Opinion
CV166060927S
11-23-2016
Gamaliel Garcia v. Uriel Salazar
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #112
Robin L. Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Gamaliel Garcia, Jr., filed the original two-count complaint in this action against the defendant, Uriel Salazar, on March 10, 2016. Counts one and two alleged a cause of action for negligence and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq. (CUTPA), respectively. On March 24, 2016, the defendant filed a motion to strike count two of the complaint accompanied by a supporting memorandum of law, on the ground that the plaintiff had failed to allege legally sufficient facts to support the CUTPA claim. This court granted the motion on May 9, 2016.
The plaintiff thereafter filed a two-count substituted complaint against the defendant on May 16, 2016. The substituted complaint alleges the following facts. On February 21, 2014, the plaintiff slipped and fell on ice that had accumulated on the wooden porch steps outside his apartment at 151-153 William Street (the premises) in West Haven, a property " owned and/or managed and/or maintained and/or possessed and/or controlled and/or leased" by the defendant. The defendant retained control of the exterior steps of the premises. As a result of the fall, the plaintiff sustained physical injuries and incurred medical bills, lost wages, and lost earning capacity. The plaintiff alleges in count one that his injuries were caused, inter alia, by the defendant's negligent failure to remove the accumulation of ice from the exterior steps.
The plaintiff properly filed the substituted complaint within the fifteen-day time period required by Practice Book § 10-44.
In count two, the plaintiff again alleges that the defendant violated CUTPA. In support of this claim, the plaintiff alleges the following additional facts. The defendant did not reside on the premises but rather held the premises for business purposes and engaged in the business for profit of leasing residential units on the premises to consumers. The defendant, in engaging in the business of leasing residential units, misrepresented that he had a professional and attentive maintenance staff that would maintain the premises, and violated public policy in that he failed to maintain the premises and keep the common areas of the premises in a clean and safe condition in violation of General Statutes § 47a-7(a)(3) and failed to maintain facilities in violation of § 47a-7(a)(4). These misrepresentations were intended to and did induce the plaintiff and other consumers to enter into leases and were immoral, unethical, unscrupulous and substantially injurious to consumers. The defendant financially benefitted from the misrepresentation and violations of the landlord and tenant statute and acted in order to procure a financial gain. The plaintiff was a tenant who had leased an apartment in the defendant's building and therefore was a consumer who had a commercial business relationship with the defendant. As a result of the defendant's conduct, the plaintiff suffered substantial physical injuries as well as an ascertainable loss of money or property, as the plaintiff was unable to continue his occupation as a sewer and drain repair technician and suffered lost income as well as an actual loss of his occupation. These harms are not outweighed by any countervailing benefit to consumers.
General Statutes § 47a-7(a)(3) provides in relevant part: " A landlord shall . . . keep all common areas of the premises in a clean and safe condition . . ." General Statutes § 47a-7(a)(4) provides in relevant part: " A landlord shall . . . maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances and elevators, supplied or required to be supplied by him . . "
The defendant filed a motion to strike count two of the substituted complaint and a supporting memorandum of law on May 26, 2016, on the ground that the plaintiff again failed to allege legally sufficient fasts supporting the CUTPA claim. On June 20, 2016, the plaintiff filed an objection to the motion to strike and a supporting memorandum of law. The court heard oral argument on August 8, 2016.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services U.S.A., Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
" [The] granting of a motion to strike allows the plaintiff to replead his or her case." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009); see also Practice Book § 10-44. " [This] right . . . is limited to making those corrections needed to render the claims set forth in the original pleading legally sufficient." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 180, 73 A.3d 742 (2013). " [I]f the amended complaint merely restates the original cause of action that was stricken, the plaintiff may not appeal the granting of a subsequent motion to strike." (Internal quotation marks omitted.) Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 778, 887 A.2d 420 (2006); accord Perugini v. Giuliano, 148 Conn.App. 861, 877 n.10, 89 A.3d 358 (2014).
