Talley v. Town of Plainville

Full title: Meda M. TALLEY v. TOWN OF PLAINVILLE et al.

Court: Superior Court of Connecticut

Date published: Dec 14, 2017

CV166032658 (Conn. Super. Ct. Dec. 14, 2017)

Opinion

CV166032658

12-14-2017

Meda M. TALLEY v. TOWN OF PLAINVILLE et al.

Swienton, J.

UNPUBLISHED OPINION

OPINION

Swienton, J.

Before the court is the defendants’ motion for summary judgment as to counts one through fifteen of the plaintiff’s amended complaint. For the reasons set forth below, the defendants’ motion for summary judgment is granted as to counts two, three, five, six, eight through fifteen, and denied as to counts one, four, seven.

FACTS

On February 16, 2017, the plaintiff, Meda Talley, filed a fifteen-count amended complaint against the defendants, the Town of Plainville (the town), Donna Weinhofer, ¹ Robert Lee, ² Matthew Catania, ³ Eric Peterson, ⁴ Michael Mastrianni, ⁵ and Jonathan Chomick, ⁶ for vexatious litigation (counts one and seven), invasion of privacy (counts two, eight, and thirteen), defamation (counts three, four, nine, and fourteen), negligence (counts five and ten), abuse of process (counts six, eleven, and fifteen), and malicious prosecution (count twelve). In the amended complaint, the plaintiff alleges the following facts.

1 Donna Weinhofer in her capacity as an animal control officer for the town.

2 Robert Lee in his capacity as the town manager.

3 Matthew Catania in his capacity as the town’s chief of police.

4 Eric Peterson in his capacity as lieutenant for the town.

5 Matthew Mastrianni is an attorney at Halloran & Sage, LLP, and represented the defendants in the verified petition and second action.

6 Jonathan Chomick is an attorney at Halloran & Sage, LLP, and represented the defendants in the verified petition and second action.

The plaintiff is the owner of a nonprofit animal shelter, Almost Home Animal Rescue and Shelter, Inc. (animal shelter), located in Plainville. On December 1, 2015, the dogs and cats at the animal shelter were seized pursuant to General Statutes § 22-329a(b).⁷ On December 18, 2015, the town and Weinhofer filed a verified petition pursuant to § 22-329a(c)⁸ against the plaintiff and the animal shelter on the ground that the animals at the animal shelter were being abused, neglected, and/or cruelly treated in violation of General Statutes § 53-247.⁹ See Plainville v. Almost Home Animal Rescue & Shelter, Inc., Superior Court, judicial district of New Britain, Docket No. CV-15-6031669-S. On February 2, 2016, the parties entered into a stipulation agreement, which provided that the forty-three animals seized would be adopted by third parties. See id. On February 2, 2016, the court, Abrams, J., accepted the stipulation agreement and dismissed the defendants’ verified petition. See id.

7 General Statutes § 22-329a(b) provides in relevant part: " The Chief Animal Control Officer, any animal control officer or any municipal ... animal control officer may take physical custody of any animal upon issuance of a warrant finding probable cause that such animal is neglected or is cruelly treated in violation of section ... 53-247, and shall thereupon proceed as provided in subsection (c) of this section ..."

8 Section 22-329a(c) provides in relevant part: " [The Chief Animal Control officer, any animal control officer or any municipal animal control officer] shall file with the superior court which has venue over such matter ... a verified petition plainly stating such facts of neglect or cruel treatment as to bring such animal within the jurisdiction of the court and praying for appropriate action by the court in accordance with ... [§ 22-329a(b) ]." (Emphasis added.)

9 General Statutes § 53-247(a) provides in relevant part: " Any person ... who, having charge or custody of any animal ... fails to provide it with proper food, drink ... shall, for a first offense, be fined not more than one thousand dollars or imprisoned not more than one year or both, and for each subsequent offense, shall be guilty of a class D felony."

On February 9, 2016, the town and Weinhofer commenced suit (second action) against the plaintiff and the animal shelter and claimed that the animal shelter negligently failed to provide the animals seized with proper care and wholesome air, food, and water in violation of § 53-247(a) and failed to compensate the town for the housing, food, medical care, and protection of the animals seized while in the town’s custody, thereby, constituting unjust enrichment. See Plainville v. Almost Home Animal Rescue & Shelter, Inc., Superior Court, judicial district of New Britain, Docket No. CV-16-6032260-S. On March 21, 2016, the town and Weinhofer filed a motion to correct the case caption to eliminate the plaintiff, in her individual capacity, because it was not their intent to include the plaintiff in the action to the case caption and the summons and complaint did not include the plaintiff as a defendant. See id. On April 4, 2016, the court, Swienton, J. granted their motion to correct. See id. On June 14, 2016, the animal shelter filed a motion to strike the town and Weinhofer’s complaint in its entirety. See id. On August 18, 2016, the court, Swienton, J., granted the animal shelter’s motion to strike as to the entire complaint. On September 6, 2016, the animal shelter filed a motion for judgment on the ground that the town and Weinhofer failed to replead following the court’s decision to strike the complaint in its entirety. See id. On October 3, 2016, the court, Swienton, J., granted the animal shelter’s motion for judgment. See id.

