Opinion
CV196083510S
10-28-2019
Alphonso Reid v. Morgan Harriman et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):Welch, Thomas J., J.
MEMORANDUM OF DECISION
WELCH, J.
The plaintiff, Alphonso Reid, commenced this action against the defendants, Morgan Harriman, Alexandria Kroudis, Sara Haas, City of Bridgeport, Bridgeport Police Department, Officer Chris Smith, Officer Andrew Talavera, and Sacred Heart University.
The plaintiff has withdrawn counts 2, 3, 6, 7, 10, 11, 15, 17, 18, 20, 22, and 23. The plaintiff has also withdrawn the complaint as to the Bridgeport Police Department and Officer Chris Smith. The court further notes that counts twenty-five and twenty-six are addressed to Walberto Cotto, Jr., who was not included on the summons and was never served with process.
The plaintiff’s complaint dated January 25, 2019, alleges that on March 30, 2016, Harriman, Kroudis, Haas, Talavera, and Sacred Heart University made intentionally false and misleading statements to the City of Bridgeport and the Bridgeport Police Department, which resulted in the plaintiff being charged with a violation of General Statutes § 53a-70, sexual assault in the first degree. The plaintiff further alleges that Harriman falsely stated that the plaintiff forced her to take a pill, forced her into his apartment, and sexually assaulted her. In addition, the plaintiff claims that Sacred Heart University deliberately and recklessly broadcast false information accusing the plaintiff of rape by widely publicizing and distributing his photograph. The plaintiff’s complaint also provides that on January 25, 2017, he was found not guilty of all counts by a jury. He additionally alleges that he was incarcerated for ten months and that he suffered damages to his reputation, great embarrassment, anxiety, depression, and lost wages.
The plaintiff’s claims against Harriman, Kroudis, Haas, and Sacred Heart University sound in intentional infliction of emotional distress and "false light invasion of privacy." The claim against Talavera sounds in intentional infliction of emotional distress. The theories against the City of Bridgeport include intentional infliction of emotional distress as well as malicious prosecution and false imprisonment.
The court granted a motion to dismiss in favor of Kroudis (Docket No. 108.10) pursuant to General Statutes § 52-59b for failing to properly serve the defendant.
The court denied the City of Bridgeport’s motion to dismiss (Docket No. 116.10).
Harriman, Haas, Talavera, and Sacred Heart University each filed a special motion to dismiss pursuant to General Statutes § 52-196a. The plaintiff filed an objection to each special motion to dismiss. A hearing was held on August 1, 2019.
General Statutes § 52-196a provides: "Filing of special motion to dismiss based on exercise of certain state or federal constitutional rights in connection with matter of public concern. Court procedure. (a) As used in this section:
I.
DISCUSSION
General Statutes § 52-196a is known as the anti-SLAPP statute, which stands for strategic lawsuit against public participation.
The court first notes that § 52-196a(e)(2) provides that "[w]hen ruling on a special motion to dismiss, the court shall consider pleadings and supporting and opposing affidavits of the parties attesting to the facts upon which liability or a defense, as the case may be, is based." Harriman, Haas, and Sacred Heart University filed affidavits in support of their special motion to dismiss. The plaintiff did not file any opposing affidavits.
In deciding a special motion to dismiss pursuant to § 52-196a, the court undertakes a two-prong burden shifting analysis. Under the first prong of the analysis, the moving party has the initial burden to show by a preponderance of the evidence that the opposing party’s complaint falls within the scope of the statute. General Statutes § 52-196a(e)(3). Specifically, the plaintiff’s claims must be based on the defendant’s right to free speech, right to petition the government, or right to free association. Further, the defendant’s exercise of his or her right must relate to a matter of public concern. Section 52-196a(a) defines "right of free speech," "right to petition the government," "right of association," and "matter of public concern." In other words, the plaintiff’s claims fall within the scope of the statute if the defendant was exercising a right defined in § 52-196a(a) on a matter of public concern.
