Opinion
DBDCV195015078S
09-10-2019
Raymond Ortiz v. Kathy Weinzieri
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): D’Andrea, Robert A., J.
MEMORANDUM OF DECISION
D’Andrea, J.
The defendant Kathy Weinzieri ("defendant") filed a motion to strike the plaintiff Raymond Ortiz’s ("plaintiff") complaint dated April 9, 2019. This court reviewed the complaint dated April 9, 2019, the motion to strike dated July 23, 2019, answer to amended complaint & special defense dated July 9, 2019, the motion to strike dated July 23, 2019 and the memorandum of law in support of motion to strike of same date. The defendant claims that her statements are not defamatory, and the plaintiff has not pled the elements of a tort for defamation, and even if some of the statements made by the defendant meet the definition of defamatory, the plaintiff’s alleged damages are not compensable at law. Therefore, the defendant claims that the plaintiff has failed to state a valid cause of action, and the complaint should be stricken. The plaintiff did provide a written objection to defendant’s motion to strike on the morning of the short calendar hearing of September 9, 2019. The defendant chose not to appear and present oral argument for his, and the court will rely on his written opposition.
FACTS
The plaintiff alleges that he has attempted to secure sole custody of his minor daughter through the Bridgeport Juvenile Court (the "custody action") that is currently pending. In 2018, the court requested Dr. Linda Liefland to complete a psychological evaluation of the plaintiff. The plaintiff alleges that Dr. Liefland authored a report and released it on December 21, 2018. The report references a telephone interview with the defendant who owns his daughter’s daycare.
Plaintiff alleges that the defendant made the following statements about the plaintiff during the interview:
1. He was, "unreasonable and unrealistic in his expectations";
2. He, "goes from zero to hundred";
3. He called the center on August 20, 2018 and was, "furious," that Ms. Weinzieri was on a field trip and unable to speak with him;
4. He verbally abused her staff;
5. He made her feel that, "you’d have a fight or you were being set up";
6. He was, "very manipulative," and pushy; and finally
7. "The thought of [the Plaintiff] having daily contact with his child scares her."
The plaintiff alleges that he has never met the defendant, and she refuses to take his telephone calls (which is denied but accepted by the defendant for the purpose of this motion), and has forbidden her staff from taking his calls (paragraphs eight and nine). Dr. Liefland advised the court against granting him sole custody of his daughter, and the Connecticut Department of Children and Families ("DCF") also saw Dr. Liefland’s report. The Department’s response was to change their clinical recommendation from reunification to adoption to a non-relative. In his prayer for relief, the plaintiff claims $50,000 for his cost of investigation, mental anguish, loss of parenting time, and possible loss of parental rights. He demands that the defendant be held accountable for bringing mental anguish and causing significant sadness, anxiety and distress to a parent, and "for the possible wrongful adoption of the child."
LEGAL STANDARD
Practice Book § 10-39(a) provides in relevant part: "A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of the complaint ..." "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). "[A] party may challenge the legal sufficiency of an adverse party’s claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ..." Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488 cert. denied, 273 Conn. 916 (2005).
DEFENDANT’S POSITION
Under Connecticut law, "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." Nelson v. Tradewind Aviation, LLC, 155 Conn.App. 519, 111 A.3d 887 (2015). Defamation includes slander, audible statements, and libel, written statements. Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 851, 825 A.2d 827 (2003), cert. denied, 267 Conn. 901 (2003). The Supreme Court has held, "To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion." Daley v. Aetna Life & Gas. Co., 249 Conn. 766, 734 A.2d 112 (1999). In another case the Court expounded, "A statement can be defined as factual if it relates to an event or state of affairs that existed in the past or present and is capable of being known." Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 111, 488 A.2d 1317 (1982) (citing 1 Harper & James, Torts § 5.28, p. 458 n.11, § 7.8, p.560; Black’s Law Dictionary (5th Ed. 1979); Ballantine’s Law Dictionary (3d Ed. 1969)). The Court continued, "In a libel action, such statements of fact usually concern a person’s conduct or character. An opinion, on the other hand, is a personal comment about another’s conduct, qualifications or character that has some basis in fact." Id. (citing 3 Restatement (Second), Torts § 565 & § 566, p. 171).
The alleged statements in this case are clearly the latter. The determinative factor is often the context, "although an opinion may appear to be in the form of a factual statement, it remains an opinion ’if it is clear from the context that the maker is not intending to assert another objective fact but only his personal comment on the facts which he has stated.’ " Id. The Court concluded, "[t]he important point is whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact." Goodrich at 111-12.
