Opinion
No. CV 06-5001941 S
August 30, 2007
MEMORANDUM OF DECISION
This matter is before the court on a motion to strike, brought by the defendants, Andrew M. Labella and Cheryl L. Hoppenstein, dated April 2, 2007.
The present action arises out of alleged false accusations of sexual molestation allegedly made by the defendants, LaBella and Hoppenstein, against the plaintiff, Alfredo Vargas. On March 29, 2006, the plaintiff filed a complaint against the defendants, seeking damages for this alleged tortious conduct. The operative complaint in this matter is the fourth amended complaint, dated March 23, 2007, and contains six counts, sounding in negligence, negligent supervision of a child, false imprisonment, civil conspiracy, malicious prosecution, and reckless supervision of a child, respectively.
The relevant facts, as alleged in the plaintiffs' complaint, are as follows. The defendants and their child attended a synagogue in Bridgeport, Connecticut, where plaintiff performed maintenance services. After attending the synagogue for six months to a year, the defendants filed a false police report on October 15, 2000 claiming that the plaintiff sexually assaulted their four year old minor child. At the time the report was made, the defendants knew or should have known that their allegations were false. The defendants had made similar allegations against various other individuals, including other members of various synagogues, in the past. Moreover, LaBella was employed as a clerk in the Bridgeport Superior Court, and, therefore, he had access to information relating to the plaintiff's prior conviction for risk of injury to a minor.
As a result of the false police report, the plaintiff was arrested, tried, and convicted of sexual assault in the first degree and risk of injury to a child. During the trial, the defendants provided testimony against the plaintiff that they knew or should have known was false. The plaintiff appealed, and his conviction was reversed and his case remanded. Upon re-trial, he was acquitted and released. The plaintiff now brings the current action to recover for the damages he sustained as a result of the defendants' tortious conduct.
On April 2, 2007, the defendants filed a motion to strike all six counts of the fourth amended complaint on the ground of legal insufficiency. Specifically, the defendants argue that counts one, two, five, and six must be stricken because they merely restate the allegations previously stricken from the third amended complaint. In the alternative, they argue that counts one and five fail to allege sufficient facts to overcome the conclusive presumption of probable cause, and counts two and six fail to allege facts sufficient to overcome the doctrine of parental immunity. Furthermore, the defendants also argue that the court should strike counts one, two, four, five and six for failure to allege facts sufficient to overcome the three-year statute of limitations bar under General Statutes § 52-577. The defendants maintain that the allegations contained in counts three and four fail to allege sufficient facts to support the respective causes of action. In addition to the above stated counts, the defendants also move to strike the second, third and fifth prayer for relief. A memorandum of law was attached thereto. In response, the plaintiff filed a memorandum of law in opposition on May 16, 2007, Oral argument was heard on this matter on June 16, 2007.
I.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). Furthermore, "Practice Book . . . § 10-39, allows for a claim for relief to be stricken . . . if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Rizutto v. Davidson Ladders, Inc., 280 Conn. 225, 229 (2006). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
II. CT Page 15164
The defendants first argue that counts one, two, five and six must be stricken because they merely reallege allegations previously stricken from the third amended complaint. This court, in Vargas v, LaBella, Superior Court, judicial district of Fairfield, Docket No. CV 06-5001941 (March 8, 2007, Matasavage, J.) [43 Conn. L. Rptr. 22] previously granted a motion to strike counts one, two, five and six on March 8, 2007. When the allegations of an amended complaint appear to be the same in substance as those of an earlier complaint that was stricken, the defendant may challenge the amended complaint by filing a request to revise . . . or a second motion to strike . . . Although the pleadings generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken . . . If the plaintiff . . . merely restated the original cause of action, the defendant would prevail on either pleading." (Citations omitted.) PL Properties, Inc. v. Schnip Development Corp., 35 Conn.App. 46, 50, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994).A.
Count one of the third amended complaint, sounding in negligence, was stricken because "the plaintiff has not alleged that the defendants exercised control over the police department and prosecuting attorney involved in the plaintiff's arrest and conviction. Therefore, the plaintiff has not alleged facts sufficient to sustain the duty element of negligence." Vargas v. LaBella, Superior Court, Docket No. CV 06-5001941. In the current motion before the court, the defendants argue that the amended complaint still contains no factual allegations to show that the police department or prosecuting authority failed to exercise independent judgment due to the sway exerted by a private citizen informant.
