Preview
NO.: UWY-CV23-6068806-S : SUPERIOR COURT
MICHAEL E. FESTA AND : J.D. OF WATERBURY
MYHOOPTY.COM LLC :
v. : AT WATERBURY
:
JOSHUA BERNEGGER, WATERTOWN :
POLICE CHIEF, AND TOWN OF :
WATERTOWN : MAY 30, 2024
DEFENDANTS’ MOTION TO STRIKE
Pursuant to Connecticut Practice Book § 10-39, et seq., Defendants, CHIEF OF POLICE
JOSHUA BERNEGGER AND THE TOWN OF WATERTOWN, hereby move to strike plaintiffs’
Second Revised Complaint dated May 10, 2024 [Entry No. 139.00]. As set forth in the Defendants’
memorandum of law in support of this motion attached hereto, this Court should strike the
aforesaid Second Revised Complaint because of its failure to state a claim upon which relief can
be granted.
WHEREFORE, the undersigned Defendants respectfully request that this Court grant its
motion to strike the plaintiff’s Second Revised Complaint.
DEFENDANTS,
JOSHUA BERNEGGER, WATERTOWN
POLICE CHIEF AND TOWN OF
WATERTOWN
By /s/ Alan R. Dembiczak
Alan R. Dembiczak
Howd & Ludorf, LLC
100 Great Meadow Road, Suite 201
Wethersfield, CT 06109
(860) 249-1361
(860) 249-7665 (Fax)
Juris No.: 28228
CERTIFICATION
This is to certify that a copy of the foregoing was or will immediately be sent via regular
mail, postage prepaid, or delivered electronically or non-electronically on this 30th day of May,
2024, to all counsel and self-represented parties of record, and that written consent for
electronic delivery was received from all counsel and self-represented parties receiving
electronic delivery.
Peter C. Bowman, Esquire
BBB Attorneys, LLC
3651 Main Street, Suite 200
Stratford, CT 06614
Mr. Michael E. Festa
690 Main Street
Oakville, CT 06779
/s/ Alan R. Dembiczak
Alan R. Dembiczak
2
UWY-CV23-6068806-S : SUPERIOR COURT
MICHAEL E. FESTA AND : J.D. OF WATERBURY
MYHOOPTY.COM LLC :
v. : AT WATERBURY
:
JOSHUA BERNEGGER, WATERTOWN :
POLICE CHIEF, AND TOWN OF :
WATERTOWN : MAY 30, 2024
DEFENDANTS’ MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO STRIKE
I. PROCEDURAL AND FACTUAL BACKGROUND
In the instant action, Plaintiffs, MyHoopty.com, LLC and Michael Festa, claim to have
sustained damages as a result of the Defendants’ (hereinafter the “Town” and “Chief Bernegger”)
interference with the Plaintiffs’ towing business. Specifically, Plaintiffs have alleged causes of
action sounding in negligence, tortious interference with business expectancies, tortious
interference with contractual relations and defamation as to both the Town and Chief Bernegger.
Plaintiffs are seeking economic damages and a temporary and permanent injunction. See Pl.
Second Revised Complaint [Entry No. 139.00]. As explained below, even accepting all well-plead
factual allegations as true, all counts of Plaintiffs’ Second Revised Complaint fail to state a claim
upon which relief can be granted, and accordingly, must be stricken.
II. ARGUMENT
A. STANDARD OF REVIEW
Pursuant to Practice Book § 10-39(a), a motion to strike shall be used "[w]henever any
party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim
or cross claim, or any one or more counts thereof, to state a claim upon which relief can be granted,
or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross
complaint…" "A motion to strike challenges the legal sufficiency of a pleading, and consequently,
requires no factual findings by the trial court." Bernhard-Thomas Building Systems, LLC v.
Dunican, et al, 286 Conn. 548, 552 (2008). "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 v. Alves, et al, 262 Conn. 480, 489 (2003); quoting Novametrix Medical Systems,
Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).
B. COUNTS ONE, THREE, FOUR, FIVE, SEVEN AND EIGHT FAIL AS A MATTER OF
LAW, AS THE DEFENDANTS ARE ENTITLED TO GOVERNMENTAL IMMUNITY
FOR INTENTIONAL TORTS
Counts One, Three, Four, Five, Seven and Eight of Plaintiffs’ Second Revised Complaint
alleges causes of action sounding in intentional torts - tortious interference with business
expectancies, tortious interference with contractual relations and defamation.
Plaintiffs have initiated this suit against the Town and Chief Bernegger. As Chief Bernegger
is being sued with respect to the performance of his official duties, he is therefore being sued within
his official capacity. See Pl. Second Revised Complaint; See Reed v. Town of Clinton, No. KNL-
CV21-6050093-S, 2024 WL 164972, (Conn. Super. Ct. Jan. 12, 2024). A claim . . . against a
municipal employee in his or her official capacity is treated as a claim against the municipality.
See Northrup v. Witkowski, 175 Conn. App. 223, 246 (2017), aff'd., 332 Conn. 158 (2019).
Therefore, all of Plaintiffs’ claims are against the municipality itself, and those claims alleging
intentional torts, fail as a matter of law, because the Town and Chief Bernegger are entitled to
governmental immunity for intentional torts.
The defense of governmental immunity is properly raised here, because “[T]here are
instances when it is appropriate for defendants to raise the defense of governmental immunity in
the context of a motion to strike. Specifically, where it is apparent from the face of the complaint
that the municipality was engaging in a governmental function while performing the acts and
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omissions complained of by the plaintiff, the defendant is not required to plead governmental
immunity as a special defense and may attack the legal sufficiency of the complaint through a
motion to strike.” (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 116,
n. 4. When “it is apparent from the face of the complaint that the municipality was engaging in a
governmental function while performing the acts and omissions complained of by the plaintiff, the
defendant [is] not required to plead governmental immunity as a special defense and [may] attack
the legal sufficiency of the complaint through a motion to strike.” Brown v. Branford, 12 Conn.
