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UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION In re:
Case No. 8:13-bk-00922-KRM
CASEY MARIE ANTHONY, Debtor. ________________________________________/
Chapter 7
In re: ZENAIDA GONZALEZ,
Adversary No. 8:13-AP-00626-KRM
Plaintiff. v. CASEY MARIE ANTHONY, Defendant. ________________________________________/ DEFENDANTS’ MOTION FOR SUMMMARY JUDGMENT Debtor/Defendant, Casey Marie Anthony (“Anthony”), by and through her undersigned attorney, pursuant to Fed. R. Civ. P. 56(a). files this, her Motion For Summary Judgment and as grounds therefore states as follows:
I.
Introduction
Ms. Anthony is a public figure who was the subject of widely publicized legal proceedings. Over the years, many persons have pursued actions in which they sought to profit, one way or another, from Ms. Anthony’s ordeal. All of the claimants have been rebuffed and
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turned away empty handed, though most of them enjoyed their “fifteen minutes” of fame while their claims were pending, which was their real objective. Only two spurious claimants remain: Gonzalez and Roy Kronk (“Kronk”). Gonzalez has filed a Complaint objecting to the discharge of her alleged debt on the grounds that Ms. Anthony made statements about her that were “willful and malicious.” In order to have a cognizable debt which might possibly be excepted from discharge, Ms. Gonzalez must first establish a claim cognizable under Florida law. The only possible claim that might exist, and the claims that ms. Gonzalez previously attempted to plead in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida in Case Number 2008-CA-24573 (the “State Court Action”), is for defamation. Ms. Gonzalez Complaint, Amended Complaint, and the facts derived from discovery in The State Court Action are defective and insufficient because the both fail to allege and show with particularity when and where the alleged defamatory statements were made, what was said and the cognizable damages resulting from those statements. With respect to Ms. Gonzalez, this is important because (a) Ms. Anthony’s statements were made to law enforcement and are thus privileged and (b) a single sentence Ms. Anthony uttered to her mother which is quoted in the Complaint is not defamatory on its Gonzalez Complaint and the facts derived from discovery in this case are defective because the both fail to allege with particularity when and where the alleged defamatory statements were made and what was said.
Florida law requires that
defamation claims be pled with particularity so that the courts can determine whether the claims are possibly actionable at the pleading stage. With respect to Gonzalez, this is important because (a) Ms. Anthony’s statements were made to law enforcement and are thus privileged and (b) a
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single sentence Ms. Anthony uttered to her mother which is quoted in the Complaint is not defamatory on its face1 and was not re-published anywhere. Ms. Anthony believes the claims of Gonzalez have been allowed to persist far too long without any evidence to back them. The lack of evidence to support her claims renders Gonzalez unable to plead and prove a claim that can pass judicial muster. She has certainly not shown a factual basis for this Court to find that there is a debt owed to Gonzalez that might be excepted from discharge. Therefore, a Summary Judgment in favor of Ms. Anthony should be granted. II.
Gonzalez Complaint
The facts supporting Gonzalez’ claim are pled in paragraphs 7 through 20 of the Complaint. For the Court’s convenience, Gonzalez factual allegations are quoted in their entirety below: 7. This action arises out of statements made by Defendant concerning the person who allegedly kidnapped her daughter, Caylee Anthony (“Caylee”). 8. During the police investigation into Caylee’s disappearance, Defendant told law enforcement that the last time she saw her daughter was when she left Caylee with a nanny named Zenaida Gonzalez. 9. Because of this statement, law enforcement officers interviewed Plaintiff at a hotel in Kissimmee, Florida. 10. Subsequent to the interview, law enforcement officers showed Defendant pictures of Plaintiff and
1
In fact, in statements made during a meeting which is only partially quoted by Gonzalez, Ms. Anthony expressly stated that Gonzalez was not the person who had allegedly took her child. Ms. Anthony thus completely exonerated Gonzalez from any possible suspicion. Gonzalez’ blatantly misleading mischaracterization of that statement is tantamount to a fraud on the Court.
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Defendant stated to the officers that Plaintiff was not the person who had taken her child. 11. Defendant was subsequently incarcerated as a suspect in connection with Caylee’s disappearance. 12. On July 25, 2008, while in the Orange County Jail, Defendant made statements to her parents, George and Cindy Anthony, about Zenaida Gonzalez, which Defendant knew were being recorded and would be published by the media and her parents. 13. Despite the fact that she was previously shown photographs of Plaintiff by law enforcement and cleared Plaintiff of any involvement, on July 25, 2008, Defendant falsely stated to her parents that: “When they went and interviewed that girl down in Kissimmee, they never showed me a picture of her…” (the “Statement”). 14. Plaintiff was the only Zenaida Gonzalez interviewed by law enforcement officers in Kissimmee in connection with the investigation into Caylee’s disappearance. 15. Defendant authorized her mother, Cindy Anthony, to speak on her behalf concerning statements about Zenaida Gonzalez in an alleged effort to locate Caylee. 16. Cindy Anthony thereafter re-published the false Statement concerning the lack of clearance of Plaintiff as a suspect. 17. The false story that Plaintiff had not been cleared in the investigation into Caylee’s disappearance was published in newspapers, broadcast on television, and relayed online by countless websites. 18. The false story portrayed the Plaintiff wrongfully as a child kidnapper and potentially a child killer. 19. The statement was made by Defendant intentionally and with intent to willfully and maliciously injure Plaintiff.
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20. As a result of Defendant’s false Statement, the media and general public continued to suspect Plaintiff in connection with Caylee’s disappearance. Paragraphs 7 through 11 refer to statements Ms. Anthony made to law enforcement, which are privileged and not actionable. Further still, the statements to law enforcement are outside the scope of the proof of claim filed by Gonzalez, which is limited to the claims remaining from the summary judgment Order entered by Judge Munyon in the State Court Action. Judge Munyon correctly threw out the claims made to law enforcement. Gonzalez attached the summary judgment order to her proof of Claim. Thus, Gonzalez’ assertion of a debt is limited to the possible negligent defamation claim that survived summary judgment in the State Court Action. Paragraphs 12 through 20 concern a statement that Ms. Anthony made to her mother during a visit while she was incarcerated in the Orange County Jail. This forty-five minute visit was recorded by audio and video. It is repugnant that Gonzalez would take a misleading twosecond excerpt from a forty-five minute tape to support her spurious claim. In fact, after making the statement quoted in paragraph 13 of the Complaint, Ms. Anthony exonerated “the girl in Kissimmee” by saying that she was not the “nanny” who took her child, the “nanny” did not live in Kissimmee, and the “nanny” did not even have the same name as Gonzalez. In all events, the statement upon which paragraphs 13 through 20 are framed is insufficient to support a Complaint objecting to discharge because the statement is not “willful and malicious” on its face. Indeed, the findings in Judge Munyon’s summary judgment order, on which Gonzalez’ proof of claim is premised, support, at best, only a claim for negligent defamation because Judge Munyon found that the statement was ambiguous and subject to competing inferences.
Finally, although Gonzalez generally alleges that the statement was
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published, she does not plead the alleged publication with particularity, which is an indispensable requirement for a defamation claim to withstand a motion to dismiss. III. Summary Judgment Standard The Court may grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the "initial responsibility of informing the court of the basis for her motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which she believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must "go beyond the pleadings and by [his] own affidavits, or depositions, answers to interrogatories, and admissions on file, 'designate' specific facts showing that there is a genuine issue for trial." Id. at 324. In considering whether there is a triable issue of fact, a court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The party opposing a motion for summary judgment, however, "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial," id. at 248, that would permit a reasonable jury to find in his favor. Laninghatet v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier of fact could find for the nonmoving, party. See id. at 1242-43; Anderson, 477 U.S. at 251 stating that the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must
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prevail as a matter of law". The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Eke. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, he must "come forward with specific facts showing that there is a genuine issue, far that." Id. at 587. With the filing of this motion for summary judgment and claim that there are no genuine issues of material fact, it is Plaintiff's burden to establish the existence of a genuine issue of material fact in dispute — here, it is expected that she would point to materials in the record, such as depositions, documents, or interrogatory answers, to challenge Ms. Anthony’s assertion that she did not willfully and maliciously defame Ms. Gonzalez. Despite the parties completing discovery in the State Court Action, Ms. Gonzalez has neither described the admissible evidence in her possession nor indicate what corroborating discovery materials she may have. Plaintiff's opportunity to obtain information through discovery has passed, leaving him with an opposition resting solely on the allegations of her Amended Complaint. Ms. Gonzalez has not, or cannot come forward with the specific facts showing there is a genuine issue for trial. " Matsushita Elec. huhis., 475 U.S. at 587 (emphasis removed), and therefore he cannot withstand AES's summary judgment motion.' See Jokvare v.. Alpha Kappa Alpha Sorority, Inc., 521. F. Supp. 2d 1, 14 (D.D.C. 2007) (granting summary judgment for defendant on defamation claim where plaintiffs did not "raise(] a genuine issue of material fact as to the falsity of the organization's publication of their suspensions for engaging in what the sorority properly concluded amounted to hazing). III.
ARGUMENTS
1.
The Standard for Dischargeability
A presumption exists that all debts owed by the debtor are dischargeable unless the party contending otherwise proves non-dischargeability. 11 U.S.C. § 727(b). The purpose of this
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“fresh start” is to protect “honest but unfortunate” debtors. United States v. Fretz (In re Fretz), 244 F.3d 1323, 1326 (11th Cir.2001). The burden is on the creditor to prove the exception to discharge by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287–88, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); St. Laurent v. Ambrose (In re St. Laurent), 991 F.2d 672, 680 (11th Cir.1993). Courts narrowly construe exceptions to discharge against the creditor and in favor of the debtor. Equitable Bank v. Miller (In re Miller), 39 F.3d 301 (11th Cir.1994); St. Laurent, 991 F.2d at 680. Gonzalez seeks a determination that the debt owed to her by Ms. Anthony is nondischargeable as a matter of law under § 523(a)(6) of the Bankruptcy Code. Section 523(a)(6) excepts from discharge an individual's debts incurred by “willful and malicious injury by the debtor to another entity or to the property of another entity.” 11 U.S.C. § 523(a)(6). Section 523(a)(6) generally relates to torts and “may apply to a broad range of conduct causing harm to people ... subject to the limitation that the injury be ‘willful and malicious.’ ” 4 Alan N. Resnik & Henry J. Sommer, Collier on Bankruptcy ¶ 523.12 (16th ed. 2009). Under this section, “willful” acts are those that are “deliberate or intentional.” S. REP. NO. 95–989, at 79 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5865; H.R. REP. No. 95–595, at 365 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6320. A showing of mere recklessness does not establish willfulness. Kawaauhau v. Geiger, 523 U.S. 57, 64, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). As discussed further below, Gonzalez has failed to show sufficient facts to support her efforts to deny Ms. Anthony’s discharge under § 523(a)(6). 2.
Defamation
Defamation is generally defined as “the unprivileged publication of false statements which naturally and proximately result in injury to another.” Byrd v. Hustler Magazine, 433
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So.2d 593, 595 (Fla. 4th DCA 1983). To establish a prima facie case for defamation under Florida law, a plaintiff must show that: “(1) the defendant published a false statement; (2) about the plaintiff; (3) to a third party; and (4) the party suffered damages as result of the publication.” Elbanna v. Captain D’s, LLC, 2009 WL 435051 (M.D. Fla. 2009). A.
