Opinion
No. HHD-CV-10-6012922S
January 19, 2011
I. INTRODUCTION
In this case, plaintiff Ruth Daniella Weissman, a Connecticut attorney, has sued defendant Koskoff, Koskoff and Bieder, P.C., a Bridgeport, Connecticut law firm that formerly employed her, to recover money damages on three distinct theories of liability. In Count One of her Complaint dated June 13, 2010, the plaintiff alleges that the defendant breached the implied contract of good faith and fair dealing arising under her contract of employment with the firm by underpaying her for her legal work. In this regard, she claims, more particularly, that although she "developed intellectual property which earned the firm millions of dollars and was potentially capable of earning the firm billions of dollars over time"; id., Count I, ¶ 2; she "was compensated less well than newly hired curvaceous copy girls who sometimes had paralegal or secretarial training as qualifications"; id., Count I, ¶ 3; because the firm awarded "benefits, bonuses, perks and promotions" to its employees "based on the sexual intimacies enjoyed by the partners, . . . not upon the merits of the legally-compensated work [they] performed[.]" Id., Count I, ¶ 4.
In Count Two of her Complaint, the plaintiff alleges that the defendant firm, its partners, associates and employees, slandered and defamed her and invaded her privacy. They did so, she claims, by making unspecified "misrepresent[ations of] the facts and fail[ing] to indicate the truth of the allegations [set forth in Count One of her Complaint] to their relatives, friends and associates, and their relatives and friends, via various networking groups, including the CTLA and AAJ, both during the time [of her employment with the firm and thereafter]." Id., Count II, ¶ 7.
Finally, in Count Three of her Complaint, the plaintiff alleges that, by engaging in the conduct described in Count Two, the defendant initiated and participated in a civil conspiracy against her which has prevented her from finding new employment in the legal field. On this score she claims that, as a result of the defendant's conduct in furtherance of the alleged conspiracy, she has been "unable to discourse with any but two or three lawyers licensed in Connecticut, as evidenced by shunning on the CTLA listserv, the CCDLA listserv, and several job interviews which were `over' before [she] arrived[.]" Id., Count III, ¶ 8.
Before answering the plaintiff's Complaint, the defendant moved this Court for summary judgment on each count of the Complaint on the following grounds. First, it argues that each count fails to state a claim upon which relief can be granted and cannot be so repleaded as to cure its deficiency. The First Count assertedly does not state a valid claim of breach of the implied covenant of good faith and fair dealing because it fails to allege any inconsistency between the plaintiff's complained-of compensation by the defendant and that which she agreed to under the terms of her employment agreement. The Second and Third Counts assertedly fail because the plaintiff has not specified in them and has no knowledge that would enable her to specify any particular statements of a defamatory nature or invasive of her privacy which the defendant has ever made about her, much less when, where or to whom any such statement was made. Absent such details, insists the defendant, neither a claim of defamation or invasion of privacy nor a claim of civil conspiracy to engage in such tortious conduct can lie.
Second, the defendant contends that it is entitled to judgment on the plaintiff's claim of breach of the implied covenant of good faith and fair dealing, as pleaded in her First Count, because the plaintiff released all such claims under the terms of the severance agreement she negotiated with the defendant upon leaving its employ.
Third and finally, also with respect to the plaintiff's claim of breach of the implied covenant of good faith and fair dealing, the defendant argues that that claim is barred by the six-year statute of limitations for contract actions, General Statutes § 52-576, because this action was not commenced until June 13, 2010, more than six years after the termination of her employment on June 8, 2004.
At all times relevant to this case, Section 52-576 has provided in relevant part as follows:
(a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.
CT Page 3409
(b) Any person legally incapable of bringing any such action at the accruing of the right of action may sue at any time within three years after becoming legally capable of bringing the action.
