VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA ERIC J. BONETTI, Plaintiff, CIVIL ACTION NUMBER: CL20002178
vs. GRACE EPISCOPAL CHURCH Defendant
PLAINTIFF’S MEMO IN OPPOSITION TO DEFENDANT’S DEMURRER AND PLEA IN BAR COMES NOW plaintiff Eric J. Bonetti and files this memo in response to defendant Grace Episcopal Church’s demurrer and plea in bar; the response is consolidated in the interest of judicial economy.
HISTORY This action arises from a related series of cases now before this court, including Bonetti v. Malm. In the latter case, which is, inter alia, an action for abuse of process, defendant Malm included in his pleadings an email previously unseen by plaintiff. That email, which falsely contends that plaintiff embezzled from a previous employer, is the subject of this case. Most notably, the email in question was squarely within the purview of discovery in previous litigation between the parties, which consisted of a request by Mr. Malm for a protection from abuse order against the instant plaintiff. Among defendant’s allegations was his claim that plaintiff had threatened him in various blog postings. Mr. Malm also expressly sought to include his employer, Grace Episcopal Church, in the protective order. During the litigation referenced above, Mr. Malm was asked to produce all emails and other correspondence between himself and the Episcopal Diocese of Virginia that referenced plaintiff or his underlying claims in the matter. (Exhibit 1) The email in question was never produced, and in related litigation Mr. Malm continues to try to evade and object to plaintiff’s requests for an explanation as to the church’s failure to produce the email during discovery. Plaintiff first learned of the email, apparently obtained from the Episcopal Diocese of Virginia, when Mr. Malm included it in filings with this court in a separate case, in an apparent effort to impugn plaintiff’s veracity. Plaintiff immediately filed this action against Grace Episcopal Church, which is the organization that employed Mr.
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Malm during all relevant times. Kelly Gable, the publisher of the original defamatory email, served as an officer of the church during all relevant times. Applicability of the Statute of Limitations It is undisputed that the email in question dates from 2017, and thus ordinarily be barred by the Virginia statute of limitations. However, Virginia courts have long recognized that a defendant who has actually, versus constructively, concealed a cause of action from a plaintiff will result in the tolling of the statute of limitation. Richmond Redevelopment and Housing Authority v. Laburnum Const. Corp., 195 Va. 827, 840 80 S.E.2d 574, 582 (1954). In the present case, it would be manifestly unjust to permit defendant Grace Episcopal Church, acting through its agent and employee Mr. Malm, to engage in fraudulent concealment of evidence that would have undercut the church’s credibility in the previous litigation, then turn around and and rely on the fraudulent concealment to invoke the statute of limitations. And now, defendant Grace Episcopal Church seeks to use its defamation as evidence to impeach plaintiff’s credibility. Such a result is nothing short of outrageous and shocking to the conscience, and evinces an utter lack of organizational integrity on the part of the defendant. Nor can defendant validly claim that it was not a party to the previous litigation. Not only did Mr. Malm expressly seek to include the church in the previous protective order, but he repeatedly held himself forth as representing the church during vestry meetings, as evinced in vestry minutes, correspondence with diocesan officials, and other documents. Nor has the church ever denied or disclaimed that Mr. Malm was acting as its agent/employee in this matter. (Exhibit 2) Relatedly, in its pleadings, defendant Grace Episcopal Church asserts that the defamatory statements in question were privileged due to a related parties exception as between the parish and the diocese. Setting aside for one moment the fact that any arguable limited privilege failed when defendant acted with actual malice in publishing the defamatory email, defendant’s assertion begs the question: Why, if the parish and diocese are related parties for purposes of privilege, did defendant Grace Episcopal not obtain the email in question from the diocese through the exercise of even rudimentary due diligence in discovery? Simply put, the answer is that defendant Grace Episcopal Church cannot have it both ways, claiming related parties privilege on one hand, while failing to explain why it did not produce the email through the very exercise of this purported close relationship.
