Vivian E. Johnson v. LLC (2011)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (115)

FACTS

On December 21, 2010, the pro se plaintiff, Vivian E. Johnson, filed its “Second Revised Amended Complaint.”   This complaint remains the operative complaint in the case.   The complaint includes a number of purported counts, all arising from the plaintiff's purchase of a used Volvo XC9O automobile and her subsequent efforts to repair and maintain it.   The only named defendant in this action is Volvo Cars of North America, LLC.

On March 9, 2011, the defendant filed this motion to strike (No. 115) and accompanying memorandum of law (No. 116).   On April 21, 2011, the plaintiff filed an objection to the defendant's motion to strike and supporting memorandum (No. 115).   The court heard oral argument on this matter on September 26, 2011.

DISCUSSION

[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․” (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).   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).

This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ․ Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).

In its motion to strike, the defendant argues that each of the plaintiff's “counts” are legally insufficient.   The defendant summarily rejects counts one, two, three, four, five, seven, eight, ten, twelve, thirteen, fourteen, fifteen and seventeen as legally insufficient.¹  The defendant argues count six is legally insufficient because the plaintiff fails to allege that an alleged breach of duty caused her damages.   The defendant argues that the allegations in counts nine and eleven are legally insufficient to state a claim for negligent infliction of emotional distress because the plaintiff fails to allege that she suffered any emotional distress, that the defendants should have realized that its conduct involved an unreasonable risk of causing emotional distress and that the emotional distress, if caused, could have resulted in illness or bodily harm to the plaintiff.   The defendants further argue that the allegations in counts nine and eleven are legally insufficient to state a claim for negligence because the complaint is devoid of allegations concerning a duty owed by the defendant to the plaintiff, a breach of that duty by the plaintiff as well as any allegation that the alleged breach caused the plaintiff actual injury.   In her objection, although the plaintiff makes a number of factually based arguments in reply, she fails to address the legal arguments made by the defendant.

Counts One, Two, Three, Ten, Fourteen, Fifteen, Sixteen and Seventeen

“Practice Book § 10–41 requires that a motion to strike raising a claim of insufficiency ‘shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.’   Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ․ Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective ․ and that Practice Book § [10–42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10–41] that the reasons for the claimed pleading deficiency be specified in the motion itself.”  (Internal quotation marks omitted.)  Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).

In its motion to strike, the defendant baldly argues that counts one, two, three, ten, fourteen, fifteen, sixteen and seventeen “clearly are legally insufficient.”   The form and substance of the defendant's argument is itself insufficient.   Therefore, the defendant's motion as it pertains to counts one, two, three, ten, fourteen, fifteen, sixteen and seventeen is denied.

Count Six

The plaintiff's count six is labeled “BREACH OF FIDUCIARY DUTY AND BREACH OF DUTY TO CAUSE HARM TO THE PLAINTIFF EMOTIONALLY AND PHYSICALLY.”   Count six does not contain an allegation that the defendant owed the plaintiff any duty.   Without first alleging that a duty existed, the plaintiff cannot state a claim for breach of a duty.   The plaintiff's count six is thus legally insufficient.   Therefore, the defendant's motion to strike as it pertains to count six is granted.

Count Seven

The plaintiff's count seven is labeled “DEFENDANT CONSPIRED TO HIDE THE TRUE CONDITION OF PLAINTIFF'S CAR IN VIOLATION OF CGS § 42–221, § 42–222.”   Neither General Statutes § 42–221 ² or General Statutes § 42–222 ³ provide the plaintiff with a private cause of action.   Thus, the plaintiff cannot state a valid claim under either statute.   Even were the court to construe this count as a fraud count, see Mourning v. Commissioner of Correction, 120 Conn.App. 612, 624–25, 992 A.2d 1169 (2010) (“[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party ․ The modern trend ․ is to construe pleadings broadly and realistically, rather than narrowly and technically ․”), the claim would be legally insufficient because the plaintiff has not included an allegation that the defendant made a statement to the plaintiff that was untrue and known to be untrue by the defendant.   See Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 296, 823 A.2d 1184 (2003) (“Under the common law ․ it is well settled that the essential elements of fraud are:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury”).

Count Eight

The unlabeled count eight consists of two paragraphs that each describe a recall undertaken by the defendant.   Standing alone, these allegations do not constitute a cognizable legal claim.   Thus, the defendant's motion to strike as it pertains to count eight is granted.