App. 106, 111 n.3 (1987); See Empire Ent. Grp., LLC v. City of New Haven, No. CV-20-6106470-
S, 2023 WL 3716073, at *2 (Conn. Super. Ct. May 23, 2023) (granting municipal defendant’s
motion to strike plaintiff’s claims of tortious interference and defamation based on governmental
immunity).
Pursuant to General Statutes § 52–557n(a)(2)(A), a political subdivision is not liable for
acts or omissions of its employees that constitute fraud, malice or wilful misconduct. Moreover,
when a plaintiff alleges an intentional tort that is governed by the immunity provided in § 52–557n
(a)(2)(A), it is immaterial whether the acts were ministerial or discretionary. See O'Connor v.
Board of Education, 90 Conn. App. at 65, (“[b]ecause the plaintiff's claim was governed by the
immunity provided in § 52–557n [a][2], the defendant was immune from suit for the intentional
torts of its employees, regardless of whether the acts were ministerial or discretionary”). Our
Supreme Court has held that the term ‘wilfulness' is synonymous with ‘intentional.’ See Avoletta
v. Torrington, 133 Conn. App. 215, 224 (2012).
Here, Plaintiffs’ Count One and Count Five allege tortious interference with business
expectancies as to the Town and Chief Bernegger. Specifically, Plaintiffs allege that the Town and
Chief Bernegger tortiously interfered with their business expectancies in that they, “were aware of
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the contractual obligations between the Plaintiff and those authorized to obtain releases of their
vehicles pursuant to General Statutes Section 14-145b,” “the Defendant’s coercive actions
demanding that the Plaintiff release vehicles in violation of General Statutes Section 14-145b were
wrongful” and “were to the detriment of the Plaintiff.” See Pl. Second Revised Complaint at Count
One ⁋⁋ 16-18, Count Five ⁋⁋ 16-18.
“It is well established that the elements of a claim for tortious interference with business
expectancies are: (1) a business relationship between the plaintiff and another party; (2) the
defendant's intentional interference with the business relationship while knowing of the
relationship; and (3) as a result of the interference; the plaintiff suffers actual loss…” (Emphasis
added; internal quotation marks omitted.) Brown v. Otake, 164 Conn. App. 686, 709-10 (2016).
In the present case, viewing Plaintiffs’ allegations contained broadly, and in a light most
favorable to sustaining the legal sufficiency, and Plaintiffs’ own description of the alleged acts,
the allegations clearly describe the Town’s and Chief Bernegger’s conduct as intentional, and
therefore, such conduct as alleged by Plaintiffs is afforded governmental immunity under General
Statutes § 52–557n(a)(2)(A). Therefore, Plaintiffs’ Count One and Count Five must be stricken.
Plaintiffs’ Counts Three and Count Seven allege tortious interference with contractual
relations as to the Town and Chief Bernegger. Specifically, Plaintiffs allege that the Town and
Chief Bernegger tortiously interfered with their contractual relations in that they, “coerced the
Plaintiff to release vehicles in violation of General Statutes § 14-145b” and that they, “intended to
interfere with and harm the Plaintiff’s contractual relationships.” See Pl. Second Revised
Complaint at Count Three ⁋⁋ 17-18, Count Seven ⁋⁋ 17-18.
Plaintiffs’ Count Three and Count Seven fail as a matter of law as General Statutes § 52–
557n(a)(2)(A) entitles the Town and Chief Bernegger to governmental immunity for Plaintiffs’
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claims of tortious interference with contractual relations, because such a claim is premised upon
the presence of intentional conduct. See Lavigne v. Town of Killingly, No. WWMCV146007875S,
2015 WL 9911472, at *4 (Conn. Super. Ct. Dec. 24, 2015).
“A claim for intentional interference with contractual relations requires the plaintiff to
establish: (1) the existence of a contractual or beneficial relationship; (2) the defendant's
knowledge of that relationship; (3) the defendant's intent to interfere with the relationship; (4) that
the interference was tortious; and (5) a loss suffered by the plaintiff that was caused by the
defendant's tortious conduct.” Metcoff v. Lebovics, 123 Conn. App. 512, 521 (2010).
The issue of the availability of governmental immunity on a claim for tortious interference
has previously been decided by this Court. In Lavigne v. Town of Killingly, supra, plaintiffs
brought claims against the town for tortious interference and defamation related to plaintiffs’
recycling business. Plaintiffs’ claim for tortious interference was premised upon allegations that
town employees demonstrated personal or professional bias against the plaintiff and that the
aforementioned employees had personal inclinations to see that the plaintiff's contracts with the
Town were terminated. Lavigne v. Town of Killingly, supra, at *3 (Conn. Super. Ct. Dec. 24,
2015). The Court (Calmar, J.) granted the municipal defendants’ motion to strike, holding that the
defendants were entitled to governmental immunity as to plaintiffs’ claims of intentional torts,
including those for tortious interference with contractual relations. Id.
In the present case, it is clear on the face of the Complaint that Plaintiffs are alleging the
actions of the Town and Chief Bernegger amounted to intentional misconduct. As such, pursuant
to § 52–557n(a)(2)(A), the Town and Chief Bernegger are entitled to governmental immunity and
cannot be held liable for claims of tortious interference with contractual relations. Therefore,
Plaintiffs’ Counts Three and Count Seven must be stricken.