Once the moving party makes the initial showing by a preponderance of the evidence, "[t]he court shall grant a special motion to dismiss ... unless the party that brought the complaint, counterclaim or cross claim sets forth with particularity the circumstances giving rise to the complaint, counterclaim or cross claim and demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint, counterclaim or cross claim." General Statutes § 52-196a(e)(3).
A
The court first looks as to whether the defendants have met the first prong of the burden shifting analysis. Harriman, Haas, Talavera, and Sacred Heart University each assert that the allegations as set forth in the complaint that each made false and misleading statements to the Bridgeport Police Department fall within the purview of § 52-196a. Specifically, providing information to the police regarding alleged criminal activity is "petitioning the government" about a "matter of public concern."
The plaintiff objects to the application of § 52-196a to the facts of this case. The plaintiff contends that the defendants provided false information to the police which is a crime pursuant to General Statutes § 53a-180.
"The right to petition government for suspected criminal activity, whether ultimately found to have probable cause or not, is a critical element in the performance of law enforcement and community safety. Other jurisdictions have considered similar statutes and held that "[w]hen a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity ...’ O’Gara v. St. Germain, 91 Mass.App. 490, 497, 77 N.E.3d 870 (2017); Annamalai v. Capital One Financial Corp., 319 Ga.App. 831, 833, 738 S.E.2d 664 (2013)." Day v. Dodge, Superior Court, judicial district of New London, Docket No. CV- 18-6035362-S (January 25, 2019, Knox, J.) (67 Conn.L.Rptr. 750, 752).
As to the first prong of the burden shifting analysis, the allegations of the plaintiff against Harriman, Haas, Talavera, and Sacred Heart University, as set forth in the complaint is that they "made intentionally false and misleading statements to defendant City of Bridgeport and Bridgeport Police Department which resulted in the plaintiff’ being charged with a violation of § 53a-70. As set forth above, the right to petition the government for suspected criminal activity is a matter of public concern and falls within the purview of § 52-196a. In addition, the affidavits of Harriman, Haas, and Jack Fernandez, Director of Public Safety for Sacred Heart University, each provide that their statements were made to assist the police with an investigation. Accordingly, Harriman, Haas, Talavera, and Sacred Heart University have satisfied their initial burden by a preponderance of the evidence that their actions were based upon their right to petition the government in connection with a matter of public concern regarding suspected criminal activity.
As set forth in Graves v. Chronicle Printing Company, Superior Court, judicial district of Tolland, Docket No. CV-18-5010056-S (November 7, 2018, Farley, J.) (67 Conn.L.Rptr. 442) police officers are not excluded from the scope of § 52-196a. "The right to petition the government under § 52-196a ‘means (A) communication in connection with an issue under consideration or review by a legislative, executive, administrative, judicial or other governmental body, (B) communication that is reasonably likely to encourage consideration or review of a matter of public concern by a legislative, executive, administrative, judicial or other governmental body, or (C) communication that is reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, administrative, judicial or other governmental body.’ General Statutes § 52-196a(a)(3). Public officials regularly engage in activity as described in this definition. The allegation against [the police officer] in this case concerns his preparation of an arrest warrant affidavit, which falls squarely within the scope of § 52-196a(a)(3)(A) and (B). Again, nothing in the statutes suggests that public officials acting in their official capacities are excepted. The court agrees with the California court’s assessment of that state’s statute in Schaffer that ‘the salient question in this case is not whether respondents’ acts are protected as a matter of law under the [state or federal constitutions] in some other context, but whether they fall within the statutory definition of conduct that the [l]egislature deemed appropriate for anti-SLAPP motions.’ Schaffer v. City and County of San Francisco, [168 Cal.App.4th 992, 1001, 85 Cal.Rptr.3d 880 (2008)]. The court concludes that they do. The statute does not shield such defendants from liability. It just provides them with a procedural advantage designed to expeditiously dispose of unsupportable claims that might nevertheless chill speech and other legitimate activities because of the burdens associated with litigation. This legislative objective applies equally to such defendants and the language of the statute does not exclude them from its scope." Graves v. Chronical Printing Company, supra, 67 Conn.L.Rptr. 446-47.
