DARUWALA v. MERCHANT

No. A-1310-13T3.

FAROKH DARUWALA, Plaintiff-Appellant, v. HOSHI MERCHANT, NAWAZ MERCHANT, and KAMAL MERCHANT, Defendants-Respondents.

Superior Court of New Jersey, Appellate Division.

Decided July 31, 2015.


Attorney(s) appearing for the Case

Michael Confusione argued the cause for appellant (Hegge & Confusione LLC and Singh Law LLC, attorneys; Mr. Confusione and Seema Singh , of counsel and on the briefs).

Gregory T. Keller and Louis H. Miller argued the cause for respondents Hoshi and Nawaz Merchant (Stein, McGuire, Pantages & Gigl, LLP, and Mr. Miller, attorneys; Mr. Keller, of counsel and on the brief; Mr. Miller, on the brief).

W.S. Gerald Skey argued the cause for respondent Kamal Merchant (Skey & Bhattacharya LLC, attorneys; Mr. Skey and Kunal M. Patel , on the brief).

Before Judges Alvarez, Waugh, and Carroll.


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Plaintiff Farokh Daruwala appeals the Law Division's October 30, 2013 order denying him reconsideration of an earlier decision granting defendants' application to dismiss his third amended complaint, which included eight counts, for failure to state a claim. The order also awarded defendant Kamal Merchant $42,676.14 in counsel fees and costs pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1 and Rule 1:4-8. Kamal,1 plaintiff's former wife, is defendant Hoshi Merchant's sister; Nawaz Merchant is Hoshi's wife. We affirm the dismissal of counts two, four, five, seven, and eight. Farokh does not appeal the dismissal of count six. Because we reverse dismissal of counts one and three, however, we also vacate the award of counsel fees.2

I

Farokh and Kamal, who married in India in 1997, relocated to New Jersey in 2001. They lived at first with Hoshi and Nawaz in Raritan, rented a home in Edison in 2005, and purchased a home in Franklin Park in August 2008.

Kamal filed for divorce on January 8, 2010, and moved back into her brother and sister-in-law's home. On January 16, 2010, Farokh and Kamal were granted citizenship.

On January 17, 2010, Nawaz reported to the police that the prior November, while showering in her locked bathroom, she heard a sound, saw a flash, and heard the shutter noise of a camera. She relocked the door. After she was done showering, she found that all the doors leading outside were locked. Nawaz confronted Farokh, the only other person in the house. He let her examine his Blackberry; she believed that he had either deleted the photograph or saved it elsewhere. She did not contact the police when the incident occurred because she did not want to jeopardize approval of Farokh or Kamal's citizenship applications.

Starting in 2002, Farokh worked twenty-four weeks a year as a soccer coach for the Hunterdon YMCA. Mike Triano, the youth soccer league coordinator, typically e-mailed the names and phone numbers of the players before the start of each season. With this information, Farokh would contact the parents. On February 19, 2010, after Farokh had already received the usual information for that year, Triano told him not to call the families as his services were not needed.

Farokh claimed that when he subsequently spoke with LuAnn Aversa, the YMCA's human resources director, she told him that he could not coach because of complaints against him for child molestation and "peeping Tom" behavior. At deposition, Aversa explained that Hoshi had called her and reported that there were some "verbal cases" of Farokh "acting inappropriately" with children. When Aversa asked Hoshi if by "inappropriate" he meant sexually inappropriate, he said "yes." Hoshi later recanted this statement to Aversa. The YMCA conducted a criminal check on Farokh, but he was approved to resume coaching when it came back clear.

Farokh claimed that, in May 2010, Triano asked him why Hoshi would make such allegations against him. Triano, however, denied ever telling Farokh about them. Aversa also denied telling Farokh that Hoshi had done so. Triano said that Hoshi never used terms like "child molester" or "peeping Tom," but had said "that it wasn't a good idea for [Farokh] to be around women and children," and mentioned a complaint lodged with the Raritan Police Department. Farokh coached again in the fall of 2010, but then resigned on April 12, 2011. In the resignation letter, Farokh said he felt compelled to resign.

