Vig v. Gerdes

• Decision Date: 24 January 2020
• Docket Number: Docket No. 46790
• Parties: MIA KIM VIG and TOMMY VIG, Plaintiffs-Appellants, v. SARAH JANE GERDES, Defendant-Respondent, and JOHN DOE and/or JANE DOE, Defendants.
• Court: Idaho Court of Appeals

MIA KIM VIG and TOMMY VIG, Plaintiffs-Appellants, v. SARAH JANE GERDES, Defendant-Respondent,andJOHN DOE and/or JANE DOE, Defendants.

Docket No. 46790

COURT OF APPEALS OF THE STATE OF IDAHO

January 24, 2020

Karel A. Lehrman, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John T. Mitchell, District Judge.

Judgment of dismissal, affirmed.

Mia Kim Vig and Tommy Vig; West Hills, California, pro se appellants.

Paine Hamblen LLP; Scott C. Cifrese, Spokane, Washington, for respondent.

____________________

HUSKEY, Chief Judge

Mia Kim Vig and Tommy Vig appeal from the district court's final judgment of dismissal. Specifically, the Vigs argue the district court erred when it granted Sarah Jane Gerdes's motion to dismiss¹ ("motion for summary judgment") and denied the Vigs' motion for summary judgment and motion to amend. Because the Vigs failed to establish a claim ofdefamation per se, the district court properly granted Gerdes's motion for summary judgment. We therefore affirm the district court's judgment of dismissal.

I.FACTUAL AND PROCEDURAL BACKGROUND

Gerdes wrote a book entitled "Sue Kim of the Kim Sisters, The Authorized Biography." The book was an account of Sue Kim, who was a member of the Kim Sisters musical group. Mia Kim, who was also a member of the Kim Sisters, and her husband, Tommy, sued Gerdes for defamation resulting from publication of the book.

The Vigs' complaint alleged libel, defamation, intentional infliction of emotional distress, and intentional interference with prospective economic advantage. However, the Vigs did not identify any specific monetary amount of damage in their complaint. Instead, the Vigs explained the contents of the book were libel per se,² and as such, the Vigs' claim was "actionable without further proof of fact or damages." The complaint listed the following general damages: the lack of invitations to perform in Korea; the damage to their reputation as human beings and performers; and the damage to their reputation for honesty and integrity, their standing in the entertainment community, and present and future employment.

Gerdes filed an answer to the Vigs' complaint. The Vigs subsequently withdrew the claims of intentional infliction of emotional distress and intentional interference with prospective economic advantage, and the same day, the Vigs filed a motion for summary judgment.³ The Vigs served Gerdes by mail with two separate requests for admission. Gerdes failed to respond to the requests. The Vigs also filed a motion to amend complaint, seeking leave to add a claim of fraud. In addition, the Vigs submitted a notice to the court which indicated they served Gerdes with three sets of requests for admission. The district court ultimately held that Gerdeswas properly served with the first two sets of requests for admission and because she failed to respond, the requests were deemed admitted pursuant to Idaho Rule of Civil Procedure 36(a)(4).⁴

Gerdes sought to dismiss the suit and filed a motion summary judgment along with a memorandum in support of the motion for summary judgment. In her motion, Gerdes argued she did not defame plaintiffs because the statements were not actionable either as generally defamatory or defamatory per se statements; the Vigs were public figures; and truth is an absolute defense to an allegation of defamation. Gerdes further asserted that because the Vigs had not pleaded or established an actionable claim, the complaint should be dismissed. Various other pretrial motions were filed by both parties. The district court held a hearing on three motions: the Vigs' motion for summary judgment, the Vigs' motion to amend complaint, and Gerdes's motion for summary judgment. The district court issued a memorandum decision and order denying the Vigs' motion for summary judgment, denying the Vigs' motion to amend complaint, and granting Gerdes's motion for summary judgment. The district court entered a judgment of dismissal and found the Vigs did not establish a general defamation claim. The district court did not address whether the Vigs had established a defamation per se claim. The Vigs timely appeal.

