Opinion
No. 1 CA-CV 14-0250
07-23-2015
CHRIS ANZURES, Plaintiff/Appellant, v. LA CANASTA MEXICAN FOOD PRODUCTS INC., Defendant/Appellee.
COUNSEL Maynard Cronin Erickson Curran & Reiter, P.L.C., Phoenix By Douglas C. Erickson Counsel for Plaintiff/Appellant Kelhoffer, Manolio & Firestone, PLC, Scottsdale By Veronica L. Manolio, John C. Shorb Counsel for Defendant/Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2013-008432
The Honorable J. Richard Gama, Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED COUNSEL Maynard Cronin Erickson Curran & Reiter, P.L.C., Phoenix
By Douglas C. Erickson
Counsel for Plaintiff/Appellant
Kelhoffer, Manolio & Firestone, PLC, Scottsdale
By Veronica L. Manolio, John C. Shorb
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Kenton D. Jones joined. THOMPSON, Judge:
¶1 Chris Anzures challenges the trial court's dismissal of his complaint for failing to state a claim against La Canasta Mexican Food Products Inc. (La Canasta) for wrongful termination/retaliation, defamation, and intentional infliction of emotional distress. Anzures further challenges the court's refusal to grant him leave to amend the complaint, and the court's failure to grant his discovery motions. For the following reasons, we affirm in part, reverse in part, and remand.
Anzures does not challenge the trial court's dismissal of the breach of contract claim, breach of the implied covenant of good faith and fair dealing claim, and the discrimination claim. Accordingly, we do not consider this aspect of the court's ruling on appeal. See ARCAP 13(a)(6), (7) (appellant's brief shall contain issues presented for review with argument); see also Hurd v. Hurd, 223 Ariz. 48, 51 n.3, 219 P.3d 258, 260 n.3 (App. 2009) (issues not raised properly on appeal waived).
We lack jurisdiction to consider Anzures's arguments regarding the trial court's failure to rule on his motion to compel discovery. We consider only those issues properly designated in his notice of appeal from the December 10, 2013 judgment and February 20, 2014 order. See Ariz. R. Civ.App. P. 8(c) (requiring appellant to designate the judgment appealed from); Premier Fin. Servs. v. Citibank, 185 Ariz. 80, 87, 912 P.2d 1309, 1316 (App. 1995) (no jurisdiction to review rulings not contained in notice of appeal). Accordingly we do not consider that issue.
FACTS AND PROCEDURAL HISTORY
¶2 Anzures was employed by La Canasta as a production manager from approximately January 2012 until June 2012. During his employment, Anzures discovered various safety, OSHA, and health code violations. Anzures reported the violations to La Canasta's owner, and informed him that he had also discovered that La Canasta unlawfully hired and retained undocumented workers. Although La Canasta addressed and corrected some of the reported health and safety issues, Anzures claimed that the owner instructed him to ignore the hiring of undocumented workers. On June 6, 2012, Anzures wrote La Canasta a letter formally notifying the company of the violations, reporting that he was being instructed to violate the law, and requesting that La Canasta investigate and correct the issues he raised. La Canasta considered Anzures's letter a voluntary resignation and immediately terminated his employment.
¶3 In September 2012, Anzures filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that La Canasta retaliated against him by terminating his employment after he reported policy violations and criminal activity. The EEOC issued a determination and notice of right to sue on October 12, 2012, stating that after an investigation, EEOC was unable to conclude that the allegations established a violation of the statutes.
¶4 Anzures filed a complaint against La Canasta on June 5, 2013, for breach of contract, breach of the implied covenant of good faith and fair dealing, retaliatory termination of employment, discrimination, defamation, and intentional infliction of emotional distress. La Canasta moved to dismiss the complaint pursuant to Arizona Rule of Civil Procedure 12(b)(6), on the grounds that Anzures failed to state a claim for relief, failed to file a timely charge of discrimination, and failed to file the retaliatory termination claim within the statute of limitations. Anzures disputed that the complaint was deficient, but posited that he would be able to cure any defects if granted leave to amend.
¶5 On December 9, 2013, the trial court found that Anzures failed to state a claim against La Canasta upon which relief could be granted, and that amendment of the complaint would be futile. Thus, the trial court dismissed Anzures's complaint without prejudice for failing to state a claim upon which relief could be granted. Anzures filed a motion for a new trial, which the trial court denied.
¶6 Anzures timely appealed from the dismissal of the complaint. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), -2101(A)(1) (2003).
