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FST-CV14-6021083-S : SUPERIOR COURT
ANDREA ROBLES &
MARIA ARRIAGA : J.D. OF STAMFORD/
NORWALK
V. : AT STAMFORD
WEST AVENUE DENTAL, PC,
TUNXIS HILL DENTAL, PC, and
HRISHIKESH GOGATE : AUGUST 15, 2016
PLAINTIFFS’ MOTION TO STRIKE
Plaintiffs move to strike Defendants’ Eighth Affirmative Defense and Second
Special Defense because Rafael Arias’ conviction for sexual assault is conclusive
evidence that he compelled Plaintiff Maria “Alejandra” Arriaga to engage in sexual
conduct by the use of force or by threat of use of force. Therefore, Defendants are
collaterally estopped from relitigating the issue of consent related to assault.
I. Facts
Defendant Hrishikesh Gogate (“Gogate”) is co-owner of West Avenue Dental, PC
(“West Avenue Dental”) and was co-owner of Tunxis Hill Dental, PC (“Tunxis Hill
Dental”) until it closed. From September 2011 to September 2012, Plaintiff Maria
Arriaga was an employee of West Avenue Dental and Tunxis Dental at different periods
of time.
In July of 2012, Rafael Arias (“Arias”) was the regional manager of West Avenue
Dental and Tunxis Hill Dental. On July 11, 2012, Ms. Arriaga was required to fill in for a
dental assistant at West Avenue Dental. On that date, Arias called a meeting with the
dental assistants at West Avenue Dental to inform them that he was going on vacation
and to give instructions. After the meeting, Arias told Ms. Arriaga that he needed to
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speak with her. He asked her to speak with him while he walked to his car. When they
were outside of the elevator to the parking lot, Arias sexually assaulted Ms. Arriaga by
attempting to kiss her, forcing her to touch his penis over his pants, and penetrating her
vagina with his finger.
On September 22, 2012, Arias was arrested for assaulting Ms. Arriaga. From the
beginning, Arias argued that the sexual encounter was consensual, including providing
a statement to that effect to the investigating detective. He pleaded not guilty to two
counts of sexual assault. He was tried by a jury of twelve and on February 26, 2014 the
jury returned a unanimous verdict of guilty of sexual assault in the first degree in
violation of C.G.S. § 53a-70(a)(1) and sexual assault in the third degree in violation of
C.G.S § 53a-72a(a)(1). On July 26, 2016, the Connecticut Supreme Court affirmed
Arias’ conviction.
Defendants’ Eighth Affirmative Defense and Second Special Defense both state
that Ms. Arriaga consented to any touching by Arias.
II. Legal Argument
Practice Book § 10-50 only permits the filing of special defenses, though
Defendants filed both special and affirmative defenses. Because there is “no authority
concerning the effect of labeling a pleading as an Affirmative Defense as opposed to a
Special Defense,” the Court should assume that the Eight Affirmative Defense is a
special Defense. Deutsche Bank Trust Co. Americas v. Porzio, No.FSTCV116011134S,
2014 WL 2504761, at *7 (April 29, 2014, Tierney, J).
A motion to strike challenges the legal sufficiency of a pleading. Blake v. Levy,
191 Conn. 257, 258 n. 1, 464 A.2d 52 (1983); Ivey, Barnum & O'Mara v. Indian Harbor
2
Properties, Inc., 190 Conn. 528, 530 n. 2, 461 A.2d 1369 (1983). Under Practice Book §
10-39, a motion to strike properly applies to special defenses. “When the allegations of
the complaint [or special defense] state mere conclusions of law without sufficient facts
to support those conclusions, the complaint [or special defense] is subject to a motion to
strike.” Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982). A
motion to strike should be granted if the allegations do not provide a cause of action or
defense. King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985); Greene
v. Metals Selling Corporation, 3 Conn.App. 40, 42, 484 A.2d 478 (1984).
Collateral estoppel precludes relitigation of an issue when the issue was litigated
and determined in a prior action. Aetna Cas. & Sur. Co. v. Jones, 220 Conn. 285, 296
596 A.2d 414 (1991). Collateral estoppel applies when the issue was “fully and fairly
litigated in the first action” and was “actually decided and the decision [was] necessary
to the judgment.” Id.