The defendant initially supported its Motion with an accompanying Memorandum of Law and an affidavit from one of its partners, Attorney Richard Bieder. The plaintiff responded to the defendant's Motion by filing a written Objection supported by a personal affidavit and an accompanying Memorandum of Law, plus a Request for Extension of Time to Respond to Defendant's Motion for Summary Judgment. In her Request for Extension of Time, she seeks, inter alia, to conduct additional discovery concerning the particulars of the defendant's alleged misrepresentations about her upon which her claims of defamation, false light invasion of privacy and civil conspiracy are based. The defendant responded to these submissions by filing a Reply Brief in support of its own Motion and in opposition to the plaintiff's Request for Extension of Time.
The Court heard oral argument of the defendant's Motion on September 24, 2010.
II. STANDARD OF REVIEW
The standard for granting summary judgment is well established in Connecticut. "`Summary judgment shall be rendered forthwith if the 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. Practice Book § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . .' (Internal quotation marks omitted.) O'Connor v. Board of Education, 90 Conn.App. 59, 67, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005).
`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 . . . A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.' (Citation omitted; internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn.App. 666, 670, 874 A.2d 798 (2005)." Jones v. H.N.S. Management Company, Inc., 92 Conn.App. 223, 226-27, 883 A.2d 831 (2005).
Apart from challenging the legal sufficiency of a plaintiff's evidence to support and warrant a full trial on one or more claims set forth in his complaint, a motion for summary judgment can at times be used to challenge the legal sufficiency of the complaint itself or a count thereof to plead the essential elements of such a claim. "[T]he use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005). In Larobina, our Supreme Court affirmed the granting of a motion for summary judgment where the record before it showed not only that the plaintiff's complaint was legally deficient but that the plaintiff had no further facts to allege that would cure the legal defects identified in it. Id. at 402.
It is true, of course, that the typical procedure for challenging the legal sufficiency of a complaint or count thereof to plead a viable claim or cause of action is a motion to strike, upon the granting of which the plaintiff has a further opportunity to replead his stricken claims and reestablish his right to proceed to trial. Thus it is recognized that "the use of a motion for summary judgment instead of a motion to strike may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court . . . [while the] granting of a motion to strike allows the plaintiff to replead his or her case." American Progressive Life and Health Ins. Co. of New York, 292 Conn. 111, 121, 971 A.2d 17 (2009) (quoting Larobina v. McDonald, supra, 274 Conn. at 401). Accordingly, to establish its right to judgment based upon the insufficiency of the plaintiff's complaint or any count thereof, the defendant bears the burden of proving that there is no genuine issue of material fact that the plaintiff has insufficient evidence to cure the defects in his challenged pleading.
In American Progressive, a breach of contract action, the defendant filed counterclaims alleging breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of General Statutes § 42-110b et seq., the Connecticut Unfair Trade Practices Act ("CUTPA"). Whereas the breach of contract claim rested upon the plaintiff's alleged failure to pay the commission owed by him under the contract between the parties, the other claims pertained to the plaintiff's conduct outside of the contract. After discovery concluded, the plaintiff moved successfully for summary judgment on all counts except the contract count, arguing that they were legally insufficient because they were based only upon the alleged breach of contract. On appeal, the Supreme Court was asked to decide if the trial court had properly entered judgment for the defendant on the insufficiently pleaded counts of the plaintiff's counterclaim instead of striking those counts, and thus permitting the plaintiff to replead them. Relying on Larobina, the plaintiff argued that the defendant had waived his right to replead by failing to object to the use of the summary judgment procedure. The defendant opposed this argument, claiming that the plaintiff was not entitled to judgment because it had failed to show that the challenged counts could not be successfully repleaded. The Court concluded that, even though the challenged counts were insufficient as drafted, the evidence before it clearly demonstrated that the defendant could have successfully repleaded them had it been given the opportunity to do so. On that basis, the Court concluded that the defendant's summary judgment motion should not have been granted as presented, by entering judgment for the movant on the insufficiently pleaded claims, but should instead have been treated as a motion to strike so that the nonmovant could have repleaded and gone to trial on his challenged claims.