Nawaz eventually filed a complaint against Farokh regarding the photograph on March 3, 2010. At that time, she also told police she was concerned about Farokh coaching soccer because her friends, the Belihomjis, had told her that another couple with two daughters said Farokh had touched the girls inappropriately, possibly on their breasts. Nawaz's adult female friend, Jayshree Kalwachwala, allegedly said she was "propositioned and possibly harassed" to have sex with Farokh on September 28, 2009.

One of Farokh's friends, Tirthankar Das, claimed that Kamal called him sometime late in 2009, alleging that Farokh had photographed Nawaz while she was naked and had molested Hoshi and Nawaz's children. Das claimed that Kamal said he should be careful with his own children around Farokh and that she, Hoshi, and Nawaz planned to make sure Farokh was "blacklisted" in their community and unable to get a job.

In October 2010, Kamal accessed one of plaintiff's former Yahoo e-mail accounts. She found several photographs of naked women, including one of Nawaz in the shower. In the divorce, Kamal had received possession of a laptop that the parties jointly used during the marriage. She sent the device to a forensic computer examiner, Zubin Medora, who issued a report finding that there was an "active attempt" to delete files on the hard drive by an unknown person. Medora sent Kamal a CD of the files he was able to recover, including photographs of naked women.

Kamal gave a copy of the CD to Nawaz, who took it to the Raritan police. In April 2011, Kamal met with Raritan police and identified some of the naked women in the photographs, including a former neighbor in Edison. Since the photographs did not include faces, Kamal identified the women from the file names.

Farokh was charged with one count of fourth-degree invasion of privacy, N.J.S.A. 2C:14-9(a), and two counts of third-degree invasion of privacy, N.J.S.A. 2C:14-9(b), as a result of photographing Nawaz. He was also charged in Edison with one count of third-degree and one count of fourth-degree invasion of privacy regarding the photographs of a former neighbor. On April 16, 2012, Farokh was admitted into pre-trial intervention (PTI).

Fali Daruwala, Farokh's father, alleged that in January or February of 2011, Hoshi called him in India. He told him that his son was a child molester and would be sent to prison.

On May 31, 2011, Farokh and Kamal were divorced. Their property settlement agreement (PSA) contained a mutual release clause which stated:

Subject to the provisions of this [a]greement, each party hereby releases and discharges the other . . . from all causes of action, claims, rights, or demands whatsoever in law or in equity which either of the parties ever had or now has, with the exception of any causes of action for divorce or for the enforcement of the terms of this [a]greement.

In October 2012, Farokh hired his own expert, Stuart Allen, to perform a photogrammetric evaluation of the photographs retrieved from his e-mail account. Allen determined that the photographs were taken with a Blackberry phone. The images of Nawaz from the Blackberry were taken on September 13, 2008; no flash was used and the photographs' angle indicated a prone position.

In February 2012, Nawaz obtained a temporary restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to-35, against Farokh after seeing him drive by her house and then finding her Christmas lawn ornaments in a sexual position. She included the 2008 photographs, a threatening e-mail allegedly sent by Farokh, and allegedly threatening Facebook posts as separate grounds for the order.

After a two-day hearing in March 2012, the Family Part judge concluded that, despite Nawaz establishing that Farokh had taken photographs of her as well as other naked women without their knowledge, she did not require ongoing protection. Since the requirements of the second prong of the Silver v. Silver3 test were not satisfied, he did not issue a final restraining order.

II

On March 11, 2011, Farokh filed a complaint against Hoshi and Nawaz, alleging: (1) tortious interference with contractual relations by both defendants; (2) defamation per se by Nawaz for filing a false police report; (3) defamation per se by Hoshi for telling Farokh's employer that he was a child molester; (4) defamation per se against both defendants for telling various people that Farokh was a child molester and peeping Tom; and (5) civil conspiracy to defame. Kamal was named in this complaint only as a co-conspirator in count five.

On December 28, 2011, Farokh moved for leave to amend his complaint to add Kamal as a defendant. She opposed the application on the basis that the PSA's waiver clause barred any cause of action against her. Judge Peter Buchsbaum denied Farokh's application on January 20, 2012, finding that because the acts complained of occurred prior to the PSA, they were barred by the agreement's mutual release language.

In September 2012, Hoshi and Nawaz filed a motion for partial summary judgment dismissing the defamation claims on statute of limitation grounds. Farokh cross-moved again for leave to amend the complaint, this time to add Kamal as a defendant based on events occurring after the PSA was signed, and to add counts against Hoshi and Nawaz. On November 30, 2012, Judge Buchsbaum granted both applications.