II.STANDARD OF REVIEW

On appeal, we exercise free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Edwards v. Conchemco, Inc., 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). Summary judgment is proper if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. I.R.C.P. 56(c). The movant has the burden of showing that no genuine issues of material fact exist. Stoddart v. Pocatello Sch. Dist. No. 25, 149 Idaho 679, 683, 239 P.3d 784, 788 (2010). The burden may be met by establishing the absence of evidence on an element that the nonmoving party will be required to prove at trial. Dunnick v. Elder, 126 Idaho 308, 311, 882 P.2d 475, 478 (Ct. App. 1994). Such an absence of evidence may be established either by an affirmative showing with the moving party's ownevidence or by a review of all the nonmoving party's evidence and the contention that such proof of an element is lacking. Heath v. Honker's Mini-Mart, Inc., 134 Idaho 711, 712, 8 P.3d 1254, 1255 (Ct. App. 2000). Once such an absence of evidence has been established, the burden then shifts to the party opposing the motion to show, via further depositions, discovery responses or affidavits, that there is indeed a genuine issue for trial or to offer a valid justification for the failure to do so under I.R.C.P. 56(d). Sanders v. Kuna Joint Sch. Dist., 125 Idaho 872, 874, 876 P.2d 154, 156 (Ct. App. 1994). Disputed facts and reasonable inferences are construed in favor of the nonmoving party. Castorena v. Gen. Elec., 149 Idaho 609, 613, 238 P.3d 209, 213 (2010). This Court freely reviews issues of law. Cole v. Kunzler, 115 Idaho 552, 555, 768 P.2d 815, 818 (Ct. App. 1989).

III.ANALYSIS

The Vigs claim the district court erred when it granted Gerdes's motion for summary judgment and denied the Vigs' motion for summary judgment.⁵ The Vigs argue they were defamed by Gerdes and that her admissions, by default, establish defamation. Although the Vigs briefly address the district court's denial of their motion for summary judgment, an order denying a motion for summary judgment is not an appealable order. Verity v. USA Today, 164 Idaho 832, 841, 436 P.3d 653, 662 (2019). Thus, this appeal is limited to the issue of whether the district court correctly granted Gerdes's motion for summary judgment.

According to the Vigs, summary judgment was not appropriate because Gerdes failed to respond to requests for admission. The Vigs also claim the district court erred because it failed to grant their claim of defamation per se. While the Vigs make several broad and general allegations about Gerdes's book, they direct this Court to two specific excerpts from the book which are the bases for their claims. The first instance involved a demand letter and a financial settlement, which was discussed on page 285 of Gerdes's book.⁶ A second instance involved apassage from page sixty of the book, in which Mia Kim Vig's father said Mia Kim Vig would be "one less mouth to feed and person to worry about" once she departed from the family home and joined the other Kims as part of the musical group.⁷ Gerdes argues the Vigs did not establish the statements were defamatory, and in the alternative, the Vigs failed to establish defamation per se as alleged in their complaint.

There are two types of defamation claims: general defamation claims and defamation per se claims. See Hill v. Stubson, 420 P.3d 732, 741 (Wyo. 2018). In a general defamation action, a plaintiff must prove the defendant: (1) communicated information concerning the plaintiff to others; (2) the information was defamatory; and (3) the plaintiff was damaged because of the communication. Irish v. Hall, 163 Idaho 603, 607, 416 P.3d 975, 979 (2018). In a general defamation case, a defamatory statement is one that tends to harm a person's reputation, usually by subjecting the person to public contempt, disgrace, or ridicule, or by adversely affecting the person's business. Id. On the other hand, a statement is defamatory in a defamation per se case when the statement involves: (1) a criminal offense; (2) a loathsome disease; (3) a matterincompatible with business, trade, profession, or office; or (4) serious sexual misconduct. Hill, 420 P.3d at 741.⁸ Unlike in a general defamation action, where a special damage amount must be asserted, statements may be defamatory per se without proof of special damages. Farber v. Cornils, 94 Idaho 326, 327, 487 P.2d 689, 690 (1971); see also Irish, 163 Idaho at 607, 416 P.3d at 979.

Here, the Vigs specifically alleged "libel per se" in their complaint and pleaded only general damages, thus the Vigs' claim could only be a claim of defamation per se. Nonetheless, the district court only considered whether the claim satisfied the requirements of general defamation, instead of whether the Vigs made a successful claim of defamation per se.

In its memorandum decision, the district court considered whether the requests for admission that were admitted by default could individually or cumulatively prove general defamation. The district court found the default admissions did not conclusively establish that the Vigs were defamed because, at most, they collectively satisfied only one of the three elements of defamation--the book communicated information concerning the Vigs to others. The two remaining elements of defamation, according to the district court, were not satisfied by Gerdes's default admissions to the Vigs' requests for admission. The district court concluded: ...