Opinion
No. CV 06-5001941 S
March 8, 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 September 19, 2006. Specifically, the defendants move to strike all six counts of the plaintiff's complaint for failure to allege facts sufficient to overcome the presumption of probable cause stemming from the plaintiff's prior criminal conviction. Alternatively, the defendants move that counts two and six of the complaint should be stricken for failing to state a claim upon which relief can be granted.
By way of a third amended complaint, the plaintiff, Alfredo Vargas, instituted this action in six counts and seeks money damages for the alleged tortious conduct of the defendants, Andrew M. LaBella and Cheryl L. Hoppenstein. The gravamen of the complaint is that the defendants falsely accused the plaintiff of sexually molesting the defendants' child. The counts are based on negligence, negligent supervision of a child, false imprisonment, civil conspiracy, malicious prosecution, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA). The defendants filed a motion to strike and a supporting memorandum, arguing that all six counts fail to allege facts sufficient to overcome a probable cause presumption arising out of the plaintiff's conviction for sexual assault secured in this case and which was later reversed. The defendants also seek, in the alternative, to strike counts two and six for failure to state causes of action for which relief can be granted. The plaintiff filed a memorandum in opposition. The matter was heard on short calendar on November 20, 2006.
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, CT Page 3785 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[T]he court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
II. A
In attacking all six counts of the plaintiff's complaint, the defendants argue that the presumption of probable cause arising from the plaintiff's initial conviction is fatal to all of the causes of action. Specifically, the defendants argue that the plaintiff's allegations fail to rebut the presumption of probable cause because the plaintiff's complaint nowhere alleges that the conviction was obtained by fraud, perjury or other corrupt means. To support this argument, the defendants rely on language contained in McMahon v. Florio, 147 Conn. 704, 166 A.2d 204 (1960). The defendants appear to argue that the precise words that the conviction was obtained by "fraud, perjury or other corrupt means," which derive from McMahon, must be expressly stated in the complaint. In support of the complaint's legal sufficiency, the plaintiff raises two arguments: (1) that the law is unsettled with respect to whether the presumption applies when the conviction is reversed on appeal such as in the present case; and (2) that even if McMahon applies, the complaint should be construed to sustain its sufficiency because the allegations made rebut the presumption.
It is noted at the outset that the probable cause presumption enunciated by the court in McMahon is still good law. Applied to the present case, the presumption has not been successfully rebutted by the plaintiff's complaint.
Because this argument derives from the fifth count of the complaint, the analysis must begin with the fifth count sounding in malicious-prosecution. A malicious prosecution claim is insufficient if want of probable cause is not alleged. Vandersluis v. Weil, 176 Conn. 353, 356, 407 A.2d 982 (1978). "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." (Internal quotation marks omitted.) Id.
"An action for malicious prosecution against a private person requires a plaintiff to prove that: (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." McHale v. W.B.S. Corp., 187 Conn. 444, 447, 446 A.2d 815 (1982); see also QSP, Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 360 n. 16, 773 A.2d 906 (2001).
A summary review of the McMahon decision is instructive when determining whether the plaintiff's claim survives. The facts in McMahon are similar to those in the present case. There, the defendant brought a charge of breach of the peace against the plaintiff and complained to the prosecuting attorney. The prosecutor then secured a signed statement from the defendant, caused an investigation to be made by the state police and a warrant to be issued directing the plaintiff's arrest. The plaintiff was found guilty in the Town Court and appealed his conviction to the Court of Common Pleas, where he was acquitted. Upon acquittal, the plaintiff brought a civil claim of malicious prosecution against the defendant. In reviewing the plaintiff's claim, our Supreme Court stated that "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 . . ." McMahon v. Florio, supra, 147 Conn. 707.
This principle remains valid as legal authority on the issue. Additionally, neither the court in McMahon nor any other court in Connecticut has engrafted to a malicious prosecution claim a special pleading requirement, namely that the claim contain the language, "fraud, perjury or other corrupt means." Thus, the absence of the words "fraud, perjury or other corrupt means" is not fatal to the plaintiff's complaint. However, the plaintiff's failure to allege facts sufficient to show that the plaintiff's conviction was obtained in the manner that McMahon describes is fatal. "Malice may be inferred from a want of probable cause, but the want of probable cause cannot be inferred from any degree of express malice." McGann v. Allen, 105 Conn. 177, 187, 134 A. 810 (1926). The plaintiff's complaint is rich in allegations of malice but lacks allegations to support want of probable cause. The relevant paragraphs of the complaint are replete with allegations of the defendants' continuous, malicious campaign to harass and humiliate the plaintiff. Although paragraph nineteen of the fifth count states that the defendants' "[criminal] complaint and charges were in fact false and there was no reasonable cause or probable cause for the prosecution," this statement is a legal conclusion unsupported by any factual allegations. As is well established, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
It is also difficult to decipher from the complaint any allegation that would rebut the presumption of probable cause that attaches under McMahon. First, the plaintiff has not alleged that the defendants acted fraudulently in securing the plaintiff's conviction. Had the plaintiff alleged that the defendants provided false testimony in the criminal trial, that would have rebutted the presumption of probable cause. See Fusario v. Cavallaro, 108 Conn. 40, 43, 142 A. 391 (1928). In McMahon, for instance, the plaintiff alleged that he was found guilty of breach of the peace "in consequence of the false testimony of the defendant." (Internal quotation marks omitted.) McMahon v. Florio, supra, 147 Conn. 707. In the present case, the plaintiff has made no such allegation. A finding of fraud underlying the defendants' criminal complaint would require the court to make inferential leaps from the plaintiff's slender allegations of the defendants' statements and conduct. There is no bridging allegation of the real impact that these alleged statements had on the jury's decision to convict the plaintiff. While the plaintiff may feel that the means employed by the defendants may have been allegedly corrupt, the plaintiff has not alleged that such means extended so far as to infiltrate the jury and undermine its finding of guilt.