III. ANALYSIS
A. First Count — Breach of Implied Covenant of Good Faith and Fair Dealing
1. Alleged Failure to State a Claim Upon Which Relief Can Be Granted
The defendant first argues that the plaintiff has failed to plead and cannot prove that it breached the implied covenant of good faith and fair dealing arising under her employment agreement since the plaintiff's allegations do not assert that it failed to fulfill any obligation it owed to her under the express terms of that agreement. In fact, it argues that the essence of the plaintiff's claim against it is that the amount of her agreed-upon compensation under that agreement was inadequate, and thus that she should be awarded additional compensation for her work.
The defendant argues, under well-established principles of Connecticut law, that its alleged failure to pay the plaintiff more than it agreed to pay her under the terms of her employment agreement cannot possibly be found to have breached the implied covenant of good faith and fair dealing arising under that agreement. The governing rule, as restated in Jones v. H.N.S. Management Company, Inc., supra, 92 Conn.App. at 227, is that, "Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . To constitute a breach of that covenant, the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith . . ." Under that rule, the implied covenant of good faith and fair dealing obviously rests upon the express terms of the contract and the parties' reasonable expectations thereunder. Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 572, 479 A.2d 781 (1984.); Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn.App. 680, 693-94, 974 A.2d 764 (2009). As a logical corollary of that rule, our appellate courts have declared that, "[a] claim for breach of the implied covenant of good faith and fair dealing must be based on the terms of the contract and cannot be applied to achieve a result contrary to the express terms." Id.
Against this background, the essential elements of a claim of breach of the implied covenant of good faith and fair dealing are as follows: (1) that there was a contract between the plaintiff and the defendant; (2) that the defendant acted in such a way to impede or interfere with the plaintiff's right to receive benefits that she reasonably expected to receive under the express terms of the contract; and (3) that such acts of impeding or interference by the defendant with the plaintiff's right to receive benefits reasonably expected under the contract were taken in bad faith. If the facts alleged do not support even one of these essential elements, a valid claim has not been stated. Here, claims the defendant, the facts alleged by the plaintiff do not support the second such essential element, for they seek to achieve a remedy which goes beyond, and in fact contradicts, the terms of her employment agreement.
The plaintiff does not deny that the sufficiency of her claim of breach of the implied covenant of good faith and fair dealing must be evaluated under the above-stated legal principles. Nor does she claim that the defendant ever refused to pay her wages or salary in the amounts promised to her as an employee of the firm. Even so, she opposes this aspect of the defendant's Motion, claiming that the defendant breached the implied covenant of good faith and fair dealing under her employment agreement by awarding her smaller bonuses than it awarded to other employees whose work for the firm was assertedly less valuable than her own. In support of this argument, the plaintiff asserts in her Opposition Memorandum that
either an explicit or implicit contract was entered into between Defendant and myself and all employees by Virtue of Defendant's annual bonus letters, which, urged the employees all to work hard throughout the year and give their best efforts in order to ensure the best results for the plaintiffs for whose benefit everyone was working. As such, the work I did thereafter could be considered to have been performed under the equitable principles set forth within the bonus letter.
Id. at 4.
The defendant responds to this argument as follows. First, it notes that the plaintiff's claim to this effect is brand new, for it was not pleaded in her Complaint. Second, it asserts that even if her First Count were amended to plead the new claim, as aforesaid, it would still fail to state a valid and sufficient claim of breach of the implied covenant of good faith and fair dealing for two reasons. To begin with, the language of the defendant's bonus letters, as the plaintiff describes it, was simply too vague and uncertain to support any reasonable expectation that the defendant would ever pay her a bonus, much less a bonus calculated on any particular basis. Furthermore, to the extent that the subject bonus letters evidence an existing practice by the defendant to award its employees annual bonuses, it is well settled in Connecticut that the mere existence of such a practice does not establish a contractual obligation to award them. Christensen v. Bic Corporation, 18 Conn.App. 451, 558 A.2d 273 (holding, inter alia, that "contracts are not created by evidence of custom and usage").
