Opinion
No. 2 CA-CV 2018-0007
08-24-2018
JAMES SIMONDS, Plaintiff/Appellant, v. THE ARIZONA AEROSPACE FOUNDATION, INC., PIMA AIR & SPACE MUSEUM, Defendants/Appellees.
COUNSEL West, Longenbaugh & Zickerman P.L.L.C., Tucson By Joseph Mendoza Counsel for Plaintiff/Appellant Swenson, Storer, Andrews & Frazelle P.C., Phoenix By Michael J. Frazelle and A. Daniel Coumides Counsel for Defendants/Appellees
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20164033
The Honorable Sarah R. Simmons, Judge
AFFIRMED
COUNSEL West, Longenbaugh & Zickerman P.L.L.C., Tucson
By Joseph Mendoza
Counsel for Plaintiff/Appellant Swenson, Storer, Andrews & Frazelle P.C., Phoenix
By Michael J. Frazelle and A. Daniel Coumides
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 In August 2017, the trial court granted summary judgment in favor of The Arizona Aerospace Foundation, Inc., doing business as Pima Air & Space Museum ("the museum"), in a defamation action brought by James Simonds. Simonds now appeals, arguing summary judgment was not appropriate because the museum's report to police concerning a potential crime was not a privileged communication. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to Simonds and draw all reasonable inferences in his favor. See Kopacz v. Banner Health, 794 Ariz. Adv. Rep. 12, n.1 (App. 2018). Simonds volunteered at the museum for several years prior to his leaving in August 2015. He was terminated after he left copies of a "pros and cons list" on the volunteer desks at the museum. Simonds "felt the morale was getting low . . . amongst the volunteers, and [he] wanted to give them a place where they could voice their opinion and then maybe it would make its way to management," and he also "hoped" museum employees would find the lists. Although upset that his volunteer services had been terminated, Simonds went back to the museum as a visitor several times.
¶3 The following month, during a visit to the museum, Simonds told a volunteer he was "going to take a poke at the museum" and when the volunteer coordinator who had fired him returned from medical leave, he "would do something, something would happen."
¶4 Interpreting the exchange as a "[t]hreat against the museum[,]" the volunteer reported the comments to the volunteer team leader, who in turn reported them to the director of human resources and volunteers ("HR director"). After discussing the matter with the museum's executive director, the HR director completed an online police report containing the information the team leader had communicated. The HR director also sent Simonds a letter notifying him that the report had been filed with the police. Simonds was never contacted by police and there is no indication the information was communicated to anyone other than law enforcement.
¶5 In August 2016, Simonds brought a complaint against the museum for defamation. The museum subsequently filed a motion for summary judgment, raising as an affirmative defense that the allegedly defamatory statement was true or substantially true, as well as asserting both absolute and qualified privileges. Relying on Ledvina v. Cerasani, 213 Ariz. 569 (App. 2006), the trial court noted that "if you are a [putative] crime victim in Arizona, you are entitled to absolute immunity," and granted the motion, finding "an absolute privilege on the part of [the HR director], acting on behalf of [the museum], to report a potential crime." We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Summary Judgment
¶6 On appeal, Simonds argues the trial court erred in finding that the HR director's police report was a privileged communication entitling the museum to summary judgment. "We review a trial court's grant of summary judgment de novo and independently determine whether a court's legal conclusions were correct." Ledvina, 213 Ariz. 569, ¶ 3. Whether a communication is privileged is a question of law, which we also review de novo. Johnson v. McDonald, 197 Ariz. 155, ¶ 2 (App. 1999).
¶7 Simonds first argues the trial court "misapplied the conclusion of law in Ledvina" by finding that the communication to the police was absolutely privileged. A statement that would otherwise be actionable in a defamation suit is absolutely privileged where the speaker, "because of [his] special position or status, should be as free as possible from fear that [his] actions in that position might have an adverse effect upon [his] own personal interest." Green Acres Trust v. London, 141 Ariz. 609, 612 (1984). When an absolute privilege exists, "the speaker is immune from civil liability and courts do not inquire into the declarant's motives or whether the statements were made in good faith." Ledvina, 213 Ariz. 569, ¶ 4.
