Opinion
FSTCV165016383S
09-11-2017
Thomas Sullivan v. Sholeh Janati
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#123.00)
Kenneth B. Povodator, J.
Background
This is a twelve-count defamation action. The defendant has moved to strike the first, second, third, fifth, sixth and twelfth counts, all asserting libel per se. The defendant contends that the statements alleged in those counts are not defamatory, but rather comments and opinions, and do not allege conduct that might constitute libel per se (especially, criminal conduct).
The plaintiff's response is that " Counts One, Two, Three, Five, Six, and Twelve of Plaintiffs' Revised Complaint each allege that Defendant published a specific statement falsely stating that Plaintiffs had acted improperly, with a lack of skill, and with a lack of integrity in their chosen professions and in the operation of their business [and that the second count] alleges that Defendant published a specific statement falsely charging Plaintiffs with the crimes of theft and embezzlement."
The court will not recite the well-established standards for a motion to strike, but notes that it is cognizant of the limits of a motion to strike--the court is not to determine facts, but rather to determine whether, accepting the well-pleaded facts as true, and giving the plaintiff the benefit of reasonable favorable inferences, the complaint (or identified counts) state a legally-sufficient cause of action.
Here, the question is whether the identified statements can suffice to support claims of libel per se. It is essential, then, to recognize the standard for libel per se: " Libel per se . . . is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages." (Internal quotation marks and citation, omitted.) Lyons v. Nichols, 63 Conn.App. 761, 767, 778 A.2d 246; cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). For purposes of this motion, the court is focusing on the requirement that the " defamatory meaning . . . is apparent on the face of the statement."
Discussion
The court has reviewed the revised complaint, and the challenged counts do not allege libel per se; there are no identified statements (in the challenged counts) that reasonably can be interpreted as coming within the scope of libel per se. Even applying the standards set forth by the plaintiffs, these counts are deficient.
A review of the specific statements alleged in each of the identified counts is the natural starting point.
The court is indenting the quoted language from the complaint but not utilizing quotation marks so as to emphasize the quotations marks as used by the plaintiffs in reciting the statements attributed to the defendant.
First count:
20. On or about September 30, 2016 at 8:58 p.m., Defendant published or caused to be published via her personal Facebook account the following defamatory statement, specifically identifying Plaintiffs, to a group of over 4, 000 persons:
a. " MISSING PAINTINGS--REWARD: One of many that have gone missing as a result of lost inventory in a home staging by www.StagingSells .net [sic] and Tom Sullivan. Last seen at Londonberry Drive, Greenwich, CT and [. . .] Shoal Point, Riverside, CT. Anyone with information, please contact me directly on Facebook--all leads will be kept confidential."
b. The above-quoted statement was posted along with pictures of two (2) of Defendant's pieces of art, and Defendant " tagged" Mr. Sullivan in connection therewith.
Also alleged (and repeated in each of the challenged counts) is the following:
25. On October 11, 2016 at 5:32 p.m., Defendant published or caused to be published via her personal Facebook account the following defamatory statement, specifically identifying Plaintiffs, to a group of over 4, 000 persons:
a. This Painting is " The Wedding, " 36x48x3 Original. One of my very favorite pieces from 2005. Last time that I saw this was in the back of Thomas Sullivan Stagingsells.net Burgundy colored Van, in front of a house in Greenwich Ct. Please alert your friends not to buy this painting from anyone. If this is sold to you please email me immediately at sholehjanati@yahoo.com
b. The above-quoted statement was posted along with pictures of one (1) of Defendant's pieces of art, and Defendant " tagged" Mr. Sullivan in connection therewith.
Second count:
20. On or about September 30, 2016 at 10:27 p.m., Defendant published or caused to be published via her personal Facebook account the following defamatory statement, in response to a comment made on one of Defendant's Facebook posts specifically identifying Plaintiffs, to a group of over 4, 000 persons:
a. Yes [. . .], Westport police has [sic] been involved and they recovered 15 pieces of my works [sic], and we are trying to recover the rest.
Plaintiffs single out the second count for separate treatment, in responding to the motion to strike. Therefore, this is the statement to which the plaintiffs necessarily make reference when they claim " Count Two of Plaintiffs' Revised Complaint alleges that Defendant published a specific statement falsely charging Plaintiffs with the crimes of theft and embezzlement."