It clearly appears on the face of the plaintiff's Complaint that she did not initially base her claim of breach of the implied covenant, as pleaded in her First Count, upon the defendant's alleged breach of any contractual commitment to award her bonuses based upon the merits of her work. Instead, the First Count merely claims that all bonuses awarded by the defendant to its employees were "most-usually . . . based on the sexual intimacies enjoyed by the partners [with the employees], . . . not upon the merits of the[ir] legally-compensated work[.]" Complaint, Count I, ¶ 4. (Emphasis added.) This salacious allegation does not state a proper claim of breach of the implied covenant because it fails to allege that the defendant's challenged bonus-awarding practices violated any contractual commitment it had made to the plaintiff to do otherwise, viz, to award her bonuses based upon the merits of her work.
Read in this manner, the current version of the claim presented in the plaintiff's First Count can only be understood as the defendant has described it, to wit: as a claim that the defendant should now pay the plaintiff money damages because it gave the plaintiff less compensation for her work than she truly deserved. Because the awarding of money damages on that basis would effectively rewrite the plaintiff's employment agreement rather than enforcing that agreement according to its terms, such a claim does not constitute a viable claim of breach of the implied covenant of good faith and fair dealing.
In light of this conclusion, the question presented to this Court is whether it should grant the defendant's Motion for Summary Judgment as presented, by entering judgment in its favor on the plaintiff's First Count, or instead treat the Motion as a motion to strike by striking the First Count and permitting the plaintiff to replead it in the manner suggested in her Opposition Memorandum. To prevail on its claim for summary judgment on the First Count as presented, the defendant must prove that there is no genuine issue of material fact that the plaintiff has no facts available to her upon which cure the defects in her claim of breach of the implied covenant of good faith and fair dealing if that claim is merely stricken to afford her the opportunity to replead.
Whether the plaintiff's proposed new claim of breach of the implied covenant of good faith and fair dealing is legally viable depends directly upon the language of the defendant's bonus letters on which that claim is based. If those letters can reasonably be construed to promise the plaintiff future bonuses based upon the merits of her work, then a claim that the defendant failed to award her bonuses on that basis would state a viable claim of breach of the implied covenant which she should be permitted to replead.
In the absence of the bonus letters themselves, which neither party has produced for the Court's inspection, the Court must rely upon the plaintiff's recollection of their contents, as reported in her personal affidavit. In the plaintiff's words, to reiterate, the bonus letters "urged the employees all to work throughout the year and give their best efforts in order to ensure the best results for the plaintiffs for whose benefit everyone was working." Opposition Memorandum, p. 4. Having allegedly received the first such letter along with her initial $500.00 bonus from the defendant in December of 2002, the plaintiff claims that her subsequent work for the defendant "could be considered to have been performed under the equitable principles set forth within [the letter]." Id.
The plaintiff does not describe, in her Opposition Memorandum, the "equitable principles set forth" in the bonus letter upon which her 2002 annual bonus was calculated and her and others' future bonuses would impliedly be calculated in the future. In paragraph 8 of her personal affidavit, however, she alludes to those principles by averring that the letter described "in rather vague terms how such bonus was calculated, . . . referencing such things as duration of employment and level of skill and accomplishment." Id. The plaintiff further claims in her affidavit, albeit not on personal knowledge but on information and belief, that her initial bonus and all subsequent bonuses awarded to her by the defendant were in lesser amounts than those awarded to other employees who had less skill, experience and training than she, and whose work for the firm was less valuable than hers. On that basis, she seeks to replead in her First Count that the defendant breached the implied covenant of good faith and fair dealing by failing to honor its commitment to award her bonuses in accordance with those equitable principles, based, in particular, upon the duration of her employment with the firm and the level of her skill and accomplishment as a firm employee.