In Aetna Casualty & Surety Company v. Jones, the Connecticut Supreme Court
held that where a criminal defendant was found guilty of first degree manslaughter,
collateral estoppel precluded a non-party to the criminal proceeding from relitigating the
criminal defendant’s intent to cause injuries in a later civil proceeding. Id. at 297. The
court reached this conclusion because the issue was fully and fairly litigated and the
criminal defendant’s intent was necessary to the judgment of the criminal court. Id.
a. The issue of consent was fully and fairly litigated in Rafael Arias’
criminal trial
Fairness is the “crowning consideration” in collateral estoppel cases. Id. at 306.
The Court should consider the seriousness of the allegations or the criminal charge and
whether the defendant was provided with the full range of constitutional protections,
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when determining whether the prior proceeding was fully and fairly litigated. Id. If the
offense charged carried a potentially significant prison sentence, the defendant’s
motivation to defend his case is compelling. Id.
Here, there is no question that Arias’ criminal trial was fully and fairly litigated.
Arias was motivated to defend his case because he was charged with a first degree
felony and faced a potentially significant prison sentence. Arias was provided with the
full range of constitutional protections including the right to a jury and the right to
mandate that the state prove him guilty beyond a reasonable doubt. At trial, Arias’
attorney called numerous witnesses, including Defendant Gogate, Amit Lakhotia
(“Lakhotia”), co-owner of West Avenue Dental, and Manpuneet Singh, former co-owner
of Tunxis Hill Dental, all testified on Arias’ behalf at the criminal trial.
There is also no question that the issue of whether Ms. Arriaga consented to the
sexual contact with Arias was fully and fairly litigated or that a determination regarding
whether Ms. Arriaga consented to sexual conduct with Arias was necessary to the
judgment in Arias’ criminal case. The guilty verdicts for sexual assault in the first degree
and third degree required the jury to have found beyond a reasonable doubt that Arias
compelled Ms. Arriaga to engage in sexual intercourse or sexual conduct “by the use of
force against [her], or by the threat of use of force against [her]… which reasonably
cause[d her] to fear physical injury….” C.G.S. § 53a-70(a)(1); see also C.G.S § 53a-
72a(a)(1). It logically follows that the jury found that Ms. Arriaga did not consent to
engaging in sexual conduct with Arias.
The issue raised in Defendants’ defenses regarding whether Ms. Arriaga
consented to sexual contact with Arias is identical to the issue decided in Arias’ criminal
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case and, therefore, collateral estoppel applies. Defendants’ Eight Affirmative
Defendant states that “Arriaga consented to any touching with Arias.” Defendants’
Second Special Defense states that “plaintiff Arriaga has unclean hands because she
had consensual physical and sexual contact with Aria[sic]….” (See Defendants’ Answer
and Affirmative Defenses to Second Amended Complaint, p. 14-16). Because the issue
of consent was already decided, Defendants should be precluded from arguing it in this
case.
b. Mutuality of parties is not required for collateral estoppel
Mutuality of parties is no longer required to invoke collateral estoppel. Aetna Cas.
& Sur. Co. v. Jones, 220 Conn at 300-303. The mutuality of parties doctrine stated that
one who was not a party to the original proceeding could not collaterally estop parties
who were in a subsequent proceeding. The Connecticut Supreme Court has ruled the
doctrine is unsound because it “diminishes the stability of judgments” and “important
notions of judicial economy are served by the abandonment of the doctrine.” Id. at 302.
In Aetna Casualty & Surety Company v. Jones, the Court ruled that they “will not
allow the judgment [in a criminal court] to be questioned now, in a civil court, on the sole
basis that the plaintiff was not a party to the original criminal action.” Id. at 303. This
court should follow the Connecticut Supreme Court’s reasoning in Aetna and find that
collateral estoppel applies here, despite that lack of mutuality of parties.
c. Privity exists between Arias and Defendants
While it is commonly recognized that privity is difficult to define, the key
consideration is the sharing of the same legal right by the parties in privity. Id. at 304.