Counts Nine and Eleven

Both counts nine and eleven are labeled “VOLVO NEGLIGENCE CAUSED PLAINTIFF PAIN AND SUFFERING.”   To state a legally sufficient cause of action for negligence, the plaintiff must allege:  “duty;  breach of that duty;  causation;  and actual injury ․” D'Angelo Development and Construction Corp. v. Cordovano, 121 Conn.App. 165, 184, 995 A.2d 79 (2010).  “Contained within the first element, duty, there are two distinct considerations ․ First, it is necessary to determine the existence of a duty ․” Id. In each of these two counts the plaintiff has failed to allege that the defendant owed her any duty.   The counts are both devoid of any allegations regarding the relationship between the two parties.   Without alleging the existence of a duty, these two counts fail to state causes of action for negligence and thus, the defendant's motion to strike as it pertains to these two counts is granted.

Count Twelve

The unlabeled twelfth count consists of five legal claims that are not supported by any factual allegations.   Without factual allegations to buttress her legal claims, the plaintiff cannot state viable causes of action.   Accordingly, the defendant's motion to strike is granted as it pertains to count twelve.

Count Thirteen

In her unlabeled count thirteen, the plaintiff claims that the defendant is “liable for design and manufacturing defects under CGS § 52–572m.”   General Statutes § 52–572m ⁴ does not provide a private cause of action.   Thus, the plaintiff fails to state a cognizable legal claim.   Therefore, the defendant's motion to strike as it pertains to count thirteen is granted.

CONCLUSION

The defendant's motion to strike is granted as it pertains to counts six, seven, eight, nine, eleven, twelve and thirteen and denied as it pertains to counts one, two, three, ten, fourteen, fifteen, sixteen and seventeen.

Woods, J.

FOOTNOTES

FN1. The second revised complaint does not contain a fourth or fifth count.   Accordingly, neither of these counts will be discussed..  FN1. The second revised complaint does not contain a fourth or fifth count.   Accordingly, neither of these counts will be discussed.

FN2. General Statutes § 42–221 provides:  “(a) A dealer selling a used motor vehicle which has a cash purchase price of three thousand dollars or more shall not exclude, modify, disclaim or limit implied warranties on the motor vehicle.“(b) Each contract entered into by a dealer for the sale to a consumer of a used motor vehicle which has a cash purchase price of three thousand dollars or more but less than five thousand dollars, shall include an express warranty, covering the full cost of both parts and labor, that the vehicle is mechanically operational and sound and will remain so for at least thirty days or one thousand five hundred miles of operation, whichever period ends first, in the absence of damage resulting from an automobile accident or from misuse of the vehicle by the consumer.   Each contract entered into by a dealer for the sale of a used motor vehicle which has a cash purchase price of five thousand dollars or more shall include an express warranty, covering the full cost of both parts and labor, that the vehicle is mechanically operational and sound and will remain so for at least sixty days or three thousand miles of operation, whichever period ends first, in the absence of damage resulting from an automobile accident or from misuse of the vehicle by the consumer.   A dealer may not limit a warranty covered by this section by the use of such phrases as ‘fifty-fifty,’ ‘labor only,’ ‘drive train only,’ or other words attempting to disclaim his responsibility.“(c) The provisions of this section shall not apply to:  (1) The sale of a used motor vehicle having a cash purchase price of less than three thousand dollars;  (2) the sale of such motor vehicles between dealers;  or (3) the sale of a used motor vehicle which is seven years of age or older, which age shall be calculated from the first day in January of the designated model year of such vehicle.“(d) The consumer may waive a warranty required pursuant to this section only as to a particular defect in the vehicle which the dealer has disclosed to the consumer as being defective.   No such waiver shall be effective unless such waiver:  (1) Is in writing;  (2) is conspicuous, as defined in subdivision (10) of subsection (b) of section 42a–1–201, and is in plain language;  (3) identifies the particular disclosed defect in the vehicle for which such warranty is to be waived;  (4) states what warranty, if any, shall apply to such disclosed defect;  and (5) is signed by both the customer and the dealer prior to sale.”.  FN2. General Statutes § 42–221 provides:  “(a) A dealer selling a used motor vehicle which has a cash purchase price of three thousand dollars or more shall not exclude, modify, disclaim or limit implied warranties on the motor vehicle.“(b) Each contract entered into by a dealer for the sale to a consumer of a used motor vehicle which has a cash purchase price of three thousand dollars or more but less than five thousand dollars, shall include an express warranty, covering the full cost of both parts and labor, that the vehicle is mechanically operational and sound and will remain so for at least thirty days or one thousand five hundred miles of operation, whichever period ends first, in the absence of damage resulting from an automobile accident or from misuse of the vehicle by the consumer.   Each contract entered into by a dealer for the sale of a used motor vehicle which has a cash purchase price of five thousand dollars or more shall include an express warranty, covering the full cost of both parts and labor, that the vehicle is mechanically operational and sound and will remain so for at least sixty days or three thousand miles of operation, whichever period ends first, in the absence of damage resulting from an automobile accident or from misuse of the vehicle by the consumer.   A dealer may not limit a warranty covered by this section by the use of such phrases as ‘fifty-fifty,’ ‘labor only,’ ‘drive train only,’ or other words attempting to disclaim his responsibility.“(c) The provisions of this section shall not apply to:  (1) The sale of a used motor vehicle having a cash purchase price of less than three thousand dollars;  (2) the sale of such motor vehicles between dealers;  or (3) the sale of a used motor vehicle which is seven years of age or older, which age shall be calculated from the first day in January of the designated model year of such vehicle.“(d) The consumer may waive a warranty required pursuant to this section only as to a particular defect in the vehicle which the dealer has disclosed to the consumer as being defective.   No such waiver shall be effective unless such waiver:  (1) Is in writing;  (2) is conspicuous, as defined in subdivision (10) of subsection (b) of section 42a–1–201, and is in plain language;  (3) identifies the particular disclosed defect in the vehicle for which such warranty is to be waived;  (4) states what warranty, if any, shall apply to such disclosed defect;  and (5) is signed by both the customer and the dealer prior to sale.”

