Margaret Stefanoni v. Darien Little League, Inc. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (104.00)

I. FACTS

On January 22, 2011, the plaintiff, Margaret Stefanoni, commenced this action by service of process on the defendant, Darien Little League, Inc. On June 6, 2011, the plaintiff filed the amended three-count complaint in which she alleges the following facts.   The plaintiff is an affordable housing developer and has proposed several such developments in the Town of Darien, Connecticut.   In the fall of 2010, her son was placed on the defendant's roster for the fall baseball season.   After her son was placed on a team in one division, a member on the defendant's board of directors emailed the plaintiff's husband to inform him that their son would have to play in a lower division because the child was in the fourth grade.   The plaintiff and her husband had numerous conversations and written correspondence with the defendant's president, Tony Farren, board members, and with representatives of the national Little League organization.   Nevertheless, Farren refused to restore the plaintiff's son to the team to which he was initially assigned.   On September 16, 2010, the Darien Times published an article on an investigation that the United States Department of Justice was conducting in the town for alleged violations of fair housing laws.   In the article, the plaintiff stated that she suffered repercussions as a result of her work as an affordable housing developer.   She was quoted saying that she “believed it was personal that [her son] ‘was the only boy out of several hundred affected by a sudden and unprecedented policy change that recently forced him to play with boys from two leagues below his.’ “

In the first count of the complaint, the plaintiff alleges that the defendant defamed her in that, on September 23, 2010, the defendant sent a letter to the editor of the Darien Times in which it stated that the comments that the plaintiff made in the September 16 article were false and that the defendant's policy of placing players strictly by their school grade was not new or arbitrary.   According to the plaintiff, in the letter the defendant characterized the plaintiff “as crazy and/or drug-induced by attributing statements to her that she did not make and describing them as ‘half baked.’   “ She attached a copy of the article and the letter to the amended complaint.

In the second count, the plaintiff alleges that the defendant defamed her in that, on September 18, 2010, the defendant sent an email to the parents of all Darien Little League participants “characterizing the plaintiff as a liar whose statement in the Darien Times about the fall baseball policy for placing her son was categorically false.”   According to the plaintiff, approximately 1500 people participate in the league, and the email reached thousands of individuals.   The plaintiff attached a copy of the email to the amended complaint.

In the third count, the plaintiff alleges that the defendant also defamed her by engaging in the following conduct.   On September 18, 2010, the defendant posted the text of the email that it had sent to all league participants on the home page of its website.   According to the plaintiff, the statement characterized the plaintiff as a liar whose statement was “categorically false.”   The statement was on the publicly accessible website for several months and during that time, the website had over one million visitors.   The plaintiff attached a copy of the home page of the Darien Youth Baseball and Softball's website to the amended complaint.

In all three counts, the plaintiff alleges the following.   As a housing developer in Darien, she appears before different local boards and commissions seeking approval for her applications and permits.   Some Darien residents who receive the Darien Times are members of these board and commissions and/or are affiliated with the defendant and received the email at issue and/or may have viewed the defendant's website.   Her integrity is an integral part of her job when she makes representations and attests to the veracity of information that she has submitted in her applications.   The plaintiff has suffered emotional distress and damage to her reputation as a direct and proximate result of the defendant's letter to the editor in the Darien Times, its email to the parents of all league participants and its posting of the email text on its website.   The plaintiff requested that the defendant apologize for its' statements, but it did not respond.   In her prayer for relief, the plaintiff asks for nominal damages and for the defendant to retract its statement characterizing her as a liar and as “half baked” in the same ways the statements were published.

On June 21, 2011, the defendant filed a motion to strike the plaintiff's complaint on the ground that the plaintiff failed to assert any facts to support her allegations that the defendant defamed her.   The defendant also states that it fully sets forth its arguments in the supporting memorandum of law.   On July 18, 2011, the plaintiff filed an objection to the defendant's motion to strike and on August 2, 2011, the defendant replied to the plaintiff's objection.   Arguments on the motion were heard September 12, 2011.

II. 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 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).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   On the other hand, “[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.