So described, the plaintiff's new claim is not that the defendant ever breached the implied covenant of good faith and fair dealing arising under her employment agreement by failing to award her bonuses at any time or on any occasion when it was contractually obligated to do so. In fact, the evidence of record shows that after she received her initial bonus and bonus letter in December of 2002, she received three additional bonuses either at the same time or under the same or similar circumstances as other firm employees received them. Instead, the basis for her new claim is that when the defendant decided, in its discretion, to award her and other employees bonuses, it awarded her lesser bonuses than it awarded to others despite the greater duration of her employment and the higher quality and greater value to the firm of her professional work. The plaintiff's three additional bonuses after receipt of her initial bonus letter in December of 2002 included: (1) a $500 "reassurance bonus" in 2003, which she and other employees received, assertedly in different amounts not commensurate with the duration of their employment or the quality of their work, after two of the defendant's partners left the firm to form a new firm and took several of the firm's cases with them; id., ¶ 16; (2) a second annual bonus of $1,000.00, which she and other employees received at the end of 2003, again in different amounts not based upon their respective terms of service or the quality of their work, along with new copies of the defendant's original bonus letter; id., ¶ 23; and (3) a $3,000.00 bonus for passing the Connecticut Bar Examination in 2003, which she belatedly received before she was terminated in the Spring of 2004.
Against this background, the Court cannot find that the plaintiff's new claim, if pleaded as she describes it, would state a viable claim of breach of the implied covenant of good faith and fair dealing under her employment agreement because that claim is not based upon the alleged breach of any definite promise by the defendant, rising to the level of a contractual commitment, to pay her any bonuses at all. Apart from the fact that the defendant's alleged exhortations to the plaintiff and other employees to work hard throughout the year were first made in a letter accompanying their annual bonuses in 2002, the bonus letter made no mention of future bonuses, much less any commitment to pay such or any other bonuses in the future. It did not, for example, suggest that they had "earned" their enclosed bonuses, or that by working hard in the future they could earn or otherwise assure themselves of receiving future bonuses. At most, then, the bonus letter suggested that if all of the firm's employees worked hard throughout the year on behalf of the firm's clients, the firm would do well by its clients, it in turn would do well for itself, and thus, by implication, it might be in a position to consider awarding its employees future bonuses. No promise to that effect was ever made, however, and thus the matter of determining whether, when or on what basis employees might ever receive bonuses in the future was left, as it had been, entirely in the defendant's discretion.
For the foregoing reasons, the defendant's bonus letters to the plaintiff and other employees afforded them no reasonable basis for expecting any kind of bonus from the defendant as a matter of contractual right, much less any bonus calculated on the basis of their length of her service or the quality of their work. Hence, the defendant's failure to calculate the plaintiff's post-December 2002 bonuses on that basis, as she seeks to allege by repleading the First Count of her Complaint, would not state a valid and sufficient claim of breach of the implied covenant of good faith and fair dealing arising under her employment agreement.
In conclusion, the Court agrees with the defendant that its Motion for Summary Judgment must be granted as to the First Count of the plaintiff's Complaint because that Count currently fails to state a valid and sufficient claim of breach of the implied covenant of good faith and fair dealing and the defendant has established on this record that the plaintiff has no facts available to her upon which to cure the defects in that claim if she were permitted to replead it as she has proposed.
2. The Defendant's Alternative Claims
In light of the foregoing analysis, this Court need not reach the merits of either of the defendant's alternative grounds for granting its Motion for Summary Judgment on the plaintiff's First Count, to wit: that the plaintiff released any claim of breach of the implied covenant of good faith and fair dealing under the terms of her severance agreement with the defendant or that the plaintiff's claim is barred by General Statutes § 52-576, the applicable statute of limitations for contract actions. Even so, it must note one important aspect of the defendant's latter argument, which furnishes an additional basis for entering judgment for the defendant on the plaintiff's First Count without permitting her to replead. That aspect is as follows.