The Statements to Law Enforcement
The gravamen of the Defamation claim is that Ms. Anthony, while being questioned by the Orange County Sheriff’s Office (“OCSO”) during an investigation concerning the whereabouts of her missing daughter, fabricated a story about a non-existent nanny named “Zenaida Fernandez-Gonzalez” (not Zenaida Gonzalez) who supposedly took her child. The Defamation claim is interwoven with what can only be described as outright fabrications and more subtle deceptions. Ms. Anthony never made any statement about Gonzalez but identified someone else with a different name and completely different physical characteristics as the nanny. In fact, it is beyond dispute that when law enforcement showed Ms. Anthony a picture of Gonzalez and others with names similar to the nanny she expressly stated that Gonzalez was not the nanny. The transcripts of her statements and her deposition testimony taken on January 23 rd, 2014 [Doc. 52], prove the foregoing facts beyond any dispute. In all events, assuming Gonzalez intends to make a claim against Ms. Anthony based on her statements to law enforcement, that claim is barred as a matter of law. (i)
The Law Enforcement Privilege
Under long-standing and well-settled Defamation legal principles, a person making a statement to law enforcement officers is presumptively protected, at a minimum, by a qualified privilege for any such statements made.
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Statements made to law enforcement during “the course of” or “in connection with” a judicial proceeding are protected by an “absolute privilege” which cannot be overcome. See Stucchio v. Tincher, 726 So.2d 372 (Fla. 5th DCA 1999); see also Fridovich v. Fridovich, 598 So.2d 65, 69 (Fla. 1992).
Since law enforcement had already determined to charge Ms.
Anthony when her statements were made and, indeed, she was charged the same day, Ms. Anthony were made “in connection with” a judicial proceeding and are thus protected by an absolute privilege. Id. Moreover, even if the statements were not made in connection with a judicial proceeding, all statements to law enforcement are protected by, at least the very least, a qualified privilege. In order to overcome that qualified privilege, Gonzalez would be required to prove by admissible evidence that Ms. Anthony’s allegedly defamatory statements were made by Ms. Anthony with “express malice,” i.e., published with a “primary motive” of an “intent to injure the reputation of the plaintiff.”
Fridovich v. Fridovich, 598 So.2d at 69 (Fla. 1992) (holding “defamatory
statements voluntarily made by private individuals to police or state’s attorney prior to the institution of criminal charges are presumptively qualifiedly privileged”).
The qualified
privilege “raises a presumption of good faith and places upon the plaintiff the burden of proving express malice.”
Nodar v. Galbreath, 462 So.2d 803, 810 (Fla. 1984); see also Cape
Publications, Inc. v. Reakes, 840 So.2d 277, 280 (Fla. 5th DCA 2003). In order to prove “express malice,” a plaintiff must prove that “the defendant’s primary motive in making [the] statements was the intent to injure the reputation of the plaintiff.” Fridovich, 590 So.2d at 69 (emphasis added), citing Nodar, 462 So.2d at 806; see also John Hancock Mut. Life Ins. Co. v. Zalay, 581 So.2d 178, 180 (Fla. 2 nd DCA 1991). “Express malice cannot be inferred from the mere fact that
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the statements were untrue.” Coogler v. Rhodes, 21 So. 109, 112 (Fla. 1897); Demby v. English, 667 So.2d 350, 353 (Fla. 1st DCA 1996). The statements upon which Gonzalez’ claims are premised in this case were made during sworn interviews conducted by the OCSO on the same day that Ms. Anthony was initially arrested. Regardless of whether the interview was conducted “in connection with” a judicial proceeding, any statements made by Ms. Anthony during the interview by law enforcement were, as a matter of law, privileged. Finally, paragraph 10 of the Complaint specifically alleges that Ms. Anthony told law enforcement that Gonzalez was not the nanny whom took her child. This completely absolved Gonzalez of any suspicion. Since, as Gonzalez admits in her Complaint, Ms. Anthony told law enforcement that Gonzalez was not the “nanny,” express malice cannot possible be proven and cannot possibly be inferred from these circumstances. (ii)
Gonzalez Proof of Claim
Gonzalez attached the Summary judgment order of Judge Munyon to her proof of claim. That order dismissed the claims based upon statements made to law enforcement. Plaintiff cannot now expand the scope of her Complaint to include matters for which no proof of claim was filed. Her Complaint is unartfully drafted so it is unclear whether she actually is trying to do so. B.
The Jail House Statements
Paragraphs 12 through 20 of the Complaint indicate that, during a July 25, 2008, jail visit with her mother, Ms. Anthony stated “when they went and interviewed that girl down in Kissimmee, they never showed me a picture of her.” Id. (emphasis added). This ambiguous fragment of a sentence is the sum, substance, and totality of the comment relied upon by
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Gonzalez to support her claim of a “willful and malicious” statement made during Ms. Anthony’s jail visit with her mother. (i)
The statement is not defamatory
As a matter of law, fragmentary statement quoted in paragraph 13 of the complaint is not defamatory. It is an innocuous statement. It is clearly insufficient, standing alone, to support Gonzalez’ Complaint because it is not possibly “willful and malicious.” Gonzalez wants the Court to find that the statement is defamatory, but she does not cite the context or the other words that that were uttered in conjunction with it. The Court simply cannot find that this fragment of a sentence is “willful and malicious” unless it makes inferences that are impermissible. (ii)
The Fragment Of A Sentence Excerpted From The Jail Conversation May Not Be Examined Alone And Out Of Context
In determining whether this partial sentence supports the allegation that Ms. Anthony made a “willful and malicious” statement about Gonzalez, the Court must view the statement in its “totality, examining not merely a particular phrase or sentence, but all of the words used in a publication,” to determine whether they are defamatory. Dreggors v. Wausau Ins. Co., 995 So.2d 547, 551 (Fla. 5th DCA 2008). In addition, the “court must consider the context in which the statement was published and accord weight to cautionary terms used by the person publishing the statement.” Id.; see also Zorc v. Jordan, 765 So.2d 768, 771 (Fla. 4th DCA 2000) (holding that “the allegedly defamatory statements must be read in the context of the entire publication”). “It is a sound principle that an allegedly defamatory publication must be considered in its entirety rather than with an eye to the objectionable feature alone.” Brown v. Tallahassee Democrat, Inc., 440 So.2d 588, 589 (Fla. 1st DCA 1983).
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The failure to plead or attach the entire statement is critical in this case. Ms. Anthony unequivocally told her mother that the “nanny” who took her child did not live in Osceola County, had a different name, and had different physical and background characteristics. It is impermissible to infer that “the girl in Kissimmee” was the kidnapper because Kissimmee is in Osceola County and Ms. Anthony unequivocally stated the alleged kidnapper lived elsewhere. Therefore, it is impossible to conclude that the statement at issue supports the allegations in the Complaint. Because Gonzalez failed to attach the entire statement of Ms. Anthony, and since the quoted fragment of a sentence is not actionable on its face, Ms. Anthony has now filed the complete video herein. (iii)
The Alleged Publication is Not Sufficiently Pled
Paragraph 17 of the Complaint generally alleges that Ms. Anthony’s mother, Cindy Anthony published the fragment of a sentence excerpted in the Complaint.
However, the
complaint does not allege when the statement was published, where it was published, or what was said. This is a critical pleading defect because, in fact, Cindy Anthony never published the statement anywhere at any time. As noted above, in the absence of particular allegations as to what was said and when and where it was published, a claim for defamation should be dismissed for failure to state a cause of action. See, e.g., Miller v. Support Collection Unit Westchester Cnty., 2010 WL 767043, at *6 (M.D. Fla. Mar. 5, 2010). (iv)
Discharge cannot be Denied based on the Acts of an Agent
Ms. Anthony cannot be denied a discharge based upon the alleged willful and malicious statements of an agent. See Columbia Farms Distr. V. Maltais (In re Maltais), 202 B.R. 807 (D. Mass. 1996). Rather, Ms. Anthony can only be denied discharge if Gonzalez proves that Ms. Anthony directly and willfully and maliciously injured Gonzalez. This is another reason that it
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is critical that Gonzalez be required to plead where and when the alleged statements were published and what statements were published.
Ms. Anthony cannot be held liable for
statements of someone else. C.
There is no “Willful and Malicious” Injury Within the Scope of § 523(a)(6)
It is obvious that Gonzalez has motives other than justice in pursuing this case. She does not share any identifying characteristics with the “nanny,” not even the same name. The public only knows about Gonzalez because she went on a media tour and filed a Complaint in the middle of the circus surrounding the Criminal Trial. There are simply no grounds to find or infer that Gonzalez suffered any injury that was willful, malicious, and deliberately designed by Ms. Anthony. To this date, the two have never met.
They knew nothing about the other before the police contacted Gonzalez.
When
informed of that contact, as the Complaint concedes, Ms. Anthony promptly told the police that Gonzalez was not the nanny. Thus, Ms. Anthony completely exonerated Gonzalez from any suspicion. What could she have done that would have been any less malicious? It is respectfully submitted that justice demands summary judgment in favor of Ms. Anthony. This travesty has gone on long enough. Ms. Anthony implores the Court to end this matter so she can begin the fresh start she is promised by the law.
DEFENDANT'S STATEMENT OF UNDISPUTED FACTS. There is no genuine issue of material fact and Ms. Anthony is entitled to judgment as a matter of law under Fed. R. Civ. P. 56(a).
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The grounds and facts supporting this Motion are set forth in the incorporated Statement of Undisputed Facts entered in the State Court Action; the July 25, 2008 video of the conversation between Ms. Anthony and her parents George and Cindy Anthony; Ms. Anthony’s deposition taken by Plaintiff’s counsel on January ___, 2014; Ms. Anthony’s Affidavit and the following Memorandum of Law.
The Statement of Undisputed Facts is a detailed summary of the discovery in the State Court Action. It was used by Ms. Anthony’s counsel, and possible Ms. Gonzalez’s counsel, when arguing their cross motions for summary judgment. If this Statement is not allowed to be used, thousands of pages from the State Court Action, and possibly the criminal court action and trial involving Ms. Anthony, would have to be filed in this case.
MEMORANDUM OF LAW
The difference between the almost right word & the right word is really a large matter -- it's the difference between the lightning bug and the lightning. - Mark Twain's Letter to George Bainton, 10/15/1888
I. INTRODUCTION In law, more than in creative writing, details matter. The proper plaintiff to a breach of contract case ordinarily must be a party to the contract, and not a non-party who may feel one side or the other acted in violation of the agreed terms.