On December 17, 2012, Farokh filed an eight-count amended complaint. Count one, alleging interference with contractual relations, was unchanged. The following allegations were made in the remaining counts: that Hoshi committed defamation per se by telling Farokh's father that Farokh was a child molester (count two); that all three defendants conspired to slander and defame Farokh, including by giving false testimony in legal proceedings (count three); that Kamal defamed Farokh by giving false testimony in court and in a deposition (count four); that Nawaz defamed Farokh by giving false testimony in court and in a deposition (count five); abuse of process (count six); that all three defendants concealed and destroyed evidence (count seven); and invasion of privacy (count eight).

On February 22, 2013, Judge Buchsbaum dismissed the amended complaint against all three defendants without prejudice on defendants' motion for summary judgment because it vastly differed from Farokh's proposed amended complaint.

On May 3, 2013, Judge Buchsbaum granted Farokh's request to file a second amended complaint subject to the limitation that the causes of action could not be based on defendants' testimony in depositions or the domestic violence hearing. After that amended complaint was dismissed, the judge permitted the filing of a third amended complaint.

The third amended complaint is the one at issue. It alleged: tortious interference by Hoshi with Farokh's YMCA coaching position (count one); defamation per se by Hoshi arising from his call to Farokh's father (count two); conspiracy between Hoshi, Nawaz, and Kamal (count three); defamation per se against Kamal for her statements regarding Farokh taking photos of naked women, including Nawaz, and maintaining them on his Yahoo e-mail accounts and laptop (count four); defamation against Nawaz because she falsely claimed that Farokh took photos of her while showering and naked photos of a neighbor (count five); that defendants "conceal[ed] and destroy[ed] evidence negligently" (count seven); and that Farokh's privacy was invaded when defendants accessed his Yahoo e-mail account in anticipation of filing false charges against him (count eight).

In lieu of filing an answer, Hoshi and Nawaz moved to dismiss for failure to state a claim or, in the alternative, summary judgment. Kamal filed a separate motion to dismiss for failure to state a claim. Farokh submitted numerous exhibits in opposition, including certifications and portions of deposition transcripts.

On September 12, 2013,4 the judge who replaced Judge Buchsbaum granted both motions to dismiss with prejudice, concluding that Farokh failed to state any cognizable cause of action in his third amended complaint. The judge characterized the Family Part judge's domestic violence findings that Farokh took naked photos of Nawaz to be the law of the case. She also found that Farokh could not pursue a claim for tortious interference with business relations because he could not prove a reasonable expectation of economic advantage, since he had no contract with the YMCA and voluntarily resigned. She opined that Farokh's false-light claim was untenable because he was found to have taken the pictures of naked women, and that "[n]egligent spoliation" could not "constitute a separate tort claim." In the judge's view, the complaint did not even assert a conspiracy, but only "several independent acts of alleged defamation."

Farokh moved for reconsideration, which relief was denied by way of the October 30, 2013 order now appealed. The court's analysis expanded on its prior ruling, ultimately determining that the standard for relief on a motion for reconsideration had not been met because the prior dismissal was not premised on a palpably incorrect or irrational basis or mistaken facts. See Cummings v. Bahr, 295 N.J.Super. 374, 384 (App. Div. 1996). The court also dismissed Hoshi and Nawaz's counterclaims without prejudice. Kamal's application for $42,676.14 in legal fees was granted.

On appeal, Farokh raises the following points:

Point 1 The trial court erred in dismissing plaintiff's Third Amended Complaint on its face as a matter of law. I The allegations of plaintiff's Third Amended Complaint, accepted as true and with all favorable inferences per R. 4:6-2, state recognized causes of action under New Jersey law. II The trial court misapplied the motion to dismiss standard by failing to construe the allegations in the Third Amended Complaint in plaintiff's favor, by considering matters outside of the Third Amended Complaint, and by failing to view the external proofs presented to the court below in the light most favorable to the plaintiff. III None of the grounds cited by the trial court warrant dismissal of plaintiff's Third Amended Complaint on its face as a matter of law. A. If the "law of the case" doctrine applied in the court below, it applied with respect to the May 3, 2013 decision of Judge Buchsbaum rendered in this case, not to the decision of a family court judge from another county in a separate domestic violence hearing rendered more than one year earlier and based on vastly different proofs. B. The litigation privilege does not insulate defendants for defamatory statements made to employers, neighbors, friends, family members, and anyone else outside of judicial or quasi-judicial proceedings. C. The Property Settlement Agreement does not immunize Kamal Merchant from plaintiff's claims against her. Point 2 The trial court erred in awarding frivolous litigation fees to Kamal Merchant. A. The trial court erred in ruling that plaintiff's claims were frivolous. B. The trial court at least erred in the amount of the fee awarded.