On March 8, 2017, the defendants filed their answer and special defenses in the present case. The defendants asserted the following six special defenses: (1) governmental immunity pursuant to General Statutes § 52-557n(b)(5)¹⁰ as to all counts; (2) the statements alleged in the counts three, four, and fourteen were true or substantially true; (3) governmental immunity pursuant to § 52-557n(a)(2)(B)¹¹ as to counts five and ten; (4) absolute immunity as to counts one through three and five through fifteen; and (5) qualified immunity as to counts three, nine, and fourteen. On March 31, 2017, the defendants filed a motion for summary judgment and submitted the following: (1) voluntary statements to the town police department from several animal shelter volunteers, including (a) Paul Johnson, (b) Lynda Johnson, (c) Debra Kempton, (d) Linda Fortin, (e) Denise Theriault, and (f) Toby Kimm, Doctor of Veterinary Medicine (DVM) at Ragged Mountain Animal Hospital in Plainville (Ragged Mountain); (2) the affidavit and application for the search and seizure warrant, dated December 1, 2015 (search and seizure application); (3) the verified petition filed by the town and Weinhofer against the plaintiff and the animal shelter, dated December 16, 2015; (4) the stipulation, dated January 29, 2016; (5) the plaintiff’s responses to the defendants’ first set of interrogatories and requests for production of documents, dated August 19, 2016; (6) the signed and sworn affidavit of Shane Murphy; ¹² (7) the town police department’s incident report, dated December 13, 2015; (8) the complaint ticket, dated December 13, 2015; (9) the signed and sworn affidavit of Weinhofer; and (10) the pretrial transcript from Plainville v. Almost Home Animal Rescue & Shelter, Inc., supra, Superior Court, Docket No. CV-15-6032260-S.

10 Section 52-557n(b)(5) provides in relevant part: " [A] political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from ... (5) the initiation of a judicial ... proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568." (Emphasis added.)

11 Section 52-557n(a)(2)(b) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law ." (Emphasis added.)

12 Shane Murphy is a town police department sergeant.

On July 5, 2017, the plaintiff filed an opposition to the defendants’ motion for summary judgment and submitted the following: (1) the signed and sworn affidavit of the plaintiff; (2) a Microsoft Excel spreadsheet (Excel spreadsheet) of veterinarian hospitals expenses, including New Hope Clinic in Plantsville, Old Canal Animal Hospital in Plainville, and Pieper Memorial Veterinary Hospital in Middletown; ¹³ (3) the New Britain Herald n ewspaper article, titled " Judge postpones court case between Almost Home and town, " dated February 18, 2016 (New Britain newspaper article); ¹⁴ (4) the Bristol Press n ewspaper, titled " Warrant for former pet shelter owner claims 24 counts of neglect, " dated February 20, 2016 (Bristol Press n ewspaper article); ¹⁵ (5) the Secretary of the State business inquiry on Mastrianni & Seguljic, LLC; and (6) the docket for Plainville v. Almost Home Animal Rescue & Shelter, Inc., supra, Superior Court, Docket No. CV-15-6031669-S. The court heard oral argument on the matter at short calendar on September 11, 2017.

13 The plaintiff failed to properly authenticate the Excel spreadsheet. " [B]efore a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be ... Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citation omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). The defendants, however, have not objected to the documents and there is no dispute regarding their authenticity. Therefore, the court shall consider them in the interest of judicial economy. See Scully v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV-05-4010763-S (September 13, 2005); Roman v. Bristol, Superior Court, judicial district of New Britain, Docket No. CV-04-052667-S (August 30, 2005) (39 Conn.L.Rptr. 897).

14 As discussed above, the plaintiff has failed to authenticate the New Britain newspaper article. The defendants, however, have not objected to the documents and there is no dispute regarding their authenticity. Again, the court considers them in the interest of judicial economy.

15 As discussed above, the plaintiff has failed to authenticate the Bristol Press n ewspaper article. The defendants, however, have not objected to the documents and there is no dispute regarding their authenticity. The court shall consider them in the interest of judicial economy.

DISCUSSION

" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts ... which contradict those stated in the movant’s affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016).

I

COUNTS ONE AND SEVEN: VEXATIOUS LITIGATION

In count one, the plaintiff alleges that the defendants filed its verified petition out of malice and based upon Weinhofer’s affidavit, which contained malicious and reckless statements about the plaintiff, and initiated the second action against the plaintiff and animal shelter out of malice because the court dismissed the verified petition. In count seven, the plaintiff alleges that the defendants commenced the second action out of malice against the plaintiff and the animal shelter.

The defendants argue that they are entitled to summary judgment as to counts one and seven because there is no genuine issue of material fact that the defendants had probable cause for filing the verified petition and the second action against the plaintiff and the animal shelter, and the actions did not terminate in the plaintiff’s favor. The defendants also argue that they are entitled to governmental immunity pursuant to § 52-557n(b)(5). The plaintiff counters that the defendants did not have probable cause to initiate the verified petition and second action against the plaintiff, in her individual capacity, because the animal shelter was a registered tax-exempt organization under 26 U.S.C. § 501(c) (1986), and, therefore, the plaintiff, as a director of a nonprofit organization, is immune from liability pursuant to General Statutes § 52-557m.¹⁶

16 General Statutes § 52-557m provides: " Any person who serves as a director ... of a nonprofit organization qualified as a tax-exempt organization under Section 501(c) of the Internal Revenue Code of 1986 ... and who is not compensated for such services on a salary or prorated equivalent basis, shall be immune from civil liability for damage or injury occurring on or after October 1, 1987, resulting from any act, error or omission made in the exercise of such person’s policy or decision-making responsibilities if such person was acting in good faith and within the scope of such person’s official functions and duties, unless such damage or injury was caused by the reckless, wilful or wanton misconduct of such person." (Emphasis added.)

" Vexatious litigation requires a plaintiff to establish that: (1) the previous lawsuit or action was initiated or procured by the defendant against the plaintiff; (2) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice; (3) the defendant acted without probable cause; and (4) the proceeding terminated in the plaintiff’s favor." (Internal quotation marks omitted.) Simms v. Seaman, 129 Conn.App. 651, 668-69, 23 A.3d 1 (2011), aff’d, 308 Conn. 523, 69 A.3d 880 (2013).