As stated in McGuire v. Derby Savings Bank, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 0056878 (December 4, 1997, Corradino, J.) (20 Conn. L. Rptr. 616), "there may . . . be a duty on the part of a citizen to use due care to ascertain the true facts when the citizen insists upon, demands or pressures the police to make an arrest." (Internal quotation marks omitted.) In his fourth amended complaint, the plaintiff has amended his complaint to allege that the defendants took affirmative action in his arrest, in order to establish the existence of a duty of care. Specifically, the plaintiff alleges that the defendants "stated to police that Plaintiff did horrible things to their daughter and pressured and insisted the police and prosecuting authority that Plaintiff should be locked up and demanded Plaintiff's arrest when they knew or should have known that was not true."
While McGuire indicated that a private informant may have a duty to exercise reasonable care in the event that they insist, demand or pressured the police to act on their complaint, it is important to distinguish between the facts of the present case and those of McGuire. In McGuire, the plaintiff was arrested as a result of a report filed by employees of a bank, who negligently identified the plaintiff as a bank robber. In contrast, the present case involves parents who file a police report after their four-year-old daughter tells them she was sexually abused. In the context of the present case, where the well-being of child is potentially at issue, strong public policy considerations exist to protect a parent who files a police report alleging that their child was the victim of sexual abuse. "Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there are often no witnesses except the victim . . . The state has a legitimate interest in removing the competency barrier in order to facilitate the prosecution of child abuse cases because such cases cannot ordinarily be prosecuted unless the child victim is allowed to testify. Furthermore, the interest of the state in prosecuting such cases may reasonably be viewed as greater than its concern with other crimes, because the welfare of children, which is a primary concern of society, is seriously threatened by child abuse offenses." (Citations omitted; internal quotations omitted.) State v. James, 211 Conn. 555, 566 (1989).
Although this court cited to McGuire in support of its conclusion that the plaintiff's prior count one should be stricken for failure to sufficiently allege that the defendants controlled the police department, it should be noted that McGuire did not conclusively establish that a duty of reasonable care exists to ascertain the truth every time an informant becomes affirmatively involved in the apprehension process, and this court's reference to McGuire was not intended to affirmatively establish that such a duty would exist anytime a citizen informant insisted or demanded the police to take action on their report. It was offered as an example of a case where the court found that a duty did not exist, and the court postulated on circumstances where such a duty could potentially be found. McGuire merely recognized that there may also be a duty on the part of a citizen in certain circumstances. The merits of this potential duty were not addressed by the court in McGuire; instead, the court found that the complaint lacked any allegations that the defendant insisted, demanded or pressured the police to take action, and, therefore, the plaintiff in McGuire did not plead sufficient facts to support even a potential cause of action for negligence.
Under the circumstances of this case, it is far more reasonable that a concerned parent will insist and demand the police take action when they believe their child has been the victim of sexual abuse, and they should not be held liable for negligently failing to ascertain the truth behind the allegations of a four-year-old child prior to filing a report. The policy considerations discussed by the court in McGuire v. Derby Savings Bank, supra, Superior Court, Docket No. CV 97 0056878, are particularly relevant under these circumstances.
The court in McGuire v. Derby Savings Bank, supra, Superior Court, Docket No. CV 97 0056878, provided an analysis of the public policy underlying the proposition that citizen informers should not be liable for negligently failing to ascertain the truth behind their report. "The reason for this rule derives from sound public policy that the efficient enforcement of criminal law requires that a private person who renders aid to the police by giving honest, even if mistaken, information about a crime should be given effective protection. That is why the law says in a case like this the private citizen has no duty of reasonable care owed to the person informed on or that a privilege or immunity will lie to defeat a negligence claim made in such circumstances." The court goes further to state: "Any other rule would have undesirable consequences. Honest citizens would hesitate to cooperate with the police for fear that information they give leading to the arrest might be mistaken — this, in situations where, due to the shock and fear crime engenders, the chance for honest mistake is great. Also, citizen informers, to `protect' themselves, might feel compelled to make investigations and explorations on their own before contacting the police — a consequence that would often endanger the safety of these people or interfere with efficient police investigation." Id.
