Johavanna Dubose et al. v. LCT LLC (2014)

Memorandum of Decision in Re Motion to Strike, No. 104

This is an action which sounds in negligence and claims pursuant to General Statutes § 42–110b(a), the Connecticut Unfair Trade Practices Act, or CUTPA, as it is commonly referred to.   The defendant has filed a motion to strike counts five and six of the plaintiffs' complaint which allege the CUTPA violations.   For the reasons set forth below, the motion to strike is denied.

FACTS

The plaintiffs, Johavanna Dubose and her grandmother, Anita Chesson, commenced this action on July 8, 2013, by service of process on the defendant, LCT Acquisition, LLC. In their six-count complaint, the plaintiffs allege the following facts.   At all times relevant, LCT owned and operated Lincoln College of New England (Lincoln College), a for-profit learning institution in Southington, Connecticut.   Dubose was a student at Lincoln College and lived in a dormitory on campus.   On September 18, 2011, Dubose was “bitten and attacked by bedbugs” or insects in her dormitory room.   On September 19, 2011, the defendant told Dubose that the infestation had been addressed and assured her that her dormitory was safe to return to.   On October 12, 2011, Dubose was again attacked and bitten by bedbugs and insects in her dormitory room.   Due to her injuries, Dubose was unable to continue her studies and “had to cease matriculations as a student.”   The defendant refused to give Dubose a refund of the tuition amount paid for the fall 2011 semester.   Counts one and two, brought by Dubose, allege negligence.   Counts three and four, brought by Chesson, allege negligence and unjust enrichment, respectively.   Counts five and six allege violations of General Statutes § 42–110b(a), the Connecticut Unfair Trade Practices Act (CUTPA), brought by Dubose and Chesson, respectively.

On September 12, 2013, the defendant filed a motion to strike counts five and six and a memorandum of law in support of the motion on the ground that they do not sufficiently state claims under CUTPA.   On October 8, 2013, the plaintiffs filed an objection to the motion to strike and a memorandum in opposition to the motion.   The matter was heard at the short calendar on October 28, 2013.

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).  “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.)   Simms v. Seaman, 308 Conn. 523, 529, 69 A.3d 880 (2013).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

“[I]t 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 ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action ․” (Citations omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings are to be construed broadly and realistically, rather than narrowly and technically ․” (Internal quotation marks omitted.)  Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).   Nevertheless, a motion to strike “does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”   (Emphasis omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., supra, 240 Conn. 588.

The defendant argues that the court should strike counts five and six alleging violations of CUTPA because the facts asserted in the complaint only support claims for a simple breach of contract.   Specifically, the defendant argues that the counts fail to allege fraudulent behavior or aggravating circumstances, allegations necessary to establish a CUTPA claim.   The plaintiffs object and argue that counts five and six, when construed in the light most favorable to the plaintiffs, sufficiently allege CUTPA violations.

In § 42–110b(a), CUTPA provides:  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  “Such a cause of action is available to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act of practice.”   (Internal quotation marks omitted.)   Rizzo v. Rizzo's Garage, LLC, Superior Court, judicial district of Danbury, Docket No. CV–12–6009507–S (April 11, 2013, Pavia, J.);   see also General Statutes § 42–110g(a).   To determine whether certain acts are unfair, the Supreme Court has “adopted the criteria set out in the cigarette rule by the [F]ederal [T]rade [C]ommission ․ (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [ (competitors or other businessmen) ].”  (Internal quotation marks omitted.)   Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995).  “[A]ll three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ․ Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy ․ Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.”  (Internal quotation marks omitted.)  Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 156, 645 A.2d 505 (1994).

“[B]ecause CUTPA is a self-avowed ‘remedial’ measure, General Statutes § 42–110b(d), it is construed liberally in an effort to effectuate its public policy goals.”  (Internal quotation marks omitted.)  Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 158.  “CUTPA was intended to provide a remedy that is separate and distinct from the remedies provided by contract law when the defendant's contractual breach was accompanied by aggravating circumstances.”  Ulbrich v. Groth, 310 Conn. 375, 411, 78 A.3d 76 (2013).   Moreover, a single transaction can give rise to a CUTPA claim.  Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn.App. 342, 351, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002).

In the present case, the defendant argues that counts five and six of the plaintiffs' complaint only allege simple breach of contract claims rather than CUTPA violations because the claims are “devoid of allegations of fraudulent conduct or aggravating circumstances.”   However, “[a] misrepresentation can constitute an aggravating circumstance that would allow a simple breach of contract claim to be treated as a CUTPA violation ․” (Internal quotation marks omitted.)   Trimani v. Grand Contractors, LLC, Superior Court, judicial district of Middlesex, Docket No. CV–12–6008427–S (October 1, 2013, Marcus, J.).   See also Schrage v. Israel, Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket, Docket No. X08–CV–05–4006596–S (January 8, 2009, Jennings, J.) (“Fraudulent misrepresentation is a sufficient basis for a valid CUTPA claim”).   In addition, “CUTPA does not require proof that the actor or declarant knew of the falsity of his statement or act ․” (Internal quotation marks omitted.)  Trimani v. Grand Contractors, LLC, supra.   The plaintiffs allege in paragraphs 7 and 8 of both counts five and six that “[i]n so offering said dormitory rooms for use by consumers in the general public, including [Dubose], the defendant represented and held out to said consumers that the subject rooms were inspected, maintained, and were safe and suitable for intended use as dormitory residences for students ․ Said representations were not true when first made, and were not true when made the second time in order to induce [Dubose] to return to the same dormitory room.”   These allegations are sufficient to survive a motion to strike challenging the complaint's legal sufficiency.   Although the complaint does not explicitly state that the defendant knew the statements were false when they were made, “a party need not prove an intent to deceive to prevail under CUTPA.”  (Internal quotation marks omitted.)  Associated Investment Co. Ltd. Partnership v. Williams Associates IV, supra, 230 Conn. 156.   Rather, allegations that misrepresentations were made are sufficient.

CONCLUSION

For the foregoing reasons, the motion to strike counts five and six is denied.

By The Court,

Nazzaro, J.

Nazzaro, John J., J.