" 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." DeLaurentis v. New Haven, 220 Conn. 225, 256, 597 A.2d 807 (1991). " A defendant lacks probable cause if he lacks a reasonable, good faith belief in the acts alleged and the validity of the claim asserted." Id. " Whether the facts are sufficient to establish the lack of probable cause is a question ultimately to be determined by the court, but when the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law." Id., 252-53.

In support of their motion for summary judgment, the defendants submit voluntary sworn statements from the animal shelter’s volunteers, the affidavit and the search and seizure application, the verified petition, and the pretrial hearing transcript. From July 2015, to November 2015, Weinhofer received numerous complaints regarding the unsanitary and unhealthy living conditions of the animals at the animal shelter. On September 15, 2015, after Weinhofer received a complaint, she visited the animal shelter and observed a strong odor of urine and feces about ten feet outside of the animal shelter’s door. Weinhofer also observed several animals that were unable to stand or move around in their cages, dogs that were coughing and appeared to be lethargic, one dog that was not moving, and several cats with weepy eyes, which might indicate upper respiratory infections. On September 19, 2015, Weinhofer visited the animal shelter again and observed that the animal’s cages had towels on top of sheets and pillows that were soaked through to the floor with urine and feces, and that the animals appeared to be left in their cages for extended periods of time.

Between November 13, 2015, and December 28, 2015, Weinhofer received five sworn statements from volunteers from the animal shelter regarding the animal shelter’s condition. Paul Johnson reported that he witnessed an overcrowding of animals, animals kept in cages that were too small, cages filled with urine and feces, and urine and feces on the animal shelter’s floors and walls. Lynda Johnson stated that when she began volunteering for the animal shelter on September 2, 2015, she observed dogs coughing, cats with runny eyes, cages too small for the animals, and nursing cats that were stressed out due to the dogs’ persistent barking. Fortin reported that she observed the overwhelming smell of urine and feces, unclean water and the withholding of water from the animals, feces on the walls, and depressed and disconnected animals. Theriault stated that she observed feces in the animals’ food and water bowls, dogs cowering in corners, lethargic cats, and cats with urinary tract infections. Theriault also reported that none of the dogs were walked during her volunteering shifts. Kempton gave a statement to Weinhofer and stated that, during her time volunteering at the animal shelter, she observed urine puddles in the dogs’ cages, beds soaked with urine, and multiple dogs with wounds on their noses. Kempton also stated that the dogs would defecate up to five times on each walk.

The animals were seized from the animal shelter on December 1, 2015. Following the seizure of the animals, Doctor Kimm and his associate, Pam Shapiro, DVM, from Ragged Mountain examined twenty-three cats and twenty dogs from the animal shelter on December 2, 2015, and December 4, 2015. They found that out of the forty-three animals seized, thirty-one had fleas; nine cats were admitted to the hospital; seven cats had upper respiratory infections; one cat was diabetic and not under medical control; one cat had retinal degeneration; one cat had conjunctivitis that required amputation of part of the body; eleven dogs had medical conditions that required treatment; one dog was admitted to the hospital; and the other ten dogs had one or more medical conditions, including, but not limited to, urinary tract infection, jaw fracture, hernia, missing teeth, and hair loss.

On December 18, 2015, the town and Weinhofer filed the verified petition pursuant to § 22-329a(c) against the plaintiff on the ground that the animals at the animal shelter were being abused, neglected, and/or cruelly treated in violation of § 53-247. See Plainville v. Almost Home Animal Rescue & Shelter, Inc., supra, Superior Court, Docket No. CV-15-6031669-S. On January 22, 2016, during the verified petition’s pretrial hearing, following a stipulation agreement by the parties, the court, Abrams, J., stated that there was no finding of neglect, neither express nor implied, and, therefore, the town did not waive its right to pursue the costs pursuant to § 22-329a in a separate action. See id. On February 2, 2016, the court dismissed the complaint. See id.

As discussed above, the second action alleged that the animal shelter violated § 53-247(a). See Plainville v. Almost Home Animal Rescue & Shelter, Inc., supra, Superior Court, Docket No. CV-16-6032260-S. On August 18, 2016, the court, Swienton, J., granted the animal shelter’s motion to strike the entirety of the complaint on the grounds that § 53-247 fails to establish any kind of duty or standard of care, but, instead, provides criminal penalties for violating the statute, and unjust enrichment is only applicable when there is no other adequate remedy at law, where, here, § 22-329a(h) provides the exclusive remedy. See id. On October 3, 2016, the court, Swienton, J., granted the plaintiff’s motion for judgment. See id.

In the present case, the evidence demonstrates that the defendants have met their burden in demonstrating the absence of a genuine issue of material fact that the defendants had probable cause, and did not act with malice when they filed the verified petition. It is undisputed that the defendants filed a verified petition against the plaintiff on December 16, 2015, pursuant to § 22-329a(c). Weinhofer visited the animal shelter approximately eight times and personally observed an overwhelming smell of urine and feces ten feet outside the animal shelter, animals that were sick with what appeared to be symptoms of upper respiratory infections, kennel cough, and other illnesses, animals that were kept in their cages for extended periods of time, and additionally received five sworn statements from witnesses prior to filing the verified petition against the plaintiff. An officer has probable cause when the officer relies upon a credible witness or his or her own observations. Singer v. Fulton County Sheriff; 63 F.3d 110, 119 (2nd Cir. 1995), cert. denied, 517 U.S. 1189, 116 S.Ct. 1676, 134 L.Ed.2d 779 (1996). The defendants had probable cause to believe that the plaintiff was committing a crime, and, therefore, had probable cause to file the verified petition against the plaintiff and the animal shelter.

