Opinion
No. MMX CV09 500 5980 S
October 23, 2009
MEMORANDUM OF DECISION
The defendant John Fundock has moved to strike the fifth count of the plaintiff's complaint, a cause of action for defamation, "for the reason that count five is legally insufficient."
A motion to strike one or more counts of a complaint challenges the legal sufficiency of each such cause of action. As set forth in Doe v. Yale University, 252 Conn. 641, 667, 668, 748 A.2d 834 (2000), because the issue is one of legal sufficiency this court's decision on a motion to strike is subject to plenary review on appeal, but this court initially must take the facts to be those alleged in the complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency:
We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [plaintiff's motion] is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996) [cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997)] . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4, 675 A.2d 852 (1996). (Internal quotation marks omitted.) Knight v. F.L. Roberts Co., 241 Conn. 466, 470-71, 696 A.2d 1249 (1997). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . . Edwards v. Tardiff, 240 Conn. 610, 620, 692 A.2d 1266 (1997)." (Internal quotation marks omitted.) Parsons v, United Technologies Corp., 243 Conn. 66, 100, 700 A.2d 655 (1997) (Berdon, J., concurring and dissenting).
The Supreme Court very recently has reiterated what constitutes a defamatory statement:
"A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him . . . To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff's reputation suffered injury as a result of the statement." (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 969 A.2d 736 (2009).
Defamation includes the torts of libel and slander. Defamation is either libel or slander, libel or slander per quod or libel or slander per se:
"Defamation is comprised of the torts of libel and slander. Defamation is that which tends to injure reputation in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him . . . Slander is oral defamation . . . Libel, which we are concerned with in the present case, is written defamation . . . While all libel was once actionable without proof of special damages, a distinction arose between libel per se and libel per quod . . . A libel per quod is not libelous on the face of the communication, but becomes libelous in light of extrinsic facts known by the recipient of the communication . . . When a plaintiff brings an action in libel per quod, he must plead and prove actual damages in order to recover . . .
Libel per se, on the other hand, is a libel the defamatory meaning of which is apparent on the face of the statement and is actionable without proof of actual damages . . . The distinction between libel per se and libel per quod is important because [a] plaintiff may recover general damages where the defamation in question constitutes libel per se. When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. He is required neither to plead nor to prove it . . . The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the libel caused him . . . Whether a publication is libelous per se is a question for the court. (Citations omitted; internal quotation marks omitted.) Lega Siciliana Social Club, Inc. v. St Germaine, 77 Conn.App. 846, 851-52, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003).
Lowe v. Shelton, 83 Conn.App. 750, 756-66, 851 A.2d 1183 (2004), cert. denied, 271 Conn. 915 (2004).
In Lowe v. Shelton, supra, 83 Conn.App. 750, 766-67, the Appellate Court set forth the categories for which libel per se is applicable:
[L]ibel is actionable per se if it charges improper conduct or lack of skill or integrity in one's profession or business and is of such a nature that it is calculated to cause injury to one in his profession or business . . . Libel . . . is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached. (Citations omitted; internal quotation marks omitted.) Miles v. Perry, 11 Conn.App. 584, 601-02, 529 A.2d 199 (1987).
No such allegations constituting libel or slander per se currently are made in count five but applying the requirements set forth in Doe v. Yale University, supra, facts that could constitute libel and slander if proved are alleged therein. In count five, paragraph 75, the plaintiff has alleged that the defendant Fundock "specifically . . . stated [to a third party] that the Plaintiff was mentally unstable and posed a serious danger to the safety of Fundock's daughter, other children, the neighborhood and the community at large . . ." and that such defendant's written and oral statements referred to in paragraphs 75, 76 and 77 of count five injured the plaintiff's standing in the community.
With respect to damages for defamation, General Statutes § 52-237 provides:
In any action for a libel, the defendant may give proof of intention; and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by the plaintiff in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, the plaintiff shall recover nothing but such actual damage as the plaintiff may have specially alleged and proved.
This court will not address whether the plaintiff has sufficiently pleaded compliance with General Statutes § 52-237, "malice in fact," see Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 564, 72 A.2d 820 (1950), or whether the plaintiff has specially alleged damages, as these issues are not raised by the defendant in his motion to strike which does not refer to General Statutes § 52-237. See Harris v. Kupersmith, 2009 Ct.Sup. 14909, 14929 fn5, No. FST CV 08 6000995S, Superior Court, Judicial District of Stamford-Norwalk at Stamford (Adams, J., August 31, 2009).
This court has taken the facts to be those alleged in the complaint and has construed count five of the complaint in the manner most favorable to sustaining its legal sufficiency. The plaintiff's allegations are legally sufficient and the defendant John Fundock's motion to strike thus is denied.