Dorfman v. Smith, 342 Conn. 582 (2022)

Citation: Dorfman v. Smith, 342 Conn. 582 (2022)
Parent Document: Dorfman v. Smith, 342 Conn. 582 (2022)
Jurisdiction: Connecticut (state)
Effective Date: 2022-03-29
Original Source: https://www.courtlistener.com/opinion/10278647/dorfman-v-smith/ ↗

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may be premised on the improper use of a particular
         judicial procedure. But allegations of the improper use
         of judicial procedure do not satisfy the requirement
         that the plaintiff’s cause of action must itself challenge
         the purpose of the underlying litigation or litigation
         procedure. If the concurrence and dissent were correct
         that the plaintiff’s factual allegations were sufficient in
         the present case to challenge the defendant’s use of the
         courts, any plaintiff could pierce the litigation privilege
         with any cause of action by merely including allegations
         that a defendant’s conduct constituted an abuse of the
         judicial system.
            As a result, although these allegations do implicate
         the underlying judicial proceedings, they do not chal-
         lenge their purpose. Rather than subverting the purpose
         of the proceedings, the alleged conduct would have
         rendered the proceeding unfair. As with claims of fraud,
         although we do not condone such conduct, such unfair-
         ness does not bar absolute immunity but, instead,
         makes clear the importance of the availability of other
         remedies. See also part II C of this opinion. Thus, the
         plaintiff’s claim for breach of the covenant of good faith
         and fair dealing does not challenge the purpose of an
         underlying judicial proceeding.
                                               B
            The plaintiff argues that this claim is not only similar
         to, but is actually the functional equivalent of, a vexa-
         tious litigation claim. In considering the plaintiff’s argu-
         ments, it is helpful to examine how we analyzed a
         similar argument in Simms in relation to a claim of
         fraud. In Simms, this court compared the elements of
         fraud against the elements of defamation7 and vexatious
            7
              ‘‘To establish a prima facie case of defamation, the plaintiff must demon-
         strate that: (1) the defendant published a defamatory statement; (2) the
         defamatory statement identified the plaintiff to a third person; (3) the defam-
         atory statement was published to a third person; and (4) the plaintiff’s
         reputation suffered injury as a result of the statement.’’ (Internal quotation
         marks omitted.) Simms v. Seaman, supra, 308 Conn. 547–48.
Page 64                          CONNECTICUT LAW JOURNAL                               March 29, 2022

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