Second, even the defendants' most invidious alleged conduct, contained in the plaintiff's allegations stating that the defendants filed criminal charges from malice and influenced the state and police to bring these charges against the plaintiff, does not suffice to allege the necessary want of probable cause element of a malicious prosecution claim. As a matter of law, "want of probable cause cannot be inferred from any degree of express malice." McGann v. Allen, supra, 105 Conn. 187. Finally, it is observed that, in the absence of sufficient allegations, exposing the defendants to liability for malicious prosecution may "have a chilling effect on the willingness of a private person to undertake any involvement in the enforcement of the criminal laws." McHale v. W.B.S. Corp., 187 Conn. 444, 450, 446 A.2d 815 (1982). Thus, the fifth count, alleging malicious prosecution, has not been adequately alleged because the plaintiff has failed to allege facts that would overcome the presumption of probable cause inherent in his original conviction.
B
Before examining the remaining counts one, two, three, four and six, the court must determine whether the defendants are correct to argue that the plaintiff's failure to rebut the presumption of probable cause has a ripple effect on the entire complaint because the remaining counts all derive from the malicious prosecution claim.
While the same factual predicates appear to underlie the whole complaint and make up the crux of the present case, the complaint was not drafted to accommodate the defendant's derivation argument. The plaintiff has not pleaded, by incorporating by reference, the fifth count's allegations into the rest of the counts. Instead, counts two through six each incorporate the allegations of count one as if fully set forth in those counts. Furthermore, for the failure of the fifth count to have the contagious effect that the defendants argue, the presumption of probable cause that defeated count five can spread only to those claims in which the lack of probable cause is a basic element.
Hence, the complaint must be searched to determine whether the remaining counts allege any cause of action that either contains lack of probable cause as an element or that must fail whenever there is a concomitant failure to allege malicious prosecution sufficiently. The remaining counts allege several torts with distinctive elements, none of which involve the lack of probable cause except, for reasons set forth below, negligence. A person acts without probable cause where "the knowledge of facts [is] [in]sufficient to justify a reasonable man in the belief that he has reasonable grounds for prosecuting the defendant for the charge complained of." McGann v. Allen, supra, 105 Conn. 186. The remaining claims are negligence, negligent supervision of a child, false imprisonment, civil conspiracy, and a CUTPA violation. Even when construed in the plaintiff's favor, none of these causes of action include the element of want of probable cause. Therefore, with the possible exception of the negligence claim examined below, the presumption cannot carry over from count five and automatically defeat these other factually related yet legally distinct claims.
"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.) LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002).
"At common law parents were not liable for the torts of their children unless they themselves were independently negligent, as where they had entrusted a dangerous instrumentality to their children or had failed to restrain their children who they knew possessed dangerous tendencies." LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970).
"The action for false imprisonment lies in the case of a detention without process, or without a process valid on its face . . . [T]he detention must be wholly unlawful . . ." McGann v. Allen, supra, 105 Conn. 187-88.
"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).
"CUTPA, by its own terms, applies to . . . commercial activity . . . The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce . . ." (Citation omitted; internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 380, 880 A.2d 138 (2005).
C
Although lack of probable cause is not an obvious element of a negligence claim, the claim as applied here embraces standards similar to those in a claim for malicious prosecution and thus cannot be striken without proper analysis. "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.) LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002). As to the first element of duty, "there may be a duty on the part of a citizen to use reasonable care to ascertain the true facts when he insists upon, demands or pressures the police to make an arrest. In those circumstances, conjecture or suspicion is insufficient and sincere belief must be based on circumstances which make it reasonable." LaFontaine v. Family Drug Stores, Inc., 33 Conn.Sup. 66, 75, 360 A.2d 899 (1976), citing Zenik v. O'Brien, 137 Conn. 592, 597, 79 A.2d 769 (1951). "The honesty and sincerity of the defendant's belief that the plaintiff committed a crime . . ." may depend on whether the defendant was motivated by malice. LaFontaine v. Family Drug Stores, Inc., supra, 76. "Where a private person gives to a prosecuting officer information which he believes to be true, and the officer in the exercise of his uncontrolled discretion initiates criminal proceedings based upon that information, the informer is not liable . . . even though the information proves to be false and his belief therein was one which a reasonable man would not entertain." (Emphasis added; internal quotation marks omitted.) Id.