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Plaintiffs’ Counts Four and Count Eight allege claims of defamation against the Town and
Chief Bernegger. Specifically, Plaintiffs allege that the Town and Chief Bernegger “made false
statements concerning the Plaintiff to various third parties,” “published false statements
concerning the Plaintiff to various third parties…concerning the Plaintiff’s business practices and
reputation,” and “were made with a malicious intent to cause harm to the Plaintiff.” See Pls. Second
Revised Complaint at Count Four, ⁋⁋ 17-20, Count Eight, ⁋⁋ 17-20.
Plaintiffs’ Count Four and Count Eight fail as a matter of law as General Statutes § 52–
557n(a)(2)(A) entitles the Town and Chief Bernegger to governmental immunity for Plaintiffs’
claims of defamation, because such a claim is premised upon the presence of intentional conduct.
See Miller v. Egan, 265 Conn. 301, 332 (2003).
“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.” (Internal quotation marks
omitted.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28 (2009).
In the present case, the allegations clearly describe the Town’s and Chief Bernegger’s
conduct as alleged in connection with their claims of defamation, as intentional, and therefore such
conduct is afforded governmental immunity under General Statutes § 52–557n(a)(2)(A).
Therefore, Plaintiffs’ Count Four and Count Eight must be stricken.
Moreover, even if found to not be barred by governmental immunity, Plaintiffs’ Counts
Four and Eight fail to state a claim upon which relief can be granted, and thus, must be stricken.
“[W]hen claiming defamation, [c]ertainty is required in the allegations as to the defamation
and as to the person defamed; a complaint for defamation must, on its face, specifically identify
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what allegedly defamatory statements were made, by whom, and to whom. A complaint is
insufficient to withstand dismissal for failure to state a cause of action where, other than the bare
allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint set forth
no facts of any kind indicating what defamatory statements, if any, were made, when they were
made, or to whom they might have been made.” Mikhael v. H.S. Eagle Road Associates, LLC,
Superior Court, judicial district of Danbury, Docket No. CV–09–5008287–S (October 20, 2010,
Marano, J.); see also Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial
district of New Britain, Docket No. CV–98–0486346–S (July 12, 2002, Berger, J.), aff'd, 76 Conn.
App. 907 (2003) (“a complaint for defamation must, on its face, specifically identify what
allegedly defamatory statements were made, by whom, and to whom ...”).
“Connecticut courts require that a plaintiff must plead a defamation case with specificity
because there are a number of special defenses ... that may be appropriate, depending on the nature
of the statements alleged to have been made ... If the plaintiff's pleadings are nebulous as to the
identity of the speaker, audience and the type of statements made, it may be difficult for the
defendants to plead any appropriate special defenses.” Avitable v. 1 Burr Road Operating Co. II,
LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–09–5012806–S
(June 4, 2010, Adams, J.).
“Superior Courts have considered the degree of specificity necessary to adequately identify
what defamatory statements were made.” In Dean v. Liberation Programs, Inc., Superior Court,
judicial district of Stamford–Norwalk, Docket No. CV–13–6018607–S (Nov. 13, 2013, Tobin,
J.T.R.), the court noted that “[r]egarding the first element of a defamation claim, judges of the trial
court have agreed that in defamation actions especially, words count, and a premium is placed on
the precise words employed.” On the other hand, the court in Tax Data Solutions, LLC v. O'Brien,
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Superior Court, judicial district of New Haven, Docket No. CV–10–6016263–S (Feb. 6, 2013,
Zemetis, J.), adopted a less strict standard, and held that “[it is sufficient that] the plaintiff has
pleaded the subject matter of the statements.”
Here, Plaintiffs’ allegations in Counts Four and Eight do not meet either standard as
described in Liberation Programs, Inc. and O'Brien. Instead, the allegations of defamation do not
identify who and to whom the allegedly defamatory statement were made and do not identify what
the allegedly defamatory statement(s) are. See Pls. Second Revised Complaint at Counts Four and
Eight. Plaintiffs have failed to set forth any facts of any kind indicating what defamatory statement,
if any, were made, when they were made and to whom they were made and have instead plead
bare allegations that the Town and Chief Bernegger have caused injury to Plaintiffs’ reputation. Id.
As a result, Plaintiffs have failed to plead claims of defamation upon which relief can be granted,
requiring their dismissal.
Again, in viewing the allegations in Counts Four and Eight broadly and in a light most
favorable to sustaining the legal sufficiency of that count, Plaintiffs’ description of the alleged acts
of the Town and Chief Bernegger would be considered intentional actions taken against the
Plaintiffs, and therefore would fall under the immunity afforded by § 52-557n (a)(2)(A). Moreover,
even if Plaintiffs’ defamation claim were permitted, which it is not under § 52-557n (a)(2)(A), the
Plaintiffs’ allegations woefully lack the specificity required to establish a defamation claim.
As a result of the foregoing, Counts One, Three, Four, Five, Seven and Eight of Plaintiffs’
Second Revised Complaint all fail as a matter of law, as the Town and Chief Bernegger are entitled
to governmental immunity for intentional torts. Therefore, Plaintiffs’ Counts One, Three, Four,
Five, Seven and Eight should be stricken.
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C. COUNTS TWO AND SIX FAIL AS A MATTER OF LAW, AS THE DEFENDANTS ARE
ENTITLED TO GOVERNMENTAL IMMUNITY FOR DISCRETIONARY ACTS
Plaintiffs’ Counts Two and Six allege claims of negligence against the Town and Chief
Bernegger. Specifically, Plaintiffs allege the Town and Chief Bernegger negligently, “breached
their duty to communicate with the Plaintiff concerning private property tows in the Town of
Watertown, in that they: Expose[d] the Plaintiff to civil liability for wrongfully releasing vehicles
at the direction of the Defendant; Expose[d] the Plaintiff to criminal liability for wrongfully
releasing vehicles at the direction of the Defendant; and Harm[ed] the goodwill, reputation, and
revenue of the Plaintiff.” See Pl. Second Revised Complaint at Count Two, ⁋ 16, Count Six, ⁋ 16.