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Connecticut courts have recognized that “the concept of privity has moved away from
the conventional and narrowly defined meaning of mutual or successive relationships to
the same rights or property. It now signifies a relationship between one who is a party of
record and another who is a nonparty, but is sufficiently close to mandate the
application of res judicata or collateral estoppel.” Mazziotti v. Allstate Ins. Co., 240
Conn. 799, 813 n. 12, 695 A.2d 1010 (1997). Generally, an employer-employee or
agent-principle relationship provides the necessary privity for collateral estoppel with
respect to matters within the scope of the relationship. Tibbetts v. Stempel, 354 F.
Supp. 2d 137, 148 (D. Conn. 2005), aff'd sub nom. Tibbetts v. Levin, 288 Fed. Appx.
743 (2d Cir. 2008).
Here, an employer-employee relationship existed between Defendants and Arias
at the time of the events at issue. Defendants are legally responsible for Arias’ conduct
within the scope of his employment, which is at issue in this case. At the time of Arias’
criminal trial, Defendants had been served with Plaintiffs’ Connecticut Commission on
Human Rights and Opportunities (“CHRO”) complaint related to Arias’ conduct and the
state complaint and knew that Plaintiffs were seeking to hold Defendants liable for Arias’
conduct, in addition to Defendants’ conduct, related to Plaintiffs’ employment.
Defendants’ interests were represented in Arias’ criminal trial through their testimony
and the testimony of numerous other West Avenue Dental employees.
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III. Conclusion
For the foregoing reasons, Plaintiff’s motion to strike Defendants’ Eighth
Affirmative Defense and Second Special Defense should be granted.
THE PLAINTIFFS
By: /s/ 435548__________
Carolyn Naylor Flynn, Esq.
Casper & de Toledo LLC
1458 Bedford Street
Stamford, CT 06905
Tel. (203) 325-8600
Juris No. 106056
CERTIFICATION
This is to certify that a true copy of the foregoing was e-mailed this 15th day of
August, 2016 to the following counsel of record:
Kristan Peters-Hamlin
110 Summer St., 2nd Floor
Stamford, CT 06905
Telephone: (203) 504-2050
kph@petershamlinlaw.com
/s/ 435548
Commissioner of the Superior Court
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FST-CV14-6021083-S : SUPERIOR COURT ANDREA ROBLES & MARIA ARRIAGA : J.D. OF STAMFORD/ NORWALK V. : AT STAMFORD WEST AVENUE DENTAL, PC, TUNXIS HILL DENTAL, PC, and HRISHIKESH GOGATE : AUGUST 15, 2016 PLAINTIFFS’ MOTION TO STRIKE Plaintiffs move to strike Defendants’ Eighth Affirmative Defense and Second Special Defense because Rafael Arias’ conviction for sexual assault is conclusive evidence that he compelled Plaintiff Maria “Alejandra” Arriaga to engage in sexual conduct by the use of force or by threat of use of force. Therefore, Defendants are collaterally estopped from relitigating the issue of consent related to assault. I. Facts Defendant Hrishikesh Gogate (“Gogate”) is co-owner of West Avenue Dental, PC (“West Avenue Dental”) and was co-owner of Tunxis Hill Dental, PC (“Tunxis Hill Dental”) until it closed. From September 2011 to September 2012, Plaintiff Maria Arriaga was an employee of West Avenue Dental and Tunxis Dental at different periods of time. In July of 2012, Rafael Arias (“Arias”) was the regional manager of West Avenue Dental and Tunxis Hill Dental. On July 11, 2012, Ms. Arriaga was required to fill in for a dental assistant at West Avenue Dental. On that date, Arias called a meeting with the dental assistants at West Avenue Dental to inform them that he was going on vacation and to give instructions. After the meeting, Arias told Ms. Arriaga that he needed to 1 speak with her. He asked her to speak with him while he walked to his car. When they were outside of the elevator to the parking lot, Arias sexually assaulted Ms. Arriaga by attempting to kiss her, forcing her to touch his penis over his pants, and penetrating her vagina with his finger. On September 22, 2012, Arias was arrested for assaulting Ms. Arriaga. From the beginning, Arias argued that the sexual encounter was consensual, including providing a statement to that effect to the investigating detective. He pleaded not guilty to two counts of sexual assault. He was tried by a jury of twelve and on February 26, 2014 the