DISCUSSION
¶7 We review a trial court's dismissal of a complaint de novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012). "'Arizona follows a notice pleading standard,' under which a complaint 'shall contain . . . [a] short and plain statement of the claim showing that the pleader is entitled to relief.'" Belen Loan Investors, LLC v. Bradley, 231 Ariz. 448, 455, ¶ 17, 296 P.3d 984, 992 (App. 2012) (citing Ariz. R. Civ. P. 8(a)(2)) (internal citation omitted). This requires the plaintiff to plead facts sufficient to support the claim. Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7, 189 P.3d 344, 346 (2008). In reviewing a motion to dismiss, "we review the well-pleaded facts alleged in the complaint as true," Jeter v. Mayo Clinic Ariz., 211 Ariz. 386, 389, ¶ 4, 121 P.3d 1256, 1259 (App. 2005), and resolve all reasonable inferences in favor of the plaintiff. McDonald v. City of Prescott, 197 Ariz. 566, 567, ¶ 5, 5 P.3d 900, 901 (App. 2000). We will uphold a dismissal only if the plaintiff "would not be entitled to relief under any facts susceptible of proof in the statement of the claim." Dressler v. Morrison, 212 Ariz. 279, 281, ¶ 11, 130 P.3d 978, 980 (2006) (citation omitted). Although well-pleaded material allegations of the complaint are taken as true, conclusions of law or unwarranted deductions of fact are not. Yes on Prop 200 v. Napolitano, 215 Ariz. 458, 466, ¶ 19, 160 P.3d 1216, 1224 (App. 2007).
Retaliatory Termination of Employment Claim
¶8 Anzures first argues that the trial court erred in dismissing his claim of retaliatory termination of employment. Under the Arizona Employment Protection Act, A.R.S. § 23-1501(3)(c)(ii) (Supp. 2012) ("AEPA") an employee may bring a claim for wrongful termination if the employer has terminated the employment relationship in retaliation for:
The disclosure by the employee in a reasonable manner that the employee has information or a reasonable belief that the employer, or an employee of the employer, has violated, is violating or will violate the Constitution of Arizona or the statutes of the state to either the employer or a representative of the employer who the employee reasonably believes is in a managerial or supervisory position and has the authority to investigate the information provided by the employee and to take action to prevent further violations of the Constitution of Arizona or statutes of this state or an employee of a public body or political subdivision of this state or any agency of a public body or political subdivision.A.R.S. § 23-1501(3)(c)(ii); see also Galati v. Am. W. Airlines, Inc., 205 Ariz. 290, 292, ¶ 5, 69 P.3d 1011, 1013 (App. 2003).
¶9 La Canasta contends that the complaint failed to state a claim upon which relief could be granted because it was "devoid of any factual allegations" and merely set forth legal conclusions and conclusory statements. Additionally, Las Canasta asserts that the complaint failed to allege that Anzures's purported disclosure of the unlawful activity was the nexus for his termination. We disagree.
¶10 In the complaint, Anzures alleged that: Josie Ippolito is president and owner of La Canasta; Anzures discovered and reported to Ippolito that La Canasta "was hiring and retaining undocumented workers in violation of . . . A.R.S. § 23-212 [(2012)]" and its facility had multiple safety and health code violations; Ippolito instructed [Anzures] to ignore the reported violations; Anzures wrote a letter formally notifying La Canasta of the violations and requesting that it be investigated and corrected; and La Canasta terminated his employment for "refusing to condone, facilitate, or turn a blind eye to [La Canasta's] unlawful activities." Accordingly, Anzures clearly pled that he was fired for disclosing to La Canasta's owner that his employer, or an employee of the employer, was violating an Arizona statute. These facts, taken as true, are sufficient to satisfy the essential elements of an AEPA retaliatory termination claim. See A.R.S. § 23-1501(3)(c)(ii); see also Acker v. CSO Chevira, 188 Ariz. 252, 255, 934 P.2d 816, 819 (App. 1997) (stating that motions to dismiss are not favored and should not be granted unless it appears that the plaintiff should be denied relief as a matter of law given the facts alleged). Therefore, the trial court erred in dismissing the retaliatory termination claim.
We also note that the trial court's ruling did not address the rationale for dismissing the retaliation claim. Rather, under the heading of wrongful termination/retaliation, the court found that the complaint failed to state a claim of discrimination and "address the elements of [discrimination] and describe the nature of the alleged discrimination." Accordingly, it is impossible for this court to determine the basis for the trial court's dismissal of the retaliatory termination claim.