Plaintiffs’ claims sounding in negligence fail, as the alleged negligent conduct involves
discretionary acts, which bars the Town and Chief Bernegger from liability pursuant to § 52-
557n(a)(2)(B), which says in relevant part: “(2) Except as otherwise provided by law, a political
subdivision of the state shall not be liable for damages to person or property caused by: (B)
negligent acts or omissions which require the exercise of judgment or discretion as an official
function of the authority expressly or impliedly granted by law.” Conn. Gen. Stat. Ann. § 52-557n.
The law is well-established in Connecticut that, "the operation of a police department is a
governmental function, and that acts or omissions in connection therewith ordinarily do not give
rise to liability on the part of the municipality." Gordon v. Bridgeport Housing Auth., 208 Conn.
161, 179–80 (1988). Connecticut courts have consistently found that decisions facing law
enforcement agents are inherently discretionary in nature. See Edgerton v. Town of Clinton, 311
Conn. 217, 229 (2014) (“Affording immunity to municipal officers performing discretionary acts
serves the policy goal of avoiding ‘expansive exposure to liability,’ which ‘would cramp the
exercise of official discretion beyond the limits desirable in our society’”).
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Here, Plaintiffs claim that the acts of the Town and Chief Bernegger in allegedly directing
Plaintiffs to improperly release vehicles give rise to their claims of negligence. As alleged by
Plaintiffs, the Town and Chief Bernegger are responsible for handling towing related issues in the
Town, which is obviously a governmental function in connection with operation of a police
department. See Pls. Second Revised Complaint at ⁋ 3.
As the ‘handling’ of towing related issues is a governmental function in connection with
operation of a police department, acts and omissions in relation to said function is inherently
discretionary in nature. See Edgerton v. Town of Clinton, supra, (2014).
To the extent Plaintiffs argue the ‘handling’ of towing-related issues create ministerial
duties, the issue has previously been examined by the Supreme Court in Ventura v. Town of E.
Haven, wherein the Court held that the towing rules of the Town of East Haven applied only to
towing operators and did not create a ministerial duty on the part of its police officers. Ventura v.
Town of E. Haven, 330 Conn. 613, 637–38 (2019). Therefore, the alleged acts related to the
Town’s handling of towing issues are all discretionary. Accordingly, and pursuant to General
Statutes § 52-557n(a)(2)(B), the Town and Chief Bernegger are entitled to governmental
immunity.
As a result of the foregoing, Counts Two and Six of Plaintiffs’ Second Revised Complaint
fail as a matter of law, as the Town and Chief Bernegger are entitled to governmental immunity
for discretionary acts. Therefore, Counts Two and Six should be stricken.
D. COUNT NINE FAILS AS A MATTER OF LAW, AND THUS SHOULD BE STRICKEN
Plaintiffs’ Count Nine seeks a temporary and permanent injunction enjoining the Town
from “requiring, threatening, or demanding that the Plaintiff release vehicles without the proper
10
registration credentials and release vehicles to non-owners and non-authorized individuals and
lending institutions.” See Pls. Second Revised Complaint at Count Nine.
A party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at
law; (2) it will suffer irreparable harm absent an injunction; (3) it will likely prevail on the merits;
and (4) the balance of equities tip in its favor. Waterbury Teacher's Ass'n. v. Freedom of
Information Commission, 230 Conn. 441, 446 (1994); Danso v. University of Connecticut, 50
Conn.Supp. 256, (2007).
In support of their application Plaintiffs assert the following:
15. No other application for the same order or injunction was filed with this or any other
court.
16. Allowing the Defendants to continue to require the Plaintiff to release vehicles in
violation of General Statutes Section 14-145b will cause the Plaintiff irreparable harm if
allowed to continue, including further exposure to civil and criminal liability.
17. It is probable that the Plaintiff will prevail upon the merits of his claim that the
Defendants have coerced the Plaintiffs to release vehicles in violation of General Statutes
Section 14-145b.
See Pls. Second Revised Complaint at Count Nine, ⁋ 15-17. In viewing each of the
elements of a claim for injunctive relief and the allegations in the Second Revised Complaint, it is
clear that the Plaintiffs have failed to allege any set of facts that could satisfy the criteria for
injunctive relief.
Moreover, Plaintiffs’ claim that “no other application for the same order or injunction was
filed with this or any other court” is misguided, as Plaintiffs are seeking monetary relief in the
instant action arising from the same set of facts relied on to claim injunctive relief. Therefore, on
its face, Plaintiffs have and are actively pursing an adequate remedy at law.
Furthermore, for the reasons described above, Plaintiffs are not likely to prevail on the
merits of their claim, as the Town and Chief Bernegger are entitled to governmental immunity for
11
intentional acts and discretionary acts, including conduct related to towing within the Town. As a
result, Plaintiffs have failed to satisfy the elements of a claim for injunctive relief. Plaintiffs’ Count
Nine should be stricken for their failure to state a claim upon which relief can be granted.
III. CONCLUSION
Based upon the foregoing, the Defendants respectfully requests that this Court grant their
motion to strike the entirety of Plaintiffs’ Second Amended Complaint.
