NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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,
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,
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:
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,
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
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,
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.
On appeal, Farokh raises the following points:
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
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.
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."
Although Kamal cites to
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.'"
The party seeking to bar the relitigation of an issue must show that:
"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."
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.
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."
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
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.'"
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.
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.'"
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."
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.
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.
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.
First, Hoshi's call to Farokh's father was clearly made outside the one-year statute of limitations for defamation.
Hoshi's call to Farokh's father did not arise "out of the conduct, transaction[,] or occurrence" alleged in the first complaint.
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.
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.
"`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.'"
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.
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.'"
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.
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."
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.
In his eighth count, entitled "Invasion of Privacy," Farokh seeks damages for the privacy-invasion tort of "false light":
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.
Since we reverse and remand as to counts one and three, we must also reverse the award of frivolous litigation fees to Kamal,
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.