Reinaldo Madera v. Hartford Housing Authority et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE # 126 (HARTFORD HOUSING AUTHORITY AND SHARON BURTS)

The plaintiff, Reinaldo Madera, filed a two-count amended complaint on March 4, 2010, against the following defendants, Hartford Housing Authority (housing authority);  Alan E. Green, individually and in his official capacity as executive director of the housing authority;  Sharon Burts, individually and in her official capacity as scattered sites manager of the housing authority;  Advance Communications, Inc., doing business as Holly's Message Service, Inc.;   and Beatriz Santana.¹  In count one of the amended complaint, which the plaintiff entitles “Illegal Recording (Conn.Gen.Stat. § 52-570d),” the plaintiff alleges the following facts.   The plaintiff is employed by the housing authority.   During the relevant time period, Green has been the executive director of the housing authority, Burts has been the scattered sites manager for the housing authority and Burts ² has been the plaintiff's supervisor.   During this time, the housing authority retained the services of Holly's Message Service, Inc., or alternatively, of Advance Communications, Inc., doing business as Holly's Message Service,³ to provide the authority with telephone answering services and dispatch all after hour and holiday emergency calls.   Santana was an employee or agent of the message service.   On or about January 18, 2009, Burts directed and/or conspired with the message service, through its employees and/or agents including Santana, to surreptitiously record Burt's telephone conversations with the plaintiff without his knowledge or consent and to record the telephone conversations of several other employees of the housing authority without their knowledge and/or consent.   The housing authority, Green and/or Burts subsequently used the recorded telephone conversations in disciplinary proceedings against the plaintiff which resulted in his being suspended for sixty days.   These actions of all of the defendants violated General Statutes § 52-570d and caused the plaintiff to suffer damages.   In count two, breach of the right to privacy, the plaintiff alleges that these actions by all of the defendants constitute an unreasonable intrusion into the plaintiff's seclusion and/or violated the plaintiff's privacy rights and caused him to suffer damages.

On March 5, 2010, the defendants filed a motion to strike count one as it pertains to them on the ground that there are no allegations that they recorded the telephone calls on January 18, 2009.   The defendants move to strike count two as it pertains to them on the ground that there are no allegations that they violated the plaintiff's privacy.

“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).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).⁴

COUNT ONE

The defendants argue that count one should be stricken as to them on the ground that the plaintiff has failed to state a claim upon which relief can be granted because he failed to allege that the defendants recorded the telephone call between Burts and the plaintiff and General Statutes § 52-570d, which prohibits the recording of private telephone conversations without the consent of all parties, must be strictly construed in that it creates a statutory cause of action not available at common law.   The defendants contend that because the plaintiff alleges that Burts directed or conspired with the message service to record the conversations, and not that she taped or recorded them herself, the allegations are insufficient to state a cause of action under § 52-570d.

In opposition to the motion to strike count one, although the plaintiff counters that he alleged that both the housing authority and Burts conspired with the message service to record the conversations at issue, he has not made this allegation.   In addition, while he appears to recognize that the statute does not expressly provide for a cause of action for conspiracy, the plaintiff contends that by alleging that Burts was a manager at the housing authority and that she conspired with the messenger service, he has sufficiently alleged that Burts was acting on behalf of the housing authority and that this allegation is sufficient to state a claim against both these defendants for violation of § 52-570d.   The plaintiff further argues that if the motion to strike is granted, those who ordered the unlawful recording will escape liability under the statute, which is a result that “could not have been intended by the legislature.”

The defendants respond that allowing the plaintiff's conspiracy claim would impermissibly broaden the scope of the statute, and that even if the statute would support a claim of civil conspiracy, the plaintiff has not alleged that the defendants committed a criminal or unlawful act or a lawful act by criminal or unlawful means, which is an essential element of a civil conspiracy claim.

General Statutes § 52-570d provides, in pertinent part:  “(a) No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording, or (2) is preceded by verbal notification which is recorded at the beginning and is part of the communication by the recording party, or (3) is accompanied by an automatic tone warning device which automatically produces a distinct signal that is repeated at intervals of approximately fifteen seconds during the communication while such instrument, device or equipment is in use ․ (c) Any person aggrieved by a violation of subsection (a) of this section may bring a civil action in the Superior Court to recover damages, together with costs and a reasonable attorneys fee.”

The plain language of the statute indicates that it is limited to providing a cause of action against those who participate in the recording of conversations.⁵  The Appellate Court has explained the limitations of the statute as follows:  “Section 52-570d creates a statutory cause of action that was not available at common law.   Therefore, the language of the statute must be strictly construed ․ Strictly construed, § 52-570d prohibits the taping of a private telephone conversation, not the rerecording of an illegally taped conversation by a third party.”  (Citations omitted;  emphasis added.)   Holler v. Buckley Broadcasting Corp., 47 Conn.App. 764, 770, 706 A.2d 1379 (1998).   In that case, the court held that the trial court properly granted the defendant's motion to strike, as it concluded that he did not violate § 52-570d by rerecording a conversation that was taped by someone else.  Id. As a judge of the trial court has stated:

“[Section] 52-570d does not prohibit the use of an illegally recorded conversation, but only the act of illegally recording the conversation.”   Smith v. Hartford Firefighters, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0565304 (March 14, 1997, Aurigemma, J.) [19 Conn. L. Rptr. 314].