The defendants, however, failed to meet their burden in establishing that they had probable cause to commence the second action. It is undisputed that the court may grant expenses under § 22-329(h) after a finding of neglect or cruel treatment under subsection (a) or (b). The defendants alleged that the animal shelter violated § 53-247(a) because it negligently failed to provide the animals with proper care and with wholesome air, food, and water and further sought damages and relief according to the doctrine of unjust enrichment. There is a question of fact as to whether a reasonable attorney familiar with Connecticut law would believe he had probable cause to bring the lawsuit, seeking damages pursuant to unjust enrichment when § 22-329(h) provides the exclusive remedy. See Embalmer’s Supply Co. v. Gianitti, 103 Conn.App. 20, 35, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007). " [W]hat facts, and whether particular facts, constitute probable cause is always a question of law." (Internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLC, 281 Conn. 84, 94, 912 A.2d 1019 (2007), quoting Brodrib v. Doberstein, 107 Conn. 294, 296, 140 A. 483 (1928). As malice may be inferred from the lack of probable cause, the defendants have not met their burden because they have failed to establish that there is no genuine issue of material fact that they had probable cause to commence the second action and did not act with malice in initiating the second action. See Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). These issues require a fact finder to weigh the evidence and determine credibility. See Just Breakfast & Things!!!, LLC v. Vidiaki, LLC, Superior Court, judicial district of New London, Docket No. CV-10-5014092-S (January 31, 2013).

A

ABSOLUTE IMMUNITY

The defendants argue that they are entitled to summary judgment on counts one and seven of the plaintiff’s amended complaint because the counts are barred by the doctrine of absolute immunity. Our Supreme Court has concluded that " communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Hopkins v. O ’Connor, 282 Conn. 821, 830-31, 925 A.2d 1030 (2007). " [A]bsolute immunity furthers the public policy of encouraging participation and candor in judicial and quasi-judicial proceedings." Chadha v. Charlotte Hungerford Hospital, 272 Conn. 776, 787, 865 A.2d 1163 (2005). " [T]he judicial proceeding to which [absolute] immunity attaches ... includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not." (Internal quotation marks omitted.) Hopkins v. O’Connor, supra, 831. " The scope of privileged communication extends not merely to those made directly to a tribunal, but also to those preparatory communications that may be directed to the goal of the proceeding." Id., 832. " The privilege applies also to statements made in pleadings or other documents prepared in connection with a court proceeding." (Internal quotation marks omitted.) Alexandru v. Strong, 81 Conn.App. 68, 83, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). The absolute immunity conferred by the litigation privilege, however, does not apply to vexatious litigation claims. See Rioux v. Barry, 283 Conn. 338, 348, 927 A.2d 304 (2007). Accordingly, the court concludes that counts one and seven are not entitled to absolute immunity.

B

GOVERNMENTAL IMMUNITY

The defendants argue that they are entitled to governmental immunity as to counts one and seven of the plaintiff’s amended complaint pursuant to § 52-557n(b)(5). Section 52-557n(b)(5) provides in relevant part: " [A] political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from ... (5) the initiation of a judicial ... proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568." ¹⁷ (Emphasis added.)

17 General Statutes § 52-568 provides: " Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages."

In the present case, it is undisputed that the town is an entity to which governmental immunity may apply, and Weinhofer, as the town’s animal control officer, and Lee, as the town manager, were employees of the town, and therefore, have governmental immunity in the performance of governmental duties. See Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). The court rejects the plaintiff’s argument that Attorney Mastrianni and Attorney Chomick are not entitled to governmental immunity because they are not the town’s employees. The attorneys were clearly employed by the town to represent it in the verified petition and second action pursuant to General Statutes § 52-73, which provides in relevant part: " Towns ... may appoint agents to appear in their behalf and may employ attorneys in such actions." Therefore, the court concludes that Attorney Mastrianni and Attorney Chomick were the town’s agents because they represented the town in the verified petition and second action, and, therefore, are entitled to governmental immunity so long as they were acting within the scope of their employment or official duties.

It is undisputed that the verified petition and second action were commenced as part of a judicial proceeding. As discussed above, the defendants had probable cause to initiate the verified petition and there is a genuine issue of material fact as to whether the defendants had probable cause to commence the second action. In the first count, the plaintiff alleges vexatious litigation related to both the verified petition and the second action. " In Connecticut, [t]here is no appellate authority as to whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint." (Internal quotation marks omitted.) Glidepath, LLC v. Lawrence Brunoli, Inc., Superior Court, judicial district of Hartford, Docket No. CV-10-6014624-S (December 21, 2012). " [T]he majority rule ... is that Connecticut procedure does not allow entry of summary judgment on one part or allegation of a cause of action when the ruling will not dispose of an entire claim, and therefore, will not allow entry of judgment on that claim." (Internal quotation marks omitted.) Id.

The court will adhere to the majority rule. Even if the court were to enter summary judgment as to the verified petition in the first count, it would not dispose of count one in its entirety. " It is not proper for the court to grant a motion for partial summary judgment as to one allegation of a count, rather than all of the allegations of the count." First American Title Ins. Co. v. 273 Water Street, LLC, Superior Court, judicial district of Hartford, Docket No. CV-08-4041234-S (January 5, 2012). Therefore, the defendants’ motion for summary judgment is denied as to counts one and seven.

II

COUNTS TWO, EIGHT, AND THIRTEEN: INVASION OF PRIVACY

In counts two, eight, and thirteen, the plaintiff alleges that she had a reasonable expectation of privacy in her affairs in operating and managing the animal shelter and the defendants violated her reasonable expectation of privacy when they initiated the verified petition, commenced the second action, and issued the complaint ticket against the plaintiff wrongfully and out of malice. The defendants move for summary judgment on these counts on the grounds that there are no genuine issues of material fact that the defendants had probable cause to file the verified petition, commence the second action, and issue the complaint ticket, and, therefore, the plaintiff did not have a legal basis to claim reasonable expectation of privacy, and, additionally, such conduct was not highly offensive to a reasonable person.