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The proper plaintiff to an automobile accident must be the person harmed by the defendant's negligence, not someone who merely watched the collision on television and claims to have been disturbed by it. The proper petitioner permitted to seek a divorce is limited to someone who is actually married to the respondent and not someone who simply opposes the matrimony. The proper party to a fraud action must be someone who was cheated, not someone who thinks the defendant was guilty of sharp practices. These are each elemental and inarguable principles of law. This case demonstrates and applies Twain's trenchant observation in the legal setting of common law Defamation: the proper party plaint iff to a Defamation action is only the person who was defamed. It is not enough to be disturbed by a story that a plaintiff, like this one, contends was fabricated, and it is not enough to have the same first name as the actual "person" defamed. It is certainly not sufficient for Plaintiff to voluntarily put herself before the public and falsely claim she is someone else, and then attempt to seize money damages from Casey Anthony for Plaintiff's own self-inflicted "injury." In this Memorandum, Ms. Anthony unequivocally demonstrates that this case is a transparent publicity stunt masquerading as a common law action for money damages. The many differences between the "person" described by Casey Anthony in her recorded statements to Orange County Sheriff's Office ("OCSO") deputies (Zenaida Fernandez-Gonzalez a/k/a "Zanny the Nanny") and an entirely different person (Plaintiff, Zenaida Gonzalez), and Ms. Anthony’s parents on July 25, 2009 are, as Twain observed, the difference "between the lightning bug and the lightning." Starting with their different names and moving to the vastly different detailed
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physical and background descriptions of "Zenaida Fernandez-Gonzalez," the Plaintiff is not, and cannot claim to be, the latter. A.
History and Overview of Claims/Summary of Arguments
Plaintiff filed her initial civil complaint against Ms. Anthony in the Circuit Court of the Ninth Judicial Circuit In and For Orange County, Florida in case number 2008-CA-24573 (the “State Court Action”). In her original complaint filed on September 24, 2008, Plaintiff alleged three counts to support her claim for damages. Count I for Defamation, Count II for Intentional Infliction of Emotional Ddistress; and Count III for Punitive Damages. Plaintiff later filed an Amended Complaint alleging the same three counts; the first for "Defamation" and the second is for "Intentional Infliction of Emotional Distress." The third Count, alleging entitlement to Punitive Damages, is wholly dependent on the merits of Count I and Count II and goes to the issue of damages and therefore is not addressed in this Motion. In the State Court Action, the parties took discovery and the matter was set for trial before the Plaintiff moved to continue the trial. The parties also filed cross motions for Summary Judgment. Which were ruled on by Judge Munyon. In her ruling, Judge Munyon followed the precedent of the highest court in this State -- The Florida Supreme Court – which unambiguously ruled almost 20 years ago that Intentional Infliction of Emotional Distress claims are barred as a matter of law in Defamation cases where, as here, the facts underlying both claims are the same. That ruling only left the claim for Defamation. With respect to the Defamation claim in Count 1, Ms. Anthony relied upon three separate defenses. Each of those defenses stands alone and is legally sufficient when viewed in isolation
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from the other defenses. In other words, if the Court agrees with Ms. Anthony's analysis as to any one of the three defenses, regardless of the merits of the other defenses, she is entitled to summary judgment on the entire claim. 1.
The Defamation Claim
The gravamen of the Defamation claim in the Amended Complaint was that Casey Anthony, while being questioned by the OCSO during an investigation concerning the whereabouts of her missing daughter, fabricated a story about a non-existent nanny/babysitter named "Zenaida Fernandez-Gonzalez" who supposedly took her child. This Count is interwoven with what can only be described as outright fabrications and more subtle deceptions. Although these statements are not part of Plaintiff’s Complaint filed herein, in order to understand the totality of the Plaintiff’s previous actions against Ms. Anthony, Ms. Anthony will address and discuss each one of them. i)
Plaintiff Is Not "Zenaida Fernandez-Gonzalez", The Alleged Nanny
Reviewing the Complaint and the Amended Complaint filed in the State Court Action shows that Plaintiff alleges that Casey Anthony told law enforcement a fictitious story about a "person" who the Plaintiff herself pleads was a figment of Ms. Anthony's imagination. That is, Plaintiffs own pleadings allege that the story told to law enforcement officers was not about her. Whether or not invented, the "person" described by Ms. Anthony does not even remotely resemble Plaintiff. The "nanny" in Ms. Anthony's statements was a tall, 25 year old, mixed race, University of Florida educated woman, living in Apartment 210 of Sawgrass Apartments in Orlando, Florida, who had babysat Ms. Anthony's child for 11/2 to 2 years. She had no children and was not married.
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She had two roommates at the Sawgrass Apartments, Raquel Farrell and Jennifer Rosa. "Zanny the Nanny" was from New York, had a mother named Gloria, and worked seasonally at Universal Studios. The "nanny" was said to have been introduced to Ms. Anthony by a mutual friend, Jeffrey Michael Hopkins, whose child she had also babysat. Ms. Anthony and the nanny talked by phone or communicated by text message every day the nanny was babysitting Ms. Anthony's child. Of obvious significance, the nanny's name was Zenaida Fernandez-Gonzalez. In contradistinction, Plaintiff was then a 5'2", 38 year old non-mixed race Hispanic, who testified she "think[s]" she had completed only the 10th grade. She had six children by at least three different men and several failed marriages. She is a grandmother of two children who were born to her oldest daughter. At the time of the alleged defamation, Plaintiff was living at a Motel 6 in Kissimmee, Florida and not at the Sawgrass Apartments in Orlando, Florida. She never roomed with Raquel Farrell or Jennifer Rosa, and did not know who these women were. Plaintiff is not from New York, does not have a mother named Gloria, and has never worked at Universal Studios. She had no idea who Jeffrey Michael Hopkins was, and had never babysat his child, nor Caylee Anthony, nor any other children. She did not know Casey and Caylee Anthony, had never met either one, and had never had any interactions or communications with mother or child. Simply put, the Plaintiff does not even slightly resemble the "person" described by Ms. Anthony in any form or fashion. Of critical significance, Plaintiff's name is Zenaida Gonzalez and she states she has never gone by or used the names Zenaida Fernandez, Zenaida Fernandez-Gonzalez, or Zanny.
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It is also undisputed that on the same day she gave her statements to law enforcement, the OCSO showed Ms. Anthony a photograph of Plaintiff and Ms. Anthony unequivocally told the Sheriff's Office that Plaintiff was not the "Zenaida Fernandez-Gonzalez" she had identified in her statements. This fact, which Plaintiff conveniently omits from her Complaint, obviously eviscerates and undermines the basis for her claims. Despite the above, at some time after Ms. Anthony described the nanny to deputies, and in a bizarre circumstance of the Plaintiff's own manufacture, the Plaintiff attempted to assume the identity of Zenaida Fernandez-Gonzalez. For a minimum of five full months, and for reasons that entirely escape reason and are inconsistent with good faith, Plaintiff publicly claimed to be someone she has now admitted under oath she is not. Even viewed in the most charitable fashion, it is virtually impossible to see Plaintiff's deceptions as anything less than a fraud upon the Court and the public. In that regard, the original Complaint, filed on September 24, 2008, falsely claimed that Plaintiff's name was "ZENAIDA FERNANDEZ-GONZALEZ," exactly matching the allegedly fictitious "person" described in Ms. Anthony's statements to law enforcement. Plaintiff later admitted, under oath, that her full legal name is and always has been "Zenaida Gonzalez" and that she has never been known as "Zenaida Fernandez-Gonzalez," except in the untrue allegations she pled in the original Complaint filed in this case. Although Plaintiff admitted she read the original Complaint before it was filed, her false allegations that her name was "Zenaida Fernandez-Gonzalez" were not corrected in the formal pleadings until five months after the case was commenced. Finally, on February 24, 2009, the
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Complaint was amended to correctly identify Plaintiff by her true name, "Zenaida Gonzalez." That correction alone proves fatal to Plaintiff's manufactured claim. Plaintiffs false and misleading statements as to her name and identity have never
been
corrected
in
the
court
of
public
opinion.
Instead,
Plaintiff
(accompanied by her counsel) has repeatedly appeared on television shows under the false name "Zenaida Fernandez-Gonzalez," and Plaintiff never once mentioned to the public that her name was not Zenaida Fernandez-Gonzalez. Nor did Plaintiff describe in any public media interviews that the many details given by Ms. Anthony relating to the fictitious Zenaida Fernandez-Gonzalez did not square whatsoever with Plaintiff's own background. Instead, Plaintiff pretended to be the maligned "nanny." Because one cannot acquire standing to be a Defamation plaintiff by purloining someone else's identity, this claim fails on the ground that Ms. Anthony's statements to deputies about her daughter's nanny were clearly and unambiguously not about the Plaintiff. One especially disturbing aspect of this lawsuit involves Plaintiffs or her counsel's "confusion" over the Plaintiff's real identity. It is significant to note that when Plaintiff and her counsel signed a contingency fee agreement (as required by Florida Bar Rules before the original Complaint was filed) and entered into what was presumably intended by both to be a legally binding contract for legal representation where exacting accuracy is expected, Plaintiff and her counsel both got her name right and used Plaintiff's real name, "Zenaida Gonzalez." (ii) Casey Anthony's Statements Were Privileged
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Under long-standing and well-settled Defamation legal principles, a person making a statement to law enforcement officers is presumptively protected, at a minimum, by a qualified privilege for any such statements made. In order to overcome that qualified privilege, Plaintiff must prove by admissible evidence that Ms. Anthony's assertedly defamatory statements were made by Ms. Anthony with "express malice," i.e., published with a "primary motive" of an "intent to injure the reputation of the plaintiff." It is undisputed that Plaintiff did not know Casey Anthony, nor vice-versa; that the nanny described in the statements did not match Plaintiff (excepting only the coincidence of the same first name); and that Ms. Anthony had no reason to speak to the authorities with a "primary motive" of injuring the reputation of this Plaintiff, a person whom she did not know and had never met. Consequently, as a matter of law, Plaintiff cannot prove the "express malice" necessary in order to overcome the law enforcement reporting privilege that insulates Ms. Anthony from any liability she might otherwise have for her statements. (iii) Plaintiff Has No Legally Cognizable Damages for staements made to law enforcwement. As ruled by Judge Munyon, as a matter of law, Plaintiff has no damages in this case as the brief intrusion when she was interviewed by plainclothes deputies is not compensable and Casey Anthony would otherwise be immunized from liability by the privilege described above. Moreover, all other damages Plaintiff claims were voluntarily inflicted upon herself. The undisputed facts show that had Plaintiff volitionally placed herself before the public under a false name, and affirmatively claimed she was the nanny in what even she alleges is a fabricated story.
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No one outside of a handful of plainly dubious law enforcement officers would have connected her to the Anthony case. The OCSO did not publish Plaintiff's name or photograph because its investigators decided that Ms. Anthony's statements about "Zenaida Fernandez-Gonzalez" were fabricated. Nonetheless, Plaintiff, often appearing next to counsel, voluntarily injected herself into the public eye, repeatedly appearing on television and in other media under the false name of "Zenaida Fernandez-Gonzalez" and claiming that she was the person previously disclosed by Ms. Anthony only to the investigating officers. Plaintiff never corrected her frauds upon the public, although she now sues claiming that she has been damaged because the public confuses her for the "person" she asserts was invented by Ms. Anthony. A Defamation plaintiff is not entitled to sue when she herself is responsible for the allegedly harmful publications. II. STATEMENT OF FACTS AND PROCEEDINGS Casey
Anthony
has
concurrently
filed
DEFENDANT'S
STATEMENT
OF
UNDISPUTED FACTS filed and referred to in the cross motions for Summary Judgments in the State Court Action.. Those undisputed facts are incorporated by reference and will not be repeated verbatim herein. Ms. Anthony will cite to the statement as "SF," followed by a citation to one or more of the separately numbered statements of fact. The following is an overview of the pertinent procedural history and factual background. A.