Even if the court were inclined to agree that the statute may support a cause of action for civil conspiracy, the plaintiff has not alleged sufficient facts to support such a claim against the housing authority, but has alleged sufficient facts against Burts.  “[T]here 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 ․ Thus, to state a cause of action, a claim of civil conspiracy must be joined with an allegation of a substantive tort.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Harp v. King, 266 Conn. 747, 779 n.37, 835 A.2d 953 (2003).  “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.)  Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 100 n.34, 952 A.2d 1 (2008).

In the present case, in count one, the plaintiff alleges that Burts directed and conspired, or both, with the message service through its employees or agents to surreptitiously record the telephone conversations between Burts and the plaintiff without the plaintiff's knowledge or consent.   As to Burts, the facts alleged do support the elements of a civil conspiracy to violate § 52-570d because the plaintiff has alleged that Burts acted in combination with the message service to illegally record the calls and that the message service acted pursuant to the scheme and in furtherance of its object by recording the calls, which caused damage to the plaintiff.   As to the housing authority, the facts alleged fail to support the first, second and third elements of a civil conspiracy to violate § 52-570d because the plaintiff has not alleged that the housing authority entered into an agreement or engaged in an unlawful act, a lawful act by unlawful means or that it entered into an agreement or a scheme to promote any unlawful act.   The allegations that other defendants directed or conspired, or both, to have the conversations recorded do not necessarily imply that the housing authority did so.  “[T]he purpose of a civil conspiracy claim is to impose civil liability for damages on those who agree to join in a tortfeasor's conduct and, thereby, become liable for the ensuing damage, simply by virtue of their agreement to engage in the wrongdoing.”  (Internal quotations marks omitted.)  Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 101.   Nor do the plaintiff's allegations, as the plaintiff argues, allege that Burts was acting “on behalf of the housing authority ․” Therefore, the motion to strike count one as to the Housing Authority must be granted and the motion to strike count one as to Burts must be denied.

COUNT TWO

The defendants also argue that the court should strike count two, as it pertains to them, in which the plaintiff alleges that the defendants breached his right of privacy, because there are no allegations that Burts or the housing authority taped the conversation, and it is the act of recording itself that constitutes the intrusion on another's privacy.   The plaintiff counters that he has alleged conduct by the defendants that was highly offensive and constituted an unreasonable intrusion into his seclusion and/or an invasion of his privacy rights in that he had the right to expect that his telephone conversations with Burts would not be recorded by third parties at Burts' instructions and without advance notice.   He claims that his allegations state a claim that the defendants conspired to invade this right.

“Connecticut has recognized the tort of invasion of privacy.”  Perkins v. Freedom of Information Commission, 228 Conn. 158, 171-72 n.16, 635 A.2d 783 (1993).  “[T]he law of privacy has not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone ․ The four categories of invasion of privacy are ․ as follows:  (a) unreasonable intrusion upon the seclusion of another;  (b) appropriation of the other's name or likeness;  (c) unreasonable publicity given to the other's private life;  or (d) publicity that unreasonably places the other in a false light before the public.”  (Citation omitted;  internal quotation marks omitted.)  Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007).

Count two is premised on the first category.  “The Connecticut Appellate Courts have yet to interpret what constitutes ․ an unreasonable intrusion upon the seclusion of another ․ The Supreme Court, however, has often adopted the Restatement [ (Second) of Torts] when adjudicating an invasion of privacy claim ․ and the Superior Court has consistently followed this practice when considering the tort of unreasonable intrusion upon the seclusion of another.”  (Citations omitted;  internal quotations omitted.)   Gleason v. Smolinski, Superior Court, judicial district of New Haven, Docket No. CV 06 5005107 S (July 20, 2009, Wilson, J.).   According to that source, “[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other ․ [t]he invasion may be by physical intrusion into a place in which the plaintiff has secluded himself.   It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or taping his telephone wires.”  (Citations omitted;  internal quotation marks omitted.)  Id. (quoting 3 Restatement (Second), Torts § 652B, p. 378 (1977)).

In addition, our Supreme Court has stated that a plaintiff's allegations “that the defendants' ‘joint action’ ․ invaded his privacy ․ [and] that the defendants agreed to deprive the plaintiff of his property ․ thereby causing him ․ economic loss.'  ․ These allegations comprise the essence of a civil conspiracy, namely, two or more persons acting together to achieve a shared goal that results in injury to another.”  Harp v. King, supra, 266 Conn. 779.   Thus the court has recognized a cause of action for conspiracy to invade a person's right to privacy.