In the motion to strike, the defendant asks the court to strike the complaint “because the plaintiff has failed to assert any facts to support that [the defendant] has defamed her.”   In its memorandum of law in support of the motion, the defendant specifies that the plaintiff fails to state claims for defamation in the complaint in that:  (1) the statements that provide the basis for the plaintiff's claims were not defamatory and were true;  (2) the plaintiff is a public figure and she cannot establish that the defendant acted with malice;  and (3) the defendant's statements are protected by a qualified privilege.   The plaintiff objects to the motion on both procedural and substantive grounds.   Procedurally, the plaintiff argues that the motion should be denied because it does not comply with the requirements of Practice Book § 10–41, and because the defendant seeks to introduce facts outside the pleadings and inappropriately relies on these facts to establish its assertions that the plaintiff is a public figure and that its statements are covered by a qualified privilege.   As to the merits of the motion, the plaintiff maintains that she pleaded sufficient facts to support the required elements of defamation.   In reply to the plaintiff's objection, the defendant asserts that it complied with § 10–41, and that even if the court disregards any facts that the defendant may have sought to introduce that were outside the information contained in the pleadings, the plaintiff has failed to plead claims for defamation.

I

Procedural IssuesAPractice Book § 10–41

The first issues to be addressed are procedural.  “Practice Book § 10–41 requires that a motion to strike raising claims of insufficiency shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.¹  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. Frieberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).

In this case, the plaintiff did not waive this deficiency, as she specifically objected to the motion on the grounds that it fails to comply with Practice Book § 10–41.   The motion here does not meet the standard stated in Stuart v. Frieberg because the defendant “failed to set forth separately each claim of insufficiency and failed to specify distinctly the reasons for each claimed insufficiency.”  Id., 862.   Rather, in its motion, the defendant merely states that the plaintiff failed to assert any facts to support her claims that the defendant defamed her.   The amended complaint contains three separate defamation claims and, although the defendant states several reasons for challenging the plaintiff's causes of action in its memorandum of law, it failed to include those reasons in the motion itself.   The defendant's contention that its motion conforms with Connecticut law in that its “complete motion submission” contains the specific grounds for the motion is unavailing.   The Appellate Court has expressly stated that “the fact that [the reasons] were provided in the accompanying memorandum of law does not save the motion [to strike] from being considered fatally defective.”  (Internal quotation marks omitted.)  Id., 862.

As the defendant points out, in at least two cases, the Appellate Court has determined that a motion to strike that was “arguably unspecific” was sufficient to comply with § 10–41.   See Rowe v. Godou, 12 Conn.App. 538, 532 A.2d 978 (1987), overruled on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988), and Himmelstein v. Windsor, 116 Conn.App. 28, 974 A.2d 820, cert. granted on other grounds, 293 Conn. 927, 980 A.2d 910 (2009).   The motions to strike that were at issue on those cases are, however, distinguishable from the defendant's motion.

As the Appellate Court explained, “[i]n Rowe v. Godou ․ the defendants requested the court to strike the plaintiff's complaint on the ground that the action was ‘barred by statute,’ but they failed to cite the statutory authority.   The supporting memorandum of law identified the applicable statute ․ We concluded that a motion to strike that lacks specificity but which adequately submits the material issue to the court is sufficient to comply with Practice Book § 10–41 ․ Rowe v. Godou, supra, 541–42.   Our Supreme Court, in reviewing that issue on appeal, stated that it agreed with our reasoning, and the result that we reached, in deciding that issue.  Rowe v. Godou, [supra, 209 Conn. 275].”  (Internal quotation marks omitted.)   Stuart v. Freiberg, supra, 102 Conn.App. 862 n.3.

More recently, in Himmelstein v. Windsor, supra, 116 Conn.App. 36, the Appellate Court determined that the trial court correctly concluded that the defendant's motion to strike adequately complied with § 10–41, in that, “[n]otwithstanding the general reference to the entire complaint, the defendant's motion presented five specific bases as to why certain counts in the complaint were legally insufficient.   We agree with the trial court that those five paragraphs identify the counts sought to be stricken, as well as specify the legal grounds for which the motion to strike should be granted.   We conclude that the defendant's motion to strike adequately submitted the issues to the court.”