DEFENDANTS,
JOSHUA BERNEGGER, WATERTOWN
POLICE CHIEF AND TOWN OF
WATERTOWN
By /s/ Alan R. Dembiczak
Alan R. Dembiczak
Howd & Ludorf, LLC
100 Great Meadow Road, Suite 201
Wethersfield, CT 06109
(860) 249-1361
(860) 249-7665 (Fax)
Juris No.: 28228
12
CERTIFICATION
This is to certify that a copy of the foregoing was or will immediately be sent via regular
mail, postage prepaid, or delivered electronically or non-electronically on this 30th day of May,
2024, to all counsel and self-represented parties of record, and that written consent for
electronic delivery was received from all counsel and self-represented parties receiving
electronic delivery.
Peter C. Bowman, Esquire
BBB Attorneys, LLC
3651 Main Street, Suite 200
Stratford, CT 06614
Mr. Michael E. Festa
690 Main Street
Oakville, CT 06779
/s/ Alan R. Dembiczak
Alan R. Dembiczak
13
Preview
NO.: UWY-CV23-6068806-S : SUPERIOR COURT MICHAEL E. FESTA AND : J.D. OF WATERBURY MYHOOPTY.COM LLC : v. : AT WATERBURY : JOSHUA BERNEGGER, WATERTOWN : POLICE CHIEF, AND TOWN OF : WATERTOWN : MAY 30, 2024 DEFENDANTS’ MOTION TO STRIKE Pursuant to Connecticut Practice Book § 10-39, et seq., Defendants, CHIEF OF POLICE JOSHUA BERNEGGER AND THE TOWN OF WATERTOWN, hereby move to strike plaintiffs’ Second Revised Complaint dated May 10, 2024 [Entry No. 139.00]. As set forth in the Defendants’ memorandum of law in support of this motion attached hereto, this Court should strike the aforesaid Second Revised Complaint because of its failure to state a claim upon which relief can be granted. WHEREFORE, the undersigned Defendants respectfully request that this Court grant its motion to strike the plaintiff’s Second Revised Complaint. DEFENDANTS, JOSHUA BERNEGGER, WATERTOWN POLICE CHIEF AND TOWN OF WATERTOWN By /s/ Alan R. Dembiczak Alan R. Dembiczak Howd & Ludorf, LLC 100 Great Meadow Road, Suite 201 Wethersfield, CT 06109 (860) 249-1361 (860) 249-7665 (Fax) Juris No.: 28228 CERTIFICATION This is to certify that a copy of the foregoing was or will immediately be sent via regular mail, postage prepaid, or delivered electronically or non-electronically on this 30th day of May, 2024, to all counsel and self-represented parties of record, and that written consent for electronic delivery was received from all counsel and self-represented parties receiving electronic delivery. Peter C. Bowman, Esquire BBB Attorneys, LLC 3651 Main Street, Suite 200 Stratford, CT 06614 Mr. Michael E. Festa 690 Main Street Oakville, CT 06779 /s/ Alan R. Dembiczak Alan R. Dembiczak 2 UWY-CV23-6068806-S : SUPERIOR COURT MICHAEL E. FESTA AND : J.D. OF WATERBURY MYHOOPTY.COM LLC : v. : AT WATERBURY : JOSHUA BERNEGGER, WATERTOWN : POLICE CHIEF, AND TOWN OF : WATERTOWN : MAY 30, 2024 DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO STRIKE I. PROCEDURAL AND FACTUAL BACKGROUND In the instant action, Plaintiffs, MyHoopty.com, LLC and Michael Festa, claim to have sustained damages as a result of the Defendants’ (hereinafter the “Town” and “Chief Bernegger”) interference with the Plaintiffs’ towing business. Specifically, Plaintiffs have alleged causes of action sounding in negligence, tortious interference with business expectancies, tortious interference with contractual relations and defamation as to both the Town and Chief Bernegger. Plaintiffs are seeking economic damages and a temporary and permanent injunction. See Pl. Second Revised Complaint [Entry No. 139.00]. As explained below, even accepting all well-plead factual allegations as true, all counts of Plaintiffs’ Second Revised Complaint fail to state a claim upon which relief can be granted, and accordingly, must be stricken. II. ARGUMENT A. STANDARD OF REVIEW Pursuant to Practice Book § 10-39(a), a motion to strike shall be used "[w]henever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint…" "A motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court." Bernhard-Thomas Building Systems, LLC v. Dunican, et al, 286 Conn. 548, 552 (2008). "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 v. Alves, et al, 262 Conn. 480, 489 (2003); quoting Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992). B. COUNTS ONE, THREE, FOUR, FIVE, SEVEN AND EIGHT FAIL AS A MATTER OF LAW, AS THE DEFENDANTS ARE ENTITLED TO GOVERNMENTAL IMMUNITY FOR INTENTIONAL TORTS Counts One, Three, Four, Five, Seven and Eight of Plaintiffs’ Second Revised Complaint alleges causes of action sounding in intentional torts - tortious interference with business expectancies, tortious interference with contractual relations and defamation. Plaintiffs have initiated this suit against the Town and Chief Bernegger. As Chief Bernegger is being sued with respect to the performance of his official duties, he is therefore being sued within his official capacity. See Pl. Second Revised Complaint; See Reed v. Town of Clinton, No. KNL- CV21-6050093-S, 2024 WL 164972, (Conn. Super. Ct. Jan. 12, 2024). A claim . . . against a municipal employee in his or her official capacity is treated as a claim against the municipality. See Northrup v. Witkowski, 175 Conn. App. 223, 246 (2017), aff'd., 332 Conn. 158 (2019). Therefore, all of Plaintiffs’ claims are against the municipality itself, and those claims alleging intentional torts, fail as a matter of law, because the Town and Chief Bernegger are entitled to governmental immunity for intentional torts. The defense of governmental immunity is properly raised here, because “[T]here are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and 2 omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.” (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 116, n. 4. When “it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant [is] not required to plead governmental immunity as a special defense and [may] attack the legal sufficiency of the complaint through a motion to strike.” Brown v. Branford, 12 Conn. App. 106, 111 n.3 (1987); See Empire Ent. Grp., LLC v. City of New Haven, No. CV-20-6106470- S, 2023 WL 3716073, at *2 (Conn. Super. Ct. May 