FN3. General Statutes § 42–222 provides:  “A dealer shall honor any warranty required by sections 42–220 to 42–226, inclusive, notwithstanding the fact that the warranty period has expired, provided the consumet notifies the dealer of a claimed breach of the warranty within the warranty period specified in subsection (b) of section 42–221.”.  FN3. General Statutes § 42–222 provides:  “A dealer shall honor any warranty required by sections 42–220 to 42–226, inclusive, notwithstanding the fact that the warranty period has expired, provided the consumet notifies the dealer of a claimed breach of the warranty within the warranty period specified in subsection (b) of section 42–221.”

FN4. General Statues § 52–572m provides:  “As used in this section and sections 52–240a, 52–240b, 52–572n to 52–572q, inclusive, and 52–577a:“(a) ‘Product seller’ means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.   The term ‘product seller’ also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products.“(b) ‘Product liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent.“(c) ‘Claimant’ means a person asserting a product liability claim for damages incurred by the claimant or one for whom the claimant is acting in a representative capacity.“(d) ‘Harm’ includes damage to property, including the product itself, and personal injuries including wrongful death.   As between commercial parties, ‘harm’ does not include commercial loss.“(e) ‘Manufacturer’ includes product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product or component part of a product prior to its sale to a user or consumer.   It includes a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer.”.  FN4. General Statues § 52–572m provides:  “As used in this section and sections 52–240a, 52–240b, 52–572n to 52–572q, inclusive, and 52–577a:“(a) ‘Product seller’ means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption.   The term ‘product seller’ also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products.“(b) ‘Product liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product.  ‘Product liability claim’ shall include, but is not limited to, all actions based on the following theories:  Strict liability in tort;  negligence;  breach of warranty, express or implied;  breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent;  misrepresentation or nondisclosure, whether negligent or innocent.“(c) ‘Claimant’ means a person asserting a product liability claim for damages incurred by the claimant or one for whom the claimant is acting in a representative capacity.“(d) ‘Harm’ includes damage to property, including the product itself, and personal injuries including wrongful death.   As between commercial parties, ‘harm’ does not include commercial loss.“(e) ‘Manufacturer’ includes product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product or component part of a product prior to its sale to a user or consumer.   It includes a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer.”

Woods, Glenn A., J.