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Silano v. Cooney

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

August 17, 2015

Virginia Silano
v.
Diana Cooney

MEMORANDUM OF DECISION RE MOTION TO STRIKE #353

Barbara N. Bellis, J.

On November 2, 2012, the plaintiff, Virginia Silano, commenced this action against the defendant, Diana Cooney. In the amended complaint filed on December 22, 2014, the plaintiff alleges the following relevant facts in count one, which sounds in slander per se.

Both parties are residents of Trumbull, Connecticut. On September 30, 2011, the defendant made a written statement to the Trumbull Police Department (police) that the plaintiff had struck her with her automobile, resulting in the subsequent arrest of the plaintiff for reckless driving. On February 2, 2012, a no contact order against the plaintiff was issued, pursuant to the defendant's request, as a condition of the plaintiff's release relating to the criminal charge. Thereafter, on June 27, 2012, the defendant made an oral statement to the police that on June 26, 2012, the plaintiff, in violation of the no contact order, approached the defendant and her three young children while they were seated at a table on the patio of the Pinewood Lake Association (association). The defendant stated that the plaintiff stood near them, sat on the ground next to their table, and was " acting crazy, " " waiving her arms around, " and " screaming and yelling, " causing the defendant to feel fear and to leave the area to avoid a confrontation with the plaintiff. The plaintiff alleges that these statements were false and made by the defendant in bad faith and with malicious and reckless disregard for the truth.

After speaking with the defendant and obtaining her oral statement, Kevin Hammel, a former detective with the police, prepared a warrant for the plaintiff's arrest. The plaintiff was subsequently arrested on June 29, 2012, for violation of a condition of release, General Statutes § 53a-222.[1] The plaintiff further alleges that the defendant's June 27 statement also ultimately caused a Superior Court judge, during a December 21, 2012 criminal hearing, to determine whether the plaintiff's firearm should be returned to her, to compare the plaintiff's charges with that of the Newtown massacre at Sandy Hook Elementary School.

The plaintiff further claims that in addition to these incidents, on August 10, 2013, the defendant stated in the presence of the plaintiff and others that she is afraid for the safety and welfare of her children because of the proximity of the plaintiff's home to the association beach. She also stated that the plaintiff's grandmother's maiden name is " Lanza." As a result of this and the defendant's other statements, the " plaintiff has been humiliated and scorned, forced to attend numerous court hearings, has been put to trial in November of 2013, which ended in a mistrial, and has had to maintain the cost and expense [of] this action for over two years to bring [the defendant's] false statements to an end."

On April 28, 2015, the defendant filed a motion to strike the first count of the amended complaint on the ground that it does not sufficiently state a claim for slander per se because the alleged statements made by the defendant do not charge the plaintiff with a crime involving moral turpitude or to which an infamous penalty is attached. The motion was accompanied by a memorandum of law in support. On May 5, 2015, the plaintiff filed a memorandum of law in opposition. The defendant filed a reply on May 12, 2015. On May 21, 2015, during a hearing on the motion, the parties agreed that the court should take the matter on the papers.

" 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). " [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. (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " 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). " [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).

The defendant argues that count one fails to state a claim for slander per se because the defendant's alleged statements do not charge the plaintiff with a crime involving moral turpitude or to which an infamous penalty is attached. The plaintiff argues that, in light of extrinsic facts pleaded in count one, the defendant's statements charged the plaintiff with the crime of violating a no contact order, which is a crime of moral turpitude or to which an infamous penalty is attached pursuant to the modern view that such a crime must be a chargeable offense that is punishable by imprisonment. In her reply, the defendant argues that extrinsic facts are not relevant to a claim for slander per se because the defamatory nature of the statement must be apparent on the face of the statement. The defendant acknowledges the modern view noted by the plaintiff, but argues that the crime of violating a no contact order nevertheless does not evince moral turpitude and is, therefore, insufficient to support a claim for slander per se.

" Slander is actionable per se if it charges incompetence or dishonesty in office, or charges a professional person with general incompetence . . . [S]lander is also actionable per se if it charges a crime involving moral turpitude or to which an infamous penalty is attached." (Citations omitted.)

Miles v. Perry, 11 Conn.App. 584, 602, 529 A.2d 199 (1987). " The allegation that a person committed a crime need not be as specific as in an indictment, but it must bear some reasonable relation to the legislative definition of a crime." Battista v. United Illuminating Co., 10 Conn.App. 486, 493, 523 A.2d 1356, cert. denied, 204 Conn. 802, 525 A.2d 965 (1987). In Moriarty v. Lippe, 162 Conn. 371, 383, 294 A.2d 326 (1972), our Supreme Court found that " [m]oral turpitude . . . is a vague and imprecise term to which no hard and fast definition can be given . . . A general definition applicable to the case before us is that moral turpitude involves an act of inherent baseness, vileness or depravity in the private and social duties which man does to his fellowman or to society in general, contrary to the accepted rule of right and duty between man and law." On the other hand, " [t]he modern view of this requirement is that the crime be a chargeable offense which is punishable by imprisonment." Battista v. United Illuminating Co., supra, 10 Conn.App. 493.