In striking count one of the third amended complaint, this court held that the plaintiff did not plead sufficient facts to establish that the defendants exerted control over the police department and prosecuting attorney. Although the complaint has been amended to allege affirmative action on the part of the defendants, incorporating the language of McGuire, this is still insufficient to establish the defendants' control over the police or prosecuting authority. Given the public policy considerations cited above and absent further factual allegations that the defendants' actions overcame the independent discretion of both the police department and prosecuting authority, the allegations contained in count one are insufficient to establish a duty of care under these circumstances. For these reasons, the motion to strike count one is granted.
B.
The defendants also argue that count two, sounding in negligent supervision of a child, must be stricken because it merely restates in substance the allegations of a count already stricken. Previously, this court struck count two of the third amended complaint on three separate grounds; first, that the plaintiff had alleged mere legal conclusions of parental liability, which are unsupported by any factual basis stated in the complaint; second, that the plaintiff failed to allege that the defendants knew or had reason to know of the necessity of exercising control over their child; and third, that the plaintiff incorrectly implies a legal conclusion that maliciousness, in the form of a false report of sexual abuse, is a dangerous propensity. Vargas v. LaBella, supra, Superior Court, Docket No. CV 06-5001941.
As previously stated by this court in Varges v. LaBella, supra, Superior Court, Docket No. CV 06 5001941, in order to sustain a claim for negligent supervision of a child, the plaintiff must allege that "the parent failed to restrain a child they knew or should have known had dangerous propensities, or that the parent negligently entrusted a dangerous instrumentality to the child. Without such an allegation, the complaint would be open to a motion to strike." (Internal quotation marks omitted.) Id. In the fourth amended complaint, the plaintiff alleges the following additional facts to assert a claim for negligent supervision. "[The defendants] fostered a home environment where sex and sexual behavior was frequently the topic of discussion in the household." Furthermore, the defendants "negligently and carelessly failed to restrain, control, or properly supervise their minor daughter although they knew or should have known that the minor possessed a propensity to publically display sexually deviant behavior, and to inappropriately touch or act out in a sexually suggestive manner in public . . . [and] accuse others of sexually molesting or inappropriately touching her."
Whereas this count was stricken from the third amended complaint for stating unsupported legal conclusions, the plaintiff has not remedied this defect in his fourth amended complaint. In his memorandum in opposition to the motion to strike, the plaintiff fails to provide any legal authority to support his proposition that a four year old's "public display of sexually deviant behavior" is a dangerous propensity. Furthermore, the additional allegation that the child exhibited a dangerous propensity to "accuse others of sexually molesting or inappropriately touching her" is simply rewording the prior allegation that maliciousness, in the form of making a false report of sexual abuse, is a dangerous propensity. This allegation has already been found by this court to be a legal conclusion lacking in legal authority. See Vargas v. LaBella, supra, Superior Court, Docket No. CV06-5001941. The court finds that the plaintiff has failed to allege sufficient facts to establish that the minor child exhibited a dangerous propensity that the parents knew or should have known of. For this reason, the motion to strike count two is granted.
While the language of the plaintiff's allegations closely mirror the allegations addressed in Doe v. Favreau, Superior Court, judicial district of Fairfield, Docket No. CV 02 0393019 (March 7, 2003, Thim, J.) (34 Conn. L. Rptr. 276, 277), the allegations of the present case are distinguishable. In Doe, the court denied a parent's motion to strike a claim for negligent supervision of a child, finding that parents "created and fostered a home environment which included highly pornographic materials in their children's bedrooms and in common spaces in the home, which they knew was likely to instill sexually deviant behavior in their son; they were aware that their son had previously demonstrated sexually deviant behavior and failed to take action to prevent him from harming others; and they recklessly failed to restrain or control their son, although they knew that he had exhibited deviant behavior and had a propensity to commit sexual assault." (Emphasis added.) Id. These allegations were found sufficient to establish a basis for parental liability. Although it would appear that the plaintiff in the present case has made the same allegations, verbatim, his allegations fail to allege the requisite dangerous propensity.