A

ABSOLUTE IMMUNITY

The defendants argue that their motion for summary judgment as to counts two, eight, and thirteen should be granted on the basis of absolute immunity. Connecticut has held that absolute immunity bars invasion of privacy claims. MacDermid, Inc. v. Leonetti, 310 Conn. 616, 639, 79 A.3d 60 (2013). Here, the verified petition, the second action, and the complaint ticket are documents prepared in connection with a court proceeding, and were related to the subject matter of those proceedings, and, therefore, absolute immunity applies. See id. Accordingly, the court grants the defendants’ motion for summary judgment as to counts two, eight, and thirteen.

III

COUNTS THREE, FOUR, NINE, AND FOURTEEN: DEFAMATION

In counts three, four, nine, and fourteen, the plaintiff alleges that the following defamatory statements were made by (1) Weinhofer in her affidavit and search and seizure application; (2) Lee to the media; (3) the defendants in the second action’s complaint; and (4) the town police department’s issuance of the complaint ticket. The defendants argue that the defendants’ statements were substantially true, constitute opinions, and/or do not rise to the level of a defamatory statement, and therefore, as a matter of law, are not defamatory.

" Defamation is comprised of the torts of libel and slander: slander is oral defamation and libel is written defamation." (Internal quotation marks omitted.) Gleason v. Smolinski, 319 Conn. 394, 430 n.30, 125 A.3d 920 (2015). " [T]o 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 ... 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 ... [F]or a claim of defamation to be actionable, the statement must be false ... Each statement furnishes a separate cause of action and requires proof of each of the elements for defamation." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 430-31. To prevail on a cause of action for defamation, the plaintiff must prove " that the defendants published false statements that harmed the [plaintiff], and that the defendants were not privileged to do so." (Internal quotation marks omitted.) Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 27, 662 A.2d 89 (1995).

" To be actionable, the [defamatory] 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 & Casualty Co., 249 Conn. 766, 795, 734 A.2d 112 (1999). " [A]lthough 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 ... Thus, while this distinction may be somewhat nebulous ... [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." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 111-12. Expressions of pure opinion, however, are " guaranteed virtually complete constitutional protection." (Footnote omitted.) Id., 118; see Rafalko v. University of New Haven, Superior Court, judicial district of New Haven, Docket No. CV-05-4016528-S (September 25, 2009), aff’d, 129 Conn.App. 44, 54, 19 A.3d 215 (2011).

In support of their motion for summary judgment, the defendants submit the plaintiff’s interrogatory. The plaintiff testified in her interrogatory that on February 18, 2016, Lee misstated to the New Britain newspaper that only four or five animals from the animal shelter were treated at Old Canal, when " many of the animals that were seized were treated at Old Canal ..." To counter, the plaintiff submits the following evidence: (1) the New Britain Herald n ewspaper article and (2) the Bristol Press n ewspaper article. In the New Britain and the Bristol Press n ewspapers, Lee stated that veterinarians at Old Canal Hospital could only provide documentation for the treatment of " four or five" animals by the plaintiff. In the Bristol Press n ewspaper article, Lee stated that the plaintiff’s arrest should " not come as a surprise."

The defendants argue that there is no genuine issue of material fact that Lee’s statement that the plaintiff’s arrest should " not come as a surprise" constitutes an opinion. Here, the defendants have met their burden in demonstrating that Lee’s statement that the plaintiff’s arrest should " not come as a surprise" is an opinion. It is clear that Lee, in making his statement to the media, was not asserting an objective fact, and, further, an ordinary person reading Lee’s statement would understand and interpret it as Lee’s opinion. See Goodrich v. Waterbury-Republican American, Inc., supra, 118 Conn. 111-12. The plaintiff has failed to establish a disputed issue of material fact that Lee’s statement was a false statement of fact.

The defendants further argue that there is no genuine issue of material fact that Lee’s statement that there was documentation for the treatment of only " four or five" animals at Old Canal Hospital is " substantially true" and that the statement does not rise to the level of a defamatory statement as a matter of law. The defendants, however, fail to provide evidence as to how many animals were treated at Old Canal Hospital. The court reasons that the defendants have failed to meet their burden of establishing the absence of any genuine issue of material fact that the statement was false and did not constitute a defamatory statement. The statement could allege improper conduct or lack of skill or integrity in the plaintiff’s profession, and, thus, a genuine issue of material fact exists. See Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 554, 733 A.2d 197 (1999).

Even if the court were to enter summary judgment as to Lee’s statement that the plaintiff’s arrest should " not come as a surprise" in the fourth count, it would not dispose of the fourth count in its entirety. As discussed above, " [i]t is not proper for the court to grant a motion for partial summary judgment as to one allegation of a count, rather than all of the allegations of the count." First American Title Ins. Co. v. 273 Water Street, LLC, supra, Superior Court, Docket No. CV-08-4041234-S.

A

ABSOLUTE IMMUNITY

The defendants move for summary judgment on the ground that counts three, nine, and fourteen are entitled to absolute immunity. Connecticut has held that absolute immunity bars defamation claims. See Dlugokecki v. Vieira, 98 Conn.App. 252, 256, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006).