B
"If the first prong of § 52-196a(e)(3) is satisfied, the court must next determine whether a plaintiff ‘sets forth with particularity the circumstances giving rise to the complaint ... and demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint ...’ § 52-196a(e)(3). The court must consider the pleadings and supporting or opposing affidavits submitted by the parties." Day v. Dodge, supra, 67 Conn.L.Rptr. 753.
"The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it ... Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false." (Internal quotation marks omitted.) 36 DeForest Avenue, LLC v. Creadore, 99 Conn.App. 690, 695, 915 Conn. 916, cert. denied, 282 Conn. 905, 920 A.2d 311 (2007).
Harriman, Haas, and Sacred Heart University each assert that their actions as set forth in the complaint are subject to a "qualified immunity." The plaintiff disagrees asserting that communications with police must be based upon truth.
Our Supreme Court has recognized that reporting crimes to the police is sufficiently compelling to warrant a qualified privilege. See Gallo v. Barile, 284 Conn. 459, 471-73, 935 A.2d 103 (2007). "A qualified privilege protects false statements that are not made maliciously." Id., 463 n.6.
"Qualified privileges may be defeated by a showing, by a preponderance of the evidence; see Miles v. Perry, [ 11 Conn.App. 584, 590, 529 A.2d 199 (1987)]; of actual malice, also known as constitutional malice, or malice in fact. See, e.g., Gambardella v. Apple Health Care, Inc., [ 291 Conn. 620, 634, 969 A.2d 736 (2009)] (common-law intracorporate communications privilege); Goodrich v. Waterbury Republican-American, Inc., [ 188 Conn. 107, 114-15, 119-20, 448 A.2d 1317 (1982)] (fair comment privilege); see also Konikoff v. Prudential Ins Co. of America, 234 F.3d 92, 99 (2d Cir. 2000) (’[t]he critical difference between common-law malice and constitutional malice, then, is that the former focuses on the defendant’s attitude toward the plaintiff, the latter on the defendant’s attitude toward the truth’)." Gleason v. Smolinski, 319 Conn. 395, 433 n.32, 125 A.3d 920 (2015).
" ‘[M]alice is not restricted to hatred, spite or ill will against a plaintiff, but includes any improper or unjustifiable motive ... [A] qualified privilege is lost upon a showing of either actual malice, i.e., publication of a false statement with actual knowledge of its falsity or reckless disregard for its truth, or malice in fact, i.e., publication of a false statement with bad faith or improper motive ...’ Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 630-31. ‘[A]ctual malice requires a showing that a statement was made with knowledge that it was false or with reckless disregard for its truth ... A negligent misstatement of fact will not suffice; the evidence must demonstrate a purposeful avoidance of the truth ... Further, proof that a defamatory falsehood has been uttered with bad or corrupt motive or with an intent to inflict harm will not be sufficient to support a finding of actual malice ... although such evidence may assist in drawing an inference of knowledge or reckless disregard of falsity.’ (Citations omitted; internal quotation marks omitted.) Id., at 637-38." Crismale v. Walston, 184 Conn.App. 1, 11, 194 A.3d 301 (2018).
As required by § 52-196a(e)(3), "[t]he court shall grant a special motion to dismiss ... unless the party that brought the complaint, counterclaim or cross claim sets forth with particularity the circumstances giving rise to the complaint, counterclaim or cross claim and demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint, counterclaim or cross claim."
Based upon a review of the complaint, the complaint fails to allege with "particularity" any facts that the defendants were acting with malice. Moreover, the plaintiff did not submit any affidavits as permitted by § 52-196a(e)(2) attesting to the facts upon which liability is based.