Even if this Court is incorrect in its conclusion that the plaintiff has no valid and sufficient basis for claiming breach of the implied covenant of good faith and fair dealing based on the defendant's alleged failure to pay her bonuses in the equitable manner allegedly promised in its bonus letters to her and other firm employees, such a claim would necessarily be limited to the three occasions after she received her initial bonus letter when it awarded her additional bonuses and might be claimed to have underpaid her. Each of those additional bonuses, however, was awarded to the plaintiff prior to the termination of her employment on June 8, 2004, and thus more than six full years before she commenced the instant action on June 13, 2010. Because the limitations period for commencing a breach-of-contract action under Section 52-576 is six years from the date on which the alleged injury was inflicted, and in the case of alleged underpayment of a sum due and owing under a contract that six-year period begins to run no later than the date on which the challenged underpayment was made, the plaintiff's new claim would be barred by the statute of limitations even if she were allowed to replead it. This conclusion furnishes an independent legal basis for granting the defendant's Motion for Summary Judgment as to the First Count of the plaintiff's Complaint.
"`The law concerning when a breach of contract action accrues is well settled. This court has stated that [i]n an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted' . . . `While the statute of limitations normally begins to run immediately upon the accrual of the cause of action, some difficulty may arise in determining when the cause or right of action is considered as having accrued. The true test is to establish the time when the plaintiff first could have successfully maintained an action.' (Internal quotation marks omitted.)" Amoco Oil Co. v. Liberty Auto and Elec. Co., 262 Conn. 142, 153, 810 A.2d 259, citing to Polizos v. Nationwide Mutual Inc. Co., CT Page 3410 255 Conn. 601, 608-09, 767 A.2d 1202 (2001).
B. Count Two: Alleged Defamation and Invasion of Privacy by False Light
As for the Second Count of the plaintiff's Complaint, which purportedly states alternative claims against the defendant for defamation and false light invasion of privacy based upon misrepresentations it allegedly made about her, by and through its partners, associates and other employees to their own relatives, friends and associates and others, the defendant claims once again, under the authority of Larobina v. McDonald, supra, 274 Conn. 394, that it is to summary judgment on the challenged count because it fails to state a claim upon which relief can be granted and the plaintiff has no factual basis upon which to cure its defects if that count is merely stricken and it is permitted to replead.
On this score, the defendant argues that the challenged count fails to state a valid claim for either defamation or false light invasion of privacy because it is utterly devoid of detail as to any alleged misrepresentation upon which either such claim is based. The Second Count thus fails, inter alia, to specify, as to any of the defendant's alleged misrepresentations, either the substance of the alleged misrepresentation, the person who allegedly made it, the time, place or manner in which it was allegedly made, the person or persons to whom it was allegedly made, or the manner in which its communication to others is claimed to have defamed the plaintiff or to have invaded her privacy by casting her in a false light. Without notice of any such basic details as to the nature and circumstances of the alleged conduct upon which the plaintiff bases her claims — details which the plaintiff candidly admits in her personal affidavit that she does not know — the defendant cannot meaningfully answer or prepare herself to defend itself against those claims and, more importantly in this context, the plaintiff cannot prove the essential elements of either such claim, both of which depend critically upon an evaluation of those very details.
On this score, although the plaintiff has candidly admitted in her Opposition Memorandum that "it is true that I cannot allege particular statements having been made[;]" id. at 7; she claims that "it is still obvious from the reactions to me subsequent to my departure from Defendant's employment, that statements of a particular nature have been made." Id. Without specifying the details of any such supposed communication, the plaintiff devotes several paragraphs of her personal affidavit to describing the hostile reactions she has received from third parties after leaving the defendant's employ which she attributes to such supposed communications. Plaintiff's Affidavit, ¶¶ 41 et seq.