The Original And Amended Complaints
In a typical legal matter one would begin the analysis by reviewing the most recently filed pleading of significance, and disregard earlier iterations of the pleadings. This case, however, is
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not typical, for many reasons. One of those reasons is that the initial false Complaint filed by Plaintiff served as the foundation for various self-inflicted publications where Plaintiff claimed to be someone she is not. Plaintiff seeks money damages from Casey Anthony for acts for which Plaintiff is solely responsible. To understand the depth of the deceit Plaintiff is requesting or will request this Court to consider, Ms. Anthony believes it is important for this court to understand the history of the Plaintiff’s pleadings and the layers of fraud the Plaintiff has perpetuated to date to get to this point in these proceedings. To do that Ms. Anthony believes the totality of the pleadings and facts as filed and stated in the State Court Action need to be reviewed. On September 24, 2008, Plaintiff filed her initial Complaint, styled "Zenaida FernandezGonzalez v. Casey Anthony." See SF, ¶91 1, 2. The crux of the Complaint is found in 1 6, where Plaintiff alleges that "[d]uring questioning by the Orange County Sheriff's Department, Defendant, CASEY ANTHONY, told them that the last time she saw her child, Caylee Anthony, she was with her nanny/babysitter, Zenaida Fernandez-Gonzalez. Defendant, CASEY ANTHONY, gave the deputies identifying information regarding Plaintiff, ZENAIDA FERNANDEZ-GONZALEZ, such as her name, a description of her vehicle, and the names of Zenaida Fernandez-Gonzalez's two children," the person that Plaintiff at that time claimed to be.' See SF, % 1. There were at least 23 instances in the Complaint where the Plaintiff alleges explicitly or implicitly that she is "ZENAIDA FERNANDEZ-GONZALEZ," not including the incorporations by reference in Count II. See SF,1 3. The original Complaint remained of record and was widely published by Plaintiff until precisely five months later, when, on February 24, 2009, she filed her first Amended Complaint. See SF, 9191 4, 5. How or why the original Complaint contained all these false allegations about the Plaintiff being someone she is not has never been explained.
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' All three of the "facts" pleaded in the last sentence of 91 6 of the Complaint may be summarily determined to be untrue by the simple expedient of reading Ms. Anthony's statements to law enforcement: Ms. Anthony did not describe any Fernandez-Gonzalez car, and she did not say Zanny the Nanny had two children -- this Plaintiff actually has six children -- let alone provide the names of "two" children of the Plaintiff, a woman she had never met. In all events, the Amended Complaint, without explanation, no longer claimed Plaintiff was someone she was not -- Zenaida Fernandez-Gonzalez -- the person explicitly and in detail described by Ms. Anthony in her statements to the OCSO. See SF, VI 4-8. Instead, 1 6 of the original Complaint which alleged that Ms. Anthony made defamatory statements about "Zenaida FernandezGonzalez," was changed to allege that Ms. Anthony's statements were made about someone else, "Zenaida Gonzalez." See SF, 111 4-8. The change in the pleaded names of the putative Plaintiff is not a mere technicality: on review of the two allegedly defamatory statements given to the investigators, the Court will immediately discern that Ms. Anthony never described a person who had the same name or who was otherwise the least bit identifiable with Plaintiff. There is no legally tenable basis for Plaintiff to aver to the contrary.
Based on these pleadings, the issue is simple and starkly joined: If the allegedly fabricated story is, as Plaintiff pleads, "about the Plaintiff, Zenaida Gonzalez," then for present purposes Plaintiff is entitled to proceed with her case. If, however, the allegedly fabricated story is about someone else, real or pretend, then Plaintiff has no claim as a matter of law. B.
Facts Central to Plaintiffs Claims 1.
The Alleged "Defamatory Statements"
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In the State Court Action, Casey Anthony served Plaintiff with interrogatories, document production requests, and requests for admissions seeking to discover the precise statements on which Plaintiff relies to support her defamation claim because the Complaint, in contrast to the well-established legal precedents in Florida requiring details to support a defamation claim, contained no such information. See SF, 1 13. In response, Plaintiff referred Ms. Anthony to the July 16, 2008 statements she made to law enforcement (albeit Plaintiff's interrogatory responses did not use the correct date of these statements) and then made vague, non-specific accusations of alleged "republications." See SF, IN 14-5. Plaintiff is barred from now relying upon information that conflicts with her earlier answers. See, e.g., Dicus v. District Board Of Trustees For Valencia, 734 So.2d 563, 564 (Fla. 5th DCA 1999) (holding a party may not defeat summary judgment by contradicting discovery responses). According to her sworn interrogatory responses, the "statements" that Plaintiff contends were defamatory consist only of statements Ms. Anthony made to Detectives Yuri Melich and John Allen of the OCSO. See SF, 1 15.2 Plaintiff does not cite to any portions of Ms. Anthony's statements to law enforcement which she contends were about her (and there were none). See SF, ¶ 15; compare Asa Accugrade, Inc. v. Am. Numismatic Ass'n., 2006 WL 1640698 at *10 (M.D. Fla. 2006) (holding that, under Florida law, defamation plaintiff must plead and prove the particular defamatory remarks allegedly made; general references are insufficient). In all events, Ms. Anthony's statements to law enforcement were recorded so there can be no valid dispute as to their content. See SF, 116. It is indisputable that these statements did not concern and were not about Plaintiff. See SF,¶17.
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2
Plaintiff claims the statements were made "on July 21, 2008." In truth, both statements were actually taken and recorded on July 16, 2008, and transcribed respectively on July 21 and 23, 2008, as is obvious from review of the first paragraph of each statement. Given that Plaintiff's recollections about something as elemental to her case as the date of the allegedly defamatory statements is so fuzzy, it is helpful to a search for the truth that both statements were recorded and transcribed and are, therefore, not subject to Plaintiff's erroneous recall as to their supposed substance. In addition, as in this matter, Plaintiff’s claims in the State Court Action contend that an oral discussion, in jail, between Ms. Anthony and her mother to the effect that the former was never shown a photograph of "that girl down in Kissimmee" was somehow a republication of a defamatory statement. See SF, ¶9[ 15-6. This supposed "jailhouse statement" was not defamatory as a matter of law and is not otherwise actionable. Moreover, upon viewing the recording of the jailhouse visit in its entirety, the statements made during that visit actually prove that Ms. Anthony never identified Plaintiff as "Zanny the Nanny" to her mother or anyone else.
2. Casey Anthony Describes A "Zenaida Fernandez-Gonzalez" To Law Enforcement In Detail
On July 16, 2008, Casey Anthony provided the OCSO with a handwritten statement concerning her then-missing daughter. See SF, i 18. That same day, July 16, 2008, Ms. Anthony gave two separate statements to law enforcement officials during interviews, which were sworn and recorded. See SF, 11 21, 37. Ms. Anthony's recorded statements are filed along with
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DEFENDANT'S STATEMENT OF UNDISPUTED FACTS. Accordingly, the Court can conduct its own review of the statements and need not rely upon any party's representations as to what was actually stated. Ms. Anthony's three statements to law enforcement can be distilled as follows: Ms. Anthony claimed she last saw her child with her nanny. See SF, 1 19. She identified the nanny as "Zenaida Fernandez-Gonzalez." See SF,1 20, 23. Ms. Anthony stated she had dropped off her child, Caylee, with Zenaida Fernandez-Gonzalez on June 9, 2008 and Caylee was never returned to her. See SF,1122. Ms. Anthony said she had known Zenaida Fernandez-Gonzalez for "four years Christmas this year," and had met her through a mutual friend, Jeffrey Michael Hopkins, when all three worked for the same employer. See SF, 1 27. Ms. Anthony informed the officers that Zenaida Fernandez-Gonzalez had watched Mr. Hopkins' child, Zack, before she started babysitting for Caylee Anthony. See SF, 28. Ms. Anthony told the detectives that Zenaida Fernandez-Gonzalez had been Caylee's babysitter for the last 11/2 to 2 years, since approximately April 2006. See SF,1 29. When listing the places where Caylee had received babysitting services, Ms. Anthony said for awhile she had dropped her child at Mr. Hopkins' house in Avalon Park, where FernandezGonzalez would watch both children. See SF,1 30. Beginning in late 2006 to early 2007, however, Ms. Anthony began dropping Caylee off to be watched at Fernandez-Gonzalez's home located near Glenwood, or at Fernandez-Gonzalez's mother's house off Michigan Avenue, and later at the Sawgrass Apartments. See SF,1 31.
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Zenaida Fernandez-Gonzalez was described as 25 years old, 5'7" tall, approximately 140 pounds, with dark brown, curly hair. See SF, 91 20. She had moved to Florida from New York and resided at the Sawgrass Apartments, where she had two roommates, Raquel Farrell and Jennifer Rosa, See SF, 20, 36. Ms. Anthony stated that Zanny, the nickname for Zenaida FernandezGonzalez, reside in Apartment 210. See SF, 9[ 24. She described the apartment building as being the "first one on the right hand side" as you drive into Sawgrass Apartments. See SF, 1 25. Ms. Anthony reported that Zanny had previously lived in a single family home that Ms. Anthony personally pointed out to an investigator. See SF, 9[ 26. As further background on "Zanny the Nanny," Ms. Anthony told the deputies that Zenaida Fernandez-Gonzalez was a seasonal employee of Universal Studios, but primarily worked as a nanny; that Fernandez-Gonzalez's family was from New York, although some of them now lived in Miami; that Fernandez-Gonzalez herself was born in New York, but had moved to Florida to attend the University of Florida; that Fernandez-Gonzalez was an ethnic mix of black and Puerto Rican parents; and that Fernandez-Gonzalez's birthday was sometime in September. See SF, 9[ 36. While Zanny was babysitting Caylee, Ms. Anthony said she would text or call her every day. See SF, 1 40. Zenaida Fernandez-Gonzalez talked to Ms. Anthony by phone on the last day the child was seen, June 9, 2008, and put Caylee on the phone on July 15, 2008. See SF,1 20. On June 9, 2008, the day Caylee went missing, Ms. Anthony stated she drove to FernandezGonzalez's apartment at Sawgrass to pick up her daughter, and no one answered her knock at the door. See SF, 1 32. She then visited several places she knew Fernandez-Gonzalez had previously
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taken Caylee. See SF, 9[ 33. She also attempted to contact Fernandez-Gonzalez's mother, Gloria, but never received a return phone call from the mother. See SF, 134. Finally, she stated she went to some bars that she knew Fernandez-Gonzalez had frequented, including Fusion and Ultra Lounge in downtown Orlando. See SF, 9[ 35. 3.
