Opinion
NNHCV186080880
09-21-2018
David LO v. AT & T SERVICES, INC.
UNPUBLISHED OPINION
Murphy, J.
BACKGROUND
The plaintiff, David Lo, commenced this action on May 15, 2018, against the defendant AT & T Services, Inc. In his complaint, plaintiff alleges a promissory estoppel action at count three and a negligent misrepresentation action at count four.
On July 3, 2018, the defendant filed the current motion to strike counts three and four of the complaint [# 102]. The defendant also filed a supporting memorandum of law [# 103]. On August 31, 2018, the plaintiff filed an objection to the motion to strike [# 104] and a memorandum of law in support of the objection [# 105]. The matter was taken on the papers on September 4, 2018.
STANDARD
A motion to strike attacks the legal sufficiency of the allegations of a pleading. See Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
DISCUSSION
Viewing the complaint in a light most favorable to the plaintiff, this Court finds the plaintiff properly pleaded a claim of negligent misrepresentation against defendant. At count four plaintiff alleges that AT & T made representations that "an additional agreement, for the sum of $37,500.00 would be forthcoming as part of an agreed to resolution of Plaintiff’s CHRO claims ..." (Complaint, Count Four, Paragraph 73.) Plaintiff further alleges that he "resigned from the company and formally withdrew his CHRO Complaint [and that] Defendant knew or reasonably should have known these representations were untrue and that the Plaintiff would have relied on its representations [and that] Plaintiff relied on AT & T’s representations, to his detriment [and suffered damages]." (Complaint, Count Four, Paragraphs 73-76.)
Contrary to defendant’s assertion that the plaintiff’s cause of action as pleaded relies on a promise of future negotiations, the allegations as cited herein precisely set forth allegations of a representation concerning an additional agreement for the sum of $37,500.00. As such, the cause of action as pleaded does not rest solely on the promise of future negotiations. Rather, the allegations, in reading the complaint broadly, represent a promise to compensate plaintiff a sum certain.
Defendant further argues that a general waiver and release resulting from prior mediation prevents the bringing of the misrepresentation claim by plaintiff at count four. However, "[a] motion to strike is essentially a procedural motion that focuses solely on the pleadings ... It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). The general waiver and release referred to and relied upon by defendant in moving to strike count four is not part of the pleading being challenged, either by way of reference or attachment. The general waiver and release was brought before this Court by way of exhibit attached to defendant’s memorandum in support of the motion to strike. Wherefore, this Court does not consider the general release for purposes of this motion to strike. Accordingly, defendant’s motion to strike count four is denied.
Turning to count three of plaintiff’s complaint, this Court finds that plaintiff has sufficiently pleaded an action for promissory estoppel. "In order to prevail on a claim for promissory estoppel, a plaintiff must establish 1) a clear and definite promise, 2) a change in position in reliance on the promise, and 3) resulting injury." Seitz v. J.C. Penney Properties, Inc., United States District Court, Docket No. 3:15CV01131 (VAB) (D.Conn. September 28, 2017). At paragraph 11 of count three, plaintiff asserts that a representation was made that an additional agreement for the sum of $37,500.00 would be forthcoming as part of an agreed to resolution of plaintiff’s CHRO claims. This representation sets forth a clear and precise promise to an additional agreement for a sum certain. Plaintiff further alleges in count three that he resigned from the company as a result of that promise and withdrew a previously filed complaint pending against the defendant, sufficiently satisfying the second and third elements of promissory estoppel: a change in position in reliance on the promise and resulting injury.
Defendant makes the same argument as to count three as was made as to count four, that a general waiver and release resulting from prior mediation prevents the bringing of the plaintiff’s claims under promissory estoppel at count three. Again, this Court is not persuaded for the reason that the general waiver and release referred to by defendant by way of argument is not part of the pleading being challenged. Again, the general waiver is before this Court by way of an exhibit to defendant’s memorandum in support of the motion to strike. Wherefore, this Court does not consider the general release for purposes of this motion to strike. Accordingly, defendant’s motion to strike count three is denied.