23, 2023) (granting municipal defendant’s motion to strike plaintiff’s claims of tortious interference and defamation based on governmental immunity). Pursuant to General Statutes § 52–557n(a)(2)(A), a political subdivision is not liable for acts or omissions of its employees that constitute fraud, malice or wilful misconduct. Moreover, when a plaintiff alleges an intentional tort that is governed by the immunity provided in § 52–557n (a)(2)(A), it is immaterial whether the acts were ministerial or discretionary. See O'Connor v. Board of Education, 90 Conn. App. at 65, (“[b]ecause the plaintiff's claim was governed by the immunity provided in § 52–557n [a][2], the defendant was immune from suit for the intentional torts of its employees, regardless of whether the acts were ministerial or discretionary”). Our Supreme Court has held that the term ‘wilfulness' is synonymous with ‘intentional.’ See Avoletta v. Torrington, 133 Conn. App. 215, 224 (2012). Here, Plaintiffs’ Count One and Count Five allege tortious interference with business expectancies as to the Town and Chief Bernegger. Specifically, Plaintiffs allege that the Town and Chief Bernegger tortiously interfered with their business expectancies in that they, “were aware of 3 the contractual obligations between the Plaintiff and those authorized to obtain releases of their vehicles pursuant to General Statutes Section 14-145b,” “the Defendant’s coercive actions demanding that the Plaintiff release vehicles in violation of General Statutes Section 14-145b were wrongful” and “were to the detriment of the Plaintiff.” See Pl. Second Revised Complaint at Count One ⁋⁋ 16-18, Count Five ⁋⁋ 16-18. “It is well established that the elements of a claim for tortious interference with business expectancies are: (1) a business relationship between the plaintiff and another party; (2) the defendant's intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference; the plaintiff suffers actual loss…” (Emphasis added; internal quotation marks omitted.) Brown v. Otake, 164 Conn. App. 686, 709-10 (2016). In the present case, viewing Plaintiffs’ allegations contained broadly, and in a light most favorable to sustaining the legal sufficiency, and Plaintiffs’ own description of the alleged acts, the allegations clearly describe the Town’s and Chief Bernegger’s conduct as intentional, and therefore, such conduct as alleged by Plaintiffs is afforded governmental immunity under General Statutes § 52–557n(a)(2)(A). Therefore, Plaintiffs’ Count One and Count Five must be stricken. Plaintiffs’ Counts Three and Count Seven allege tortious interference with contractual relations as to the Town and Chief Bernegger. Specifically, Plaintiffs allege that the Town and Chief Bernegger tortiously interfered with their contractual relations in that they, “coerced the Plaintiff to release vehicles in violation of General Statutes § 14-145b” and that they, “intended to interfere with and harm the Plaintiff’s contractual relationships.” See Pl. Second Revised Complaint at Count Three ⁋⁋ 17-18, Count Seven ⁋⁋ 17-18. Plaintiffs’ Count Three and Count Seven fail as a matter of law as General Statutes § 52– 557n(a)(2)(A) entitles the Town and Chief Bernegger to governmental immunity for Plaintiffs’ 4 claims of tortious interference with contractual relations, because such a claim is premised upon the presence of intentional conduct. See Lavigne v. Town of Killingly, No. WWMCV146007875S, 2015 WL 9911472, at *4 (Conn. Super. Ct. Dec. 24, 2015). “A claim for intentional interference with contractual relations requires the plaintiff to establish: (1) the existence of a contractual or beneficial relationship; (2) the defendant's knowledge of that relationship; (3) the defendant's intent to interfere with the relationship; (4) that the interference was tortious; and (5) a loss suffered by the plaintiff that was caused by the defendant's tortious conduct.” Metcoff v. Lebovics, 123 Conn. App. 512, 521 (2010). The issue of the availability of governmental immunity on a claim for tortious interference has previously been decided by this Court. In Lavigne v. Town of Killingly, supra, plaintiffs brought claims against the town for tortious interference and defamation related to plaintiffs’ recycling business. Plaintiffs’ claim for tortious interference was premised upon allegations that town employees demonstrated personal or professional bias against the plaintiff and that the aforementioned employees had personal inclinations to see that the plaintiff's contracts with the Town were terminated. Lavigne v. Town of Killingly, supra, at *3 (Conn. Super. Ct. Dec. 24, 2015). The Court (Calmar, J.) granted the municipal defendants’ motion to strike, holding that the defendants were entitled to governmental immunity as to plaintiffs’ claims of intentional torts, including those for tortious interference with contractual relations. Id. In the present case, it is clear on the face of the Complaint that Plaintiffs are alleging the actions of the Town and Chief Bernegger amounted to intentional misconduct. As such, pursuant to § 52–557n(a)(2)(A), the Town and Chief Bernegger are entitled to governmental immunity and cannot be held liable for claims of tortious interference with contractual relations. Therefore, Plaintiffs’ Counts Three and Count Seven must be stricken. 