Opinion
No. CV06-5000689 S
July 25, 2007
MEMORANDUM OF DECISION Re Motion to Strike (Item #107)
The defendants, Lambert Barr, LLC and James M. Lambert, move to strike counts one through fourteen and nineteen and twenty of plaintiff Erna Podesser's complaint. For the reasons stated below, this court grants the motion to strike with respect to the fifth, sixth, nineteenth and twentieth counts and denies the motion with respect to the other counts.
The defendants move to strike the first, second, third, and fourth counts on the ground the plaintiff has failed to allege facts that support the elements of causation and damages, which are necessary elements of the contract claims that are asserted in these counts. After examining the complaint, the court concludes that the plaintiff's allegations are sufficient.
The defendants move to strike the fifth and six counts on the ground the plaintiff has not alleged facts to support the elements of bad faith, causation, and damages, which are necessary elements of the claims of breach of covenant of good faith and fair dealing that are asserted in these counts. After reviewing the complaint, this court concludes the plaintiff has not expressly nor implicitly alleged that the defendants acted in bad faith, i.e., a wilful and dishonest purpose. Accordingly, the allegations are insufficient to support these claims; see De La Concha of Hartford v. Aetna Life Ins. Co., 269 Conn. 424, 433, 849 A.2d 382 (2004); and the counts must be stricken.
The defendants move to strike the seventh through fourteenth counts on the ground the plaintiff has not alleged facts that show causation and damages, which are necessary elements of the causes of action asserted in these counts. After examining the complaint, the court concludes that the allegations are sufficient.
While the defendants have moved to strike the seventeenth and eighteenth counts, they have failed to specify in their motion the reasons why these counts should be stricken. In light of the plaintiff's objection to this procedure, the motion to strike these counts is denied. See Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13-14, 779 A.2d 198 (2001).
The defendants have moved to strike the nineteenth and twentieth counts of the complaint on the ground the plaintiff has not alleged that a violation of the Connecticut Unfair Trade Practices Act (CUTPA) was a proximate cause of harm to the plaintiff. The plaintiff alleges that the defendants violated the Home Improvement Act, General Statutes § 20-429(a)(1), by not giving her a copy of the home improvement contract and by not giving her a copy of an amendment to the contract. Noncompliance with the Home Improvement Act is a per se violation of CUTPA. Woronecki v. Trappe, 228 Conn. 574, 579, 637 A.2d 783 (1994). However, "in order to prevail in a CUTPA action, a plaintiff must establish both that the defendant has engaged in a prohibited act and that, as a result of this act, the plaintiff suffered an injury. The language . . . requires a showing that the prohibited act was the proximate cause of a harm to the plaintiff." (Emphasis in original; internal quotation marks omitted.) Scrivani v. Vallombroso, 99 Conn.App. 645, 652, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309 (2007). Our Appellate Court recently stated "[w]e do not read our law to dispense with the second requirement [that the violation was the proximate cause of the plaintiff's harm] once a violation of the Home Improvement Act is established." Scrivani v. Vallombroso, supra, 99 Conn.App. 653. Here, after carefully examining the allegations in the light most favorable to the plaintiff, the court concludes the plaintiff has failed to plead sufficient facts to support the causation element of her claims that the defendants violated CUTPA. The nineteenth and twentieth counts must be stricken.
Based on the foregoing, the court grants the motion to strike with respect to the fifth, sixth, nineteenth and twentieth counts and denies the balance of the relief requested by the defendants.