III

Rule 4:6-2(e) provides that a complaint may be dismissed for failure to state a claim upon which relief can be granted, and, additionally:

If, on a motion to dismiss based on the defense numbered (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion.

The judge's inclusion of materials beyond the language of the third amended complaint was thus not error. In opposing the motion to dismiss, Farokh himself attached numerous exhibits, including depositions, certifications, and expert reports. Thus the judge's reliance on the documents is not grounds for reversal.

In any event, "[t]he primary distinction between a motion under R. 4:6-2(e) and R. 4:46 is that the former is based on the pleadings themselves." Pressler & Verniero, Current N.J. Court Rules, comment 4.1.2 on R. 4:6-2 (2015).

In reviewing a motion for summary judgment, a motion judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). For present purposes, that standard is substantially the same as the standard for a Rule 4:6-2 motion. [Cnty. of Warren v. State, 409 N.J.Super. 495, 504 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).]

See also Roa v. Roa, 402 N.J.Super. 529, 537 (App. Div. 2008), aff'd in part, rev'd in part, 200 N.J. 555 (2010); Lederman v. Prudential Life Ins. Co. of Am., 385 N.J.Super. 324, 337 (App. Div.), certif. denied, 188 N.J. 353 (2006). We owe no deference to the judge's conclusions of law. Roa, supra, 402 N.J. Super. at 537.

Farokh contends that even if the court properly treated the motions as applications for summary judgment, the court erred in dismissing his complaint because discovery was incomplete. This point lacks merit because defendants and the YMCA witnesses have been deposed, as were at least five other alleged witnesses. Farokh and Nawaz both procured expert reports regarding the photographs. Numerous interrogatories have been propounded and answered. Farokh does not even identify any discovery still outstanding or that would shed light on the issues in dispute. There has been extensive and seemingly complete discovery.

IV

We agree with Farokh, however, that the law of the case doctrine does not apply with regard to the Family Part judge's ruling. Under the law of the case doctrine, "decisions of law made in a case should be respected by all other lower or equal courts during the pendency of that case." Lanzet v. Greenberg, 126 N.J. 168, 192 (1991). It is a discretionary doctrine and its application "is restricted to preventing relitigation of the same issue in the same suit." Slowinski v. Valley Nat'l Bank, 264 N.J.Super. 172, 180-81 (App. Div. 1993). See Warren Twp. v. Suffness, 225 N.J.Super. 399, 408 (App. Div.) (internal quotation marks omitted) ("The purpose of the law of the case doctrine is to avoid relitigation of the same issue in the same suit"), certif. denied, 113 N.J. 640 (1988); State v. Hale, 127 N.J.Super. 407, 410-11 (App. Div. 1974) (the doctrine "avoids repetitious litigation of the same issue during the course of a single trial"); Pressler & Verniero, supra, comment 4 on R. 1:36-3 (the doctrine is used "to avoid relitigation before the same court of the same issue in the same controversy").

Although Kamal cites to Gonzales v. Ideal Tile Imp. Co., 371 N.J.Super. 349, 355-56 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S.Ct. 1042, 163 L. Ed. 2d 857 (2006), for the proposition that the doctrine can be applied in a different action, the case actually holds that deference "should be given to prior rulings in the same case." Clearly, this was not the same case. Kamal also argues that collateral estoppel applied even if the law of the case doctrine did not.

The doctrine of collateral estoppel, also known as "issue preclusion," arises "`[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment,'" and renders "`the determination [] conclusive in a subsequent action between the parties, whether on the same or a different claim.'" Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012) (quoting Restatement (Second) of Judgments § 27 (1982)).