Plaintiff Is Not Zenaida-Fernandez Gonzalez
Neither the name of the "nanny" nor any of the detailed descriptions of "Zenaida Fernandez-Gonzalez" remotely pertains to or depicts the Plaintiff. Plaintiffs full name is Zenaida Gonzalez. See SF, VI 67-8, 127. She has never used the last name Fernandez-Gonzalez or Fernandez, or been called by the nickname "Zanny." See SF,
¶91
68-9, 128, 130. Plaintiff has never been known by any other name, and unequivocally
and absolutely has never been known as Zenaida Fernandez-Gonzalez. See SF, fJ 68-70, 128. Plaintiff does, however, go by the nickname "Bebe" which helpfully is tattooed on her body. See SF, 91129. Plaintiff is 5'2", not 5'7" tall. See SF, 91 87. She was 38 years old in July of 2008, not 25 years old. See SF, 84. She has light brown or light blonde hair, not dark brown and curly hair. See SF, 91 88. She is covered with visible tattoos. See SF, 91 129. She is Puerto Rican, not of mixed race. See SF, f 108. She is not unmarried, instead being presently "engaged" to one man while still married to another. See SF,1154. On July 16, 2008, Plaintiff lived at a Motel 6 in Kissimmee, Florida, not in Apartment 210, on the second floor, in the first building on the right, at the Sawgrass Apartments in
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Orlando. See SF, 919124, 94, 141. In fact, Plaintiff admits she never resided at the Sawgrass Apartments. See SF, 9192. Last, but certainly not least, Plaintiff did not know either Ms. Anthony or Caylee, and had never communicated with either of them in any fashion. See SF, TI 72-76, 79. 4. Casey Anthony Expressly Informed Law Enforcement That Plaintiff Is Not The "Nanny" She Described To Them On July 16, 2008, during the nine hour period between the first and second interviews by the OCSO, Casey Anthony was shown a photograph of Plaintiff (and every other person of record in Central Florida with a similar name). See SF,1 64. Upon being shown a photograph of Plaintiff, Ms. Anthony immediately, unequivocally, and absolutely told law enforcement officers that Plaintiff was not the person she had described as Zenaida Fernandez-Gonzalez. See SF, 19165-6. Despite being unequivocally ruled out by Ms. Anthony as the nanny, Plaintiff thereafter set out on a journey of trying to convince the public otherwise. This journey should come to an end right now because the law does not reward fraudulent and manufactured claims. III. ARGUMENTS A. CASEY ANTHONY IS ENTITLED TO SUMMARY JUDGMENT The standard for summary judgment was articulated by the Fifth District Court of Appeals in Publix Supermarkets, Inc. v. Austin, 658 So.2d 1064, 1068 (Fla. 5th DCA 1995), where it held: A movant for summary judgment has the initial burden of demonstrating the nonexistence of any genuine issue of material fact. But once he tenders competent evidence to support his motion, the opposing party must come forward with counter evidence sufficient to reveal a genuine issue. It
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is not enough for the opposing party merely to assert that an issue does exist. Harvey Building, Inc. v. Haley, 175 So.2d 780 (Fla. 1965); Farrey v. Bettendol; 96 So.2d 889 (Ha. 1957); see Fla.R.Civ.P. 1.510. Casey Anthony has established, through competent sworn proof recognized under Fla.R.Civ.P. 1.510, that there is no genuine issue of material fact in this case. Given the controlling legal principles applicable to Plaintiff's claims, Ms. Anthony is entitled to judgment as a matter of law. B.
GENERAL DEFAMATION LAW AND PRINCIPLES
Under Florida law, defamation is generally defined as "the unprivileged publication of false statements which naturally and proximately result in injury to another." Byrd v. Hustler Magazine, 433 So.2d 593, 595 (Fla. 4th DCA 1983). To establish a prima facie case for defamation under Florida law, a plaintiff must show that: "(1) the defendant published a false statement; (2) about the plaintiff; (3) to a third party; and (4) the party suffered damages as result of the publication." Elbanna v. Captain D's, LLC, 2009 WL 435051 (M.D. Fla. 2009) (Emphasis added).3
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In Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008), the Florida Supreme Court listed the elements thusly: "Defamation has the following five elements: (1) publications; (2) falsity; (3) actor must act with reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a
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Florida courts have exercised a vigorous role as gatekeepers when a party attempts to plead a claim for defamation. The trial courts have been instructed by the appellate courts in this State to exercise a "prominent function" in determining whether a defamation case should be submitted to a jury. Byrd, 433 So. 2d at 595; see also Smith v. Cuban American Nat. Foundation, 731 So.2d 702, 704 (Fla. 3rd DCA 1999). To that end, "the trial court must evaluate the publication, not by "extremes, but as the common mind would naturally understand it." Byrd, 433 So. 2d at 595, citing McCormick v. Miami Herald Publishing Co., 139 So.2d 197, 200 (Fla. 2nd DCA 1962). Formulated differently, an alleged ly defamatory statement "should be considered in its natural sense without a forced or strained construction." Byrd, 433 So.2d at 595. "If the publication can bear only one meaning, the question of defamation is for the judge." McIver v. Tallahassee Democrat, 489 So.2d 793, 794 (Fla. 1st DCA 1986); accord: Daniels v. Patterson, 751 So.2d 678, 679 (Fla. 1st DCA 2000).
Matter concerning a private person; (4) actual damages; and (5) statement must be defamatory." This definition is not substantively different from the elements defined above, and courts have continued to use the latter, which is more "user friendly."
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C. PLAINTIFF WAS NOT THE "PERSON" DEFAMED I.
Casey Anthony Did Not Make Any Statements "About The Plaintiff'
One of the critical elements of Defamation law is that the defamatory statement must be "of and concerning" the plaintiff. Hay v. Independent Newspapers, Inc., 450 So.2d 293, 294 (Fla. 2nd DCA 1984). Put differently, Plaintiff must prove that the false statements were "about the plaintiff." Gunder's Auto Center v. State Farm, Inc., 699 F. Supp.2d 1339 (M.D. Fla. 2010); Elbanna v. Captain D's, LLC, 2009 WL 435051 (M.D. Fla. 2009); see generally Fla.Jur.2d, Defamation and Privacy, § 6. In this case, the Court need not reach the issue of whether a false or defamatory statement was made about someone else because Casey Anthony did not make any statement at all "about the Plaintiff." The cases are instructive on what is essentially a self-evident legal proposition: a plaintiff must be the specific person defamed, not someone with thin skin and some superficial similarity to a different person whom the defendant intended to publish comments about. In Jones v. Community Newspapers, Inc., 2006 WL 2507610 (M.D. Fla. 2006), the United States District Court evaluated a claim for defamation brought by one Joyce Jones, who complained about a newspaper story reporting that two Jones brothers had been indicted for trafficking in crack cocaine, and that the brothers owned Jones Trucking company. Plaintiff was the wife of one of the Jones brothers, and the sister in law of the other. She alleged that she was the sole owner of Jones Trucking, and that the newspaper publication defamed her and her business. On defendant's motion for summary judgment, the District Court held that the plaintiff Mrs. Jones had no cognizable claim for defamation as the newspaper article was not "of and
2
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concerning" Joyce Jones or Jones Trucking. Jones, 2006 WL 2507610. Likewise, the statements given by Ms. Anthony to the deputies were never "of and concerning" or "about" Plaintiff, despite Plaintiff in this case having a partially similar name to the described "nanny" (just as Mrs. Jones had the same name). Counsel for Ms. Anthony have not been able to locate any Florida cases where someone who simply had the same first name as someone else a plaintiff contends was "fabricated" by a defendant's defamatory statement has even filed a lawsuit. Nonetheless, it is clear that Ms. Anthony's statements to the OCSO are not actionable by this Plaintiff unless the allegedly false statements were about this Plaintiff. Cf. Church of Scientology of Cal. v. Flynn, 578 F.Supp. 266, 268 (D. Mass. 1984) (applying Florida law and holding "that one who is injured by the libel of another has no right of action"); Gilbert Shoe Co. v. Rumph Publishing Co., 112 F.Supp. 228, 229 (D.Mass. 1953) ("It is essential in an action for libel that the publication of the libel should be of or concerning the plaintiff). Merely by comparing the details of the law enforcement statements, and Plaintiff's own deposition, it is clear as a matter of law that Plaintiff is not the person described in copious detail by Ms. Anthony to OCSO. The truth of this conclusion is exemplified by the fact that Casey Anthony expressly told the OCSO that Plaintiff was not "Zenaida Fernandez-Gonzalez." See SF, 64-66. Only one person can be Caylee Anthony's "Zanny" and that person unquestionably is not the Plaintiff. Plaintiff did not acquire standing to sue for defamation merely because Ms. Anthony told the deputies that some other "person," who shared at most a somewhat similar name, had her child.
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In her unambiguous statements to law enforcement, Ms. Anthony identified and described "Zanny" as "Zenaida Fernandez-Gonzalez," a single childless woman, age 25, from New York; who was educated at the University of Florida; who currently resided at Apartment 210 (on the second floor of the first building on the right) of the Sawgrass Apartments in Orlando; who lived with two female roommates; who was 5'7" tall and approximately 140 pounds; who had dark brown, curly hair; who had one black and one Hispanic parent; who was born in September; who was a former Universal Studios employee introduced to Ms. Anthony through a mutual friend, Jeffery Michael Hopkins, for whom the nanny babysat Mr. Hopkins' child; who was known to Ms. Anthony for 4 years and was the nanny for Caylee for 11/2 to 2 years; who had a mother originally from New York named Gloria; and who was known to Ms. Anthony to patronize the Fusion and Ultra Lounge bars in downtown Orlando. See SF, 9['l 20, 22-25, 27-29, 34-36, 38. The description of "Zenaida Fernandez-Gonzalez" does not match the Plaintiff in the slightest: Plaintiff has a different name (Gonzalez, not Fernandez-Gonzalez); a different marital status (currently being divorced from her third husband); a different number of progeny (six children versus none); a different age at the time of the events at issue (age 38, not age 25); a different birthplace (Massachusetts, not New York); a different educational background ("thinks" she completed 10th grade, most certainly not educated at the University of Florida); a different residence (Motel 6 in Kissimmee, Florida, not Apartment 210, second floor, first building on the right, of Sawgrass Apartments in Orlando, Florida); a different height (5'2", not 5'7"); different hair color (light brown or blonde, not dark brown); different ethnicity (Hispanic, not a mix of black and Hispanic); different birth month (October, not September); different employment history (she was a
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maid, not a nanny, and she never worked at Universal Studios); different friends (did not know Jeffrey Michael Hopkins); different childcare employment history (had never been a babysitter or nanny for anyone, most certainly not for Caylee Anthony); different mothers (did not have a mother named Gloria from New York); and different bar hopping history (did not frequent Fusion or Ultra Lounge bars in downtown Orlando). See SF, 11 80, 83-90, 92, 94-98, 101, 103, 105, 107-08. Regardless of whether Ms. Anthony's story to law enforcement was fabricated, Plaintiff does not have standing to bring this action because the story did not concern her. Plaintiff is not a private attorney general vested with the right to recover money damages if persons of interest to the authorities supposedly mislead law enforcement officers. The remedy for such deceptions may be found in the criminal law statutes, not within tort law principles. Defamation law is turned on its head when a person such as the Plaintiff steals or otherwise claims someone else's identity in order to manufacture a private cause of action. There is no honest argument to be made in this case that Plaintiff is "Zenaida Fernandez-Gonzalez," the young, college-educated babysitter of Caylee Anthony. Ms. Anthony is entitled to summary judgment in this case because there is a crucial difference "between the lightning bug and the lightning," 2. Plaintiff Admits She is Not "Zanny the Nanny" We continue our analysis of whether Plaintiff is, in fact, "Zenaida Fernandez-Gonzalez" by reviewing admissions made by Plaintiff. In Plaintiff's sworn deposition testimony, she flatly admitted she is not the "nanny": "Q: Please state your name for the record.
