Janice Presto v. Marolin Goodchild (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE, No. 108

FACTS

On July 19, 2010, the plaintiffs, Janice Presto and Tony Presto, filed an eight-count complaint against the defendants, Marolin Goodchild, Carolin Redman, Doris Teske and Julian Teske.   The causes of action are slander, conspiracy to commit slander, invasion of privacy by false light, conspiracy to invade privacy by false light, invasion of privacy by intrusion upon seclusion, conspiracy to invade privacy by intrusion upon seclusion, intentional infliction of emotional distress and negligent infliction of emotional distress.   Each count is asserted against all four defendants and alleges the following facts.   The defendants Goodchild, Redman, Teske and the plaintiff Janice Presto are all daughters of Herman J. Miller.   The plaintiffs helped Miller with his personal needs since December 2003.   On or about October 2007 and continuing thereafter on other dates including April 10, April 12, April 14 and April 24, 2008 and September 30, 2009, the defendants took actions regarding personal matters and slandered the plaintiffs by accusing the plaintiffs of stealing from Miller in an attempt to get the plaintiff Janice Presto disinherited from her father's will.   The complaint contains eleven allegedly defamatory statements and actions, which include:  leaving a list of “stolen items” at Miller's home while accusing the plaintiffs of stealing from Miller;  telling Miller's doctor that the plaintiff stole “six figures” from Miller and was “taking advantage” of him;  accusing the plaintiff of stealing over $21,000 from Miller in the presence of several other people;  declaring that they have “proof” that the plaintiff stole from Miller while in the presence of an attorney and a secretary;  accusing the plaintiff in the presence of others of “taking” $70,000;  implying to a probate judge after a proceeding was finished that the plaintiff was embezzling money from her father;  testifying during a probate proceeding that the plaintiff abused her position of trust and stole from Miller;  accusing the plaintiffs of helping Miller for their own benefit;  telling the staff at an elder care facility, the police department and at least one neighbor that the plaintiffs have stolen from Miller.

On September 9, 2010, the defendants filed a motion to strike the entire complaint on the ground that the defendants' allegedly tortious statements were privileged and thus not actionable as a matter of law.   The motion is accompanied by a memorandum of law.   On September 23, 2010, the plaintiffs filed a memorandum in opposition to the motion to strike.

DISCUSSION

“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).  “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 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).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “Insofar as [a] motion to strike is directed [to] the entire complaint, it must ․ fail if any of the plaintiff's claims are legally sufficient.”  (Internal quotation marks omitted.)  Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 [3 Conn. L. Rptr. 135] (1991).   Furthermore, “grounds other than those specified should not be considered by the trial court in passing upon a motion to strike.”  (Internal quotation marks omitted.)   Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).

In the present case, the defendants argue that the alleged statements and conduct of the defendants were privileged in that they were in the context of court proceedings, consultations with legal counsel or in the context of medical treatment, and therefore, the allegedly tortious statements and conduct are not actionable as a matter of law.   Specifically, the defendants contend that the public policy promoting the free exchange of information with medical and legal professionals at the very least merit a qualified privilege.   The plaintiffs counter that only one of the several specific instances alleged in their complaint took place during a judicial proceeding and that there is no other privilege recognized by Connecticut law that applies here.

As a preliminary matter, “a motion to strike [is] the proper procedural vehicle for determining the applicability of the absolute privilege” in a defamatory action.  Dlugokecki v. Vieira, 98 Conn.App. 252, 255, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006).   The court must “focus on the contents of the defendant's allegedly defamatory statements and the allegations in the complaint to determine whether ․ the absolute privilege applie[s] to bar the plaintiff's recovery.”  Id., 256.

“It is well settled that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy.”  (Internal quotation marks omitted.)  Hopkins v. O'Connor, 282 Conn. 821, 830-31, 925 A.2d 1030 (2007).   The absolute privilege accorded to statements made in connection with a court proceeding is based on a strong public policy “that encourages participants in legal proceedings to speak freely and without fear that they might later be subjected to judicial scrutiny or tort liability.”  Alexandru v. Strong, 81 Conn.App. 68, 84, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004).  “Our courts have recognized three essential limitations upon the circumstances in which absolute immunity attaches to statements made in a judicial proceedings.   First, the proceedings in which the statements are made must in fact be a ‘judicial proceeding.’  ․ Second, the statements in question must be made ‘in the course of that judicial proceeding.   Third, such statements must somehow relate to the subject matter of that proceeding.”   (Citation omitted;  internal quotation marks omitted.)   Fiondella, Inc. v. Reiner, Reiner & Bendett, Superior Court, judicial district of Hartford, Docket No. CV 08 5025357 (December 4, 2009, Sheldon, J.).

With respect to the first such limitation, “[t]he ‘judicial proceeding’ to which [absolute] immunity attaches ․ includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not.”  Hopkins v. O'Connor, supra, 282 Conn. 831.  “The scope of privileged communication extends not merely to those made directly to a tribunal, but also to those preparatory communications that may be directed to the goal of the proceeding.”  Id., 832.  “The privilege applies also to statements made in pleadings or other documents prepared in connection with a court proceeding.”  (Internal quotation marks omitted.)  Alexandru v. Strong, supra, 79 Conn.App. 83.

In the present case, because the defendants have filed a blanket motion to strike aimed at the plaintiffs' entire complaint on the sole ground of privilege, it must fail if any viable cause of action exists, admitting all facts and construing the pleading in a light most favorable to the plaintiffs.   See, e.g., Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252.   In the complaint, the plaintiffs have alleged eleven instances of defamatory statements or conduct attributed to the defendants in paragraphs eleven through twenty-one of each count.   The statements and conduct alleged in paragraphs eleven, thirteen, fifteen, seventeen, twenty and twenty-one of the complaint can in no way be interpreted as having occurred in a judicial proceeding or in preparation for one.   Thus they are not privileged.

Paragraph twelve alleges statements made to a doctor.   A prior Superior Court decision narrowly extended the scope of the “judicial proceeding” privilege to include a doctor's response to a request for a medical opinion as part of a personal injury action.   See Mandell v. Comprehensive Rehabilitation Associates, Inc., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. CV 95 0466384 (June 30, 1995, Holzberg, J.) [14 Conn. L. Rptr. 418].   Here, the plaintiffs have not alleged, nor do the defendants contend, that the statements were made in contemplation of or in preparation for a lawsuit or judicial proceeding;  thus the privilege does not apply to the conduct alleged in this paragraph.

Paragraph fourteen concerns statements allegedly made in an attorney's office.   Nothing in the allegation indicates whether the statements were made while preparing for a judicial proceeding.   Further, there is no allegation of an attorney-client relationship between this attorney and any of the parties.   Viewing the pleading in a manner most favorable to sustaining its legal sufficiency, the statements in paragraph fourteen are not privileged.

Paragraphs sixteen, eighteen and nineteen allege conduct that may directly or indirectly involve a judicial proceeding.   Because the plaintiffs have already alleged eight specific instances of non-privileged defamatory conduct, however, their complaint will survive this motion to strike;  accordingly, the court need not decide whether the conduct in these other three paragraphs is privileged for the purposes of this opinion.

CONCLUSION

Based on the foregoing, the court hereby denies the defendants' motion to strike the plaintiffs' complaint.

Martin, J.

Martin, Robert A., J.