Third count:
20. On or about September 30, 2016 at 11:01 p.m., Defendant published or caused to be published via her personal Facebook account the following defamatory statement, specifically identifying Plaintiffs, to a group of over 4, 000 persons:
a. Close up of this missing painting (one of several): more posts to come.
[. . .]
b. The above-quoted statement was posted along with pictures of one (1) of Defendant's pieces of art, and Defendant " tagged" Mr. Sullivan in connection therewith.
Fifth count:
20. On or about October 1, 2016 at 7:59 a.m., Defendant published or caused to be published via her personal Facebook account the following defamatory statement, specifically identifying Plaintiffs, to a group of over 4, 000 persons:
a. MISSING PAINTINGS. REWARDS! PLEASE HELP ME FIND THESE. last seen at a house in Shoal pointe a house staged by STAGINGSELLS.net in Greenwich, CT. All information will be kept confidential. PLEASE inbox me. PLEASE SHARE.
b. The above-quoted statement was posted along with pictures of one (1) of Defendant's pieces of art, and Defendant " tagged" Mr. Sullivan in connection therewith.
Sixth count:
20. On or about October 1, 2016 at 2:03 p.m., Defendant published or caused to be published via her personal Facebook account the following defamatory statement, specifically identifying Mr. Sullivan, to a group of over 4, 000 persons:
a. The 48x62 Manhattan Bridge ($12,000) is recovered from a house in Darien. Thanks to my friend [. . .]. With the help of all of my friends, and all of the real estate professionals we will recover the rest. THANK YOU The rest of the paintings are similar sizes' [sic]
b. The above-quoted statement was posted along with pictures of one (1) of Defendant's pieces of art, and Defendant " tagged" Mr. Sullivan in connection therewith.
This is the same language as was used in the first count which the court noted was carried through in each of the subsequent counts. In other words, this is a free-standing reference to the statement quoted in each of the earlier counts as supplementing a count-specific allegedly defamatory statement.
21. Following Mr. Sullivan's email earlier in the day, and presumably in response to it, at 5:32 p.m. on October 11, 2016 Defendant published or caused to be published via her personal Facebook account the following defamatory statement, specifically identifying Plaintiffs, to a group of over 4, 000 persons:
a. This Painting is " The Wedding, " 36x48x3 Original. One of my very favorite pieces from 2005. Last time that I saw this was in the back of Thomas Sullivan Stagingsells.net Burgundy colored Van, in front of a house in Greenwich Ct. Please alert your friends not to buy this painting from anyone. If this is sold to you please email me immediately at sholehjanati@yahoo.com
b. The above-quoted statement was posted along with pictures of one (1) of Defendant's pieces of art, and Defendant " tagged" Mr. Sullivan in connection therewith.
With the exception of the reference in the first count to " lost inventory, " all of the challenged statements do no more than identify the circumstances/location of when the missing items were last seen--if that. Unoccupied homes for sale, and vehicles (particularly if unattended) containing valuables, are not-uncommon targets for theft, and items entrusted to a third party (bailment or otherwise) often are misplaced or again, can be subject to theft by unknown parties.
Are the plaintiffs suggesting that the allegation that something was lost or misplaced or stolen, while in the custody/possession of a businessman, constitutes libel per se? Is every claim of negligence by a bailee to be so treated? Or negligent performance by any professional? Indeed, there is an absence of a meaningful nexus between an inference of negligence and the profession in which the plaintiffs were engaged--the conduct involved claimed possession and care of furniture for purposes of staging, which is not related to the professional services/functions performed by a real estate broker in showing and selling homes. (Would an explicit statement of negligence in driving a company vehicle to or from a listed property be amenable to characterization as libelous per se?)
Some of the alleged libelous statements do not explicitly refer to the plaintiffs. How does a close-up of a missing painting, with a description that it is a close-up of a missing painting (third count), constitute anything relating to conduct of the plaintiffs? How does a statement that a missing painting has been recovered constitute a libelous statement (sixth count)?
As noted earlier, the plaintiffs treat their second count as going beyond the common response to all other attacked counts. Therefore, it is appropriate for the court to focus on a claimed libelous statement that has something " extra" as compared to all other allegations.