As previously noted, in the present case, in its motion to strike, the defendant merely states that the plaintiff does not allege any facts to support her claims.   It does not specify which elements of the plaintiff's claims are insufficient, nor does it mention its arguments that the plaintiff is a public figure and thus required to allege malice and that it is entitled to qualified immunity.   As the Appellate Court stated in Stuart, referring to a similarly deficient motion to strike, “[s]imply stating that all of the counts ‘are legally insufficient’ and that they fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiff cannot be considered compliance with Practice Book § 10–41.   The complaint was in four counts, and the defendant gave several reasons for his challenge to the causes of action ․ in his memorandum of law in support of the motion.   Those reasons, however, were not contained in the motion itself, and the fact that they were provided in the accompanying memorandum of law does not save the motion from being considered fatally defective ․

“Accordingly, because the defendant's motion failed to set forth each claim of insufficiency and failed to specify the grounds of insufficiency as required by Practice Book § 10–41, we must conclude that the [trial] court improperly granted the motion to strike.”  (Citation omitted;  internal quotation marks omitted.)  Stuart v. Freiberg, supra, 102 Conn.App. 862–63.

For the reasons set forth above and the authorities cited, the court finds that the defendant's motion to strike should be denied for failure to comply with Practice Book § 10–41.

B

Facts Outside the Pleadings

The next procedural issue is whether the court can consider facts outside the pleadings in ruling on the motion to strike.   As previously noted, the plaintiff attached copies of the following four documents as exhibits to the amended complaint:  the September 16, 2010 newspaper article;  the defendant's letter to the editor, as it appeared in the Darien Times on September 23, 2010;  the email that the defendant's board allegedly sent to other league participants on September 18, 2010;  and the home page of the Darien Youth Baseball & Softball website, which includes the note from the defendant's board that was posted on September 18, 2010.   The defendant attached copies of these same documents and eight additional documents as exhibits to its memorandum in support of its motion to strike.

“It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.   A speaking motion to strike (one imparting facts outside the pleadings) will not be granted.”   (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268–69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  see also Rowe v. Godou, supra, 209 Conn. 278.   Moreover, “[w]here the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).

“Nonetheless, ‘[a]ny plaintiff desiring to make a copy of any document a part of the complaint may ․ refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length ․’ Practice Book § 10–29(a).   A complaint includes all exhibits attached thereto.”  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

Therefore, in ruling on the defendant's motion to strike, the court may consider the documents that the plaintiff attached to the complaint, which are the same documents that the defendant submitted as exhibits 2, 3, 4 and 5 in support of its motion.   The court may not consider the other documents that the defendant submitted, with the exception of exhibit 1, which is a copy of the amended complaint.

II

Substantive Issues

Although the court has determined that the pending motion to strike should be denied for failure to comply with Practice Book § 10–41, the court will consider and determine the substantive merits of the motion, so that in the case an appellate court finds otherwise on the Section 10–41 issue, that court will have the benefit of this court's ruling on the merits.

“To establish a prima facie case of defamation, the plaintiff must demonstrate that:  (1) the defendant published a defamatory statement;  (2) the defamatory statement identified the plaintiff to a third person;  (3) the defamatory statement was published to a third person;  and (4) the plaintiff's reputation suffered injury as a result of the statement ․ If the plaintiff is a public figure, however, the plaintiff also must prove that the defamatory statement was made with actual malice, such that the statement, when made, [was] made with actual knowledge that it was false or with reckless disregard of whether it was false.”  (Citation omitted;  internal quotation marks omitted.)   Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28, 969 A.2d 736 (2009).

A

Defamatory Statements and Truth

According to the defendant, all three counts of the plaintiff's complaint are legally insufficient because the statements upon which they are premised are not defamatory, and even if they are, the statements are true, and truth is an absolute defense to defamation.

Regarding the first issue, “[a] defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”  (Internal quotation marks omitted.)  Gambardella v. Apple Health Care, Inc., supra, 291 Conn. 627.  “In the application of this idea it is enough that the communication would tend to prejudice the plaintiff in the eyes of a substantial and respectable minority ․ [I]f the alleged defamatory words could not reasonably be considered defamatory in any sense, the matter becomes an issue for the court ․ When such a determination is made, the words that are claimed to be defamatory are given their natural and ordinary meaning and are taken as reasonable persons would understand them ․ Moreover, the words must be viewed in the context of the entire [communication].”  (Internal quotation marks omitted.)  Lizotte v. Welker, 45 Conn.Sup. 217, 221–22, 709 A.2d 50 (1996), aff'd, 244 Conn. 156, 709 A.2d 1 (1998).  “[W]here ․ [the] meaning [of the words] is not apparent upon their face it is for the jury to determine what it was.”  (Internal quotation marks omitted.)  Terry v. Hubbell, 22 Conn.Sup. 248, 255, 167 A.2d 919 (1960).