In the present case, the plaintiff has alleged that Burts directed or conspired, or both, with the message service, to record his telephone conversations without his knowledge or consent.   Although these allegations are not sufficient to state a claim that either Burts, herself, or the housing authority, itself, engaged in actions that intentionally intruded, physically, or by the use of senses, with or without mechanical aids, on the plaintiff's private affairs, these allegations are sufficient, however, to state a cause of action against Burts for entering into a conspiracy with the message service to unreasonably intrude on the plaintiff's privacy.   Therefore, the motion to strike count two must be granted as to the Housing Authority and denied as to Burts.

CONCLUSION

Accordingly, for the foregoing reasons, the motion to strike count one as it pertains to the Housing Authority is hereby granted.   The motion to strike counts one and two as it pertains to Burts, is hereby denied.

Peck, J.

FOOTNOTES

FN1. The documents that have been filed refer to this defendant variously as “Beatrice Doe,” “Beatrice Santana,” and “Beatriz Santana.”.  FN1. The documents that have been filed refer to this defendant variously as “Beatrice Doe,” “Beatrice Santana,” and “Beatriz Santana.”

FN2. This memorandum of decision addresses the joint motion to strike of Burts and the housing authority and refers to them collectively as the “defendants.”   A motion to strike (docket entry # 124), filed by Green is the subject of a separate memorandum of decision filed this date..  FN2. This memorandum of decision addresses the joint motion to strike of Burts and the housing authority and refers to them collectively as the “defendants.”   A motion to strike (docket entry # 124), filed by Green is the subject of a separate memorandum of decision filed this date.

FN3. This memorandum of decision refers to this defendant as the “message service” without resolving the issue of which name is the proper name of the entity..  FN3. This memorandum of decision refers to this defendant as the “message service” without resolving the issue of which name is the proper name of the entity.

FN4. As a procedural matter, some judges of the Superior Court have determined “[a] motion to strike a count brought against multiple defendants may not be granted on the ground that the allegations are insufficient as they relate to a single defendant.   When a single count of a complaint combines separate causes of action against multiple defendants, the proper way to cure any confusion in that regard is to file a [request] to revise, not a motion to strike the entire complaint ․ If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike ․ Webster v. Pequot Mystic Hotel, LLC, Superior Court, judicial district of New London, Docket No. CV 0556799 (January 9, 2002, Hurley, J.T.R.) (31 Conn. L. Rptr. 217, 220);  see also Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).   Hodgate v. Ferraro, Superior Court, judicial district of New London, Docket No. CV 05 4001779 (November 10, 2005, Gordon, J.).”  (Internal quotation marks omitted.)   Metallo v. Torrington Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 09 5007012 (May 25, 2010, Shaban, J.).   In the present case, the housing authority, Green and Burts filed a request to revise in which they asked the court to order the plaintiff to revise his complaint to state separate counts against each defendant.   The court, Rittenband, J., sustained the plaintiff's objection to this request.   The plaintiff has not objected to the defendants' motion to strike on this basis.   Therefore, the court addresses the merits of the motion to strike as to each of the defendants..  FN4. As a procedural matter, some judges of the Superior Court have determined “[a] motion to strike a count brought against multiple defendants may not be granted on the ground that the allegations are insufficient as they relate to a single defendant.   When a single count of a complaint combines separate causes of action against multiple defendants, the proper way to cure any confusion in that regard is to file a [request] to revise, not a motion to strike the entire complaint ․ If a request to revise had been granted and complied with, the defendants would then have been in a position to move to strike ․ Webster v. Pequot Mystic Hotel, LLC, Superior Court, judicial district of New London, Docket No. CV 0556799 (January 9, 2002, Hurley, J.T.R.) (31 Conn. L. Rptr. 217, 220);  see also Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).   Hodgate v. Ferraro, Superior Court, judicial district of New London, Docket No. CV 05 4001779 (November 10, 2005, Gordon, J.).”  (Internal quotation marks omitted.)   Metallo v. Torrington Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 09 5007012 (May 25, 2010, Shaban, J.).   In the present case, the housing authority, Green and Burts filed a request to revise in which they asked the court to order the plaintiff to revise his complaint to state separate counts against each defendant.   The court, Rittenband, J., sustained the plaintiff's objection to this request.   The plaintiff has not objected to the defendants' motion to strike on this basis.   Therefore, the court addresses the merits of the motion to strike as to each of the defendants.

FN5. In discussing the question of whether a state agency could be held liable under § 52-570d for instituting a system that recorded telephone conversations between its employees and the public without warning the public, the attorney general stated that “depending on the facts of a particular case ․ the [employer] may be liable for [an employee's violation of § 52-570d].”   Opinions, Conn. Atty. Gen. No. 01-001 (January 9, 2001)..  FN5. In discussing the question of whether a state agency could be held liable under § 52-570d for instituting a system that recorded telephone conversations between its employees and the public without warning the public, the attorney general stated that “depending on the facts of a particular case ․ the [employer] may be liable for [an employee's violation of § 52-570d].”   Opinions, Conn. Atty. Gen. No. 01-001 (January 9, 2001).

Peck, A. Susan, J.