In the present case, the defendants have met their burden in demonstrating that there is no genuine issue of material fact that Weinhofer’s affidavit is barred under the doctrine of absolute immunity. It is clear that Weinhofer’s preparation of a search and seizure warrant pursuant to § 22-329a(b) was part of a judicial proceeding to warrant absolute immunity. The statements contained in the affidavit were made in the course of Weinhofer’s employment and pursuant to her official duties in response to visiting the animal shelter. The doctrine of absolute privilege includes papers made a part of a judicial proceeding, even though such proceeding is in its preliminary stage and no formal adjudication has been taken. Hopkins v. O’Connor, supra, 282 Conn. 832. The statements contained in Weinhofer’s affidavit are entitled to absolute immunity because the statements are pertinent to the subject of the controversy, which consisted of allegations of neglect or cruel treatment against the animal shelter. It would be contrary to public policy to subject the defendants to a lawsuit for communications undertaken in preparation of a search and seizure application.

As discussed above, the statements contained in the second action complaint were made in a pleading in the course of a judicial proceeding and related to the subject matter of that proceeding, and, therefore, are covered by the absolute immunity, even if false or uttered with malice. See Carney v. Amendola, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-10-6003738-S (May 14, 2014).

Last, the statements contained in the complaint ticket are also entitled to absolute immunity because the statements are pertinent to the subject of the controversy, allowing the dog to roam. The police officer issued the complaint ticket in furtherance of his official duties of investigating. Accordingly, since the plaintiff’s claims are resulting from the alleged comments contained in the affidavit, the second action, and the complaint ticket and relate to a judicial proceeding, which are absolutely privileged, the defendants’ motion for summary judgment as to counts three, nine, and fourteen is granted.

B

GOVERNMENTAL IMMUNITY

The defendants argue that count four is entitled to governmental immunity pursuant to § 52-557n(b)(5), and is barred, however, count four does not relate to the initiation of a judicial proceeding, and, therefore, it is not barred by the doctrine of governmental immunity. As discussed above, there is a genuine issue of material fact as to whether Lee’s statement constituted a defamatory statement. The court, therefore, concludes that the defendants’ motion for summary judgment as to count four is denied.

IV

COUNTS FIVE AND TEN: NEGLIGENCE

In counts five and ten, the plaintiff alleges that the defendants were negligent because they failed to investigate the animal shelter’s corporate and tax status, and, therefore, wrongfully filed the verified petition and the second action against the plaintiff in her individual capacity. The defendants argue that they are entitled to summary judgment as to counts five and ten because they did not owe a duty to the plaintiff, and further, are entitled to qualified governmental immunity pursuant to § 52-557n(a)(2)(b).

" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Archambault v. Soneco /Northeastern, Inc., 287 Conn. 20, 32, 946 A.2d 839 (2008). " [T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). " [T]he existence of a duty of care is an essential element of negligence." (Internal quotation marks omitted.) Pelletier v. Sordoni /Skanska Construction Co., 286 Conn. 563, 578, 945 A.3d 388 (2008). " A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Id.

A

GOVERNMENTAL IMMUNITY

The defendants argue that they are entitled to governmental immunity as to counts five and ten of the plaintiff’s amended complaint pursuant to § 52-557n(a)(2)(b). The plaintiff counters that the defendants are not entitled to governmental immunity pursuant to § 52-557n(a)(2)(b) because § 52-557n(a)(1)(A) applies, which makes the defendants liable for the negligent acts by its employees, officers, or agents.

Section 52-557n(a)(1)(A) provides in relevant part: " [A] political subdivision of the state shall be liable for damages to person or property caused by ... [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties. Section 52-557n(a)(2)(b) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law ." (Emphasis added.)

Our Supreme Court has " discussed extensively the difference between a ministerial and a discretionary act. A municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ... On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted). Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68, 544 A.2d 1185 (1988). " [E]vidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive ..." Wisniewski v. Darien, 135 Conn.App. 364, 374, 42 A.3d 436 (2012).

" The hallmark of a discretionary act is that it requires the exercise of judgment ... In contrast, [m]inisterial refers to a duty [that] is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 306-07, 999 A.2d 700 (2010); see Martel v. Metropolitan District Commission, 275 Conn. 38, 48-49, 881 A.2d 194 (2005). Whether an act is discretionary or ministerial can be a question of law for the court to decide. See Redfearn v. Ennis, 28 Conn.App. 398, 401, 610 A.2d 1338 (1992).

Our Supreme Court has held that " the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality." Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180. The trial courts have consistently held that acts or omissions of police officers in the exercise of their duties are discretionary in nature. See Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. 253464 (June 3, 1993) (9 Conn.L.Rptr. 202); Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 321879 (March 12, 1998); Iulo v. Milford, Superior Court, judicial district of Ansonia-Milford, Docket No. 031055 (December 21, 1990) (3 Conn.L.Rptr. 65). Moreover, " [s]uits against municipalities or municipal employees raise the same policy considerations since municipalities only act through their employers." Lecy v. New London, Superior Court, judicial district of New London, Docket No. 549544 (May 2, 2000) (26 Conn.L.Rptr. 607, 609).

Section 22-329a(c) requires that the animal control officer file a verified petition plainly stating such facts of neglect or cruel treatment upon issuance of a warrant finding probable cause that such animal is neglected or is cruelly treated in violation of § 53-247, and, therefore, is a ministerial duty. Whether the predicate facts triggering § 22-329a(c) exist, however, requires police officers to exercise discretion and judgment. In the absence of an allegation or evidence of a statute, provision, ordinance, regulation, rule, policy, or any other directive, the animal control officer’s decision and prior investigation as to who to file the verified petition against involves the exercise of judgment, and, therefore, is a discretionary function. " Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer." (Internal quotation marks omitted.) Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011); see also Coley v. Hartford, 140 Conn.App. 315, 323, 59 A.3d 811 (2013), aff’d, 312 Conn. 150, 95 A.3d 480 (2014) (" [t]he great weight of authority [states] that the operation of a police department is a discretionary governmental function" [internal quotation marks omitted]). " [T]here is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions." (Emphasis in original; internal quotation marks omitted.) Smart v. Corbitt, supra, 801. As the municipal employees engaged in a discretionary function, in deciding whom to file the verified petition against, the defendants possess qualified governmental immunity from liability. See Tyron v. North Branford, 58 Conn.App. 702, 708, 755 A.2d 317 (2000). Accordingly, the court grants the defendants’ motion for summary judgment as to count five pursuant to § 52-557n(a)(2)(b).