Moreover, “[w]here the alleged defamatory works may seem innocuous on their face, they may nevertheless give rise to a defamatory innuendo because of extrinsic facts ․ The defamed party should allege the innuendo in his complaint and must prove the circumstances under which the words became defamatory.”  (Internal quotation marks omitted.)  Jones v. Edmonds, 31 Conn.Sup. 409, 410, 332 A.2d 789 (1974).

Count one is premised on the defendant's September 23, 2010 letter to the Darien Times, in which it stated, in relevant part:  “We were surprised and disappointed to read untrue comments about [the defendant] attributed to [the plaintiff] ․ We assure you and the entire Darien community that [the plaintiff's] comments are demonstrably false ․ [W]e are troubled by the false statements attributed to [the plaintiff] ․ [N]o one from The Times ever contacted the [defendant] to determine whether anything [the plaintiff] said was true ․ The fact that [the plaintiff] implicated the [defendant] in some half-baked conspiracy theory is disappointing;  that the Times irresponsibly spread the rumor is downright shameful.”  (Amended Complaint, Exhibit B.) Although the defendant does not expressly state that the plaintiff lied in making her comments, its statements, given their natural and ordinary meaning could reasonably be considered to imply that the plaintiff lied.   These are not “words [that] could not reasonably be considered defamatory in any sense.”  (Internal quotation marks omitted.)  Lizotte v. Welker, supra, 45 Conn.Sup. 222.

Counts two and three are premised on the note that the defendant's board sent to its members via email and then posted on the home page of its website, in which it stated in relevant part:  “The Darien Times published a story ․ which contained an allegation by [the plaintiff] ․ This statement is categorically false ․ We are disappointed that The Darien Times chose to print [the plaintiff's] allegation without first determining the facts of the matter.”   Again, the implication in the defendant's statements is that the plaintiff lied, and the words could reasonably be considered defamatory.

As to the second issue, as the defendant correctly notes, “[i]n a civil action for libel, where the protected interest is personal reputation, the rule in Connecticut is that the truth of an allegedly libelous statement of fact provides an absolute defense.”  Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 112, 438 A.2d 1317 (1982).   On the other hand, although “truth is an affirmative defense to defamation ․ the determination of the truthfulness of a statement is a question of fact for the jury.   As a defense, truth provides protection against liability, but not against the expense and inconvenience of being sued.”  (Citation omitted.)  Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 228–29, 837 A.2d 759 (2004).   Moreover, the issue cannot be properly resolved in the context of the defendant's motion to strike because, as the plaintiff points out in her objection, the evidence that the defendant submits in support of its defense is comprised of either documents that contain conclusory statements or documents that the court cannot consider in ruling on the motion.

For the foregoing reasons, the court denies the defendant's motion to strike the complaint on the grounds that the statements upon which the plaintiff premises her causes of action are either not defamatory or are true.

B

Additional Defamation Element and Qualified Privilege

The defendant also contends that the court should grant its motion to strike because the plaintiff is a public figure and her defamation claims are therefore legally insufficient because she does not allege that the defendant acted with malice.   The plaintiff is correct that the documents that the defendant initially relies on for its argument that she is a public figure are outside the pleadings and therefore not properly before the court.   In its reply, the defendant refines its contention to argue that the allegations in the plaintiff's complaint and the documents attached thereto are sufficient to establish that the plaintiff is a public figure.