The specific statement quoted in paragraph 20 of the second count states: " Yes [. . .], Westport police has [sic] been involved and they recovered 15 pieces of my works [sic], and we are trying to recover the rest." The plaintiffs' analysis and discussion of this statement is short enough to be quoted in its entirety:
On its face and unambiguously, this publication claims that Westport police personnel, in their official law enforcement capacity, had recovered the property which Defendant had claimed to have been stolen from Plaintiffs. Contrary to Defendant's argument, this is a false statement of fact rather than an expression of Defendant's opinion. As such, Count Two alleges that Defendant published a false statement that an ordinary person would understand to be Defendant charging Plaintiffs with the crime of theft and/or embezzlement.
Moreover, the implication created by a claim that law enforcement officials had recovered Defendant's property from Plaintiffs is that such property remained in the possession of Plaintiffs due to some improper conduct or lack of integrity on their part. Any reasonable person reading this statement would reach the same conclusion. As such, Count Two alleges that Defendant published a false statement charging " improper conduct or a lack of skill or integrity in Plaintiffs' profession or business, " and given Defendant's knowledge of said statement's falsity same was " calculated to cause injury" to Plaintiffs' business reputations.
There is nothing in the statement that the plaintiffs chose to quote, identified as a basis for a claim of libel per se, that supports the claims identified in the above-quoted argument. There is no mention of recovery specifically being from the plaintiffs nor any suggestion of embezzlement or theft or other improper conduct (or any conduct) by the plaintiffs. Even if factually incorrect, the statement does not allude to the plaintiffs at all, much less suggest or imply any impropriety.
The plaintiffs routinely refer to Mr. Sullivan being " tagged" in each instance. The plaintiffs do not explain how or why that is defamatory, or makes otherwise-innocent statements defamatory. Absent any explanation, the court has resorted to reference to what would appear to be an appropriate authority--the Facebook help pages relating to the concept of tagging on Facebook. According to the Facebook help page relating to tagging, tagging is a means of creating a link. See, " What is tagging and how does it work" on the page " How Tagging Works" at https://www.facebook.com/help/267689476916031/?helpref=hcfnav .
An additional help page describes the remedy--" How do I remove a tag from a photo or post I'm tagged in?" at https://www.facebook.com/help/140906109319589?helpref=faqcontent .
Thus, in addition to the lack of explanation as to how tagging somehow transforms otherwise-neutral statements into libel, it appears that the plaintiffs had an immediate form of self-help to remove any linkage claimed to be offensive or defamatory, without need for a demand that the linkage itself be cancelled or retracted by the defendant. Tagging may suggest some factual linkage, but it does not imply wrongdoing, sufficient to convert neutral statements into libelous ones.
The plaintiffs are entitled to interpret statements and events as they see fit, but they are not entitled to ask the court to treat neutral statements, many of which do not even refer to the plaintiffs at all, as libelous per se. The statements quoted in the counts identified by the defendant all suffer from that flaw, to varying degrees. (In this respect, it appears that the defendant has avoided challenging any of the statements that have any possibility of being characterized as defamatory--statements set forth in other counts.) The court cannot conclude that the challenged statements are legally sufficient for assertion of libel per se.
Conclusion
It is clear that there is acrimony between the parties. That may color each party's perception of the other, but it does not transform objectively neutral statements into libel per se (especially, the " per se" component). A close-up of a missing painting, and a recitation that the police were of assistance in recovering missing items, do not relate specifically to the conduct of anyone who was involved in the possession or custody of the missing items or their possible theft (if that is what occurred or is alleged to have occurred). A recitation of the circumstances under which missing items were last seen is probably an essential part of any description of missing items sought to be recovered, if for no other reason than to focus a reader's attention to time and place of interest. If missing items were last seen in a burgundy-colored van in Greenwich, then items seen being removed from a white van in Darien might be unlikely to be of interest--except, perhaps, if someone had observed items being transferred from a burgundy van to a white van in the identified area of Greenwich. The court is not obligated to find defamation in everything said or done by the defendant, and the challenged counts do not allege facts constituting libel per se.
Again, libel per se requires that " the defamatory meaning . . . is apparent on the face of the statement" claimed to constitute libel per se, Lyons v. Nichols, supra, and the quotes set forth in the challenged counts cannot be so characterized. Accordingly, as to the identified counts, the motion to strike is granted.