It is within the court’s discretion to analyze the purportedly defamatory statements in the complaint, and to strike allegations that concern opinions rather than facts. See e.g., Stanwich v. Swift, 2004 WL 1615835 (granting motion to strike, "Because the statements made were an expression of opinion rather than fact"). More broadly, if a statement is not defamatory, then it does not establish a cause of action. Thomas v. Rogers, 2012 WL 6846542 (granting motion to strike). A plaintiff must also be specific about the statements at issue. Vague statements or references cannot support a defamation case. Forgione v. Bette, 2005 WL 1545278 (striking imprecise allegations of defamation). If the allegations are not clear as to the identity of the speaker, audience and the type of statements made, it is difficult for the defendant to plead any special defenses.
The first allegedly defamatory statement not inherently disparaging, but assuming that one would prefer to be realistic, the characterization is a matter of opinion. It is impossible to prove or disprove. The second allegedly defamatory statement has the same defect. It is an unverifiable opinion. The third allegedly defamatory statement took place in a telephone conversation on August 20, 2018. The Defendant was not a party to that conversation. The alleged remark was based on secondhand information. Comments with this type of lineage are opinionated. The fourth allegedly defamatory statement in the abstract would be disagreeable, but defamation requires specificity, not abstraction. In Hearn v. Yale-New Haven Hospital the court struck claims of defamation even though, "The present plaintiff’s complaint sets forth the gravamen of the allegedly defamatory statements." 2007 WL 2938624. The problem was that, "the court cannot determine whether the statements were facts or opinions absent allegations of the precise statements made." Id. One of the cases cited by the Hearn court reads, "In defamation actions especially, words count, and a premium is placed on the precise words employed. In addition, requiring the plaintiff to specifically plead the precise defamation facilitates the use and disposition of pretrial dispositive motions and a determination of whether the alleged defamation is privileged." 2500 SS Ltd. Partnership v. White, 1996 WL 493188.
The fifth statement is vague. To the extent that it alludes to pugnacity, that would be an opinion. Statements six and seven are also matters of opinion. They do not describe the plaintiff’s behavior, but rather convey assessments of his general disposition. Finally items eight and nine do not describe any statements at all. The defendant’s decision to avoid plaintiff’s telephone calls, either individually or through her staff, is an action rather than a statement. The Supreme Court has elucidated that, "A defamatory statement is defined as a communication that tends to harm the reputation of another ..." [Emphasis added.] Hopkins v. O’Connor, 282 Conn. 821, 838, 925 A.2d 1030 (2007). The defendant’s alleged decision to sever telephonic contact with the Plaintiff is not in itself a communication, but rather a non-communicative action. Therefore, these allegations cannot support a case for defamation. Reviewing all of the statements together, the plaintiff has failed to allege that the defendant made any statements of fact that could impugn his reputation. Therefore, the defendant moves the court to strike the complaint.
If the court construes the statements as defamatory, it should still strike the complaint because the plaintiff has requested inappropriate relief that is not recoverable as a matter of law. His claim for his cost of investigation is typically not allowed in civil litigation. "The general rule of law known as the ‘American rule’ is that attorneys fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception." [Internal citations omitted.] 24 Leggett St. Ltd. Pshp. v. Beacon Indus., 239 Conn. 284, 311, 685 A.2d 305 (1996). A prayer for relief may be stricken if the relief sought could not be legally awarded. Practice Book § 10-39(a)(2); Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
Damages in defamation are governed by the distinction between per se and per quod . Certain statements that are intrinsically defamatory and imply damages. The Appellate Court recognized that a statement is defamatory per se if: 1. "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 ... [i]f it charges incompetence or dishonesty in office, or charges a professional person with general incompetence ... [i]t charges a crime involving moral turpitude or to which an infamous penalty is attached ... Statements accusing a plaintiff of theft are libelous or slanderous per se." Miles v. Perry, 11 Conn.App. 584, 601-02, 529 A.2d 199 (1987). Once a statement is deemed defamation per se, "the law conclusively presumes the existence of injury to the plaintiff’s reputation." DeVito v. Schwartz, 66 Conn.App. 228, 234-35, 784 A.2d 376 (2001). A plaintiff need not plead, but may collect general damages for his, "humiliation and mental suffering." Id. at 235. The defendant submits that in the present matter the Plaintiff’s allegations do not sound in defamation per se .
All other defamatory remarks are per quod, or contextual, "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." Lega Siciliana Social Club, Inc. at 852. Actual damages are economic, that is to say monetary and measurable. Urban v. Hartford Gas Co., 139 Conn. 301, 308, 93 A.2d 292 (1952) (holding that damages for defamation per quod, "must be of a material and, generally, of a pecuniary nature"). Moriarty v. Lippe, 162 Conn. 371, 382-83, 294 A.2d 326 (1972) ("Having admittedly alleged or proven no special damages, the plaintiff here is limited to a recovery of general damages on a showing that the utterance was slanderous per se ").