Sacred Heart University submitted the affidavit of Jack Fernandez, the Director of Public Safety, who affirmed that "[t]o the best knowledge of Sacred Heart, it did not provide Bridgeport Police with any false information or misleading statements." Harriman submitted an affidavit which affirmed that "I did not intentionally provide Detective Cotto or anyone else from the Bridgeport Police Department with any false information or misleading statements ..." Haas submitted an affidavit which affirmed that "I did not intentionally or negligently make false and misleading statements about Alphonso Reid to the police."
Accordingly, because the plaintiff failed to set forth with particularity the circumstances upon which the defendants acted with malice or provide affidavits for the court to consider, the allegations against the defendants which are the result of statements made to the police are subject to a qualified immunity. Therefore, the plaintiff has failed to demonstrate to the court that there is probable cause, considering all valid defenses that he will prevail on the merits of his claims.
As to the defendant Talavera, the court notes that the plaintiff argues in his memorandum that Talavera "would not come under the purview of [§ 52-196a], inasmuch as there is no claim that he made allegations directly to the police authority which arrested the plaintiff. He was not assigned to investigate the allegations of defendant Harriman. Rather he was an off duty officer working overtime as a bouncer in the Golden Star Cafe on the night in question. It is the plaintiff’s claim that Officer Talavera was instrumental in defendant Harriman’s making her claims of kidnapping and sexual assault against the plaintiff. Officer Talavera is a person known to the plaintiff. On a prior occasion at a club in the Greater New Haven area, Officer Talavera entered with a date, who was also known to the plaintiff. Said date left the club with the plaintiff, leaving defendant Talavera stranded there." The court notes, however, that the foregoing allegations are not included in the complaint. The complaint only alleges that "Officer Andrew Talavera is an agent of the defendants City of Bridgeport and the Bridgeport Police Department" and that he made "false and misleading statements to [the] defendant City of Bridgeport and Bridgeport Police Department." The court notes that parties’ briefs are not evidence and may not, in themselves, be used to satisfy a party’s evidentiary burden. See New Haven v. Freedom of Information Commission, 205 Conn. 767, 775, 535 A.2d 1297 (1988). In as much as the plaintiff appears to have abandoned the claims against Talavera as set forth in the complaint, the court is required to decide the special motion to dismiss in accordance with § 52-196a(e)(2). Accordingly, based upon the allegations set forth in the complaint, Talavera would be entitled to a qualified immunity as discussed, supra . See note 5, supra .
C
Notwithstanding the foregoing, the court will also address the failure of the plaintiff’s complaint to establish with particularity a prima facie case of intentional infliction of emotional distress or a prima facie case of false light invasion of privacy.
In order to establish a prima facie case of intentional infliction of emotional distress, the plaintiff must establish four elements: "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff’s distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Sepega v. Delaura, 326 Conn. 788, 801 n.6, 167 A.3d 916 (2017). Based upon a review of the complaint, the plaintiff fails to set forth with particularity all of the essential elements of a claim of intentional infliction of emotional distress.
As to the plaintiff’s claim of false light invasion of privacy, "Connecticut has adopted the definition ... contained in the Restatement (Second) of Torts § 652E (1997), which provides, ‘[o]ne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.’
"Unlike the limited publication required to state a claim for defamation, the publicity element of a false light invasion of privacy claim requires publication of the allegedly false matter to the public at large or to so many persons as to make it substantially certain that the matter will become public knowledge. See Pace v. Bristol Hosp., 964 F.Supp. 628, 631 (D.Conn. 1997); Handler v. Arends, 1995 WL 107328, (Conn.Super. March 1, 1995)." Grigorenko v. Pauls, 297 F.Supp.2d 446, 448 (D.Conn. 2003). Based upon a review of the complaint, the complaint fails to allege with any particularity all of the required elements necessary to assert a claim for false light invasion of privacy.
