without their permission." Id. And, "He was going there impersonating Charles Momah." Id. The King County Journal published another article on September 24, 2003, again quoting Bharti. Brady, supra, Sept. 24, 2003. "Two twin brothers were taking turns having sex with patients on a regular basis without the patients' knowledge that they were two different people.... They started to believe that not only did they have a license to practice medicine, they had a license to rape women." Id. On September 30, Bharti and a client appeared on The Early Show. In response to a question about the State filing charges against Momah, Bharti responded, "Yes, he's — the — Dennis Momah is a defendant." The Early Show: The Dennis Momah Impersonation (CBS News television broadcast Sept. 30, 2003). At some point, Bharti posted the King County Journal articles on his website, and they remained there through at least November 2004.

¶ 4 On behalf of clients, Bharti filed numerous civil suits and lodged complaints with the Washington Medical Quality Assurance Committee (MedQAC) against Momah. The complaints included allegations of malpractice, indecent liberties, assault and battery, and intentional infliction of emotional distress. Bharti eventually dismissed the suits against Momah. Bharti claimed he dismissed the lawsuits to get more evidence against Momah. Momah has never been charged with any criminal activities. MedQAC has also cleared Momah of any wrongdoing, after receiving proof that he was out of town during all the alleged incidents.

¶ 5 In November 2004, Momah filed a defamation suit against Bharti stemming from the statements that appeared in the Journal, on the CBS Early Show, and those statements Bharti reposted on his website. Momah alleged actual damages in the form of lost wages, impairment of earning capacity, damages to his reputation and good will, pain and suffering, physical illness, medical bills and legal expenses. Bharti filed a motion for summary judgment claiming his statements were privileged and lacked the requisite fault. The court granted the motion. Momah now appeals.


¶ 6 When reviewing a summary judgment order, the appellate court undertakes the same inquiry as the trial court. Thompson v. Peninsula School District, 77 Wash.App. 500, 504, 892 P.2d 760 (1995). Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Civil Rule (CR) 56(c). The moving party bears this burden of proof. LaPlante v. State, 85 Wash.2d 154, 158, 531 P.2d 299 (1975). "A material fact is one upon which the outcome of the litigation depends." Barrie v. Hosts of Am., Inc., 94 Wash.2d 640, 642, 618 P.2d 96 (1980). The nonmoving party cannot rely on speculation but must assert specific facts to defeat summary judgment. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986). All facts and inferences are considered in the light most favorable to the nonmoving party. Ashcraft v. Wallingford, 17 Wash.App. 853, 565 P.2d 1224 (1977). Here, Bharti moved for summary judgment so Momah receives the benefit of all factual inferences.

¶ 7 In a defamation case, the plaintiff must establish four elements: falsity, an unprivileged communication, fault, and damages. Mohr v. Grant 153 Wash.2d 812, 822, 108 P.3d 768 (2005). Falsity and damages were not at issue for the purposes of summary judgment. We consider whether the trial court applied the proper standard of fault and correctly determined the offensive remarks were privileged.

I. Standard of Fault

¶ 8 At common law, a plaintiff claiming defamation could recover presumptive damages by proving a false publication subjecting the defamed individual to hatred, contempt or ridicule. Haueter v. Cowles Publishing Co., 61 Wash.App. 572, 578, 811 P.2d 231 (1991). This changed when the Supreme Court began "constitutionalizing" defamation law, overturning two centuries of libel law to ensure the uninhibited debate on public issues embodied in the First Amendment. Dun & Bradstreet Inc. v. Greenmoss Builders Inc., 472 U.S. 749, 765, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (J. White, concurring).

¶ 9 The first step in this movement toward protecting public debate came when the Court required public officials to prove actual malice — knowledge or reckless disregard for falsity — in order to prove defamation. New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Eventually, the Court determined that the trend toward promoting open debate endangered individual reputations, and a balance between these competing forces was required. To this end, in Gertz v. Robert Welch Inc., 418 U.S. 323, 346, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court determined that states could allow private individuals to bring defamation claims based on negligence, rather than actual malice.

¶ 10 The Washington State Supreme Court followed the precedent set by Gertz, when it faced an appeal that "raise[d] the question of whether `actual malice' needs to be established when the statement was directed at a private person, yet pertains to an issue of public concern." Taskett v. KING Broad. Co., 86 Wash.2d 439, 440, 546 P.2d 81 (1976).

"[A] private individual, who is neither a public figure nor official, may recover actual damages for a defamatory falsehood, concerning a subject of general or public interest ... on a showing that in publishing the statement, the defendant knew or, in the exercise of reasonable care, should have known that the statement was false, or would create a false impression in some material respect."

Id. at 445, 546 P.2d 81. In the wake of "constitutionalization," the requisite standard of fault varies based on the nature of the plaintiff,2 the nature of the issue,3 the nature of the damages,4 and the existence of privilege.5

¶ 11 Here, Momah is a private figure, not a public official or public figure.6 The issue is one of public concern and only actual damages are sought. Therefore, unless a privilege applies, Momah need only meet the negligence standard of fault.

¶ 12 When the standard of fault is negligence, the applicable burden of proof is preponderance of the evidence. Haueter v. Cowles Publishing Co., 61 Wash.App. 572, 582, 811 P.2d 231 (1991). Once the plaintiff has established a prima facie case of defamation, the defendant can raise either an absolute or qualified privilege to defend against liability for defamatory statements. See Bender v. Seattle, 99 Wash.2d 582, 600, 664 P.2d 492 (1983); Alpine, 114 Wash.App. at 381-82, 57 P.3d 1178. "An absolute privilege or immunity is said to absolve the defendant of all liability for defamatory statements ... A qualified privilege, on the other hand, may be lost if it can be shown that the privilege has been abused." Bender, 99 Wash.2d at 600, 664 P.2d 492. If the court determines that a privilege applies, the burden of proof shifts to the plaintiff to demonstrate abuse of that privilege. Alpine, 114 Wash.App. at 382, 57 P.3d 1178. "[A] showing of actual malice will defeat a conditional or qualified privilege." Herron v. Tribune Pub. Co. Inc., 108 Wash.2d 162, 183, 736 P.2d 249 (1987). Actual malice must be shown by clear and convincing proof of knowledge or reckless disregard as to the falsity of a statement. Bender, 99 Wash.2d at 601, 664 P.2d 492. Thus, the showing that a privilege applies raises both the standard of fault and burden of proof, even where the plaintiff is a private individual. Id. at 601-02, 664 P.2d 492.

¶ 13 The burden of proof is the same at both summary judgment and trial.7 On summary judgment, Momah need only prove negligence by a preponderance of the evidence unless a privilege applies to Bharti's conduct.

II. Privilege

¶ 14 Relying on Alpine, the trial court found that Bharti was protected by a qualified privilege for statements made...

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