The party seeking to bar the relitigation of an issue must show that:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding. [Ibid. (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)).]

"Collateral estoppel has its roots in equity. Therefore, even if all five elements are met, collateral estoppel may still be denied if applying the doctrine would be unfair." Perez v. Rent-A-Center, Inc. 375 N.J.Super. 63, 77 (App. Div. 2005), rev'd on other grounds, 186 N.J. 188 (2006), cert. denied, 549 U.S. 1115, 127 S.Ct. 984, 166 L. Ed. 2d 710 (2007).

The two types of proceedings——a domestic violence final restraining order hearing as opposed to civil litigation in which a plaintiff seeks damages for defamation——have obvious differences. In this case, however, the domestic violence hearing was conducted over two days and focused heavily on the issue of Farokh's picture-taking, which was crucial to his third amended complaint. Farokh was represented.

Farokh had precisely the same options available to him during the course of the domestic violence trial as he would in this civil litigation. This was not the more typical domestic violence final restraining order proceeding in which unrepresented parties participate in a relatively brief hearing. Hence to apply collateral estoppel in this case would not be fundamentally unfair. Additionally, the five elements which would trigger the doctrine are also satisfied.

In order to determine whether a complainant is entitled to a final restraining order, a judge is required to determine by a preponderance of the credible evidence whether a predicate act has occurred. See Silver, supra, 387 N.J. Super. at 125. The standard of proof is the same there as here: a preponderance of evidence.

If anything, this standard of proof worked to Farokh's benefit in the Family Part hearing, as the burden rested on Nawaz to establish that Farokh took the naked photographs. In the Law Division case, the burden rests on Farokh to establish that he did not do so.

During the course of the hearing, Nawaz, Farokh's attorney, the Raritan police officer, and a friend of Farokh, Angela Kumar, testified. Farokh did not. "The rule permitting adverse inferences from the failure of a party in a civil cause to testify as to matters in issue within his personal knowledge is commonplace and elementary in our jurisprudence." Amerada Hess Corp. v. Quinn, 143 N.J.Super. 237, 249 (Law Div. 1976). Although our caselaw does not explicitly apply this rule to domestic violence hearings, its rationale is equally compelling in such a context.

The Family Part judge found, not in dicta as Farokh contends, but necessary to his judicial factfinding preceding his analysis of the law, that Farokh had taken the photographs. The judge specifically said that he was "certain" that Farokh took the photographs, that Farokh was "transfixed with other women and took pictures of them," and that Farokh "committed these crimes." The judge's legal conclusion that, because of the age of the incident and the intervening divorce, Nawaz did not need protection does not undermine his determination that Farokh took the photographs. Application of the doctrine of collateral estoppel is therefore fair, and the circumstances satisfy the test found in Olivieri, supra, 186 N.J. at 521.

Farokh also contends that to apply collateral estoppel would be inequitable because there were "additional developments" after the domestic violence hearing. None of these, however, involved either evidence unavailable to him at that time or steps he could not have then taken. He claims, for example, that after the domestic violence hearing, his friend Das was deposed and repeated Kamal's alleged statement that she, Nawaz, and Hoshi wanted to ruin Farokh's life and blacklist him in the community. By way of aside, whether or not that statement was made is irrelevant to the question of whether Farokh took the photographs. But since Das was Farokh's friend, the information was as available to him before the hearing as after.

The claim that the photogrammetric expert's report stated that the photographs of Nawaz were taken in 2008, not 2009 as she claimed, does not strengthen his argument. Farokh retained his expert in the fall of 2012, but proffers no reason why he could not have done so earlier, particularly since his first complaint was filed in March 2011, almost exactly a year before the domestic violence hearing.

That Nawaz admits she did not find any photographs on plaintiff's Blackberry right after the November 2009 incident is inconsequential to the question of whether collateral estoppel precludes the issue from being relitigated. Nawaz testified at the domestic violence hearing and Farokh had the opportunity to cross-examine her. Whether Farokh had a data plan on his phone in November 2009, and thus could not have e-mailed the images to himself and then deleted them from his phone before Nawaz examined it, was also information in his possession before the domestic violence hearing.

