Lisa Whitnum Baker v. LLC (2013)

MEMORANDUM OF DECISION—MOTION TO STRIKE (# 161.00)

Nature of the Proceeding

This is a lawsuit arising from a set of alleged facts/occurrences giving rise to at least three distinct legal matters.   At the risk of oversimplification (and solely for purposes of this introductory passage), the self-represented plaintiff claims that the defendants forcibly kept her away from her husband who was a resident in a facility operated or controlled by defendants, with a variety of direct and indirect consequences.¹  The global dispute encompasses a challenge to orders from the probate court ² and a marriage dissolution action,³ both of which matters have now gone to judgment.

The operative complaint is the third amended complaint dated July 14, 2013 (# 158.00).   Defendants filed the current motion to strike on July 29, 2013 (161.00).⁴

Plaintiff's latest complaint asserts the following causes of action:

1.  Unjust enrichment

2.  Intentional infliction of emotional distress 5

3. Negligent infliction of emotional distress

4.  Invasion of privacy—false light—actual malice

5.  Invasion of privacy—false light—prima facie

6.  Slander

7.  False arrest

Defendants' motion to strike (# 161.00) attacks the legal sufficiency of all of the claims being asserted.   Plaintiff filed an objection (# 167.00).   The court heard argument from both sides on August 19, 2013.

LEGAL STANDARDS

“A motion to strike attacks the legal sufficiency of the allegations in a pleading ․ In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder ․” Kumah v. Brown, 307 Conn. 620, 626 (2013) (internal quotation marks, omitted;  ellipses as in cited case).

“In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commissioner, 182 Conn. 138, 140, 438 A.2d 27 (1980).

“A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).  (Internal quotation marks omitted.)

“[C]onstruction of a self-represented party's pleading should not focus on technical defects, but should afford the [self-represented party] a broad, realistic construction of the pleading under review.”  Macellaio v. Newington Police Department, 145 Conn.App. 426, 431 (2013) (internal quotation marks and citation, omitted).

“Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties.   Our courts allow self-represented parties some latitude, but that latitude is constrained by our rules of practice ․ the purpose of which is to provide a just determination of every proceeding.”  Argentinis v. Fortuna, 134 Conn.App. 538, 539 (2012) (citations and internal quotation marks, omitted).

Merits

First Count—unjust enrichment

“As an equitable right, unjust enrichment is based on the principle that in a given situation, it is contrary to equity and good conscience for the defendant to retain a benefit [that] has come to him at the expense of the plaintiff ․ All the facts of each case must be examined to determine whether the circumstances render it just or unjust, equitable or inequitable, conscionable or unconscionable, to apply the doctrine.”  Nation Electrical Contracting, LLC v. St. Dimitrie Romanian Orthodox Church, 144 Conn.App. 808, 815 (2013) (internal quotation marks omitted).

Defendants focus upon the language “at the expense of the plaintiff,” noting the absence of any allegation that plaintiff had anything to do with paying the $7,000 per month rent that is recited in the complaint.   At argument, plaintiff seemed to concede that she did not personally provide any benefit, but emphasized the benefit to defendants—not only the recited revenue but also the fact that a bed in the facility was kept occupied.

Unjust enrichment requires a benefit conferred by the party invoking the principle, which is a form of equitable compensation.   Plaintiff has not alleged that she provided anything to defendants for which she did not receive compensation such that it would be unjust and inequitable for defendants to retain the benefit.   Accordingly, the motion to strike is granted as to the first count.

Second count—intentional infliction of emotional distress 6

Defendants state:  “First and foremost, there is absolutely no allegation that any of the Atria Defendants intended to inflict emotional distress, which is the first element of proof required for the tort.   Second, the allegations simply do not set forth ‘extreme and outrageous' conduct.”

The court recognizes that the egregious nature of the conduct required to state a cause of action for intentional infliction of emotional distress is a continuing theme of appellate cases.  Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 86–89 (2013).   The court must strike a balance between allowing self-represented parties some latitude when it comes to pleadings, particularly in the context of a motion to strike when the pleading under attack is entitled to a liberal interpretation in favor of sufficiency, and defendants' right to insist that they be compelled to defend only legally-sufficient claims.