In the absence of evidence to the contrary, the court concludes that, as a matter of law, the operative complaint alleges violations of discretionary duties rather than ministerial ones. See e.g., Segreto v. Bristol, 71 Conn.App. 844, 858, 804 A.2d 928, cert. denied, 261 Conn. 941 (2002) (upholding trial court’s determination, on summary judgment motion, that defendant " city was immune ... because the plaintiff’s complaint failed to allege that the city negligently failed to perform a ministerial duty ... [because] a determination as to whether an act or omission is discretionary or ministerial turns on the facts alleged in the complaint ..." [emphasis omitted]).

Our courts generally hold that once a municipal defendant, as the moving party in a motion for summary judgment on the ground of governmental immunity, has established that the plaintiff’s claim involves purely discretionary conduct, and thus the court determines that governmental immunity applies, " it is incumbent upon the plaintiffs to allege and provide an evidentiary basis for an exception to the governmental immunity that attaches to discretionary acts." Bonington v. Westport, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-5008124-S (July 27, 2009), aff’d., 297 Conn. 297, 116 A. 330 (2010). Accordingly, having determined that the plaintiff’s claim in the present case involves acts purely of discretion, in order to survive the defendants’ summary judgment motion, the plaintiff must provide an evidentiary basis for an exception to the governmental immunity that attaches to discretionary acts. As the plaintiff has failed to argue an exception, count ten is clearly barred by governmental immunity pursuant to § 52-557n. The court, therefore, grants the defendants’ motion for summary judgment as to counts five and ten.

V

COUNTS SIX, ELEVEN, AND FIFTEEN: ABUSE OF PROCESS

In counts six, eleven, and fifteen, the plaintiff alleges that the defendants improperly and unlawfully used the legal process to vex and harass the plaintiff when they filed their verified petition action, second action, and issued the complaint ticket against the plaintiff. The defendants argue that summary judgment should be granted in their favor as to counts six, eleven, and fifteen because there is no genuine issue of material fact that the defendants were not motivated by any other intent other than to protect the animal’s health and wellbeing, seek reimbursement for the expense incurred in caring for the animals as permitted by statute, and to enforce applicable criminal statutes. The plaintiff counters that the defendants did not have probable cause to initiate the verified petition and the second action against the plaintiff, in her individual capacity, given the animal shelter’s status as a nonprofit organization, because the plaintiff was acting in good faith and within her duties and responsibilities while operating the animal shelter, and, thereby, is immune from civil liability pursuant to § 52-557m. The plaintiff further argues that the defendant did not have probable cause to initiate the second action because § 53-247(a)¹⁸ was not intended to prevent any alleged damage to the town and its agent, and, further, § 22-329(h) was the only exclusive remedy for compensation, which the defendants were not entitled to as the court did not conclude that the animals were neglected and/or cruelly treated. Last, the plaintiff argues that the defendants’ actions constituted an abuse of process when it issued the plaintiff a ticket for violating General Statutes § 22-364(a)¹⁹ because the plaintiff did not purposefully or intentionally allow the dog to wander and roam the neighborhood, and issued the ticket to purposefully and maliciously vex and trouble the plaintiff.

18 General Statutes § 53-247(a) provides in relevant part: " Any person ... who, having charge or custody of any animal ... fails to provide it with proper food, drink ... shall, for a first offense, be fined not more than one thousand dollars or imprisoned not more than one year or both, and for each subsequent offense, shall be guilty of a class D felony."

19 General Statutes § 22-364(a) provides: " No owner or keeper of any dog shall allow such dog to roam at large upon the land of another and not under control of the owner or keeper or the agent of the owner or keeper, nor allow such dog to roam at large on any portion of any public highway and not attended or under control of such owner or keeper or his agent ... The unauthorized presence of any dog on the land of any person other than the owner or keeper of such dog or on any portion of a public highway when such dog is not attended by or under the control of such owner or keeper, shall be prima facie evidence of a violation of the provisions of this subsection."

Although the parties address this claim as a cause of action for abuse of process, it is apparent that they are actually claims for vexatious litigation and malicious prosecution. Our Supreme Court has explained the difference between causes of action for abuse of process and malicious prosecution or vexatious litigation as follows: " An action for abuse of process lies against any person using a legal process against another in an improper manner or to accomplish a purpose for which it is not designed." (Internal quotation marks omitted.) Varga v. Pareles, 137 Conn. 663, 667, 81 A.2d 112 (1951). " [T]he gravamen of the complaint is the use of process against another primarily to accomplish a purpose for which it is not designed." (Internal quotation marks omitted.) Mozzochi v. Beck, 204 Conn. 490, 494, 529 A.2d 171 (1987). " The distinction between malicious prosecution or vexatious suit and abuse of process as tort actions is that in the former the wrongful act is the commencement of an action without legal justification, and in the latter it is in the subsequent proceedings, not in the issue of process but in its abuse." Schaefer v. O .K. Tool Co., 110 Conn. 528, 532, 148 A. 330 (1930); see also QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 360-61 n.16, 773 A.2d 906 (2001).