The defendant argues that the second count of the substituted complaint is legally insufficient to state a CUTPA claim on the ground that the facts alleged in the substituted complaint allege a claim of mere negligence. Specifically, the defendant contends that the plaintiff failed to allege that leasing the subject premises was the defendant's primary business. The defendant further contends that the plaintiff's CUTPA claim is insufficient because the plaintiff's mere allegations that the defendant's conduct was immoral, unethical, unscrupulous and substantially injurious to consumers are insufficient because the failure to remove snow and ice has already been deemed not to be immoral, unethical or unscrupulous and that such failure is not an unfair trade practice. The defendant additionally claims that count two of the substituted complaint remains substantially the same as count two of the original complaint, even though it includes additional allegations, because the additional language does not constitute sufficient aggravating factors to allege a CUTPA violation based on negligence.
In response, the plaintiff argues that he has sufficiently alleged facts supporting a CUTPA claim based on negligence because he puts forth facts that demonstrate that the defendant was engaged in the business for profit of leasing apartment units at the premises and misrepresented to prospective tenants that he would maintain the common areas of the premises. The plaintiff contends that these misrepresentations, accompanied by the defendant's alleged violations of the landlord and tenant statute, are sufficient to allege a violation of CUTPA based on underlying claims of negligence.
CUTPA provides in relevant part: " No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110b(a). " Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages . . ." General Statutes § 42-110g(a). " Although CUTPA is primarily a statutory cause of action . . . it equally is recognized that CUTPA claims may arise from underlying causes of action, such as contract violations or torts, provided the additional CUTPA elements are pleaded." (Citation omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010). " A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice . . . Second, he [or she] must present evidence providing the court with a basis for a reasonable estimate of the damages suffered." (Internal quotation marks omitted.) Milford Paintball, LLC v. Wampus Milford Associates, LLC, 156 Conn.App. 750, 757, 115 A.3d 1107, cert. denied, 317 Conn. 912, 116 A.3d 812 (2015).
Connecticut courts apply the cigarette rule to determine whether a practice is unfair under CUTPA. See e.g., A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 215, 579 A.2d 69 (1990). The cigarette rule states that " a practice is unfair: (1) [when] the practice . . . offends public policy as it has been established by statutes, the common law, or otherwise--in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) [when] it is immoral, unethical, oppressive, or unscrupulous; (3) [when] it causes substantial injury to consumers . . ." Milford Paintball, LLC v. Wampus Milford Associates, LLC, supra, 156 Conn.App. 758; see also A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 215. " All three criteria [of the cigarette rule] do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three." (Internal quotation marks omitted.) Milford Paintball, LLC v. Wampus Milford Associates, LLC, supra, 156 Conn.App. 758, citing Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 994 A.2d 153 (2010). " [T]he first prong [of the cigarette rule, however], standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 33, 699 A.2d 964 (1997) (negligence claim sufficient to allege CUTPA violation where entrepreneurial aspects of the defendant's business are implicated). Id., 34-35.
" [O]ur Supreme Court has held . . . that a landlord's violation of the standards of housing safety and habitability set forth in the landlord and tenant statutes offends public policy and amounts to an unfair act or practice in violation of CUTPA." Simms v. Candela, 45 Conn.Supp. 267, 269, 711 A.2d 778 (1998), citing Conaway v. Prestia, 191 Conn. 484, 493, 464 A.2d 847 (1983). " [I]t is clear that not every negligence claim can be successfully recast as a CUTPA claim . . . [T]he touchstone for a legally sufficient CUTPA claim is the implication that the acts complained of have 'an entrepreneurial or business aspect.'" (Citations omitted.) Simms v. Candela, supra, 45 Conn.Supp. 273 , citing Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 38. Where a plaintiff " alleges a violation of the public policy contained in the Landlord and Tenant Act" and alleges that " the entrepreneurial aspects of the landlord's business are implicated, " the plaintiff has pleaded a legally sufficient CUTPA claim. Simms v. Candela, supra, 276.
