Opinion
DBDCV186025990S
01-11-2019
Deborah CASSIDY v. CONNECTICUT FAMILY CHIROPRACTIC CORPORATION, P.C. et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, J.
The plaintiff, Deborah Cassidy (Cassidy), has moved to strike the fourth, fifth and sixth special defense of the defendant, Louis Sclafani (Sclafani), and the defendant’s counterclaim for unjust enrichment. For the reasons stated below, the motion to strike the defendant’s fourth, fifth and sixth special defense is GRANTED. Furthermore, the defendant’s second count of the counterclaim for unjust enrichment is GRANTED by agreement of the defendant.
DISCUSSION
Practice Book § 10-39(a) provides in relevant part: "[W]henever any party wishes to contest ... (5) the legal sufficiency of any answer to any complaint ... or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). In ruling on a motion to strike a special defense or special defenses, "[t]he role of the trial court [is] to examine the [special defenses], construed in favor of [the defendant], to determine whether the [pleading party has] stated ... legally sufficient [special defenses]." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997); see also McGuffie v. Boucher, Superior Court, judicial district of Litchfield, Docket No. CV-12-6006880-S (September 4, 2014, Danaher, III, J.).
1. Fourth Special Defense
In the plaintiff’s motion to strike, the plaintiff argues that that the defendant has failed to put forth supporting facts to the defendant’s special defense of truth or opinion. Furthermore, without any facts to support either defense, the plaintiff argues that this special defense is invalid. In response, the defendant first argues that it has plead a valid special defense because any one of three speech categories in conjunction with the two contents of the speech forms a valid defense. In response to the plaintiff’s assertion that the defendant failed to plead any facts to support its fourth special defense, the defendant argues that the court may properly consider the facts pled in the plaintiff’s complaint when analyzing the sufficiency of the defendant’s special defenses. See Saturno v. Saturno, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-5006833-S (July 7, 2011, Jennings, J.T.R.). Specifically, the defendant argues that the facts plead in count six of the plaintiff’s complaint that the defendant made defamatory statements regarding the plaintiff provide sufficient facts to support its fourth special defense.
"In ruling on a motion to strike a special defense or defenses, [t]he role of the trial court [is] to examine the [special defenses], construed in favor of [the defendant], to determine whether the [pleading party] stated ... legally sufficient [special defenses]." (Internal quotation marks omitted.) McGuffie v. Boucher, supra, Superior Court, Docket No. CV-12-6006880-S, quoting Dodd v. Middlesex Mutual Assurance Co., supra, 242 Conn. 378. In McGuffie, the plaintiff had moved to strike the special defense, arguing that he was unable to know which of the alleged defamatory statements were "mere opinion." McGuffie v. Boucher, supra . The superior court granted the motion, striking the special defenses because of the defendant’s failure to allege any facts that supported his defense. See also, Hamden Salvage, Inc. v. Kops, Superior Court, judicial district of New Haven, Docket No. CV-98-0413662-S (December 6, 1999, Alander, J.) (granting motion to strike special defenses where defendant failed to allege any facts to support his claim or privilege); Jewett v. General Dynamics Corp., Superior Court, judicial district of New London at New London, Docket No. 530943 (May 7, 1997, Booth, J.) (granting motion to strike affirmative defense to defamation claim where defense lacked any factual allegations in support of defense). Similarly, in this case, the defendant Sclafani fails to allege any facts to indicate which statements he claims are truth and which are opinion. Jewett v. General Dynamics Corp., supra, Superior Court, Docket No. 530943.
First the court will deal with the defendant’s claim that the court can look to the "factual allegations of the count(s) of the complaint." (Internal quotation marks omitted.) See Saturno v. Saturno, supra, Superior Court, Docket No. CV-08-5006833-S. The defendant’s fourth special defense asserts the following: "The statements made by the defendant, as alleged by the plaintiff in her complaint, were true, or substantially true, or constituted the defendant’s opinion about the plaintiff and/or consulting work she was performing for the company, and therefore were protected speech." The defendant’s fourth special defense gives three separate options as to why the defendant’s statements constitute protected speech. The defendant alleges that the statements could be "true, substantially true; or [that they] constituted the defendant’s opinion." Subsequently, the defendant alleges two options as to what the content of speech was about, being either "the plaintiff" and/or the "consulting work she was performing."
