Scholz v. Epstein, 341 Conn. 1 (2021)

Citation: Scholz v. Epstein, 341 Conn. 1 (2021)
Parent Document: Scholz v. Epstein, 341 Conn. 1 (2021)
Jurisdiction: Connecticut (state)
Effective Date: 2021-09-29
Original Source: https://www.courtlistener.com/opinion/6244827/scholz-v-epstein/ ↗
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2                           JANUARY, 2022                       341 Conn. 1
                                         Scholz v. Epstein
               defendant’s allegedly wrongful conduct occurred within the underlying
               foreclosure proceedings and that the balancing of policy considerations
               weighed in favor of applying absolute immunity to S’s claim of statutory
               theft. On the granting of certification, S appealed. Held:
          1. The Appellate Court correctly determined that the litigation privilege
               afforded the defendant absolute immunity from liability for statutory
               theft, this court having concluded, after considering the underlying pur-
               pose of the judicial proceedings, the similarity between statutory theft
               and claims of defamation and fraud, and the availability of other reme-
               dies, that the policy considerations raised by the parties supported
               applying absolute immunity to S’s statutory theft claim:
              a. S’s statutory theft claim did not challenge or subvert the purpose
              of the underlying foreclosure proceeding but, instead, challenged the
              defendant’s role as an advocate for his client, B Co., in a judicial proceed-
              ing, which S acknowledged was properly brought in light of his failure
              to pay his property taxes, and the litigation privilege absolutely bars
              causes of action arising from attorney advocacy; moreover, it was clear
              from the elements of statutory theft, which requires a plaintiff to establish
              that the defendant stole the plaintiff’s property or received and concealed
              stolen property, that S’s claim of statutory theft did not challenge the
              purpose of the underlying foreclosure proceeding; furthermore, S’s statu-
              tory theft claim was premised on the defendant’s allegedly false or mis-
              leading communications to the court during that proceeding, and
              communication is a necessary advocacy tool that the litigation privilege
              protects, regardless of the false or malicious nature of the communi-
              cation.
              b. The fact that S’s statutory theft claim was more akin to claims of
              defamation and fraud, which are protected by the litigation privilege,
              than to claims of vexatious litigation and abuse of process, which are
              not protected by the litigation privilege, militated in favor of applying
              the privilege in the present case: S’s statutory theft claim, like a defama-
              tion claim, was premised on the communication of false statements, and
              S alleged that the defendant fraudulently took his property by false
              pretenses, which constitutes statutory theft under this court’s case law
              interpreting § 52-564; moreover, it was of no consequence that the defen-
              dant made the false statements at issue to a court rather than to S
              himself, as the plaintiff’s statutory theft claim was nonetheless premised
              on false communications.
              c. Certain alternatives, other than civil liability, including the filing of a
              grievance against the defendant or a collateral action challenging the
              defendant’s allegedly fraudulent actions, were available to the plaintiff
              to address the defendant’s alleged conduct; moreover, the plaintiff did
              not cite to any federal or state precedent holding that absolute immunity
              does not apply to a claim of statutory theft or a similar type of claim.
          2. The plaintiff could not prevail on his claim that, even if the litigation
               privilege applies to claims of statutory theft, it was inapplicable in the
January 25, 2022               CONNECTICUT LAW JOURNAL                                       Page 33
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