"Fundamental to the application of estoppel is an assessment of considerations such as `finality and repose; prevention of needless litigation; avoidance of duplication; reduction of unnecessary burdens of time and expenses; elimination of conflicts, confusion[,] and uncertainty; and basic fairness.'" Winters, supra, 212 N.J. at 85 (quoting Olivieri, supra, 186 N.J. at 522).

Although the judge's application of the law of the case doctrine was erroneous, application of the doctrine of collateral estoppel yields the same result. That we affirm the outcome while disagreeing with the analysis is of no moment. R. 2:10-2; see, e.g., Pollinger v. Loigman, 256 N.J.Super. 257, 261 (App. Div. 1992).

V

A.

In count one, Farokh alleged that Hoshi tortiously interfered with his YMCA employment in February 2010 by informing staff that Farokh had been involved in unsavory sexual conduct. Farokh alleges that the comments were made with malice and caused him to lose his coaching income.

"An action for tortious interference with a prospective business relation protects the right `to pursue one's business, calling[,] or occupation free from undue influence or molestation.'" Printing Mart-Morristown v. Sharp. Elecs. Corp., 116 N.J. 739, 750 (1989) (quoting Louis Kamm, Inc. v. Flink, 113 N.J.L. 582, 586 (E. & A. 1934)).

A complaint based on tortious interference must allege facts that show some protectable right——a prospective economic or contractual relationship. Although the right need not equate with that found in an enforceable contract, there must be allegations of fact giving rise to some "reasonable expectation of economic advantage." Harris v. Perl, [41 N.J. 455, 462 (1964).] A complaint must demonstrate that a plaintiff was in "pursuit" of business. Second, the complaint must allege facts claiming that the interference was done intentionally and with "malice." . . . Third, the complaint must allege facts leading to the conclusion that the interference caused the loss of the prospective gain. A plaintiff must show that "if there had been no interference[,] there was a reasonable probability that the victim of the interference would have received the anticipated economic benefits." Leslie Blau Co. v. Alfieri, 157 N.J.Super. 173, 185-86 (App. Div.), certif. denied [] 77 N.J. 510 (1978). Fourth, the complaint must allege that the injury caused damage. [Id. at 751-52 (citations omitted).]

We disagree with the Law Division judge's conclusion that Farokh's allegations did not establish an ongoing business relationship. His assertions as set forth in his third amended complaint sufficiently alleged such a relationship and a reasonable expectation of economic advantage.

A plaintiff claiming tortious interference need only establish a "reasonable expectation[] of economic advantage." Printing Mart, supra, 116 N.J. at 750 (internal quotation marks omitted). As Farokh alleged in his complaint, he coached soccer for eight years and was initially notified that he would coach again in the spring of 2010. The YMCA staff in depositions readily acknowledged they reversed the decision to hire Farokh in the spring of 2010 because of Hoshi's phone calls.

The proofs on this point may be problematic for Farokh, as his decision to resign appears to have been entirely voluntary and was made after he coached the season following the spring of 2010. But he is entitled to present the claim to a jury for their determination as to whether Hoshi's calls constituted tortious interference with his ongoing employment relationship. That Farokh did not have a contract for a defined amount and term was not fatal. See ibid.

Farokh's general statements in his brief regarding his difficulties in finding employment in the Asian-Indian community were not pleaded in his complaint. Our reversal limits Farokh to potential losses arising from his coaching job at the YMCA.

B.

Counts two, four, and five all allege defamation per se. To establish defamation, a plaintiff must prove: (1) that a defendant made a false and defamatory statement concerning him; (2) that the statement was communicated to another person (and was not privileged); and (3) that the defendant acted negligently or with actual malice. G.D. v. Kenny, 205 N.J. 275, 292-93 (2011).

[S]lander cases generally require proof of special damage——an economic or pecuniary loss. However, if the slander is per se (e.g., accusation of a crime, a loathsome disease, misfeasance in business, or serious sexual misconduct), the requirement of proving special or economic damage in a slander case drops away. In that case, slander per se, like libel, permits the jury to consider presumed damages. [W.J.A., supra, 210 N.J. at 240 (citations omitted).]

See Biondi v. Nassimos, 300 N.J.Super. 148, 154 (App. Div. 1997).

First, Hoshi's call to Farokh's father was clearly made outside the one-year statute of limitations for defamation. See N.J.S.A. 2A:14-3. Factually, nothing in the claim for damages from the call relates back, as Farokh contends, to his initial filing. Thus we agree that this cause of action is barred by the statute of limitations.