In the present case, the plaintiff’s claims are for vexatious litigation and malicious prosecution, and not for abuse of process, because the gravamen of the plaintiff’s complaint concerns the initiation of the underlying actions without legal justification, and not the improper use or abuse of process after the commencement of the action. See Schaefer v. O .K. Tool Co., supra, 110 Conn. at 533-34; Shelton Yacht & Cabana Club, Inc. v. Voccola, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-0075380-S (February 2, 2007); Barbiero v. Chiocca, Superior Court, judicial district of New Haven, Docket No. CV-05-4013929-S (January 31, 2006) (40 Conn.L.Rptr. 694, 695). The plaintiff and the defendants incorrectly assert arguments regarding whether the defendants had probable cause to file the verified petition and commence the second action, and issue the complaint ticket. In an abuse of process action, however, " it is unnecessary for the plaintiff to prove that ... the process was obtained without probable cause or in the course of a proceeding begun without probable cause." (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, 310 Conn. 634, quoting Lewis Truck & Trailer, Inc. v. Jandreau, 11 Conn.App. 168, 170-71, 526 A.2d 532 (1987).

A

ABSOLUTE IMMUNITY

The defendants argue that they are entitled to summary judgment as to counts six, eleven, and fifteen on the grounds of absolute immunity. The absolute immunity conferred by the litigation privilege does not apply to abuse of process claims. See Perugini v. Giuliano, 148 Conn.App. 861, 874, 89 A.3d 358 (2014). The court, therefore, rejects the defendants’ argument that absolute immunity privilege applies to counts six, eleven, and fifteen.

B

GOVERNMENTAL IMMUNITY

As discussed above, the defendants had probable cause to file the verified petition against the plaintiff, and filed such petition during the course of their employment, and in furtherance of their official duties, and, accordingly, are entitled to summary judgment as to counts six, eleven, and fifteen pursuant to § 52-557n. The court, therefore, grants the defendants’ motion for summary judgment on counts six and fifteen on the grounds of governmental immunity, and grants the defendants’ motion for summary judgment as to count eleven because the defendants have met their burden in demonstrating that count eleven does not allege the improper use or abuse of process after the commencement of the action, and, instead, involves the initiation of the underlying action without legal justification. See Schaefer v. O.K. Tool Co., supra, 110 Conn. 533-34.

VI

COUNT TWELVE: MALICIOUS PROSECUTION

In count twelve, the plaintiff alleges that the town police department issued a complaint ticket against the plaintiff in violation of § 22-364(a), which was unjustified and without probable cause. The complaint ticket was subsequently referred to the Superior Court, after the plaintiff signed the complaint ticket, and marked " I choose to plead not guilty." The defendants argue that they are entitled to summary judgment as to count twelve because there is no genuine issue of a material fact that they had probable cause to issue the plaintiff a ticket in violation of § 22-364(a). The plaintiff counters that the defendants did not have probable cause to issue the plaintiff a ticket in violation of § 22-364(a), because the plaintiff did not " purposefully" or " intentionally" permit the dog to wander and roam the neighborhood, and, instead, the dog had accidentally slipped and escaped from its own collar.

" To establish the tort of malicious prosecution, a plaintiff must prove: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice. If a plaintiff is unable to prove any element, his claim, necessarily, fails." (Internal quotation marks omitted.) Karwowsky v. Fardy, 118 Conn.App. 480, 486-87, 984 A.2d 776 (2009).

" Probable cause has been defined as the knowledge of facts sufficient to justify a reasonable [person] in the belief that he has reasonable grounds for prosecuting an action ... Mere conjecture or suspicion is insufficient ... The existence of probable cause is an absolute protection against an action for malicious prosecution, and what facts, and whether particular facts, constitute probable cause is always a question of law." (Citation omitted; internal quotation marks omitted.) Bhatia v. Debek, 287 Conn. 397, 410-11, 948 A.2d 1009 (2008).

In the present case, it is undisputed that the plaintiff’s dog slipped its collar and was loose. On December 13, 2015, the town police received a report that a small dog was roaming on Hough Street. The town police retrieved the dog and observed that the dog had no collar or identifying tags. Section 22-364(a) provides in relevant part: " The unauthorized presence of any dog on the land of any person other than the owner or keeper of such dog ... when such dog is not attended by or under the control of such owner or keeper, shall be prima facie evidence of a violation of the provisions of this subsection. Violation of any provision of this subsection shall be an infraction." The facts demonstrate that the plaintiff’s dog was freely moving around outside of the plaintiff’s land, unrestrained and unhindered, and not under the direct influence of the plaintiff. See State v. Smith, 139 Conn.App. 107, 114, 54 A.3d 638 (2012). The defendants, therefore, had probable cause to issue the plaintiff a ticket for a violation of § 22-364(a).

A

ABSOLUTE IMMUNITY

The defendants argue that they are entitled to summary judgment as to count twelve on the grounds of absolute immunity. The absolute immunity conferred by the litigation privilege, however, does not apply to malicious prosecution claims. See Simms v. Seaman, supra, 129 Conn.App. 541. The court, therefore, rejects the defendants’ argument that absolute immunity applies to count twelve.

B

GOVERNMENTAL IMMUNITY

The defendants argue that they are entitled to governmental immunity as to the twelve count of the plaintiff’s amended complaint pursuant to § 52-557n(b)(5). Here, it is undisputed that the complaint ticket constitutes the initiation of a judicial proceeding. Further, the complaint ticket was issued during the course of the police officer’s employment, and in furtherance of his official duties. As discussed above, the defendants had probable cause to issue the plaintiff a ticket in violation of § 22-364(a) under § 52-557n(a)(2)(b). The plaintiff has failed to supply the court with any documentation or evidence that can be used to successfully refute the defendants’ assertion. Accordingly, the court grants the defendants’ motion for summary judgment as to count twelve pursuant to § 52-557n(b)(5).

CONCLUSION

For the foregoing reasons, the defendants’ motion for summary judgment is granted as to counts two, three, five, six, eight through fifteen, and denied as to counts one, four, seven.