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A: Zenaida Gonzalez." See SF, i 67. Despite multiple marriages and other relationships, Plaintiff admitted she has always been known simply as "Zenaida Gonzalez": "Q: You've never had a hyphenated last name? A: Not that I recall. Q: I mean, through all these relationships, you've always maintained the name Zenaida Gonzalez. A: Yes. Q: You've never been referred to by any other name? A: No. Q: You've never been referred to as Fernandez at any time? A: No. Q: You've never had more than one last name. A: No." See SF, i 68. As for the notion that the Plaintiff was, or had been known by the nickname "Zanny the Nanny," she admitted under oath: Q: And you've never been known as Zanny, Z-A-N-N-Y. A: No. Q: No one's ever called you that name? A: No." See SF,1 69, Finally, and without any equivocation, Plaintiff admitted under oath:
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"Q: You are not Zenaida Fernandez-Gonzalez, are you? A: No, I'm not." See SF,1 70. Plaintiff then went on to admit that she was aware when her Complaint was filed that Casey Anthony's statements to law enforcement related to Zenaida Fernandez-Gonzalez, and she also says that she never told her lawyers she was that woman. See SF,1 8. In a rational world, it would seem that this last quoted testimony, standing alone, should be diapositive of Plaintiff's right to be in court, but there are plenty of other reasons her case is frivolous. There is no doubt under any interpretation of the law enforcement statements that the "person" repeatedly described by Ms. Anthony in the law enforcement statements was "Zenaida Fernandez-Gonzalez," not the Plaintiff, "Zenaida Gonzalez." It is an undisputed material fact that Plaintiff is not the same "person" that she expressly pleads Ms. Anthony fabricated in the statements given to law enforcement. It is also undisputed that Plaintiff knew, prior to filing the original Complaint, that Casey Anthony had said the name of her nanny was Zenaida Fernandez-Gonzalez, not Zenaida Gonzalez. See SF, II 118-19. She testified: "Q: But she [Casey Anthony] never said you were the one --- she never said you, Zenaida Gonzalez, was involved in any of this case, did she? A: I don't know that. Q: When did Casey Anthony say that you specifically were involved in the disappearance of her daughter?
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A: I don't know." See SF,1109. Curiously, in this purported Defamation case Plaintiff herself concedes she has no idea what supposedly defamatory statements were uttered by Ms. Anthony about her: "Q: What statements did Casey Anthony make that indicated that you specifically were involved in the disappearance of her daughter? A: You can ask that to your client. I cannot answer that for you. Q: You don't know what statements Casey Anthony made that implicate you personally in this matter? A: I can't speak for her. Q: Are you aware of any statements where she specifically identified you as being involved in the disappearance of her daughter? A: I do not recall." See SF, 1 109; see also Asa Accugrade, Inc. v. Am. Numismatic Ass'n., 2006 WL 1640698 at *10 (M.D. Fla. 2006)(holding that defamation plaintiff "must link a particular remark to a particular defendant, and specifically identify the persons to whom the allegedly defamatory comments were made, as well as provide a time frame when the statements were made"); accord, Fowler v. Taco Viva, Inc., 646 F. Sapp. 152, 157-58 (S.D. Fla. 1986). Even more oddly, and despite her original Complaint alleging in twenty-three places that she was Zenaida Fernandez-Gonzalez, Plaintiff testified under oath that she never held herself
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out to the Court or the public as that "person": "[M]y name is Zenaida Gonzalez. It's not Zenaida Fernandez-Gonzalez. I never said my name was Zenaida Fernandez-Gonzalez." See SF, 1 71 (emphasis added). Plaintiff is willfully blind to the multiple false allegations in her original Complaint, and the false light she shone upon herself during multiple media interviews. See SF, 1 112-24, Plaintiff admitted she reviewed the original Complaint before it was filed, but nonetheless blamed her own lawyers for using someone else's name in the Complaint and for alleging she was someone she is not. See SF, 1 8. Perhaps not so astonishingly, when Plaintiff signed a contingent fee agreement with her counsel for purposes of bringing this case, both she and the lawyers got her name right and referred to her as "Zenaida Gonzalez" and not as the allegedly invented nanny "Zenaida Fernandez-Gonzalez." See SF, 91 9. If Plaintiff and her lawyers had extended to the Defendant that same punctilious accuracy in this lawsuit as they insisted upon when entering into an attorney-client relationship between themselves, simple honesty would have barred this suit. In view of Plaintiffs admissions that she is not "Zenaida Fernandez-Gonzalez," the only "person" described in the allegedly defamatory law enforcement statements, and the myriad descriptions of that "person" that differ in every material way from the Plaintiff's background and history, there is no genuine issue of material fact that Plaintiff was never described in Ms. Anthony's statements to law enforcement officers. Plaintiff is not the person who was defamed. She is nothing more nor less than a common identity thief falsely claiming to be someone she knows she is not.
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D. CASEY ANTHONY'S STATEMENTS TO LAW ENFORCEMENT OFFICIALS WERE PRIVILEGED The Supreme Court of Florida has unequivocally held that a "qualified privilege" exists where otherwise defamatory statements are made to law enforcement officers prior to the initiation of criminal proceedings. Fridovich v.Fridovich, 598 So.2d 65, 69 (Fla. 1992) (holding "defamatory statements voluntarily made by private individuals to police or state's attorney prior to the institution of criminal charges are presumptively qualifiedly privileged"). Once a qualified privilege exists with regard to an alleged defamatory statement, any presumption of malice attaching to the statement is eliminated as a matter of law. Nodar v. Galbreath, 462 So.2d 803, 810 (Fla. 1984). Instead, the qualified privilege "raises a presumption of good faith and places upon the plaintiff the burden of proving express malice." Id.; see also Cape Publications, Inc. v. Reakes, 840 So.2d 277, 280 (Fla. 5th DCA 2003). In order to prove "express malice," a plaintiff must prove that "the defendant's primary motive in making [the] statements was the intent to injure the reputation of the plaintiff" Fridovich, 590 So.2d at 69 (emphasis added), citing Nodar, 462 So.2d at 806; see also John Hancock Mut. Life Ins. Co. v. Zalay, 581 So.2d 178, 180 (Fla. 2nd DCA 1991). "Express malice cannot be inferred from the mere fact that the statements were untrue." Coogler v. Rhodes, 21 So. 109, 112 (Fla. 1897); Demby v. English, 667 So.2d 350, 353 (Fla. Lst DCA 1996). The statements upon which Plaintiff's claims are premised in this case were made during sworn interviews conducted by the OCSO the same day that Ms. Anthony was initially arrested. See SF, n 18, 21, 37, 52. Regardless of whether the interview was conducted "in connection with" a judicial proceeding,4 any statements made by Ms. Anthony during the interview by law
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enforcement were, as a matter of law, privileged. This is what Judge Munyon correctly ruled in the State Court Action. Assuming the privilege is only a qualified one, it cannot be overcome unless Plaintiff presents sworn proof of Defendant's "express malice." Plaintiff cannot meet her burden of proving "express malice" unless she can prove that Ms. Anthony specifically intended to injure Plaintiff when she made the statements to law enforcement about the supposedly fabricated "nanny". Fridovich, 590 So.2d at 69, citing Nodar, 462 So.2d at 806. When she was interviewed by the criminal investigators, Plaintiff herself admitted she did not know either Casey or Caylee Anthony. See SF, 1 72. The deputies then showed Plaintiff photos of Casey and Caylee, and Plaintiff once more said she did not know either of them. See SF, 91 73. She confirmed her lack of knowledge by writing such on their pictures. See SF,1 74.
4
Statements made to law enforcement during "the course of or "in connection with" a judicial proceeding are protected by an "absolute privilege" which cannot be overcome. See Stucchio v. Tincher, 726 So.2d 372 (Fla. 5th DCA 1999); see also Fridovich, 58 So.2d at 69. Since law enforcement had already determined to charge Ms. Anthony when her statements were made and, indeed, she was charged the same day, Ms. Anthony contends that her statements were made "in connection with" a judicial proceeding and are thus protected by an absolute privilege. Given the
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inability of Plaintiff to prove the express malice required to overcome even a qualified privilege, however, the Court need not reach that issue here.
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Before filing suit, neither Plaintiff nor her counsel contacted Ms. Anthony. See SF, 1 75. In Plaintiffs words, "I never had no communication with her. I didn't know her." See SF, 175. Plaintiff admits she never met Casey Anthony, never saw her in person, never wrote to her, and has never been in the same room with her. See SF,1 76. Before July of 2008, there had never been any ill will between Plaintiff and Ms. Anthony. See SF,177. Plaintiff had no reason to be mad at Ms. Anthony, and conversely, Plaintiff has no reason to think Ms. Anthony was mad at her. See SF,1 78. Because neither party knew the other, and had no history of ill will towards the other, Plaintiff cannot prove Ms. Anthony had the specific intention to harm her reputation. Besides admitting she had no knowledge of any facts supporting malice, a specific intent to harm the Plaintiff is also entirely inconsistent with the theory of the case Plaintiff has pled: Plaintiff alleges the information given to the investigators was a fabricated story about a fictitious person. See SF, ¶ 4 (Exhibit 2, at 9 ( 9 to DeGirolamo Dec.). The notion that Casey Anthony invented a story about someone who does not exist is not compatible logically with Plaintiff's burden of proof on the qualified privilege, i.e., that Ms. Anthony intended to harm this specific Plaintiffs reputation when giving those statements. There is no evidence before this Court on which it could be found that Ms. Anthony intended to harm Zenaida Gonzalez's reputation when she gave the law enforcement statements relating to a different, allegedly fabricated person, Zenaida Fernandez-Gonzalez, the young, childless, mixed-race, college-educated nanny who lived at Sawgrass Apartments and who had babysat Caylee for years.
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Given the above, it is impossible for Ms. Gonzalez to meet her burden of proving express malice. Accordingly, even if Plaintiff could otherwise show that Ms. Anthony's statements were "about the Plaintiff," Ms. Anthony would still be entitled to summary judgment under Florida law because of the qualified privilege afforded to statements made to law enforcement officials and the absence of any malice between Plaintiff and Ms. Anthony. E. PLAINTIFF DID NOT SUSTAIN ANY COGNIZABLE DAMAGES Another essential element of a Defamation claim is that a plaintiff must prove that a false statement about her was the direct and proximate cause of damages recognized under the law. See, e.g., Byrd v. Hustler Magazine, 433 So.2d at 595 (defining defamation as "a false statement which naturally and proximately result[s] in injury to another"); accord, Smith v. Cuban America National Foundation, 731 So.2d at 705 (Fla. 3rd DCA 1999). Plaintiff cannot sustain her burden of proving causation because: (i) Ms. Anthony's interviews by the OCSO were within the scope of the law enforcement investigation privilege; (ii) Plaintiff's remaining claims for damages are limited to matters that occurred after and as the direct result of voluntary media appearances by the Plaintiff; and (iii) given Plaintiff's sordid background, she would not have cognizable damages under any circumstances. 1.