jury returned a unanimous verdict of guilty of sexual assault in the first degree in violation of C.G.S. § 53a-70(a)(1) and sexual assault in the third degree in violation of C.G.S § 53a-72a(a)(1). On July 26, 2016, the Connecticut Supreme Court affirmed Arias’ conviction. Defendants’ Eighth Affirmative Defense and Second Special Defense both state that Ms. Arriaga consented to any touching by Arias. II. Legal Argument Practice Book § 10-50 only permits the filing of special defenses, though Defendants filed both special and affirmative defenses. Because there is “no authority concerning the effect of labeling a pleading as an Affirmative Defense as opposed to a Special Defense,” the Court should assume that the Eight Affirmative Defense is a special Defense. Deutsche Bank Trust Co. Americas v. Porzio, No.FSTCV116011134S, 2014 WL 2504761, at *7 (April 29, 2014, Tierney, J). A motion to strike challenges the legal sufficiency of a pleading. Blake v. Levy, 191 Conn. 257, 258 n. 1, 464 A.2d 52 (1983); Ivey, Barnum & O'Mara v. Indian Harbor 2 Properties, Inc., 190 Conn. 528, 530 n. 2, 461 A.2d 1369 (1983). Under Practice Book § 10-39, a motion to strike properly applies to special defenses. “When the allegations of the complaint [or special defense] state mere conclusions of law without sufficient facts to support those conclusions, the complaint [or special defense] is subject to a motion to strike.” Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982). A motion to strike should be granted if the allegations do not provide a cause of action or defense. King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985); Greene v. Metals Selling Corporation, 3 Conn.App. 40, 42, 484 A.2d 478 (1984). Collateral estoppel precludes relitigation of an issue when the issue was litigated and determined in a prior action. Aetna Cas. & Sur. Co. v. Jones, 220 Conn. 285, 296 596 A.2d 414 (1991). Collateral estoppel applies when the issue was “fully and fairly litigated in the first action” and was “actually decided and the decision [was] necessary to the judgment.” Id. In Aetna Casualty & Surety Company v. Jones, the Connecticut Supreme Court held that where a criminal defendant was found guilty of first degree manslaughter, collateral estoppel precluded a non-party to the criminal proceeding from relitigating the criminal defendant’s intent to cause injuries in a later civil proceeding. Id. at 297. The court reached this conclusion because the issue was fully and fairly litigated and the criminal defendant’s intent was necessary to the judgment of the criminal court. Id. a. The issue of consent was fully and fairly litigated in Rafael Arias’ criminal trial Fairness is the “crowning consideration” in collateral estoppel cases. Id. at 306. The Court should consider the seriousness of the allegations or the criminal charge and whether the defendant was provided with the full range of constitutional protections, 3 when determining whether the prior proceeding was fully and fairly litigated. Id. If the offense charged carried a potentially significant prison sentence, the defendant’s motivation to defend his case is compelling. Id. Here, there is no question that Arias’ criminal trial was fully and fairly litigated. Arias was motivated to defend his case because he was charged with a first degree felony and faced a potentially significant prison sentence. Arias was provided with the full range of constitutional protections including the right to a jury and the right to mandate that the state prove him guilty beyond a reasonable doubt. At trial, Arias’ attorney called numerous witnesses, including Defendant Gogate, Amit Lakhotia (“Lakhotia”), co-owner of West Avenue Dental, and Manpuneet Singh, former co-owner of Tunxis Hill Dental, all testified on Arias’ behalf at the criminal trial. There is also no question that the issue of whether Ms. Arriaga consented to the sexual contact with Arias was fully and fairly litigated or that a determination regarding whether Ms. Arriaga consented to sexual conduct with Arias was necessary to the judgment in Arias’ criminal case. The guilty verdicts for sexual assault in the first degree and third degree required the jury to have found beyond a reasonable doubt that Arias compelled Ms. Arriaga to engage in sexual intercourse or sexual conduct “by the use of force against [her], or by the threat of use of force against [her]… which reasonably cause[d her] to fear physical injury….” C.G.S. § 53a-70(a)(1); see also C.G.S § 53a- 72a(a)(1). It logically follows that the jury found that Ms. Arriaga did not consent to engaging in sexual conduct with Arias. The issue raised in Defendants’ defenses regarding whether Ms. Arriaga consented to sexual contact with Arias is identical to the issue decided in Arias’ criminal 4 case and, therefore, collateral estoppel applies. Defendants’ Eight Affirmative Defendant states that “Arriaga consented to any touching with Arias.” Defendants’ Second Special Defense states that “plaintiff Arriaga has unclean hands because she had consensual physical and sexual contact with Aria[sic]….” (See Defendants’ Answer and Affirmative Defenses to Second Amended Complaint, p. 14-16). Because the issue of consent was already decided, Defendants should be precluded from arguing it in this case. b. Mutuality of parties is not required for collateral estoppel Mutuality of parties is no longer required to invoke collateral estoppel. Aetna Cas. & Sur. Co. v. Jones, 220 Conn at 300-303. The mutuality of parties doctrine stated that one who was not a party to the original proceeding could not collaterally estop parties who were in a subsequent proceeding. The Connecticut Supreme Court has ruled the doctrine is unsound because it “diminishes the stability of judgments” and “important notions of judicial economy are served by the abandonment of the doctrine.” Id. at 302. In Aetna Casualty & Surety Company v. Jones, the Court ruled that they “will not allow the judgment [in a criminal court] to be questioned now, in a civil court, on the sole basis that the plaintiff was not a party to the original criminal action.” Id. at 303. This court should follow the Connecticut Supreme Court’s reasoning in Aetna and find that collateral estoppel applies here, despite that lack of mutuality of parties. c. Privity exists between Arias and Defendants While it is commonly recognized that privity is difficult to define, the key consideration is the sharing of the same legal right by the parties in privity. Id. at 304. 5 Connecticut courts have recognized that “the concept of privity has moved away from the conventional and narrowly defined meaning of mutual or successive relationships to the same rights or property. It now signifies a relationship between one who is a party of record and another who is a nonparty, but is sufficiently close to mandate the application of res judicata or collateral estoppel.” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 813 n. 12, 695 A.2d 1010 (1997). Generally, an employer-employee or agent-principle relationship provides the necessary privity for collateral estoppel with respect to matters within the scope of the relationship. Tibbetts v. Stempel, 354 F. Supp. 2d 137, 148 (D. Conn. 2005), aff'd sub nom. Tibbetts v. Levin, 288 Fed. Appx. 743 (2d Cir. 2008). Here, an employer-employee relationship existed between Defendants and Arias at the time of the events at issue. Defendants are legally responsible for Arias’ conduct within the scope of his employment, which is at issue in this case. At the time of Arias’ criminal trial, Defendants had been served with Plaintiffs’ Connecticut Commission on Human Rights and Opportunities (“CHRO”) complaint related to Arias’ conduct and the state complaint and knew that Plaintiffs were seeking to hold Defendants liable for Arias’ conduct, in addition to Defendants’ conduct, related to Plaintiffs’ employment. Defendants’ interests were represented in Arias’ criminal trial through their testimony and the testimony of numerous other West Avenue Dental employees. 6 III. Conclusion For the foregoing reasons, Plaintiff’s motion to strike Defendants’ Eighth Affirmative Defense and Second Special Defense should be granted. THE PLAINTIFFS By: /s/ 435548__________ Carolyn Naylor Flynn, Esq. Casper & de Toledo LLC 1458 Bedford Street Stamford, CT 06905 Tel. (203) 325-8600 Juris No. 106056 CERTIFICATION This is to certify that a true copy of the foregoing was e-mailed this 15th day of August, 2016 to the following counsel of record: Kristan Peters-Hamlin 110 Summer St., 2nd Floor Stamford, CT 06905 Telephone: (203) 504-2050 kph@petershamlinlaw.com /s/ 435548 Commissioner of the Superior Court 7