Simonds also argues the trial court erred in finding that "if [the HR director] w[as]n't entitled to an absolute immunity, he would be entitled to a qualified immunity or a qualified privilege." Because we conclude there was an absolute privilege, we need not address this issue. See Progressive Specialty Ins. Co. v. Farmers Ins. Co. of Ariz., 143 Ariz. 547, 548 (App. 1985) (noting appellate courts should not decide questions that have no practical effect on litigants' rights or that are unnecessary to disposition of appeal).
"In defamation actions, the terms 'absolute privilege' and 'immunity' are often used interchangeably." Sobol v. Alarcon, 212 Ariz. 315, n.3 (App. 2006). --------
¶8 In Ledvina, a neighbor filed a police report alleging Ledvina had slashed the tires of the neighbor's vehicle. Id. ¶ 2. After criminal charges were brought against Ledvina, he sued the neighbor for defamation stemming from the police report. Id. Before Ledvina's criminal trial, the prosecutor dismissed the charges for insufficient evidence. Id. The trial court then granted summary judgement in favor of the neighbor, finding the complaint to police was absolutely privileged. Id.
¶9 On appeal, this court affirmed, holding that "putative crime victims in Arizona are entitled to absolute immunity when they complain to police." Id. ¶ 14. We reasoned that because "[t]he mere possibility of retaliatory defamation claims would also tend to discourage free and unfettered reporting to law enforcement authorities to assist the detection and prosecution of criminal activity," an absolute, rather than conditional, privilege exists. Id. ¶ 12.
¶10 Simonds attempts to distinguish Ledvina on the basis that "no charges were ever brought against Mr. Simonds, meaning he was never arrested," and therefore neither the HR director nor the museum "could be termed a victim or witness of any crime under the laws and statutes of Arizona." Characterizing the trial court's reading of Ledvina as "very broad and not narrowly interpreted," Simonds argues, "At some point, there must be an actual victim, or actual witness to the purported crime that is the nexus of the reporting of that crime to the police for the implementation of . . . a very broad interpretation of Ledvina." To the extent that may be an accurate statement, however, it does not assist Simonds here.
¶11 In Ledvina, we cited with approval and discussed McGranahan v. Dahar, 408 A.2d 121 (N.H. 1979), which emphasized "the importance of open communications in crime prevention and criminal apprehension." 213 Ariz. 569, ¶ 13. The New Hampshire Supreme Court explained:
The law does not, and should not, allow recovery in tort by all persons accused of crimes and not convicted. There is no guarantee in our
society that only guilty persons will be accused and arrested. Except in extreme cases, for which malicious prosecution or abuse of process are adequate remedies, a person wrongfully accused of a crime must bear that risk, lest those who suspect wrongful activity be intimidated from speaking about it to the proper authorities for fear of becoming embroiled themselves in the hazards of interminable litigation.408 A.2d at 128 (citations omitted in Ledvina). Furthermore, in Ledvina, we noted Arizona's consistent application of absolute privilege for "statements made in furtherance of judicial proceedings," which include reports to police. Ledvina, 213 Ariz. 569, ¶¶ 7, 15 (citing Green Acres Trust, 141 Ariz. at 613); see also Hagberg v. Cal. Fed. Bank FSB, 81 P.3d 244, 249, 260 (Cal. 2004) (statements to police absolutely privileged). We also approved of the New Hampshire Supreme Court's conclusion that "absolute immunity or privilege applies to statements made to . . . those investigating a suspected crime," id. ¶ 11 (emphasis added) (quoting McGranahan, 403 A.2d at 121), and reasoned that the public policy of Arizona "offers great[] protection to victims of crimes as well as those who witness and report them," id. ¶ 15.
¶12 Here, although Simonds was never arrested or charged with a crime, that fact alone does not distinguish this case from Ledvina. Neither that decision, nor any subsequent one we are aware of, has made any distinction between police reports that lead to an arrest and those that do not, and Simonds has provided no authority for that position. In light of the important policy considerations underlying Ledvina, the absolute privilege applied to putative crime victims fully encompasses the HR director's police report regarding Simonds.
Disposition
¶13 The trial court's grant of summary judgment is affirmed.