The Interview Of Plaintiff By Law Enforcement Was Within The Scope Of The Law Enforcement Privilege
On July 16, 2008, Plaintiff gave her only interview to deputies in this case. See SF, 1 56, 60, 62. Two female deputies, not wearing uniforms, interviewed Plaintiff outside the presence of her children. See SF,1 58. They asked Plaintiff if she had any information as to a missing person,
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Caylee Anthony. See SF, 159. This short interview was the Plaintiffs only interaction with law enforcement in connection with this matter. See SF,1 60, 62. After Ms. Anthony explicitly told the deputies that Plaintiff was not Zanny the Nanny, Plaintiff was never investigated again. See SF, TI 63, 65. The deputies never published a picture of Plaintiff on television, and never contacted Plaintiff's family members about why they were interviewing her. See SF, ¶ 61. This brief interruption of the Plaintiffs life, not instigated by Ms. Anthony, does not support a claim for damages. Even assuming the interview of Ms. Anthony somehow indirectly led law enforcement to contact Plaintiff, the latter interview would be within the scope of the privilege that insulates Ms. Anthony from liability for her statements to law enforcement. It would be a strange and illogical legal system that would insulate Ms. Anthony from liability for her statements to police, but expose her to liability for the mistaken or overzealous actions taken by law enforcement in investigating those statements. Such a holding would be completely incompatible with Fridovich. 2.
Plaintiff injected Herself Into The Public Eye
In the Amended Complaint filed in this case, Plaintiff falsely swore that she lost her job and job opportunities as a result of the alleged defamatory statements made by Plaintiff. See SF, 1 125. During the investigation of those allegations, counsel for Defendant discovered that those averments were false, and Plaintiff then withdrew all claims related to her alleged lost wages. Plaintiff's remaining damages claims are, in her own words, that she cannot "go outside without having nobody notice me" and "They see my face and they say all kinds of things." See
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SF,1 116.5 Other than those alleged unwanted comments, Plaintiff has no other compensatory damages claims. As is shown below, any unwanted comments directed at Plaintiff were the direct result of the publicity campaign orchestrated by her and her lawyers, not the unpublished, privileged statements Ms. Anthony gave to the OCSO. While the demonstrably untrue "Zenaida Fernandez-Gonzalez" version of the Complaint was pending, and in the five months before it was corrected to plead Plaintiff's real name, Plaintiff voluntarily appeared on multiple local and national television programs to talk about the case and her supposed involvement. See SF, IN 112-15, 118-20. To the extent any one identified her as "Zenaida Fernandez-Gonzalez," Plaintiff cannot blame Ms. Anthony.
To the contrary, it was Plaintiff herself who made the decision to go public, to grant and coordinate television and newspaper interviews, and to place her image and name before a viewing audience. See SF, II 112, 120. Plaintiff admits she appeared on television for multiple appearances to talk about her original Complaint, which had by then been fraudulently filed under the name "Zenaida Fernandez-Gonzalez." See SF, 1 112. In her first interview, Plaintiff appeared on television with her face covered. See SF, 11113. Indeed, the station did not contact Plaintiff for an interview because it thought she was the "nanny;" rather, she had her son call the station and arrange for her appearance. See SF,1 120.
' These mean-spirited public comments, however, stopped after the opening statements in the criminal trial. Now, when people make a comment to the Plaintiff, "they don't say it in a negative way." Id., at p. 206.
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Several days after she filed her first false Complaint in this case she appeared on television, uncovered, while standing next to her lead counsel, John Morgan. See SF, 1 114. That was the first time the public knew what Plaintiff looked like. See SF,
9[
114. Importantly,
Plaintiff admits that it was only after the public saw Plaintiff during her voluntary television appearances that she began to receive the impolite and unwanted comments from strangers which are her sole remaining damages claim in this case. See SF, 91114-15. As for why she would choose to inject herself into the public eye, Plaintiff said "that was between me and my lawyers...." See SF,1 119. She admitted no one told her, she has not read anything, and she has not seen anything, to suggest she was the only person by the name of Zenaida Gonzalez who was interviewed by the investigators. See SF, ¶ 54. Indeed, Plaintiff's counsel stipulated "obviously there are other Zenaida Gonzalezes." See SF, 1 55. Plaintiff was the only one, however, to appear on television or in any public media. Plaintiff "does not recall" if the newscasters referred to her by the wrong name, Zenaida Fernandez-Gonzalez. See SF, ¶ 121. The claimed purpose for the interviews, according to Plaintiff, was "to let them know that I didn't do anything...." See SF, It 122. Yet, Plaintiff readily conceded in deposition that she does not remember who exactly thought she was the nanny prior to her voluntarily appearing on television. See SF, 1 123. Plaintiff does, however, remember that "Casey said it was not me." See SF,1 66. Even assuming Plaintiff suffered damages that would otherwise be cognizable at law, she cannot prove that Ms. Anthony was the cause of those damages. She has not produced, and cannot produce, any evidence that Ms. Anthony ever made any public comment about her or
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that she otherwise incurred any damages from anything Ms. Anthony said. Plaintiff’s inability to prove "causation" completely destroys her claims.
3.
Plaintiff Sustained No Cognizable Damages
There is no evidence that Casey Anthony ever made any public comments about the Plaintiff. See SF,1 109. Nor does Plaintiff have any evidence that the police ever published a picture of her. See SF,1 110. Indeed, insofar as Plaintiff is aware, the cops did not even interview any of her family or friends. See SF,1 111. Instead, the sole imposition upon Plaintiff was a brief interview by law enforcement officers, who immediately concluded she was not the person involved in the disappearance of the Anthony child. See SF, 1 63. Even in the absence of privilege, that minor intrusion on her time is not remediable at law, particularly for a woman who has had a repeated history of involvement with law enforcement officers predating the events in this case and directly involving her own acts and omissions. Plaintiff insisted under oath that she "did not recall" if she had ever been previously investigated by law enforcement officers except for a plea of guilty to selling alcohol to a minor, which she admitted. See SF,1 143. In reality, however, Plaintiff has had multiple interactions with men or women in uniforms. See SF,1 144. On one occasion, Plaintiff was interviewed by police concerning a burglary at the apartment next door to the one she lived at. See SF,1 145. Plaintiff admits that police interview did not cause her any stress or any damage to her reputation. See SF, 9[ 146.
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On another occasion, Plaintiff was the target of, and investigated by, the Osceola Sheriff and Florida Department of Children and Families for suspected child abuse. See SF, ¶ 147. The allegations were that Plaintiff was having sex with an underage boy, Jonathan Acevedo. See SF, 148. Plaintiff denied a sexual relationship with the boy (who was twenty years her junior) although now that Jonathan Acevedo is of age, she refers to him as her "fiancé" and says they are "engaged." See SF, 91 149. Such an "engagement" seems a bit premature, as Plaintiff at the time of her deposition, was still married to her third husband. See SF, 1 155. Plaintiff's fiancé's name is tattooed on her wrist, presumably suggesting some sort of permanence to this latest romantic relationship. See SF,1 149. Plaintiff was also investigated by deputies for, and was the subject of, allegations that she was involved in alcohol abuse and domestic violence in front of children. See SF, 150. These reports were all made to law enforcement officers by Plaintiffs brother. See SF,1 151. The officer's report recited that three families lived at the residence, that there was no food in the house, and that the master bedroom mattresses were supported by milk crates. See SF, 1 152. One of Plaintiff's former husbands filed for custody of his children, alleging that Florida Department of Children and Families investigated Plaintiff for neglect, excessive school absences, and drug use in the presence of the children. See SF, 153. When asked about this matter, Plaintiff denied the truth of these claims, and said she never had discussions about these issues with her husband. See SF,1 154. Curiously, Plaintiff does admit that she and her husband were both working then for the same small company on the date the Petition was filed. See SF, 1 154.
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In 2009, Plaintiff engaged in a physical altercation of some sort at the Budget Inn, where she was then living. See SF, 1 160. Her son was arrested, although Plaintiff was not. Id. She was similarly interviewed by law enforcement following that disturbance. Id. Following a plea of guilty, Plaintiff was convicted of selling alcohol to a minor. See SF,1 158. Plaintiff never paid the court ordered fine arising from this conviction, and as a result she lost her driver's license. See SF,1 159. In responses to discovery requests, Plaintiff stated unequivocally that she has "not been involved in any other lawsuits." See SF, 11 161. When pressed at deposition, Plaintiff admitted she had been the defendant in multiple eviction lawsuits. See SF, ¶ 162. She denied that any of these lawsuits adversely affected her reputation. See SF,1 146. Plaintiff's contradictory and untrue responses and testimony on this issue have demonstrated her predilection for fraud and her own history of fabrications. Plaintiff did deny that at least one other eviction case involved her, a denial that irrefutable court records in another case demonstrated was untrue. See SF,1 157. Plaintiff filed a domestic violence injunction against Maykoll Esparza, in 2005, which listed an address for the Plaintiff and her children, 7610 Winter Shade Drive, which she flatly denied earlier in her deposition was ever an address where she lived. See SF, 1 156. The denial came when Plaintiff was handed copies of eviction papers filed against someone with her same name, living at that address. See SF,1 162. Plaintiff claimed the Zenaida Gonzalez named in that eviction case was not her. See SF, 1 162. When shown her own domestic violence pleadings, she admitted her prior statements denying residence at, and eviction from, 7610 Winter Shade Drive, were untrue. See SF, 1 162.
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Finally, because Plaintiff has asserted an injury to her "good name," the following reluctantly needs be stated: people acquire their reputation, good or bad, by their deeds and the images they project to others. In that regard, one can find images of Plaintiff (or at least one could prior to her deposition) on her "MySpace.com" webpage or its Latin equivalent, "Moco.com". There, Plaintiff and her children posted pictures of her in various stages of undress, including photographs of her bare buttock and bare breast, on all fours on the hood of her son's car in a position she presumably hoped was enticing, and in various night clubs flashing gang signs and drinking alcohol with the young male she had earlier been accused of molesting. See SF, 1 163. These images project Plaintiff as she sees herself. The Casey Anthony saga did nothing to injure the reputation of Plaintiff. By stealing the identity of a "nanny" even she says was fabricated, Plaintiff climbed voluntarily onto a public stage and opened her life to public examination. Nothing Ms. Anthony said caused this Plaintiff any injury. F. THE "JAIL HOUSE" VISIT Plaintiff’s only remaining claim in the State Court Action forms the basis for her nondischargeability complaint filed herein.