In this case, the court reads the allegations of the complaint as sufficient to allege an intentional infliction of emotional distress, particularly paragraphs 1 through 3 (e.g. “The actions described are all part of defendant Wendy Winnick Baskin's repeated and habitual attempts to keep husband and wife apart”—with the paragraph going on to recite the motive.)   According to the complaint, Ms. Baskin has a position of authority and/or control with respect to the premises and the operations of the corporate defendants (see, e.g. paragraph 19, alleging that the Atria staff acted in accordance with Ms. Baskin's directives).

Accepting the allegations of the complaint as true, the court finds that the claimed forcible separation of husband and wife, as supplemented and detailed in the complaint, could be perceived as sufficiently outrageous and extreme to support a claim of intentional infliction of emotional distress.   The allegations go far beyond mere bad manners and could be interpreted by a factfinder as going beyond the bounds of all decency.   Accordingly, the motion to strike the second count, sounding in intentional infliction of emotional distress, is denied.

Third count—negligent infliction of emotional distress

With respect to their attack on the claim of negligent infliction of emotional distress, defendants focus on the requirement of foreseeability.   As something of a corollary to the preceding discussion, the court has little difficulty in determining that forcibly keeping a wife from her husband, not even allowing delivery of a gift from the wife to the husband, etc., all could reasonably and foreseeably result in emotional distress.

In Szekeres v. Szekeres, 126 Conn.App. 829, 844–45 (2011), the appellate court held that allegedly false statements to the police, leading to a search of plaintiff's home, was a jury issue with respect to a claim of negligent infliction of emotional distress.  (The court affirmed the granting of a directed verdict on the intentional infliction of emotional distress claim, based on the same facts.)

Conversely, in Stancuna v. Schaffer, 122 Conn.App. 484, 489–91 (2010), the court held that litigation was inherently stressful such that barring any exceptional circumstances being asserted, the claim for negligent infliction of emotional distress arising from litigation-type activities was legally insufficient.

Most recently, in Di Teresi, supra, the court affirmed the granting of a motion to strike, not because of the “routine” nature of the emotional distress nor because of a lack of foreseeability, but rather on public policy grounds associated with a foreseeability analysis.   In effect, the court determined that foreseeability often is too low a threshold and that additional factors may need to be considered in order to impose appropriate limits as to what types of conduct might be actionable.   Defendants have not claimed that there are any such other factors that should limit a foreseeability analysis, analogous to Di Teresi.

The events and conduct asserted by plaintiff in her complaint, particularly when given the favorable interpretation required in this context, cannot be dismissively characterized as involving the normal stresses of life, mere bad manners, or any of the other terms that have been applied to conduct that does not satisfy the threshold for negligent infliction of emotional distress.   The court believes that a broad reading of plaintiff's allegations sufficiently addresses foreseeability, for purposes of this motion.   Accordingly, the court must deny the motion to strike as to the third count.

Fourth and fifth counts 7—invasion of privacy—false light

Plaintiff's complaint captions the relevant counts as asserting invasion of privacy based on false light, but the actual allegations attempt to invoke four different forms of invasion of privacy, as properly recognized by defendants.   Defendants cite Goodrich v. Waterbury Republican–American, Inc., 188 Conn. 107, 128 (1982), the seminal cases on the topic in Connecticut.   See, also, Jonap v. Silver, 1 Conn.App. 550, 557–60 (1984).

At its core, privacy implicates the right to be “let alone”—that may be the only commonality among the four forms of the cause of action that have been recognized.  Foncello v. Amorossi, 284 Conn. 225, 235 (2007).

Invasion of seclusion:  Plaintiff has failed to allege an unreasonable intrusion on her right to seclusion.   While plaintiff does allege conduct that interferes with her relationship with her husband, she does not allege any manner in which there was an unreasonable intrusion into a right of seclusion.   The court will not repeat, at length, the detailed recitation at page 11 of defendants memorandum, but the court concurs—plaintiff has not alleged any way in which defendants intruded upon the seclusion of plaintiff.   The complaint alleges that defendants prevented contact with her husband, but that does not seem to come within the scope of unreasonable intrusion as articulated by our courts.