"[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." Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004); Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627-28, 969 A.2d 736 (2009); Abdul-Salaam v. Lobo-Wadley, 665 F.Spp.2d 96 (D.Conn. 2009). "Falsity is an essential element of a defamation claim. Consequently, the truth of an allegedly defamatory statement refutes a prima facie case of defamation." Abdul-Salaam, 665 F.Sup.2d at 101. Under these authorities it has been held that, "[a] claim of [defamation] must be plead[ed] with specificity, as the precise meaning and choice of words employed is a crucial factor in any evaluation of falsity. The allegations should set forth facts . . . sufficient to apprise the defendant of the claim made against him . . . [A] complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom . . ." Chertkova v. Connecticut Gen. Life Ins. Co., No. CV980486346S, 2002 WL 1902988, at *4 (Conn. Super. July 12, 2002); see also Rice v. Meriden Housing Authority, No. CV030479556, 2004 LEXIS 854, at *20-21 (Conn.Super. March 31, 2004); Forgione v. Bette, No. CV044001099S, 2005 WL 1545278, at *4-5 (Conn.Super. June 2, 2005); Hearn v. Yale-New Haven Hospital, No. CV020466339S, 2007 WL 2938624, at *11 (Conn.Super. April 2, 2007); Wilcox v. Webster Insurance, No. CV075010093S, 2008 WL 1822402, at *6 (Conn.Super. March 26, 2008).
A false light privacy claim must also be pleaded with specificity, for the following reasons. "The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true; and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position . . . In such a case, a false light invasion of privacy occurs if: `(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.'" Abdul-Salaam, 665 F.Sup.2d at 102 (D.Conn. 2009), citing to Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 131, 448 A.2d 1317 (1982) (internal quotations and citations omitted). "[T]o successfully prosecute a false light claim, evidence of what was said or written about the plaintiff is essential. This is so because without knowledge of the words that were publicized, the trier of fact cannot evaluate an essential element of the cause of action, namely the falsity of the words." Chertkova, supra, 2002 WL 1902988 at *4.
Although the plaintiff admits that she is unaware of, and thus cannot describe at all, any specific misrepresentations by the defendant is claimed to have defamed her or invaded her privacy by casting her in a false light, she claims, to reiterate, that smirks and glances directed at her by third parties since her departure from the firm clearly evidence that the defendant has made such misrepresentations about her. On that basis, she asks this Court, pursuant to Practice Book § 17-47, to postpone its decision on the defendant's Motion for Summary Judgment in order that she might have the opportunity to depose the persons to whom she suspects that the defendant may have made such misrepresentations about her so that she can particularize her allegations of wrongdoing, and thereby cure any claimed deficiencies in her challenged pleading.
The defendant opposes the plaintiff's request that Court postpone its summary judgment decision in order that she might conduct additional pretrial discovery about the nature and substance of its supposed misrepresentations to others about her, arguing that the plaintiff only speculates that it ever made such misrepresentations, and thus that she has no valid and sufficient factual basis for repleading what it claims to be her woefully deficient claim. The defendant further asserts that Practice Book § 17-47 only allows the party opposing summary judgment to request the opportunity to conduct additional discovery to develop admissible evidence in opposition to the summary judgment motion, not to develop its basic theory of liability ab initio in order to allege it in her complaint, and thus defeat the defendant's motion.
The Court agrees with the defendant that the plaintiff has not sufficiently pleaded her claims of defamation or false light invasion of privacy because she has utterly failed to allege any details concerning its alleged misrepresentations about her to others upon which those claims are based. It also agrees that the defendant that, in view of the plaintiff's admitted lack of even the most basic details concerning such alleged misrepresentations, she has no basis at all upon which to replead either of her claims with sufficient clarity to save it from further challenge on the ground that it fails to state a claim upon which relief can be granted. Furthermore, because she has presented no basis for conducting additional discovery about the defendant's alleged misrepresentations except for fanciful speculation, the Court concludes that an extension of time for that purpose should not be granted. The Court thus concludes that the defendant is entitled to judgment as a matter of law on the claims presented in the Second Count of the plaintiff's Complaint.