C.
The defendants also move to strike count six, sounding in reckless supervision of a child, on the ground that it is essentially the same as count two, and has already been addressed by the court in the previous motion to strike the third amended complaint. The defendants raise the same arguments previously raised in support of the motion to strike count two; namely, the facts alleged are insufficient to overcome the parental immunity doctrine.
This court has already found that the plaintiff has not pleaded sufficient facts to establish that the child possessed a dangerous propensity. As the only difference between a claim for negligent supervision of a child and reckless supervision of a child, is the requisite mental state, the court finds the same defect to be fatal to count six. Therefore, the motion to strike count six is granted.
D.
The defendants contend that count five, alleging malicious prosecution, is also subject to the motion to strike for merely restating in substance, the allegations of the previously stricken count five of the third amended complaint. Count five of the third amended complaint was originally stricken because the "plaintiff has failed to allege facts that would overcome the presumption of probable cause inherent in his original conviction." The plaintiff repleaded this count, adding an additional allegation in count one and incorporated into count five, that the defendants "provided testimony in the initial criminal trial, which resulted in the Plaintiff's conviction but which they knew or should have know was false." In support of their motion to strike, the defendants argue that the plaintiff's additional allegation does not allege what the testimony pertained to, nor that the conviction was the result of the testimony. Furthermore, the defendants take issue with the plaintiff's use of the negligence standard, "knew or should have known," to support an alleged cause of action for malicious prosecution.
In McMahon v. Florio, 147 Conn. 704, 707, 166 A.2d 204 (1960), our Supreme Court stated: "Ordinarily, a conviction in a lower court, although reversed on appeal, is conclusive evidence of probable cause . . . [b]ut it ceases to be conclusive if the plaintiff in the action for malicious prosecution can, upon proper pleadings, establish that his conviction was obtained by fraud, perjury or other corrupt means . . ." Here, the plaintiff has alleged that the defendants provided false testimony that resulted in his conviction. As set forth in Fusario v. Cavallaro, 108 Conn. 40, 43, 142 A. 391 (1928), a claim for malicious prosecution is actionable if a person provides false testimony maliciously and without probable cause . . . However, while the allegation of false testimony may be suitable "corrupt means" to support a cause of action for malicious prosecution, the plaintiff's allegations still lack a factual basis for his conclusion that the testimony caused his conviction. The plaintiff does not specifically allege the substance of the false testimony. It is not enough to merely allege that false testimony was provided; the plaintiff must allege facts to support "the real impact that these alleged statements have on the jury's decision to convict the plaintiff." Vargas v. LaBella, supra, Superior Court, Docket No. CV 06-5001941. The existence of probable cause is a question of law, and a complaint that alleges mere conclusions of law, unsupported by the facts alleged, is subject to a motion to strike. Thus, based on the allegations, as incorporated into count five, the plaintiff has failed to sufficiently plead a cause of action for malicious prosecution. The motion to strike count five is thereby granted.
See Zeller v. Consolini, 59 Conn.App. 545, 554 n. 5, 758 A.2d 376 (2000) ("[t]he existence of probable cause is an absolute protection . . . and what facts, and whether particular facts, constitute probable cause is always a question of law.); see also Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
III.
The defendants move to strike counts three and four, sounding in false imprisonment and civil conspiracy, for failure to allege sufficient facts to assert a valid claim under the respective count.
A.
Regarding count three, the defendants argue that the plaintiff has not sufficiently alleged that his imprisonment was wholly unlawful and that the alleged warrant was invalid and legally unauthorized, or that the defendants themselves arrested the plaintiff. "[F]alse imprisonment is the unlawful restraint by one person of the physical liberty of another . . . A person is not liable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it." (Citations omitted; internal quotation marks omitted.) Rivera v. Double A Transportation, Inc., 248 Conn. 21, 31, 727 A.2d 204 (1999). "To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained by the defendant and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly." (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 820, 614 A.2d 414 (1992). Regarding the requisite intent, courts have noted that as false imprisonment is an intentional tort and "[n]othing less than a rather extreme brand of recklessness will substitute the standard requirement of intentional false imprisonment cases." Rivera v. Double A Transportation, Inc., 248 Conn. 21, 32, 727 A.2d 204 (1999).