Plaintiff alleges an appropriation of her likeness.   Again, the court will not repeat defendant's detailed analysis at pp. 12–14 of their memorandum.   Making use of a photograph for purposes of identification at the front desk of a building, for the purpose of regulating access, is not an appropriation of likeness within the meaning of a privacy cause of action.

Plaintiff then alleges unreasonable publicity given to her private life.   The only act identified is “posting a likeness” which again is a reference to her photograph at the front desk.   Defendants go through a detailed analysis of the distinction between publication and publicity, but again, the court has determined that the use of photograph at a front desk for purposes of identification, in turn for control of access to the interior of the building, does not offend this prong of privacy.

Plaintiff finally alleges false light publicity but again, as in the foregoing discussions, the use of a photograph for purposes of identification of a possible visitor at the front desk to a private building does not, in and of itself, satisfy the requirement of publicity nor does it satisfy the requirement of a false light.

In sum, the court agrees that plaintiff has been trying to force the square peg of the facts she has alleged—primarily a photograph at the front desk, to be used to regulate access to a private building—into various round holes of invasion of privacy.   The motion to strike is granted as to the fourth and fifth counts.

Sixth Count—slander

Defendants contend that the claim of slander is deficient in a number of respects.⁸  The court will focus on only one of them.

Except in the case of slander per se, damages are an essential element of a cause of action for slander.  Zeller v. Mark, 14 Conn.App. 651 (1988).   Plaintiff has not alleged any cognizable injury resulting from the allegedly slanderous statements made.   Although some leeway may be appropriate in dealing with a self-represented pleader, defendants correctly note that a number of the allegations appear to be minor factual discrepancies and/or matters of opinion, making the task of trying to associate harm with specific allegations all the more difficult.  (None of the claimed slanderous statements appear to satisfy the requirements for a claim of slander per se, which would have obviated the need for associated allegations of damages.)

In the absence of any allegation of harm caused by misstatements, and a clear link of particular statements to such damages, the court cannot conclude that plaintiff has alleged a legally sufficient cause of action.   The motion to strike is granted as to this count.

Seventh count—false arrest

Plaintiff's seventh count alleges that the defendants are responsible for her false arrest.   Among other authorities, defendants cite Lo Sacco v. Young, 20 Conn.App. 6 (1989).  Lo Sacco controls the outcome of this aspect of defendants' motion.

Lo Sacco is, in some respects, the reverse of the present case, from a pleading perspective.   The actual facts were analogous;  plaintiff, there, wanted the court to charge the jury on false arrest/imprisonment but the court declined to do so.  (Plaintiff, there, also was self-represented.)   The Appellate Court reviewed the allegations of the complaint, and concluded that the trial court properly had charged the jury on the theory of malicious prosecution rather than the requested theory of false arrest (or false imprisonment), 20 Conn.App. 18–21.

Here, plaintiff has alleged an insufficient (inappropriate) claim of false arrest, devoid of any claim that defendants actually restrained her liberty or otherwise engaged in conduct that might be characterized as an arrest.   Instead, defendants are alleged to have engaged in conduct that led to her arrest by the police—but that is not a cognizable claim of false arrest.⁹  Accordingly, the motion to strike is granted as to the seventh count.

Summary of Rulings

The motion to strike is granted as to the first, fourth, fifth, sixth and seventh counts.   The motion to strike is denied as to the second and third counts.

POVODATOR, J.

FOOTNOTES

FN1. Plaintiff's recitation of the background of the case (in the introductory section of her objection (# 167.00)), states:  “This action stems from Plaintiff's marriage to James Baker, a resident of Atria Darien, and Mr. Baker's subsequent filing of a divorce action against Plaintiff.   The Plaintiff has brought this action in response to actions taken by the Defendants ․ which have barred her from entering the Atria Property to visit Mr. Baker both before and after their [marriage].”.  FN1. Plaintiff's recitation of the background of the case (in the introductory section of her objection (# 167.00)), states:  “This action stems from Plaintiff's marriage to James Baker, a resident of Atria Darien, and Mr. Baker's subsequent filing of a divorce action against Plaintiff.   The Plaintiff has brought this action in response to actions taken by the Defendants ․ which have barred her from entering the Atria Property to visit Mr. Baker both before and after their [marriage].”