The complaint filed herein, as does the Amended
Complaint in the State Court Action, makes vague allegations in her about an alleged defamatory statement that Casey Anthony purportedly made to her mother, Cindy Anthony, on an unspecified date during a visit to the Orange County Jail. See SF, In 12, 15. In Plaintiff's somewhat incoherent language, 1 6 of the Amended Complaint alleges as follows: Defendant, CASEY ANTHONY, subsequently used her mother as her agent to further disseminate defamation status [sic] about Plaintiff, ZENAIDA GONZALEZ, by talking to the media; where Cindy Anthony relayed the following
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on behalf of her daughter: She forgives her and wants her to bring her back safely; and that Casey Anthony did not look at a picture of Zenaida Gonzalez and clear her of the kidnapping.. [sic] See SF,1 12. Despite discovery requests specifically targeted at discovering the basis for the foregoing averment, Plaintiff has never produced evidence supporting her allegations and is barred from now doing so. See Dicus, 734 So.2d 563 (holding a party is bound by discovery responses and admissions); accord; Holub v. Holub, 54 So.2d 585, 587 (Fla. 1st DCA 2011). Regardless, the vaguely described statement attributed to Ms. Anthony is not defamatory on its face. It is impossible to glean from Plaintiff’s Complaint and Amended Complaint filed in the State Court Action, as well as the other pleadings and discovery responses precisely what statement Plaintiff contends is defamatory. More of a glimmer of her argument may be gleaned from Plaintiffs Motion for Partial Summary Judgment. Still, Plaintiff's arguments concerning the jail house visit entirely lack logic. Viewed in the light most favorable to Plaintiff (which is not required at the summary judgment stage), Plaintiffs claim for relief, broken down syllogistically, is as follows:
On July 16, 2008, Ms. Anthony told law enforcement officers investigating her daughter's whereabouts that Plaintiff was not "Zenaida Fernandez-Gonzalez" (this important point is undisputed).
On some unspecified date after July 16, 2008, Ms. Anthony was visited by her mother, Cindy Anthony, at the Orange County Jail.
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During the visit to the Orange County Jail, Plaintiff claims Ms. Anthony lied and told her mother she had not been shown a photograph of Plaintiff by law enforcement.
Subsequently, Plaintiff contends, Defendant's mother, allegedly acting as an agent of Defendant, repeated the "false statement" that Defendant had not been shown a copy of Plaintiff's photograph to some unspecified media outlet.
Therefore, Plaintiff contends, she is entitled to judgment as a matter of law. There was a complete lack of evidentiary support for Plaintiff's motion.6 Moreover, her arguments ignore reason. Assuming the statement attributed to Ms. Anthony is accurate and was not taken out of context, it is not, as a matter of law, defamatory. Rather than try to negate a negative, Ms. Anthony has concurrently filed herewith the Declaration of Cindy Anthony, which is incorporated by reference, and which establishes these facts: Casey Anthony described "Zenaida Fernandez-Gonzalez" to her mother and provided her with the same very detailed description that Defendant had earlier provided to law enforcement. See SF,1 168. Plaintiff does not look anything like the "Zenaida Fernandez-Gonzalez" that Casey Anthony identified to her mother. See SF, i 169. She is not the same age, race, height, or have the same hair color, and she does not otherwise share the physical traits and characteristics that Casey Anthony described. Id. 6
When she filed her Motion for Partial Summary Judgment, Plaintiff did not file a complete copy of Casey Anthony's alleged statement to her mother and did not file any copy of the alleged "republications" of that statement; she indicated she would do so later. Nothing in the motion is appropriately authenticated.
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Casey Anthony never told her mother anything about "Zenaida Fernandez-Gonzalez" that could in the slightest way be confused with the Plaintiff in this case. See SF, ¶91 174. Indeed, Casey Anthony specifically told her mother that the Plaintiff here was not the "nanny" "Zenaida FernandezGonzalez." See SF,1 172.
Cindy Anthony never even heard of Plaintiff until Plaintiff voluntarily appeared on television. See SF, II 178. When Cindy Anthony saw Plaintiff on TV, she contacted the station and asked why they were putting Plaintiff on and told the station that Plaintiff had nothing to do with her granddaughter's disappearance. See SF, 91 179. Casey Anthony's mother expressly told the media that Defendant had not identified the Plaintiff, Zenaida Gonzalez, as the nanny who had taken Caylee. See SF,1 180.
Casey Anthony never asked her mother to say anything to or about the Plaintiff, Zenaida Gonzalez, except that she was not the person that she had identified as the "nanny". See SF, (191 167, 170-71. In a recorded telephone conversation, Casey Anthony asked her mother to make the following request of law enforcement:
"Have them look up a New York license for Zenaida Fernandez, hyphen, Gonzalez. They've just been looking at the last name Gonzalez, or the last name Fernandez. If they'd look up her entire name they might actually find her. They haven't done that...."
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Cindy Anthony herself never stated that Plaintiff had anything to do with the disappearance of Caylee. See SF,
91
173. Cindy Anthony never stated or implied -not to law
enforcement, the media, or anyone else -- that Plaintiff had anything to do with the disappearance of Caylee. See SF, 177. Casey Anthony told her mother that "Zenaida Fernandez-Gonzalez" did not reside in Osceola County, Florida. See SF,1 175. Casey Anthony told her mother that she (Casey Anthony) had played no role in the decision by law enforcement to interview Plaintiff and they were "looking in the wrong place" when they did so. See SF, 176. In sum, Cindy Anthony never made any defamatory statement about Plaintiff. Additionally, Plaintiff certainly has not, and cannot, show that any allegedly defamatory statement made by her mother was authorized by Ms. Anthony. Ms. Anthony has specifically stated that this was not the case. See Anthony deposition P. ___ at line ___. Therefore, Ms. Anthony is entitled to summary judgment with respect to the claim that Cindy Anthony made a defamatory statement about Plaintiff while supposedly acting as an agent. G. COUNT II FAILS AS A MATTER OF LAW
1. The Allegedly Defamatory Statements Cannot Be Used As The Foundation For A Claim For Intentional Infliction Of Emotional Distress As previously stated herein, Plaintiff has been unable to articulate her damages. Since Count II of the Amended Complaint in the State Court Action purports to state a claim for "Intentional Infliction of Emotional Distress/Outrage." Ms. Anthony feels compelled to address that claim for damages.
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Plaintiff’s Amended Complaint makes the claim for intentional infliction of emotional distress/ outrage by re-alleging the exact allegations pleaded in support of the Defamation claim, and then adding the surplussage that those precise "acts and omissions" likewise constituted an "intentional infliction of emotional distress" upon the Plaintiff or were "outrageous." See Amended Complaint, ¶1 26, 28.
In 1992, the Florida Supreme Court decided the case of Fridovich v. Fridovich, supra. The facts in Fridovich are instructive in the present controversy, in the sense that they arose from a criminal investigation where supposedly false statements were made to investigating authorities by the defendants, and those statements later were pleaded to form the basis for a private claim for money damages.
In that case, one of Martin Fridovich's sons, Edward, accidentally shot his father. The other children decided to encourage the authorities to re-open the investigation into their father's death. They did so by conspiring to blame Edward for intentionally killing their father, and by falsely reporting various "facts" to the police. The investigation was re-opened, Edward was indicted and stood trial for murder, and he was convicted of the lesser included offense of manslaughter. After the trial, some of Edward's relatives recanted and admitted their in-court testimony was false. Edward then sued the conspirators for defamation, intentional infliction of emotional distress, and malicious prosecution. On appeal, the Florida Supreme Court addressed several issues pertinent to this case. First, the Court noted that the in-court statements were "absolutely privileged" and could not form the
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basis of any cause of action regardless of how false or malicious the statements might be. 598 So.2d at 66. Second, the Court held that statements made before institution of criminal charges to the investigating officers are presumptively entitled to a "qualified privilege." 598 So.2d at 69. Third, the Court held that the intentional infliction of emotional distress claim fails as a matter of law in such a circumstance: "It is clear that a plaintiff is not permitted to make an end-run around a successfully invoked defamation privilege by simply renaming the cause of action and repleading the same facts. Obviously, if the sole basis of the complaint for emotional distress is a privileged defamatory state vent, then no separate cause of action exists." 598 So.2d at 70. Applying the Fridovich rule to this case, the only bases for the alleged Defamation claim are the two statements given to the investigating officers, which clearly are subject to the qualified privilege discussed above. As the Supreme Court held in Fridovich, a plaintiff who complains of the veracity of qualifiedly privileged statements is restricted to a recovery, if at all, under defamation law principles. Intentional Infliction of Emotional Distress must be pled and proven as a completely independent tort. Id; see also Ford v. Rowland, 562 So.2d 731, 73536 (Fla. 5th DCA 1990). No cause of action for Intentional Infliction of Emotional Distress exists when the factual grounds for such claim are identical to the grounds for the Defamation claim. In this case, Plaintiff has pleaded identical grounds for both claims so Plaintiff has pleaded herself out of Court as to Count II of the Amended Complaint in the State Court Action and for any cognizable damages related thereto. Assuming arguendo that the claims were pled differently, Plaintiff could still not state a claim for Intentional Infliction of Emotional Distress under the circumstances of this case. As the
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Supreme Court of Florida also plainly held, "[i]n short, regardless of privilege, a plaintiff cannot transform a defamation action into a claim for intentional infliction of emotional distress by characterizing the alleged defamatory statements as 'outrageous'." 598 So.2d at 69-70 (emphasis in original). That is exactly what Plaintiff alleges here in the Amended Complaint: the supposedly defamatory statements, according to Plaintiff, caused "infliction of mental suffering", or were supposedly "outrageous." See Amended Complaint, ¶9124-9. These allegations are legal nullities in Florida for the reasons explained by the Fridovich court. There were no reasonable grounds for pleading Count II given the well-established law in Florida at the time the Complaint and Amended Complaint were filed. There are no cognizable grounds in fact or law to allow this Count to continue and to allow Plaintiff to claim such damages in this matter, too.. 2.
Plaintiff Cannot Prove Specific Intent
Count II also fails as a matter of law for all of the reasons discussed in Section A of this Memorandum. Intentional Infliction of Emotional Distress is an intentional tort. See State Farm Mut. Auto. Ins. Co. v. Novotny, 657 So.2d 1210 (Ha. 5th DCA 1995). If the allegedly distressing or outrageous comments were not intentionally directed by Ms. Anthony towards the Plaintiff, a critical element of the cause of action is missing and there is no basis for recovery. The allegedly "distressing" statements made about the "nanny" Zenaida FernandezGonzalez were not directed to or about the Plaintiff; they concerned a different person, whether real or imagined, and Ms. Anthony could not possibly have intended to harm Plaintiff since she did not even know her. All of the proof supporting Ms. Anthony's contention that Plaintiff is not
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Zanny the Nanny, and that Ms. Anthony did not describe Plaintiff Zenaida Gonzalez to the investigators, and that Ms. Anthony did not intend to harm Plaintiff (as discussed in part II D, supra), are incorporated by reference as if set forth fully herein. Count II should be summarily dismissed with prejudice. IV. CONCLUS IO N For all of the reasons set forth above, this Court should enter summary judgment in favor of Casey Anthony, dismissing the Complaint with prejudice, and awarding Ms. Anthony costs and such other relief as is just and appropriate. This fictional play, set in a theatre of the absurd, has run all too long, needlessly wasting judicial resources. Plaintiff's efforts to dress herself up in the "nanny's" costume, when reviewed by this Court in its natural sense without a forced or strained construction, McCormick, 139 So.2d at 200 (Fla. 1962), is pitiable, not actionable.
ELECTRONICALLY FILED this day, the 25th day of April, 2014.
s/David L Schrader David L. Schrader, Esquire FL Bar #0183943 Suite 901 111 Second Avenue NE St. Petersburg, FL 33701 PH: (727) 456-5772 FAX: (727) 456-6454
[email protected]