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Thus, plaintiff respectfully submits that the statute of limitations only began to run when Mr. Malm and the defendant ceased their fraudulent concealment of the relevant email. Res Judicata In its pleadings, defendant Grace Episcopal Church asserts that the present action is barred by the doctrine of res judicata. In order for res judicata to apply, however, Virginia courts require, inter alia: 1) Identity of parties. 2) Identity of the cause of action. 3) Identity of the remedies sought. Richard Sparks & Jean Bishop v. Commonwealth, Record No. 1037-18-4 (Va. Ct. App. Jan. 29, 2019) In the present case, there has been no prior defamation lawsuit against defendant Grace Episcopal Church. Nor are the remedies sought identical. Thus, plaintiff respectfully submits that res judicata does not apply. Publication In its pleadings, defendant Grace Episcopal Church asserts that no publication of the defamatory statement in question occurred. While plaintiff has not been able to locate cases directly on point in Virginia, the transmission of the e-mail from Ms. Gable, to defendant Grace Episcopal’s employee Mr. Malm (who then added further, demonstrably untruthful comments) is akin to the publication that occurs among employees of the same organization. For example, the Supreme Court of Vermont, citing the Restatement (Second) of Torts, has held: Defamatory statements are published if they are communicated “intentionally or by a negligent act to one other than the person defamed.” Restatement (Second) of Torts § 577(1) (1977). Statements made within the scope of employment to agents of the same principal are considered published for the purposes of defamation. Id. § 577 cmt. i.
Sue Skaskiw & Vt. Volunteer Servs. for Animals Humane Soc'y v. Vt. Agency of Agric., 112 A.3d 1277, 1283 (Vt. 2014)
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Such statements may, however, be conditionally privileged. This privilege is lost when the statement is made with reckless regards for its truth or falsity, or when made with malice. In the instant case, the Episcopal Bishop of Virginia would not, as a matter of normal practice, be included in discussions about members of individual parishes. Indeed, unless a member of an individual parish served on the diocesan standing committee or other entity in close contact with the bishop, it would be most unusual for a bishop to even know the names of congregants in a specific parish. Thus, neither duty nor privilege would attach to the publication of defamatory statements, merely because diocesan officials are affiliated with the same denomination. Moreover, plaintiff will show at trial that any qualified privilege was lost when Mr. Malm emailed diocesan officials. In that email, Mr. Malm knowingly lied about the timing of plaintiff’s departure from the employer in question. RPJ Housing, thus demonstrating that this was not merely an informational update, as defendant alleges, or the fulfillment of some vague, unspecified duty. Instead, it was a direct, volitional attempt to attack the reputation of plaintiff. Indeed, Mr. Malm discussed the timing of plaintiff’s departure from RPJ Housing, which occurred while plaintiff was a member of defendant Grace Episcopal Church, with multiple parishioners, including Elizabeth Legere, who served as an officer in 2014. Others are aware of this situation and can testify as to the knowing falsity of Mr. Malm’s statements, including former assistant rector Patrick Crerar; Kelly Gable herself, publisher of the original defamatory statement; church member Marc Cooper, and many others. Plaintiff also hired multiple members of defendant Grace Episcopal Church to work at RPJ Housing while he was a member of the parish, including Amy Barron, who worked in the organization’s offices in Arlington. So why did Mr. Malm, a priest in the Episcopal Church, lie about the timing of plaintiff’s departure from RPJ Housing? The answer is simple—because to do otherwise would be to call into question his own judgment in having plaintiff, whom he claims is an embezzler, serving on the church’s vestry from 2013-2015. Tellingly, in other litigation, Mr. Malm has added the detail that plaintiff’s alleged hacking, which he gratuitously added when he republished Ms. Gable’s defamatory comments, involved church emails. Yet at the
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very same time that he is able to recall these additional details, Mr. Malm purports under oath not to be able recall the names of these alleged parishioners with concerns about hacking. Mr. Malm also has repeatedly attempted to evade and avoid answering questions in discovery relating to these issues. In those circumstances, plaintiff can only conclude that Mr. Malm and his employer, defendant Grace Episcopal Church, are acting in bad faith and attempting to evade responsibility for their conduct. Further, as to defendant Grace Episcopal Church’s claim that it had a duty to discuss allegations that plaintiff embezzled from a previous employer, through counsel plaintiff has invited the church to carry this alleged duty to its logical conclusion and file a police report. Indeed, in a recent post, online church abuse publication The Wartburg Watch reiterates this notion. Exhibit 3. Yet to date no evidence has emerged to suggest that the church has done so. If defendant Grace Episcopal’s Church wishes to claim some sort of privilege on this score, then it should be prepared to act with integrity, file a police report, and offer the report and related documents in discovery, without its