C. Count Three: Civil Conspiracy
In Count Three, the plaintiff claims that the defendant initiated and has participated a civil conspiracy to engage in the tortious conduct alleged in Count Two. She claims that this civil conspiracy has resulted in her inability to find legal employment in Connecticut.
Moving for summary judgment on Count Three, the defendant argues that the plaintiff's claim is legally insufficient to plead a civil conspiracy because it fails sufficiently to allege the commission of a tortious act in furtherance of the conspiracy, which of course is necessary to establish liability for civil conspiracy, which is not an independent cause of action, but rather a separate legal basis upon which two or more persons can intentionally combine to commit an underlying legal wrong. Here, because the plaintiff has failed in its Second Count to allege valid and sufficient claims of defamation or false light invasion of privacy, the defendant argues that she has similarly failed in her Third Count, which incorporates the allegations of the Second Count, to allege that it committed either such type of tortious conduct in furtherance of the alleged conspiracy.
"`The [elements] of a civil action for conspiracy are: (1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff.' FN 37: We note that there is no independent claim of civil conspiracy. Rather `[t]he action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself.' (Emphasis added; internal quotation marks omitted.) citing to Marshak v. Marshak, 226 Conn. 652, 669, 628 A.2d 964 (1993). `Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.'" Harp v. King, 266 Conn. 747, 779, 835 A.2d 953 (2003).
In response to this claim, the plaintiff seeks this Court's permission to amend her claim of civil conspiracy to add an allegation of tortious interference with business relationships based upon the defendant's alleged misrepresentations about her to prospective employers who then rejected her as a candidate for employment on the basis of such misrepresentations. The defendant responds that, in the continuing absence of even the most basic details as to the substance of the defendant's alleged misrepresentations, including everything that it claimed to be missing from them in its foregoing challenge to her defamation and false light invasion of privacy claims; see Part III. B of this Memorandum of Decision, supra; it does not matter at all how the defendant's underlying tortious conduct is characterized — as defamation or false light invasion of privacy, on the one hand, or as tortious interference with business relations, on the other. Since conduct allegedly interfering with a person's business relations and causing her damage must in fact be tortious in order to constitute the tort of tortious interference with business relations, a plaintiff cannot establish that claim without proving that the conduct by which such interference was made was itself tortious. Here, since the gravamen of the plaintiff's proposed claim of tortious interference is that the misrepresentations the defendant made about her were defamatory and/or invasive of her privacy, such proof is no less needed to establish a claim of tortious interference than it is to establish a claim of defamation or false light invasion of privacy.
"The necessary elements of a cause of action in tortious interference with business relations are the existence of a business relationship, an intentional and improper interference with that relationship and a resulting loss of benefits of the relationship. A defendant is guilty of tortious interference if he has engaged in improper conduct. The plaintiff [is required] to plead and prove at least some improper motive or improper means." Holler v. Buckley Broadcasting Corporation, 47 Conn.App. 764, 768-69, 706 A.2d 1379 (1998).
The Court thus concludes that the Third Count of the plaintiff's Complaint, no less than the Second Count, is fatally defective because it fails to describe in detail the alleged misrepresentations by which the plaintiff allegedly committed the underlying torts of defamation and/or false light invasion of privacy in furtherance of the alleged civil conspiracy. Because the plaintiff admittedly lacks sufficient knowledge of the defendant's alleged misrepresentations to replead valid and sufficient claims of defamation and/or false light invasion of privacy based upon them, or a valid and sufficient substitute claim of tortious interference with business relations claim on that same basis, the Court concludes that the defendant is entitled to the entry of summary judgment in its favor on that claim as well.
IV. CONCLUSION
For the foregoing reasons, the plaintiff's Request for Extension of Time to Respond to Defendant's Motion for Summary Judgment must be DENIED and the defendant's Motion for Summary Judgment must be GRANTED as presented as to all three counts of the plaintiff's Complaint.
IT IS SO ORDERED this 19th day of January 2011.