The court further notes that the plaintiff’s complaint, in paragraph thirteen, alleges that Sacred Heart University "deliberately and recklessly broadcast false information accusing the plaintiff of rape by widely publicizing and distributing his photograph." The plaintiff has not provided any further specificity regarding same, nor was the issue briefed or raised during the hearing on the matter. The affidavit of Jack Fernandez, Director of Public Safety for Sacred Heart University, references a communication between security officers which included a picture of the plaintiff. The court finds that the communication falls within the purview of § 52-196a as a communication within the definition of "right of free speech" and "right of association" on a "matter of public concern." The court acknowledges, however, that the foregoing would not be subject to the qualified immunity as set forth above because the allegation is not related to statements made to the police. However, the plaintiff’s claims against Sacred Heart University as set forth in count twenty-one relative to the intentional infliction of emotional distress claim and in count twenty-four relative to the false light invasion of privacy claim are completely void of any relation between the "publicizing and distributing his photograph" to the essential elements of each cause of action. In count twenty-one, the plaintiff alleges that "by making misleading statements, omitting and withholding critical information that he had a duty to disclose caused the plaintiff to be prosecuted for sexual assault and unlawful restraint." In count twenty-four, the basis of the plaintiff’s claim is "false allegations." The plaintiff fails to sufficiently allege that the publication and distribution of his photograph resulted in his claim of intentional infliction of emotional distress or false light invasion of privacy.
Count Twenty-One, Paragraph 99: "The defendant Sacred Heart University Incorporated by making misleading statements, omitting and withholding critical information that he had a duty to disclose caused the plaintiff to be prosecuted for sexual assault and unlawful restraint. The defendant should have known that such actions were likely to cause emotional distress and harm to the plaintiff."
D
Procedurally, a special motion to dismiss, pursuant to § 52-196a, is substantially different than a standard motion to dismiss pursuant to Practice Book § 10-30. The court notes that the foregoing pleading deficiencies usually would not result in the dismissal of a cause of action, as stated in Cronin v. Pelletier, Superior Court, judicial district of Tolland, Docket No. CV- 18-6014395-S (July 26, 2018, Sferrazza, J.) (66 Conn.L.Rptr. 750, 752). "The court recognizes that in a typical civil case, a deficient pleading can be raised by a motion to strike or a request to revise, neither of which procedural devices results in a dismissal of the case. However, § 52-196a(e)(3) appears to produce such an outcome because the court ‘shall grant a special motion to dismiss’ in such a situation ... However, the harshness of these results is a consequence of legislative judgment in enacting § 52-196a rather than the product of abstruse rules of practice." (Citation omitted.) Cronin v. Pelletier, supra, 66 Conn.L.Rptr. 750, 752.
II.
CONCLUSION
In conclusion, based upon the foregoing analysis and in accordance with the requirements set forth by the legislature in § 52-196a(e)(3), the court grants the special motion to dismiss as to Harriman, Haas, Talavera, and Sacred Heart University.
(1) ‘Matter of public concern’ means an issue related to (A) health or safety, (B) environmental, economic or community well-being, (C) the government, zoning and other regulatory matters, (D) a public official or public figure, or (E) an audiovisual work;
(2) ‘Right of free speech’ means communicating, or conduct furthering communication, in a public forum on a matter of public concern;
(3) ‘Right to petition the government’ means (A) communication in connection with an issue under consideration or review by a legislative, executive, administrative, judicial or other governmental body, (B) communication that is reasonably likely to encourage consideration or review of a matter of public concern by a legislative, executive, administrative, judicial or other governmental body, or (C) communication that is reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, administrative, judicial or other governmental body;
(4) ‘Right of association’ means communication among individuals who join together to collectively express, promote, pursue or defend common interests; and
(5) ‘Special motion to dismiss’ means the motion permitted pursuant to this section.
(b) In any civil action in which a party files a complaint, counterclaim or cross claim against an opposing party that is based on the opposing party’s exercise of its right of free speech, right to petition the government, or right of association under the Constitution of the United States or the Constitution of the state in connection with a matter of public concern, such opposing party may file a special motion to dismiss the complaint, counterclaim or cross claim.
(c) Any party filing a special motion to dismiss shall file such motion not later than thirty days after the date of return of the complaint, or the filing of a counterclaim or cross claim described in subsection (b) of this section. The court, upon a showing of good cause by a party seeking to file a special motion to dismiss, may extend the time to file a special motion to dismiss.