This distinction between the two views was made clear in Hueblein v. Burgess, Superior Court, judicial district of New London, Docket No. 548515 (July 1, 1999, Martin, J.) (25 Conn. L. Rptr. 5, 6), 1999 Conn. Super. LEXIS 1719: " In Moriarty v. Lippe, supra, our Supreme Court narrowly held, as a matter of law, that the crime of assault, although punishable by imprisonment, 'lack[s] in the element of moral turpitude, ' and therefore, cannot form the basis of a charge that is slanderous per se. Moriarty v. Lippe, supra, 162 Conn. 383. The Moriarty v. Lippe decision, however, pre-dates Battista v. United Illuminating Co., supra, and is squarely at odds with the 'modern view, ' which only requires that the charged crime be punishable by imprisonment. Indeed, under the modern view, the charge made by the defendant in Moriarty v. Lippe would be actionable per se because assault was punishable by imprisonment. This court, therefore, is faced with conflicting appellate authority as to whether the crime of assault could ever form the basis for a slanderous charge per se. In this court's view, however, it is apparent that the appellate courts favor adoption of the modern view." Several other Superior Court decisions have recognized this distinction and have also sided with the modern view. See, e.g., Johns v. Visiting Nurse & Community Care, Inc., Superior Court, judicial district of Tolland, Docket No. 93-52372-S, 1993 Conn. Super. LEXIS 2326 (September 8, 1993, Shaughnessy, J.); Wagner v. Feldstein, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-05-4003866-S, 2006 Conn. Super. LEXIS 396 (February 7, 2006, Ronan, J.T.R.); Hauer v. Eastern Connecticut Health Network, Superior Court, judicial district of Hartford, Docket No. CV-09-4046119-S, 2010 Conn. Super. LEXIS 2846 (October 29, 2010, Hale, J.T.R.). This court finds the reasoning of Hueblein to be persuasive, and, accordingly, follows suit.

As a threshold issue, the court first addresses the plaintiff's contention that it must consider extrinsic facts when determining whether count one is sufficiently pleaded for purposes of a motion to strike. " When determining whether a statement is actionable as slander per se, a court must give the language used that meaning that would be ascribed to the language by a reader or listener of average or ordinary intelligence, or by a common mind; the alleged slanderous statement must be construed in connection with other parts of conversation, in order to determine context in which statement was made. However, to determine whether a communication is slander per se, the words must be stripped of all innuendo, colloquium, and explanatory circumstances; the very definition of 'per se, ' in and of itself, precludes the use of innuendo." (Footnotes omitted.) 50 Am.Jur.2d 490, Libel and Slander § 142 (2006). Our Supreme Court has held that the context in which a statement is made is relevant in determining whether it constitutes slander per se and that mere innuendo that a statement charges the plaintiff with a crime is insufficient. See generally Herman v. Post, 98 Conn. 792, 120 A. 606 (1923) (defendant's statement that merchant was a crook because he owed money everywhere, forcing him to relocate, did not support charge of mercantile dishonesty and, therefore, did not support claim of slander per se); Yakavicke v. Valentukevicius, 84 Conn. 350, 80 A. 94 (1911) (mere innuendo that defendant intended to charge plaintiff with a crime was insufficient where plaintiff alleged defendant was thief and robber because he cheated club out of $2; no actionable slander per se because defendant did not accuse plaintiff of committing a crime). Because the claim in count one of the present case is for slander per se, the court must consider the alleged statements by themselves without regard to extrinsic facts.

Nevertheless, the court finds that the alleged defamatory statement made by the defendant to the police on June 27, 2012, in and of itself charged the plaintiff with the crime of violation of a condition of release. Specifically, paragraph 8 of count one alleges, in relevant part: " On June 27, 2012, the defendant published an oral statement to the [police] that on June 26, 2012, at about 7:00 p.m., while the defendant and her three young children were seated at a table on the patio of the [association], the plaintiff, in violation of the no contact order issued by the court, approached the defendant and her children, stood near them, then sat on the ground next to their table." (Emphasis added.) Thus, when construed in favor of the plaintiff, count one alleges that the defendant's oral statement to the police expressly accused the plaintiff of violating the court's no contact order, in derogation of § 53a-222. Because that crime is an offense punishable by imprisonment, [2] it is a crime of moral turpitude or to which an infamous penalty is attached, in accordance with the modern view. As such, count one is legally sufficient to state a claim for slander per se.

For the foregoing reasons, the defendant's motion to strike count one of the plaintiff's ...


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