FN2. Whitnum–Baker v. Court of Probate, FSTCV125013979S.  FN2. Whitnum–Baker v. Court of Probate, FSTCV125013979S

FN3. Baker v. Whitnum–Baker, FSTFA124023288S.  FN3. Baker v. Whitnum–Baker, FSTFA124023288S

FN4. A prior motion to strike had been filed (# 151.00), addressed to an earlier version of the complaint..  FN4. A prior motion to strike had been filed (# 151.00), addressed to an earlier version of the complaint.

FN5. Plaintiff has combined her emotional distress claims—intentional and negligent—into a single set of allegations but with the intention of having two separate counts.   The court has assigned individual count numbers to each theory based on which allegation is mentioned first.   Plaintiff has done a similar amalgamation of invasion of privacy claims, and the court has followed the same rule of thumb in identifying which count asserts which cause of action..  FN5. Plaintiff has combined her emotional distress claims—intentional and negligent—into a single set of allegations but with the intention of having two separate counts.   The court has assigned individual count numbers to each theory based on which allegation is mentioned first.   Plaintiff has done a similar amalgamation of invasion of privacy claims, and the court has followed the same rule of thumb in identifying which count asserts which cause of action.

FN6. See footnote 4..  FN6. See footnote 4.

FN7. In the body of the section labeled 4 and 5—which the court has interpreted as referring to fourth and fifth counts—plaintiff further recites “three counts each as to both causes of action.”   The court is interpreting the complaint as asserting two counts of invasion of privacy, one based on actual malice and one based on a prima facie tort.   Ultimately, the court has determined that only one discussion of these claims is needed..  FN7. In the body of the section labeled 4 and 5—which the court has interpreted as referring to fourth and fifth counts—plaintiff further recites “three counts each as to both causes of action.”   The court is interpreting the complaint as asserting two counts of invasion of privacy, one based on actual malice and one based on a prima facie tort.   Ultimately, the court has determined that only one discussion of these claims is needed.

FN8. In two lengthy footnotes (3 and 4) to their memorandum, defendants raised two significant issues that are not identified in their motion (liability of a principal for certain types of torts of an agent, and possible privileged status of some statements).   This does not comply with the requirements of Practice Book § 10–41, accentuated by the relegation of the arguments to footnotes in the supporting memorandum.   Based on her argument and written submission, it is not clear to the court that plaintiff even was aware of these contentions.   Accordingly, the court declines to consider their merits..  FN8. In two lengthy footnotes (3 and 4) to their memorandum, defendants raised two significant issues that are not identified in their motion (liability of a principal for certain types of torts of an agent, and possible privileged status of some statements).   This does not comply with the requirements of Practice Book § 10–41, accentuated by the relegation of the arguments to footnotes in the supporting memorandum.   Based on her argument and written submission, it is not clear to the court that plaintiff even was aware of these contentions.   Accordingly, the court declines to consider their merits.

FN9. The court cannot “construe” this count as one sounding in malicious prosecution for a number of reasons.   First, the court cannot actively assist plaintiff in reformulating her complaint.   Second, an essential element of such a cause of action is a favorable disposition, Harris v. Bradley Memorial Hospital and Health Center, 296 Conn. 315, 330 (2010), and there is nothing in the complaint suggesting such an outcome.   To the contrary, the complaint recites the possibility of plaintiff ending up with a criminal record, and the only reasonable inference to be drawn is that the charges are still pending.  (Other elements may also be lacking.)   Thus, it would serve no purpose to replace an explicitly-claimed (inadequate) cause of action with a different—perhaps more appropriate but still inadequate—cause of action..  FN9. The court cannot “construe” this count as one sounding in malicious prosecution for a number of reasons.   First, the court cannot actively assist plaintiff in reformulating her complaint.   Second, an essential element of such a cause of action is a favorable disposition, Harris v. Bradley Memorial Hospital and Health Center, 296 Conn. 315, 330 (2010), and there is nothing in the complaint suggesting such an outcome.   To the contrary, the complaint recites the possibility of plaintiff ending up with a criminal record, and the only reasonable inference to be drawn is that the charges are still pending.  (Other elements may also be lacking.)   Thus, it would serve no purpose to replace an explicitly-claimed (inadequate) cause of action with a different—perhaps more appropriate but still inadequate—cause of action.

Povodator, Kenneth B., J.