In McCann v. Allen, 105 Conn. 177, 188, 134 A. 810 (1926), our Supreme Court recognized that a cause of action for false imprisonment can lie if the detention is "without process, or under a process void on its face, or under a process valid on its face but procured by one without having any cause of action . . ." In Lo Sacco v. Young, 20 Conn.App. 6, 20, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989), however, the court distinguished a cause of action for malicious prosecution from that of false imprisonment, particularly in the context of a claim arising from the filing of a police report. The court described the distinction between malicious prosecution and false imprisonment in the following manner. "Malicious prosecution is the groundless institution of criminal proceedings against the plaintiff. False imprisonment fell within the action of trespass, as a direct interference with the plaintiff's person, while malicious prosecution was regarded as more indirect, and the remedy for it was an action on the case. The distinction between the two lies in the existence of valid legal authority for the restraint imposed. If the defendant complies with the formal requirements of the law, as by swearing out a valid warrant, so that the arrest of the plaintiff is legally authorized, the court and its officers are not his agents to make the arrest, and their acts are those of the law and the state, and not to be imputed to him. He is therefore liable, if at all, only for a misuse of legal process to effect a valid arrest for an improper purpose. The action must be for malicious prosecution, upon proof of malice and want of probable cause, as well as termination of the proceeding in favor of the plaintiff." Id., 20. See also Outlaw v. City of Meriden, 43 Conn.App. 387, 393, 682 A.2d 1112 (1996) (finding that "there is no cause of action for false imprisonment if the plaintiff was arrested pursuant to a facially valid warrant.").
In count three, the plaintiff alleges that he was arrested and convicted as a result of a false police report filed by the defendants. He further alleges that the defendants intentionally provided false information to the police in an attempt to have the plaintiff falsely imprisoned. As noted above, however, the plaintiff's subsequent arrest and detention by the police is not imputed to the defendants. The plaintiff has failed to plead sufficient facts to establish that the defendants unlawfully restrained the plaintiff, as required to assert a claim for false imprisonment. The motion to strike count three is granted.
B.
The defendants argue that count four must be stricken for failure to allege sufficient facts to support a claim for civil conspiracy to commit malicious prosecution, pursuant to General Statutes § 53-39. Specifically, the defendants maintain that the plaintiff's allegations fail to demonstrate malicious prosecution due to the rebuttable presumption of probable cause arising out of the conviction in the first criminal trial. In response, the plaintiff argues: "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." (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 779, 835 A.2d 953 (2003). The plaintiff contends that he has pleaded sufficient facts to support these elements.
"Under Connecticut law, technically speaking, `there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself.' Cole v. Associated Construction Co., 141 Conn. 49, 54, 103 A.2d 529 (1954); see also 16 Am.Jur.2d 275-76, Conspiracy § 50 (1998). A claim of civil conspiracy, therefore, is insufficient unless based on some underlying cause of action . . . Consequently, for a plaintiff to recover on a conspiracy claim, the court must find the facts necessary to satisfy the elements of an independent underlying cause of action . . . More specifically, where the plaintiff is unable to establish the underlying cause of action . . . the cause of action for conspiracy to [commit the underlying action] must also fail." (Citations omitted; internal quotation marks omitted.) Litchfield Asset Management v. Howell, 70 Conn.App. 133, 140, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). In the present case, the underlying claim for malicious prosecution has already been stricken. This is fatal to the plaintiff's claim for civil conspiracy for this tort. The motion to strike count six is, thereby, granted.
IV.
In addition to moving to strike the above counts, the defendants also move to strike the second, third and fifth prayer for relief. "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). As this court has already struck all six counts of the plaintiff's complaint, it is unnecessary to address the merits of the accompanying prayers for relief.
V.
For the reasons stated above, the defendants' motion to strike the plaintiff's complaint in the entirety, is granted.
Having already found counts one, two, four, five and six subject to the defendants' motion to strike, the court need not address the defendants' alternative argument that the plaintiff has failed to allege sufficient facts to overcome the three-year statute of limitations bar under General Statutes § 52-577.