5 Plaintiffs’ Counts Four and Count Eight allege claims of defamation against the Town and Chief Bernegger. Specifically, Plaintiffs allege that the Town and Chief Bernegger “made false statements concerning the Plaintiff to various third parties,” “published false statements concerning the Plaintiff to various third parties…concerning the Plaintiff’s business practices and reputation,” and “were made with a malicious intent to cause harm to the Plaintiff.” See Pls. Second Revised Complaint at Count Four, ⁋⁋ 17-20, Count Eight, ⁋⁋ 17-20. Plaintiffs’ Count Four and Count Eight fail as a matter of law as General Statutes § 52– 557n(a)(2)(A) entitles the Town and Chief Bernegger to governmental immunity for Plaintiffs’ claims of defamation, because such a claim is premised upon the presence of intentional conduct. See Miller v. Egan, 265 Conn. 301, 332 (2003). “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.” (Internal quotation marks omitted.) Gambardella v. Apple Health Care, Inc., 291 Conn. 620, 627–28 (2009). In the present case, the allegations clearly describe the Town’s and Chief Bernegger’s conduct as alleged in connection with their claims of defamation, as intentional, and therefore such conduct is afforded governmental immunity under General Statutes § 52–557n(a)(2)(A). Therefore, Plaintiffs’ Count Four and Count Eight must be stricken. Moreover, even if found to not be barred by governmental immunity, Plaintiffs’ Counts Four and Eight fail to state a claim upon which relief can be granted, and thus, must be stricken. “[W]hen claiming defamation, [c]ertainty is required in the allegations as to the defamation and as to the person defamed; a complaint for defamation must, on its face, specifically identify 6 what allegedly defamatory statements were made, by whom, and to whom. A complaint is insufficient to withstand dismissal for failure to state a cause of action where, other than the bare allegation that the defendant's actions caused injury to plaintiff's reputation, the complaint set forth no facts of any kind indicating what defamatory statements, if any, were made, when they were made, or to whom they might have been made.” Mikhael v. H.S. Eagle Road Associates, LLC, Superior Court, judicial district of Danbury, Docket No. CV–09–5008287–S (October 20, 2010, Marano, J.); see also Chertkova v. Connecticut General Life Ins. Co., Superior Court, judicial district of New Britain, Docket No. CV–98–0486346–S (July 12, 2002, Berger, J.), aff'd, 76 Conn. App. 907 (2003) (“a complaint for defamation must, on its face, specifically identify what allegedly defamatory statements were made, by whom, and to whom ...”). “Connecticut courts require that a plaintiff must plead a defamation case with specificity because there are a number of special defenses ... that may be appropriate, depending on the nature of the statements alleged to have been made ... If the plaintiff's pleadings are nebulous as to the identity of the speaker, audience and the type of statements made, it may be difficult for the defendants to plead any appropriate special defenses.” Avitable v. 1 Burr Road Operating Co. II, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–09–5012806–S (June 4, 2010, Adams, J.). “Superior Courts have considered the degree of specificity necessary to adequately identify what defamatory statements were made.” In Dean v. Liberation Programs, Inc., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–13–6018607–S (Nov. 13, 2013, Tobin, J.T.R.), the court noted that “[r]egarding the first element of a defamation claim, judges of the trial court have agreed that in defamation actions especially, words count, and a premium is placed on the precise words employed.” On the other hand, the court in Tax Data Solutions, LLC v. O'Brien, 7 Superior Court, judicial district of New Haven, Docket No. CV–10–6016263–S (Feb. 6, 2013, Zemetis, J.), adopted a less strict standard, and held that “[it is sufficient that] the plaintiff has pleaded the subject matter of the statements.” Here, Plaintiffs’ allegations in Counts Four and Eight do not meet either standard as described in Liberation Programs, Inc. and O'Brien. Instead, the allegations of defamation do not identify who and to whom the allegedly defamatory statement were made and do not identify what the allegedly defamatory statement(s) are. See Pls. Second Revised Complaint at Counts Four and Eight. Plaintiffs have failed to set forth any facts of any kind indicating what defamatory statement, if any, were made, when they were made and to whom they were made and have instead plead bare allegations that the Town and Chief Bernegger have caused injury to Plaintiffs’ reputation. Id. As a result, Plaintiffs have failed to plead claims of defamation upon which relief can be granted, requiring their dismissal. Again, in viewing the allegations in Counts Four and Eight broadly and in a light most favorable to sustaining the legal sufficiency of that count, Plaintiffs’ description of the alleged acts of the Town and Chief Bernegger would be considered intentional actions taken against the Plaintiffs, and therefore would fall under the immunity afforded by § 52-557n (a)(2)(A). Moreover, even if Plaintiffs’ defamation claim were permitted, which it is not under § 52-557n (a)(2)(A), the Plaintiffs’ allegations woefully lack the specificity required to establish a defamation claim. As a result of the foregoing, Counts One, Three, Four, Five, Seven and Eight of Plaintiffs’ Second Revised Complaint all fail as a matter of law, as the Town and Chief Bernegger are entitled to governmental immunity for intentional torts. Therefore, Plaintiffs’ Counts One, Three, Four, Five, Seven and Eight should be stricken. 8 C. COUNTS TWO AND SIX FAIL AS A MATTER OF LAW, AS THE DEFENDANTS ARE ENTITLED TO GOVERNMENTAL IMMUNITY FOR DISCRETIONARY ACTS Plaintiffs’ Counts Two and Six allege claims of negligence against the Town and Chief Bernegger. Specifically, Plaintiffs allege the Town and Chief Bernegger negligently, “breached their duty to communicate with the Plaintiff concerning private property tows in the Town of Watertown, in that they: Expose[d] the Plaintiff to civil liability for wrongfully releasing vehicles at the direction of the Defendant; Expose[d] the Plaintiff to criminal liability for wrongfully releasing vehicles at the direction of the Defendant; and Harm[ed] the goodwill, reputation, and revenue of the Plaintiff.” See Pl. Second Revised Complaint at Count Two, ⁋ 16, Count Six, ⁋ 16. Plaintiffs’ claims sounding in negligence fail, as the alleged negligent conduct involves discretionary acts, which bars the Town and Chief Bernegger from liability pursuant to § 52- 557n(a)(2)(B), which says in relevant part: “(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” Conn. Gen. Stat. Ann. § 52-557n. The law is well-established in Connecticut that, "the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality." Gordon v. Bridgeport Housing Auth., 208 Conn. 161, 179–80 (1988). Connecticut courts have consistently found that decisions facing law enforcement agents are inherently discretionary in nature. See Edgerton v. Town of Clinton, 311 Conn. 217, 229 (2014) (“Affording immunity to municipal officers performing discretionary acts serves the policy goal of avoiding ‘expansive exposure to liability,’ which ‘would cramp the exercise of official discretion beyond the limits desirable in our society’”). 