(d) The court shall stay all discovery upon the filing of a special motion to dismiss. The stay of discovery shall remain in effect until the court grants or denies the special motion to dismiss and any interlocutory appeal thereof. Notwithstanding the entry of an order to stay discovery, the court, upon motion of a party and a showing of good cause, or upon its own motion, may order specified and limited discovery relevant to the special motion to dismiss.
(e)(1) The court shall conduct an expedited hearing on a special motion to dismiss. The expedited hearing shall be held not later than sixty days after the date of filing of such special motion to dismiss, unless, (A) the court orders specified and limited discovery pursuant to subsection (d) of this section, in which case, the expedited hearing shall be held not later than sixty days after the date on which such specified and limited discovery must be completed, (B) the parties agree to a hearing date that is beyond the sixty-day period, or (C) the court, for good cause shown, is unable to schedule the hearing during the sixty-day period.
(2) When ruling on a special motion to dismiss, the court shall consider pleadings and supporting and opposing affidavits of the parties attesting to the facts upon which liability or a defense, as the case may be, is based.
(3) The court shall grant a special motion to dismiss if the moving party makes an initial showing, by a preponderance of the evidence, that the opposing party’s complaint, counterclaim or cross claim is based on the moving party’s exercise of its right of free speech, right to petition the government, or right of association under the Constitution of the United States or the Constitution of the state in connection with a matter of public concern, unless the party that brought the complaint, counterclaim or cross claim sets forth with particularity the circumstances giving rise to the complaint, counterclaim or cross claim and demonstrates to the court that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint, counterclaim or cross claim.
(4) The court shall rule on a special motion to dismiss as soon as practicable.
(f)(1) If the court grants a special motion to dismiss under this section, the court shall award the moving party costs and reasonable attorneys fees, including such costs and fees incurred in connection with the filing of the special motion to dismiss.
(2) If the court denies a special motion to dismiss under this section and finds that such special motion to dismiss is frivolous and solely intended to cause unnecessary delay, the court shall award costs and reasonable attorneys fees to the party opposing such special motion to dismiss.
(g) The findings or determinations made pursuant to subsections (e) and (f) of this section shall not be admitted into evidence at any later stage of the proceeding or in any subsequent action.
(h) The provisions of this section shall not: (1) Apply to an enforcement action that is brought in the name of the state or a political subdivision of the state by the Attorney General; (2) affect or limit the authority of a court to award sanctions, costs, attorneys fees or any other relief available under any statute, court rule or other authority; (3) affect, limit or preclude the right of a party filing a special motion to dismiss to any defense, remedy, immunity or privilege otherwise authorized by law; (4) affect the substantive law governing any asserted claim; (5) create a private right of action; or (6) apply to a common law or statutory claim for bodily injury or wrongful death, except the exclusion provided in this subdivision shall not apply to claims for (A) emotional distress unrelated to bodily injury or wrongful death or conjoined with a cause of action other than for bodily injury or wrongful death, or (B) defamation, libel or slander. The provisions of this subdivision shall not prohibit a plaintiff who brings a claim for bodily injury or wrongful death from filing a special motion to dismiss a counterclaim under the provisions of this section.
Count Twenty-Four, Paragraph 109: "The defendant Sacred Heart University Incorporated by falsely alleging that the plaintiff sexually assaulted and unlawfully restrained Morgan Harriman, should have known that such accusations were likely to cause emotional distress and harm to the plaintiff." Paragraph 110: "As a direct and proximate result of the defendant Sacred Heart University Incorporated’s false allegations against the plaintiff, he suffered damage to his reputation, great embarrassment, anxiety, depression and lost wages." Paragraph 111: "As a direct and proximate result of the defendant Sacred Heart University Incorporated false allegations against the plaintiff, which allegations were relayed to the Bridgeport Police Department, he suffered damage to his reputation, anxiety, depression, lost wages and has suffered economically in his ability to gain employment."