Thus, to sufficiently plead the element of duty, a negligence claim, in the circumstances of this case, must allege that the prosecutor or police failed to exercise independent judgment or discretion in pursuing criminal charges because of the sway exerted by a private citizen informant. Accord 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). The plaintiff in McGuire alleged that the defendant bank's employees negligently misidentified the plaintiff as a perpetrator of a robbery of the defendant bank, resulting in the plaintiff's arrest. 20 Conn. L. Rptr. 616-17. The court found, however, that "[n]othing in the plaintiff's pleading allows the court to find that the bank employees `insisted on' or `demanded,' the plaintiff's arrest or in any way pressured the police to do what was in effect their job." Id., 617. Accordingly, the court determined that the plaintiff's negligence count failed to withstand the motion to strike. Id., 617-18.
In the present case, 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. As such, the motion to strike the first count is granted.
III.
The defendants next specifically challenge the sufficiency of count two of the plaintiff's complaint, which alleges negligent supervision of a child. To sustain this claim, "a plaintiff would need to 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.) Doe v. Favreau, Superior Court, judicial district of Fairfield, Docket No. CV 02 393019 (March 7, 2003, Thim, J.) ( 34 Conn. L. Rptr. 276, 277).
The plaintiff alleges the following facts to assert a claim for negligent supervision. "The plaintiff's injuries and losses were caused by the carelessness and negligence of the defendants, in . . . the following ways . . . they failed to exercise reasonable care in controlling the minor child so as to prevent her from harming the plaintiff . . . [they] negligently and carelessly failed to restrain their minor daughter although they knew or should have known that the minor possessed a propensity for maliciousness and/or false reports of sexual abuse or assault." The count also incorporates paragraph fifteen of the first count, which provides: "[T]his conduct has resulted in [the] plaintiff suffering severe emotional distress, harassment, embarrassment and ridicule."
The plaintiff's allegations are legally insufficient. First, these allegations simply restate the legal standards for parental liability set forth above. Thus, the allegations are merely legal conclusions that are far removed from any supporting factual basis in the complaint. "Courts are not bound by the legal conclusions of pleaders, even where they are pleaded as if they were facts in consecutively numbered paragraphs of the complaint . . . To the contrary, a court must ignore a pleader's legal conclusions when assessing the sufficiency of his challenged pleading." (Internal quotation marks omitted.) Pavelko v. Goodrich, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 4001356 (January 4, 2006, Taylor, J.); see also Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
Second, these allegations are distinguishable from those in Doe v. Favreau, supra, 34 Conn. L. Rptr. 276, because the plaintiff in the present case has not alleged any facts, such as past conduct by the child, to show that the defendants knew or had reason to know of the necessity of exercising control over their child.
In Favreau, the court denied the motion to strike where the plaintiff alleged that the minor's 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." Doe v. Favreau, supra, 34 Conn. L. Rptr. 278.
Third, the plaintiff's allegations imply the legal conclusion that maliciousness, in the form of making a false report of sexual abuse, is a dangerous propensity. The plaintiff's memorandum has offered no legal authority for that proposition and the court is unaware of any such authority. Thus, the second count insufficiently alleges a claim of negligent supervision of a child and is stricken.
IV.
Lastly, the defendants specifically argue that CUTPA is inapplicable to the facts alleged. The defendant LaBella is alleged to have accessed information regarding the plaintiff's criminal past during the defendant's employment as a per diem clerk of the Superior Court. According to the plaintiff, such conduct constitutes a pattern of unfair, deceptive, and unscrupulous behavior.
The plaintiff's allegation of a CUTPA violation is without merit. The bounds of a CUTPA claim do not stretch so far. It is fundamental that for there to be a viable CUTPA claim, the alleged conduct must involve commercial activity. Eder Bros., Inc. v. Wine Merchants of Connecticut Inc., 275 Conn. 363, 380, 880 A.2d 138 (2005). There are no allegations which allege that the defendants engaged in commercial activity. Accordingly, the sixth count of the plaintiff's complaint fails to state a cause of action for a CUTPA violation and should be stricken.
V.
For the above reasons, the court grants the defendants' motion to strike as to counts one, two, five and six for failure to allege negligence, negligent supervision of a child, malicious prosecution and a violation of CUPTA with requisite legal sufficiency. The motion to strike counts three and four are denied.