While the defendant is legally accurate that the court can consider the facts pled in the complaint in analyzing the sufficiency of the defendant’s special defenses, the defendant neglects to direct the court as to which facts pled in the complaint were "true, substantially true, or constituted [as] the defendant’s opinion" so as to constitute protected speech. Moreover, the defendant neglected to direct the court as to the content of which facts were either about "the plaintiff" and/or the "consulting work she was performing." The court cannot use its own determination of the potential myriad of options and combinations as to which facts pled in the complaint are applicable to each or all of the three potential alternatives that could constitute protected speech, nor can the court use its own determination as to which facts in the complaint were about the content of the speech being either about "the plaintiff" and/or the "consulting work she was performing." It is not for the court to attempt to match the paragraphs in the complaint to which potential category of protected speech ("true," "substantially true," or "defendant’s opinion") the facts applies. Likewise, it is not for the court to match the content of the statements of the complaint being either about "the plaintiff" and/or the "consulting work she was performing" as claimed in the fourth special defense. The court cannot usurp the defendant’s judgment by attempting to pigeon hole which facts in the complaint are protected speech nor can it either conclude what the content of the protected speech the facts alleged relate to in the complaint. Based on this, the facts in the complaint alone do not clarify the alternatives contained in the fourth special defense.
Second, the court will examine the defendant’s claim that the court can use the factual allegations of the special defense itself to judge the validity of the special defense. A thorough examination of the verbiage contained in the defendant’s fourth special defense reveals no facts, just declaratory statements made by the defendant. As accurately stated by the plaintiff, the defendant failed to allege any facts in the special defense. It is unclear which statements in the complaint are "true," "substantially true," or the "defendant’s opinion," and which statements in the complaint are about "the plaintiff" and/or the "consulting work she was performing." Combining the inability of the court to determine the proper alignment of the facts in the plaintiff’s complaint with the claims in the fourth special defense, and the complete lack of any facts presented in the fourth special defense itself to clarify the match-up possibilities, this court can only conclude that the fourth special defense is legally insufficient, and grants the plaintiff’s motion to strike the defendant’s fourth special defense.
2. Fifth Special Defense
In the plaintiff’s motion to strike, the plaintiff argues that the defendant’s fifth special defense of conditional privilege is legally insufficient. In support, the plaintiff argues that the defendant’s asserted special defense fails for three reasons: (1) the defendant has failed to identify the recipients that he claims are the proper parties; (2) the defendant has failed to identify the "compelling property interest"; and lastly (3) why the communications alleged made were privileged. The plaintiff further argues that the defendant has failed to identify any specific facts as to who these statements were made to other than to the plaintiff, how the defendant limited the statements in their scope, or when and where the statements were made. According to the plaintiff, the defendant only identifies the plaintiff as the recipient of his statements. Therefore, the plaintiff argues that the defendant has failed to assert the necessary facts to support its special defense of conditional privilege. In response, the defendant argues that it has sufficiently plead its special defense of conditional privilege. The defendant argues that the special defense connects to paragraph fifty-eight of the plaintiff’s amended complaint because it is the only portion of the complaint alleging defamatory statements. Furthermore, the defendant argues that the special defense as plead sufficiently apprises the court and opposing counsel of the special defense at issue.
"[A] conditional or qualified privilege is an affirmative defense in a defamation action and must be specially pleaded ..." Brady v. Bickford, 179 Conn.App. 776, 790, 183 A.3d 27 (2018). "The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way." (Internal quotation marks omitted.) Id., 794 "It is for the court to determine, as a matter of law, whether the defendant made the defamatory statements while acting on an occasion of privilege, as in the bona fide discharge of a public or private duty." (Citations omitted; internal quotation marks omitted.) Id., 794-95. "[T]here are five prerequisites in order to establish that a conditional privilege exists: The essential elements are (1) an interest to be upheld, (2) a statement limited in its scope to this purpose, (3) good faith, (4) a proper occasion, and (5) a publication in a proper manner to proper parties only." Lowe v. Shelton, 83 Conn.App. 750, 771 n.5, 851 A.2d 1183, cert. denied, 271 Conn. 915, 859 A.2d 568 (2004).
The defendant’s fifth special defense asserts the following: "Any and all statements allegedly made by the Defendant Louis Sclafani directed at the plaintiff are protected by a conditional privilege since they were made to protect a compelling property interest in the business, they were confined to a proper audience and limited in scope to protecting his property interest, and he honestly believed the statements to be true and to be made in good faith. The plaintiff was hired as a consultant to perform an evaluation and analysis of Connecticut Family Chiropractic Corporation, P.C., and to assist in implementing any recommended changes or adjustments to company procedures, including billing practices. The defendant’s statements to the plaintiff were made in a context of addressing her work, her actions and her errors relating to the company’s business practices, all of which had a direct bearing on the defendant’s property interest in the business."