To successfully pursue a claim for defamation, “if the plaintiff is a public figure, she would need to prove actual malice.”  Miles v. Perry, 11 Conn.App. 584, 589, 528 A.2d 199 (1987).  “The determination of whether a plaintiff is a public figure is dispositive of the standard of proof and the degree of fault of the defendants which the plaintiff had to prove ․ [A] public figure, as well as a public official, cannot recover damages for a defamatory falsehood, absent clear and convincing proof that the defamatory falsehood was published or broadcast with actual malice, that is, with knowledge that the statement was false or with reckless disregard for its falsity.”  (Citations omitted.)  Id., 588.  “In Gertz [v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 4 L.Ed.2d 789 (1974) ], the United States Supreme Court defined the meaning of ‘public figure’ for the purposes of the first and fourteenth amendments:  ‘For the most part those who attain this status have assumed roles of especial prominence in the affairs of society.   Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.   More commonly, those classed as public figures have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved.   In either event, they invite attention and comment.’  ․ The United States Supreme Court further cautioned that the determination of whether a particular plaintiff is a ‘public figure’ should be made with reference to a limited and more meaningful context than the context of the general society.  ‘It is preferable to reduce the public figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation.’  “ (Citations removed.)  Id., 591.

In this case, in the complaint, the plaintiff states that she is an affordable housing developer who has proposed that several such developments be built in the town.   She also alleges that her proposals are “unpopular, controversial and strongly opposed.”  (Amended Complaint, ¶ 3.)   She alleges that she submits zoning applications and appears before town boards and commissions in support of her efforts to obtain approval for her proposed developments.  (Amended Complaint, ¶ 43.)   The newspaper article attached to the complaint shows that on one occasion, the plaintiff publicly commented on her affordable housing proposals.   These allegations are not sufficient to establish that the plaintiff is a public figure because they do not amount to the assumption of a role of “especial prominence in society,” occupation of a position of “persuasive power and influence” or a position thrust into the forefront of a particular controversy.   In addition, the United States Supreme Court in Gertz has pointed out that in analyzing the public figure question “[i]t is preferable” to view it in the context of the “individual's participation in the particular controversy giving rise to the defamation.”  Gertz v. Robert Welch, Inc., supra, 418 U.S. 352;  Miles v. Perry, supra, 11 Conn.App. 591.   In this case the controversy underlying the alleged defamation is the plaintiff's son's assignment within the Darien Little League's various levels.   While the defendant would have the plaintiff's public figure status defined by her role in the local affordable housing controversy, the affordable housing issue did not give rise to the defamation alleged in this case.   Therefore, the court finds that the plaintiff is not a public figure who must allege that the alleged defamation was made with actual malice.

Finally, the defendant argues that the court should grant its motion to strike because it had a qualified privilege to make the statements that provide the basis for the plaintiff's claims and the plaintiff did not allege that it acted with malice.   The plaintiff correctly argues that the defendant's claim of qualified privilege requires facts outside the pleadings as well as a finding of fact which is not permissible on a motion to strike.

The type of privilege that the defendant relies upon is known as a qualified or conditional privilege.  “A qualified or conditional privilege arises out of an ‘occasion,’ such as, when one acts in the bona fide discharge of a public or private duty ․ A conditional or qualified privilege may be abused or lost if the defendant published or broadcast the defamatory remarks with malice, improper motive, or bad faith.”  (Citations omitted.)  Miles v. Perry, supra, 11 Conn.App. 594 n.8.

The question of whether the defendant is entitled to rely on this privilege involves mixed questions of fact and law;  id.;   and cannot be determined from the complaint and other documents that are presently before the court.   Concisely stated, “[p]rivilege is an affirmative defense in a defamation action and must, therefore, be specifically pleaded by the defendant.   This view has been followed in numerous Superior Court decisions.   It would appear, therefore, that the merit of a privilege defense is not properly addressed in the context of a motion to strike a complaint.”   Lega Siciliana Social Club, Inc. v. St. Germaine, Superior Court, judicial district of Waterbury, Docket No. CV 00 0159363 (November 21, 2001, Rogers, J.).

Thus, while a defendant may argue privilege and failure to allege malice, such arguments will not render a plaintiff's allegations of defamation “legally insufficient for purposes of a motion to strike.”  Id. Therefore, the court denies the defendant's motion to strike the complaint due to the plaintiff's failure to allege that the defendant acted with malice on the grounds that the plaintiff is a public figure, or the defendant is protected by a qualified privilege.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Practice Book § 10–41 provides:  “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”.  FN1. Practice Book § 10–41 provides:  “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”

Adams, Taggart D., J.T.R.