If the statements are defamatory, they would be considered per quod . The plaintiff must plead special or actual economic damages, which he has not and cannot. The plaintiff claims costs as, "mental anguish and the loss of parenting time with the child, and possible loss of parental rights." The second item in the prayer asks that the defendant, "be held accountable for bringing mental anguish and causing significant sadness, anxiety and distress to a parent," and for, "the possible wrongful adoption," of the plaintiff’s daughter. None of these requests is valid. See Blue v. Carbonaro, 2015 WL 3555294 ("damages to one’s reputation, emotional distress, and attorneys fees are not special damages for the purposes of asserting a claim for defamation per quod " (citing W. Keeton et al., Prosser and Keeton on the Law of Torts (5th Ed. 1984) § 112, p. 794)). The plaintiff also states a "possible loss of parental rights," and, "the possible wrongful adoption." The custody action is ongoing and these claims are not ripe. Even if ripe, there is no civil remedy to recover money damages from a third party for a loss of parental rights, or a wrongful adoption.
The plaintiff has failed to state a claim upon which relief can be granted, as he has not proffered defamatory statements, and he has requested damages not recoverable as a matter of law. Therefore, the defendant respectfully requests that the court strike plaintiff’s complaint in its entirety and award any additional relief as it may deem appropriate.
PLAINTIFF’S POSITION
The plaintiff did provide a written objection to defendant’s motion to strike on the morning of the short calendar hearing of September 9, 2019. The defendant chose not to appear and present oral argument for his, and the court will rely on his written opposition. The plaintiff states that the court in Middletown ruled to deny the plaintiff’s motion to revoke commitment due to in part of the defendant’s testimony to Dr. Linda Liefland. The court’s decision relied upon Dr. Liefland’s evaluation in determining the appropriate parenting skills of the plaintiff, in order to make a determination to revoke commitment of plaintiff’s daughter. The decision specifically refers to an alleged "inability of the father to maintain boundaries with service providers." The plaintiff further claims that the defendant is the director of the daycare where his child attends daily sessions since her involvement with DCF began in 2017, was interviewed and quoted in the court-ordered evaluation conducted by Dr. Linda Liefland, and has denied making the defamatory comments to Dr. Liefland.
The plaintiff further claims that the defendant’s comments and testimony at trial greatly influenced the court’s custody decision to deny the plaintiff’s motion to revoke commitment of the plaintiff’s daughter. The plaintiff continues to suffer the loss of his daughter due to several falsified and defamatory comments made by the defendant, and that the denial of the motion to revoke commitment has now prompted the Department of Children and Families to submit a petition to terminate the plaintiff’s parental rights to his daughter, wherefore, the plaintiff respectfully request the court to dismiss the defendant’s motion to strike.
ANALYSIS
While the court must construe the complaint in the manner most favorable to sustaining its legal sufficiency, and the court will give every possible liberal interpretation to the complaint filed by a self-represented party, the plaintiff has provided, little, if any, legal opposition to the defendant’s position. A review of the defendant basis for granting the motion to strike shows a thorough and correct presentation of the Connecticut courts directives on the case law of defamation that is applicable to this case. The plaintiff not only did not attempt to provide any legal authority justifying the suit based on the law applicable to defamation, he made no attempt to rebut the defendant’s submission, but only made reference to the outcome of the custody matter. The Supreme Court has made it clear that for a statement to be actionable, the statement must convey an objective fact, and a defendant cannot be held liable for expressing a mere opinion. The defendant provided a clear and plausible explanation as to why each of the defendant’s statements do not rise to the level of defamation. The defendant also accurately concluded that damages in defamation are governed by the distinction between per se and per quod, and gave the applicable case law to both, as well as the requirement that when a plaintiff brings an action in libel per quod, he must plead and prove actual damages, and actual damages are economic, and must be monetary and measurable.
The plaintiff finally claims costs for "mental anguish and the loss of parenting time with the child, and possible loss of parental rights," that defendant, "be held accountable for bringing mental anguish and causing significant sadness, anxiety and distress to a parent," and for, "the possible wrongful adoption," of the plaintiff’s daughter. None of these requests is valid, as another court has clearly explained that damages to one’s reputation, emotional distress, and attorneys fees are not special damages for the purposes of asserting a claim for defamation per quod . The custody action, while now decided, does not create a civil remedy to recover money damages from the defendant for a loss of parental rights, or a wrongful adoption.
The court agrees that the plaintiff has failed to state a claim upon which relief can be granted, as he has not proffered defamatory statements, and he has requested damages not recoverable as a matter of law. The court agrees that the plaintiff has not pled the required elements of a tort for defamation, and the plaintiff’s alleged damages are not compensable at law. Therefore, the plaintiff has failed to state a valid cause of action.
CONCLUSION
Based on the foregoing, the motion to strike the plaintiff’s complaint is GRANTED.