Rule 4:9-3 allows a claim or defense to relate back in an amended pleading when it arises out of "the conduct, transaction[,] or occurrence set forth or attempted to be set forth in the original pleading." Although the rule is to be liberally construed, it does not save claims or defenses that are distinctly new or different from those previously asserted. See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 499 (2006).

In Young v. Schering Corp., 275 N.J.Super. 221, 225-26 (App. Div. 1994), aff'd, 141 N.J. 16 (1995), the plaintiff alleged that his termination violated the Conscientious Employee Protection Act (CEPA) because his firing resulted from the concentration of research resources into a particular drug which he believed would not gain FDA approval. Because he did not allege that he had warned his employer that it was breaking any laws or violating public policies, he did not state a claim upon which relief could be granted. Id. at 227-28. When, twenty months later, plaintiff filed an amended complaint alleging that he was fired in retaliation for warning his employer that certain adverse test results had to be reported to the government and that failure to report was a violation of the law, the trial court dismissed the complaint. Id. at 228. The trial court concluded that the allegation as amended did not relate back to the original claim, was distinct from it, and was thus barred by the statute of limitations. Id. at 228-29. We agreed, as the amended complaint pleaded entirely new and different facts and theories from the original. Id. at 231. Because the amended complaint was filed after the statute of limitations had run, the claim was time-barred and properly dismissed. Id. at 232.

Hoshi's call to Farokh's father did not arise "out of the conduct, transaction[,] or occurrence" alleged in the first complaint. R. 4:9-3. It was entirely unrelated to Hoshi's call to the YMCA. Because it was a new factual basis for the alleged defamation, it does not relate back, and the statute of limitations applies.

Next, as to Kamal, Farokh anchors his demand for damages on Kamal's conversation with his friend Das, during which she allegedly said that he had molested Hoshi's and Nawaz's children and warned Das to be cautious with his own children, as Farokh was living with him at the time. Das also said that Kamal had told him that Farokh had taken naked photos of Nawaz. These conversations occurred no later than August 2010.

Farokh and Kamal entered into a PSA on May 31, 2011, which contained a standard mutual release. We agree with the judge's conclusion that this provision barred Farokh's claims against Kamal for events occurring prior to May 31, 2011, the date the agreement was signed.

Farokh presents no competent evidence that Kamal made any defamatory statements to anyone other than Das. Bhargava Gorty's deposition did not mention her. Kersi Belihomji testified that Kamal was present when someone mentioned nude photos, but he did not know who said it or when. There is simply no evidence, beyond Das's statements, tying Kamal to any defamatory conduct. She is protected by the mutual release from claims arising from conduct allegedly occurring prior to May 31, 2011. We do not consider this point to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Farokh alleged that Nawaz falsely stated to others that he had taken naked photographs of her and other women. Given the Family Part judge's conclusions with regard to Farokh taking naked photos of women and its preclusive effect, Farokh cannot pursue this cause of action either. See G.D., supra, 205 N.J. at 293. Gorty's deposition, when closely examined, reveals no testimony involving Nawaz specifically. Thus plaintiff alleged no actionable defamation against Nawaz and his claim was properly dismissed.

C.

A civil conspiracy is the "combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage." [Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J.Super. 337, 364 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994)).]

"`It is enough [for liability] if you understand the general objectives of the scheme, accept them, and agree, either explicitly or implicitly, to do your part to further them.'" Ibid. (quoting Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)). Once a conspiracy is formed, each conspirator is liable for every act and declaration of each and all of the conspirators made in pursuance of the conspiracy. Morgan, supra, 268 N.J. Super. at 366.

A plaintiff need not prove the existence of a conspiracy by direct evidence since, absent the testimony of a co-conspirator, it is unlikely that direct evidence of an unlawful agreement will exist. Id. at 365. Further, each defendant's conduct should not be considered in isolation or dissected into "discrete, watertight compartments." Id. at 364. Instead, the sequence of events must be viewed in its entirety to determine whether there was a conspiracy. Ibid. Additionally:

[T]he question whether an agreement exists should not be taken from the jury in a civil conspiracy case so long as there is a possibility that the jury can "infer from the circumstances [that the alleged conspirators] had a meeting of the minds and thus reached an understanding" to achieve the conspiracy's objectives. [Id. at 365 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct. 1598, 1609, 26 L. Ed. 2d 142, 155 (1970)).]