usual objections, inflammatory rhetoric, fabrications, vague claims of privilege, and other dilatory, obstructionist tactics. Otherwise, one must conclude that defendant Grace Episcopal Church continues its now longstanding track record of litigation-related misconduct. TRUTH AS A DEFENSE Tellingly, despite defendant Grace Episcopal Church’s voluminous brief, it does not appear to raise the most elegant, effective defense possible, which is that truth is a near-absolute defense. Indeed, if defendant Grace Episcopal Church wants to end this litigation here and now, it would be simple to do so. All that would need happen is for the church to show that its assertions are true. The fact that the church does not do so, but instead tries every other tactic out there to avoid accountability, is in itself compelling evidence that defendant Grace Episcopal Church well knows that it has engaged in conduct that is both tortious and ethically reprehensible. Of course, if defendant has any plausible explanation as to why it failed to produce the relevant email during discovery, plaintiff invites the church to provide that explanation. Similarly, plaintiff again invites defendant
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Grace Episcopal Church to offer any evidence in support of its claim that he has embezzled from any organization or person, any time, anywhere. DAMAGES In its pleadings, defendant Grace Episcopal Church asserts that Plaintiff has not demonstrated damages. But the courts are clear that, when the statement in question is actionable per se, it is not necessary for the plaintiff to show actual or pecuniary losses. For example, the Virginia Supreme Court has held: The general, and practically the universal rule is that where the libel or the words uttered are actionable per se, it is not necessary in order for plaintiff to recover to prove actual or pecuniary loss, as the law presumes general damages in such cases. Williams Printing Co. v. Saunders, 113 Va. 156, 73 S.E. 472, Ann. Cas. 1913E, 693; Henry Myers Co. v. Lewis, 121 Va. 50, 92 S.E. 988; W. T. Grant Co. v. Owens, 149 Va. 906, 141 S.E. 860; Boyd v. Boyd, supra; Times-Dispatch Pub. Co. v. Zoll, supra; and Odgers on Libel and Slander, sec. 289. Food Lion, Inc. v. Melton, 250 Va. 144 (Va. 1995) Similarly, the Virginia Supreme Court had held: "A plaintiff who proves the publication of words actionable per se is simply relieved of the necessity of proving the quantum of his damages for injury to reputation, humiliation, and embarrassment." Great Coastal Express, 230 Va. at 152, 334 S.E.2d at 853.
The trial court's explanation also ignores the longstanding principle that, even in the absence of any evidence of pecuniary loss, the damages which the injured party is entitled to recover may be substantial. Slaughter, 198 Va. at 348, 94 S.E.2d at 266; Snyder v. Fatherly, 158 Va. 335, 351, 163 S.E. 358, 364 (1932); Williams Printing Co. v. Saunders, 113 Va. 156, 180, 73 S.E. 472, 478 (1912). This legal principle presuming injury to reputation, humiliation, and embarrassment, although not a factor "in evidence," is relevant and must be considered in any determination of damages based on defamation per se. Poulston v. Rock, 251 Va. 254 (Va. 1996)�
In the instant case, it is difficult to imagine a situation more likely to produce lasting harm to the reputation of a plaintiff, more likely to cause profound humiliation or emotional distress, or more likely to
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interfere with future employment opportunities. By definition, defendant Grace Episcopal Church occupies a position of disparate perceived power and moral authority, in which church members and members of the community are likely to unquestioningly treat the church’s defamatory claims of criminal conduct as inherently truthful. Thus, damages may not only be presumed, but the damages in question will prove substantial at trial. Moreover, defendant Grace Episcopal Church’s fraudulent concealment of evidence; perjury during discovery via its fabrication that plaintiff’s mother or someone claiming to be her had contacted defendant Grace Episcopal Church repeatedly to set up appointments, only to cancel (a matter well known to defense counsel and diocesan staff, as plaintiff has raised it repeatedly, only to be ignored or told that the matter will not be addressed absent criminal charges); ongoing obstruction, dilatory tactics and bad faith during discovery; other litigation-related misconduct; and ongoing refusal to be accountable for its abusive, unethical conduct is the very definition of a situation that not only warrants to presumption of damages, but calls for punitive damages as well.
Conclusion
For the reasons cited in this memorandum, plaintiff respectfully asks this court to dismiss with prejudice defendant Grace Episcopal Church’s plea in bar and demurrer.
I, Eric J. Bonetti, do affirm and attest that the statements set forth in this memorandum of law are true to the best of my knowledge and belief. Dated this 25th day of October, 2020.
ERIC J. BONETTI Pro Se Plaintiff 4129 Fountainside Lane 203 Fairfax VA 22030 eric.bonetti@me.com
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Exhibit 1.
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Exhibit 2.
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Exhibit 2, cont’d
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Exhibit 2, cont’d
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Exhibit 2, cont’d
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Exhibit 3
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