The plaintiff accurately states that the defendant’s fifth special defense fails to identify the recipients that were proper parties, the "compelling property interest," or why the communications were privileged. The special defense only identifies the plaintiff as the recipient of his statements. Further, the defendant has failed to identify any specific facts as to who, in addition to the plaintiff, these statements were made to. The claim in the special defense that the statements "they were confined to a proper audience" must mean that the statements were disclosed to other individuals other than the plaintiff. Otherwise it would be redundant if it meant the plaintiff was the only recipient. In the alternative, the claim that "any and all statements ... directed at the plaintiff" may be interpreted to mean that they were made to the plaintiff, but that the plaintiff was the subject of those statement.
Furthermore, the fifth special defense failed to allege how the defendant limited the scope of the statements, or when and where the statements were made. What the plaintiff does not raise is how the "defendant’s statements to the plaintiff" were made in the context of addressing her work, and what errors relating to the company were made by the plaintiff. Finally the defendant alleges that paragraph fifty-eight within count six of the amended complaint is the only portion containing alleged defamatory statements. This is not accurate, as a review of count six of the complaint shows that paragraphs 58, 59, 60, 61 and 62 also deal with defamatory statements. As stated above in the court’s analysis related to the fourth special defense, the complete lack of any facts presented in the fifth special defense renders it legally insufficient. Therefore, the court grants the plaintiff’s motion to strike the defendant’s fifth special defense.
3. Sixth Special Defense
In the plaintiff’s motion to strike, the plaintiff argues that that the defendant’s sixth special defense is legally insufficient. The plaintiff contends that when bringing a claim for international infliction of emotional distress, there is no requirement that a defendant be the plaintiff’s employer in order for that defendant to be liable. Furthermore, the plaintiff argues she may bring her claim for intentional inflection of emotional distress against the defendant regardless of whether this court concludes that the plaintiff was an independent contractor. Additionally, the plaintiff argues that the facts as alleged by the defendant fail to prove that the plaintiff’s cause of action is legally deficient. In reply, the defendant argues that it has sufficiently plead its special defense against the plaintiff’s claim for intentional infliction of emotional distress. The defendant argues that the plaintiff’s claim is premised on her status as an employee of the defendants. While the defendant concedes that claims for intentional infliction of emotional distress need not always be premised on an employment relationship, the defendant argues that the plaintiff here has specifically alleged a proximate relationship between her alleged employment with the defendant and the alleged injury suffered. In support, the defendant notes that the plaintiff has alleged that she was an employee of the defendants, and claims that she suffered harassment during her employment that intentionally cause her emotional distress. Therefore, the defendant argues, the plaintiff’s employment status is an essential element to her claim.
Our Supreme Court has held that only four elements must be established in order to succeed in a claim for intentional infliction of emotional distress. "It must be shown: (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.) Watts v. Chittenden, 301 Conn. 575, 586, 22 A.3d 1214 (2011). In the present matter, the defendant’s sixth special defense asserts the following: "The plaintiff has failed to state a valid cause of action against the Defendant Sclafani for intentional infliction of emotional distress in the plaintiff’s claims are based on her allegations of retaliation and harassment in the workplace, but she was never an employee of any defendant in the case. Since she was an independent contractor, and not an employee, her claims, all based on her claimed status as an employee, lack any legal basis." The defendant has failed to cite to any case law, and the court is not aware of any, which stands for the presumption that a claim of intentional infliction of emotional distress brought by an employee against an employer requires the claimant to allege their employment status as an additional element. As stated above in the court’s analysis related to the fourth and fifth special defenses, the complete lack of any facts presented in the sixth special defense to negate the plaintiff’s claim for intentional infliction of emotional distress renders the sixth special defense legally insufficient. Therefore, the court grants the plaintiff’s motion to strike the defendant’s sixth special defense.
CONCLUSION
Based on the analysis above, the plaintiff’s motion to strike the defendant’s fourth, fifth and sixth special defense is GRANTED. Furthermore, the plaintiff’s motion to strike the defendant’s counterclaim for unjust enrichment is GRANTED by agreement of the defendant.