However, "`[t]he gravamen of an action in civil conspiracy is not the conspiracy itself but the underlying wrong which, absent the conspiracy, would give a right of action.'" Lopez v. Swyer, 62 N.J. 267, 276 (1973) (quoting Bd. of Educ., Asbury Park v. Hoek, 38 N.J. 213, 218 (1962)).

Since Farokh's claim against Hoshi for tortious interference with contractual relations should not have been dismissed, this count for conspiracy must be reinstated. Hypothetically, if the claim against Hoshi is proven, it could serve as a predicate unlawful act in furtherance of a conspiracy. This assumes, of course, that a conspiracy can be proven. Because there is a "possibility" that the jury could "infer from the circumstances" that defendants had a meeting of the minds to spread false information about plaintiff's inappropriate conduct, the question should not be decided on motion, but should rather be decided by a jury. Therefore, we reinstate count three.

D.

Farokh alleges spoliation of evidence in count seven. Spoliation of evidence is "[t]he destruction of evidence" or the "meaningful alteration of a document or instrument." Hewitt v. Allen Canning Co., 321 N.J.Super. 178, 182 (App. Div.), (quoting Black's Law Dictionary 1257 (5th ed. 1979)), certif. denied, 161 N.J. 335 (1999).

[A] tort action for spoliation affords damages to a plaintiff where the spoliator knows that litigation exists or is probable, the spoliator willfully or negligently destroys evidence with a design to disrupt plaintiff's case, or where such disruption is foreseeable, plaintiff's case is in fact disrupted, and plaintiff suffers damages proximately caused by the spoliator's acts. [Id. at 183.]

We agree that Farokh's allegations do not establish willful conduct by defendants in an effort to destroy evidence. Farokh's only possible claim would arise from the deletion of photographs, but he does not explain which were erased or what prejudice he suffered as a result. That the deleted photographs he identified as missing showed Hoshi and Nawaz's family vacation and Kamal's friends is insufficient. Neither could have any conceivable bearing on his cause of action. The judge's dismissal was proper.

E.

In his eighth count, entitled "Invasion of Privacy," Farokh seeks damages for the privacy-invasion tort of "false light":

The tort of false light has two elements: (1) "the false light in which the other was placed would be highly offensive to a reasonable person"; and (2) "the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." [Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 589 (2009) (quoting Romaine v. Kallinger, 109 N.J. 282, 294 (1988) (quoting Restatement (Second) of Torts § 652E)).]

We agree with the judge's dismissal of this count because, relying on the Family Part judge's finding that Farokh had taken the photographs found in his laptop, he was not placed in a false light. He is bound by the prior ruling. Defendants did not engage in any improper conduct after the photographs were discovered.

F.

Since we reverse and remand as to counts one and three, we must also reverse the award of frivolous litigation fees to Kamal, see N.J.S.A. 2A:15-59.1(b). While affirming the dismissal of many of the counts, our reversal of the dismissal on counts one and three means we find that Farokh's pleading is not "completely untenable," or one for which "no rational argument can be advanced in its support." United Hearts, LLC v. Zahabian, 407 N.J.Super. 379, 389 (App. Div.) (internal quotation marks omitted), certif. denied, 200 N.J. 367 (2009). Since a jury could conclude, should they find any merit to count one of Farokh's complaint, that defendants' conduct was the product of a conspiracy that involved Kamal, Farokh's complaint is thus not frivolous.

To reiterate, we affirm the dismissal of counts two, four, five, seven, and eight of the third amended complaint. We reinstate counts one and three. We vacate the award of counsel fees to Kamal.

Affirmed in part, reversed in part, and remanded in part.

FootNotes


1. We refer to the parties by their first names to avoid confusion.
2. The order in question further provided that if Farokh was successful on appeal, defendants' counterclaim and plaintiff's answer to the counterclaim, which were also dismissed, would be automatically reinstated by another order of the trial court.
3. 387 N.J.Super. 112, 125 (App. Div. 2006).
4. Even though the judge's orders on the motions are dated September 12, the relevant hearing took place on September 13.

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