" [T]he federal trade commission has adopted a flexible interpretation of the federal [unfair trade practices] statute and has construed it as prohibiting practices that, while inflicting no obvious trade injuries, are dangerous to consumers. It has specifically concluded that failure to warn of a defective or dangerous condition that could cause personal injury amounts to an unfair trade practice . . . This construction is of particular importance because CUTPA expressly directs the courts of this state to be guided by the interpretations of the federal trade commission." Simms v. Candela, supra, 45 Conn.Supp. 272; see also General Statutes § 42-110b.
Connecticut courts have also held that negligent misrepresentations accompanied by one or more aggravating factors are violations of CUTPA. See Milford Paintball, LLC v. Wampus Milford Associates, LLC, supra, 156 Conn.App. 765. To sufficiently allege a violation of CUTPA based on negligent misrepresentations, a plaintiff must demonstrate that " some nexus with a public interest, some violation of a concept of what is fair, some immoral, unethical, oppressive or unscrupulous business practice that offends public policy" exists in connection with the misrepresentation, although the misrepresentation need not be intentional. (Internal quotation marks omitted.) Id., 765 n.11. " In the absence of allegations arising to such a level of conduct, the plaintiffs have failed to properly plead a cause of action under CUTPA." Gaynor v. Hi-Tech Homes, 149 Conn.App. 267, 276, 89 A.3d 373 (2014).
In the present case, the plaintiff sufficiently alleges facts that support a CUTPA claim based on negligence because the plaintiff sufficiently alleges facts that meet the three criteria of the cigarette rule and facts that sufficiently allege that the defendant was engaged in a business practice. Specifically, the plaintiff alleges that the defendant was engaged in a business for profit of leasing apartment units to consumers and that the defendant's sole use of the premises was for the leasing of apartments. The plaintiffs allegations demonstrate that the entrepreneurial aspects of the defendant's business are implicated because the plaintiff claims that the defendant obtained a financial benefit by failing either to hire a maintenance crew to maintain the property or to make the premises safe himself. Not only did the defendant allegedly save money by neglecting to hire a crew to remove snow, but the defendant's alleged misrepresentations assuring that the premises would be maintained allegedly induced the plaintiff to enter the lease, which is alleged to have financially benefitted the defendant.
Additionally, the plaintiff sufficiently alleges facts that, if true, show that the defendant was engaged in a practice that offends public policy and that the practice was unscrupulous, unethical, oppressive, or immoral. A violation of the landlord and tenant statute offends public policy and constitutes an unfair act in violation of CUTPA. See Simms v. Candela, supra, 45 Conn.Supp. 269, citing Conaway v. Prestia, supra, 191 Conn. 493. In the present case, the plaintiff alleges that the defendant had a statutory duty to maintain the premises in a safe and habitable manner as required by General Statutes § 47a-7(a)(3). The plaintiff further alleges that the defendant neglected to maintain the premises in a safe and habitable manner in violation of § 47a-7(a)(3). In addition, the plaintiff alleges that the defendant's behavior was unethical because he made a material misrepresentation to the plaintiff that the premises would be maintained and then benefitted financially from that misrepresentation. Accordingly, count two sufficiently sets forth facts to satisfy the first and second prongs of the cigarette rule.
Finally, the plaintiff alleges that he was substantially injured by the defendant's violations of the landlord and tenant statute and by the defendant's negligent misrepresentations concerning the maintenance of the premises. The plaintiff asserts that not only did he suffer physical injuries that resulted in extensive medical bills, but also that he was unable to resume his occupation as a sewer and drain repair technician as a result of the incident, and therefore, has suffered lost wages, loss of employment, and an impairment to his future earning capacity, which he could not have reasonably avoided. Accordingly, the plaintiff has alleged sufficient facts in count two to satisfy the third prong of the cigarette rule.
Because the plaintiff has sufficiently alleged facts to satisfy all three criteria of the cigarette rule, the CUTPA claim set forth in count two of the substituted complaint is not legally insufficient. Accordingly, the motion to strike is denied.
CONCLUSION
For the foregoing reasons, defendant's motion to strike is denied because the plaintiff has alleged legally sufficient facts to support a CUTPA claim.