9 Here, Plaintiffs claim that the acts of the Town and Chief Bernegger in allegedly directing Plaintiffs to improperly release vehicles give rise to their claims of negligence. As alleged by Plaintiffs, the Town and Chief Bernegger are responsible for handling towing related issues in the Town, which is obviously a governmental function in connection with operation of a police department. See Pls. Second Revised Complaint at ⁋ 3. As the ‘handling’ of towing related issues is a governmental function in connection with operation of a police department, acts and omissions in relation to said function is inherently discretionary in nature. See Edgerton v. Town of Clinton, supra, (2014). To the extent Plaintiffs argue the ‘handling’ of towing-related issues create ministerial duties, the issue has previously been examined by the Supreme Court in Ventura v. Town of E. Haven, wherein the Court held that the towing rules of the Town of East Haven applied only to towing operators and did not create a ministerial duty on the part of its police officers. Ventura v. Town of E. Haven, 330 Conn. 613, 637–38 (2019). Therefore, the alleged acts related to the Town’s handling of towing issues are all discretionary. Accordingly, and pursuant to General Statutes § 52-557n(a)(2)(B), the Town and Chief Bernegger are entitled to governmental immunity. As a result of the foregoing, Counts Two and Six of Plaintiffs’ Second Revised Complaint fail as a matter of law, as the Town and Chief Bernegger are entitled to governmental immunity for discretionary acts. Therefore, Counts Two and Six should be stricken. D. COUNT NINE FAILS AS A MATTER OF LAW, AND THUS SHOULD BE STRICKEN Plaintiffs’ Count Nine seeks a temporary and permanent injunction enjoining the Town from “requiring, threatening, or demanding that the Plaintiff release vehicles without the proper 10 registration credentials and release vehicles to non-owners and non-authorized individuals and lending institutions.” See Pls. Second Revised Complaint at Count Nine. A party seeking injunctive relief must demonstrate that: (1) it has no adequate remedy at law; (2) it will suffer irreparable harm absent an injunction; (3) it will likely prevail on the merits; and (4) the balance of equities tip in its favor. Waterbury Teacher's Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446 (1994); Danso v. University of Connecticut, 50 Conn.Supp. 256, (2007). In support of their application Plaintiffs assert the following: 15. No other application for the same order or injunction was filed with this or any other court. 16. Allowing the Defendants to continue to require the Plaintiff to release vehicles in violation of General Statutes Section 14-145b will cause the Plaintiff irreparable harm if allowed to continue, including further exposure to civil and criminal liability. 17. It is probable that the Plaintiff will prevail upon the merits of his claim that the Defendants have coerced the Plaintiffs to release vehicles in violation of General Statutes Section 14-145b. See Pls. Second Revised Complaint at Count Nine, ⁋ 15-17. In viewing each of the elements of a claim for injunctive relief and the allegations in the Second Revised Complaint, it is clear that the Plaintiffs have failed to allege any set of facts that could satisfy the criteria for injunctive relief. Moreover, Plaintiffs’ claim that “no other application for the same order or injunction was filed with this or any other court” is misguided, as Plaintiffs are seeking monetary relief in the instant action arising from the same set of facts relied on to claim injunctive relief. Therefore, on its face, Plaintiffs have and are actively pursing an adequate remedy at law. Furthermore, for the reasons described above, Plaintiffs are not likely to prevail on the merits of their claim, as the Town and Chief Bernegger are entitled to governmental immunity for 11 intentional acts and discretionary acts, including conduct related to towing within the Town. As a result, Plaintiffs have failed to satisfy the elements of a claim for injunctive relief. Plaintiffs’ Count Nine should be stricken for their failure to state a claim upon which relief can be granted. III. CONCLUSION Based upon the foregoing, the Defendants respectfully requests that this Court grant their motion to strike the entirety of Plaintiffs’ Second Amended Complaint. DEFENDANTS, JOSHUA BERNEGGER, WATERTOWN POLICE CHIEF AND TOWN OF WATERTOWN By /s/ Alan R. Dembiczak Alan R. Dembiczak Howd & Ludorf, LLC 100 Great Meadow Road, Suite 201 Wethersfield, CT 06109 (860) 249-1361 (860) 249-7665 (Fax) Juris No.: 28228 12 CERTIFICATION This is to certify that a copy of the foregoing was or will immediately be sent via regular mail, postage prepaid, or delivered electronically or non-electronically on this 30th day of May, 2024, to all counsel and self-represented parties of record, and that written consent for electronic delivery was received from all counsel and self-represented parties receiving electronic delivery. Peter C. Bowman, Esquire BBB Attorneys, LLC 3651 Main Street, Suite 200 Stratford, CT 06614 Mr. Michael E. Festa 690 Main Street Oakville, CT 06779 /s/ Alan R. Dembiczak Alan R. Dembiczak 13