¶11 In addition, we reject La Canasta's argument that Anzures's retaliatory termination claim is time barred pursuant to 29 C.F.R. § 1601.28(e) (2012) or the Arizona Civil Rights Act (ACRA) A.R.S. § 41-1481 (2011). Anzures filed a charge of discrimination with the Arizona Civil Rights Division and Equal Employment Opportunity Commission (EEOC) and received his notice of right to sue on October 12, 2012. Because Anzures did not file his complaint until 236 days after receipt of the notice of right to sue, La Canasta contends that the claim for retaliatory termination was untimely. See 29 C.F.R. § 1601.28(e) (authorizing aggrieved party to file a civil action under Title VII of the Americans with Disabilities Act (ADA) within ninety days of receipt of the notice of right to sue); A.R.S. § 41-1481 (providing a 180 day statute of limitations). However, Anzures's complaint included a claim for retaliatory termination of employment under AEPA, not under ACRA or Title VII. Anzures filed the complaint within one year of the date of his termination of employment, thus, the retaliatory termination claim was timely. See A.R.S. 12-541(4) (2003) (setting a one year statute of limitations for a wrongful termination claim).
Defamation Claim
¶12 Anzures next argues that the trial court erred in dismissing his defamation claim. To plead a claim for defamation, a plaintiff must allege that the defendant made a false statement concerning the plaintiff to a third party; the defendant acted knowingly, recklessly, or negligently in disregarding the falsity of the statement; and the statement harms the plaintiff's reputation for honesty, integrity, or virtue, or otherwise brings the plaintiff into disrepute. See Rowland v. Union Hills Country Club, 157 Ariz. 301, 306, 757 P.2d 105, 110 (App. 1988); Turner v. Devlin, 174 Ariz. 201, 203-04, 848 P.2d 286, 288-89 (1993).
The trial court's ruling does not specify the rationale for dismissing the defamation claim, nonetheless, we can affirm the decision based upon any reasonable view of the facts and law that would support the judgment. Certified Collectors, Inc. v. Lesnick, 116 Ariz. 601, 603, 570 P.2d 769, 771 (1977) (affirming a judgment dismissing the complaint).
¶13 Here, the complaint alleged that La Canasta falsely stated that Anzures's June 2012 notice was a voluntary resignation; La Canasta "falsely represent[ed] the circumstances and characterization of his termination to the Department of Economic Security ("DES"); and La Canasta "defamed [him] or presented him in a false light to . . . potential employers." The complaint clearly failed to sufficiently plead a claim for defamation.
¶14 First, the complaint failed to sufficiently allege what defamatory statements were made to the "potential employers," or the nature of the harm that resulted from these statements. Second, Anzures did not indicate when the defamatory statements were published to either DES or potential employers, thereby preventing any opportunity to analyze whether his defamation claim is within the statute of limitations. See Larue v. Brown, 235 Ariz. 440, 443, ¶ 15, 333 P.3d 767, 770 (App. 2014) (stating that one-year statute of limitations for defamation begins to run upon publication). Third, although the complaint alleged that La Canasta falsely represented "the circumstances and characterization of his termination" to DES, the complaint failed to specify what false statement La Canasta published to DES. Even if we presume that La Canasta falsely informed DES that Anzures had voluntarily resigned, this statement is not capable of bringing Anzures "into disrepute, contempt, or ridicule" or impeaching his "honesty, integrity, or virtue or reputation." See Turner, 174 Ariz. at 203-04, 848 P.2d at 288-89; see also Yetman v. English, 168 Ariz. 71, 79, 811 P.2d 323, 331 (1991) (Whether the publication is capable of bearing a defamatory meaning is a question of law for the court to decide.).
¶15 On appeal, Anzures asserts that La Canasta defamed him by falsely alleging that he had been fired for willful or negligent misconduct. The complaint alleged in paragraph 15 that an "administrative law judge found [La Canasta's] representations to be false, and concluded that [Anzures] was not discharged for any willful or negligent misconduct." The pleadings below did not make the assertion now presented on appeal, and as we note hereinafter, neither did Anzures's offer to amend make this assertion. Notwithstanding the trial court's dismissal of the defamation claim and Anzures's filing of a motion for new trial, Anzures still proffered no amended complaint alleging that La Canasta asserted that he had been fired for misconduct. Accordingly, the defamation claim failed as a matter of law, and the trial court did not err in dismissing this claim.
¶16 We further note that the statements made by La Canasta to DES pertaining to Anzures's termination of employment were protected from a defamation claim by a qualified privilege. See Lewis v. Oliver, 178 Ariz. 330, 334-35, 873 P.2d 668, 672-73 (App. 1993) (statements made to administrative board protected by a qualified privilege) (citing Melton v. Slonsky, 19 Ariz.App. 65, 68, 504 P.2d 1288, 1291 (1973) (concluding that public policies best served "not by granting or denying an absolute privilege based upon . . . 'quasi-judicial' powers, but by extending a qualified or defeasible privilege"). The privilege may be forfeited if abused through excessive publication, or if the statement was published with actual malice. See Advanced Cardiac Specialists, Chartered v. Tri-City Cardiology Consultants, P.C., 222 Ariz. 383, 387, ¶ 13, 214 P.3d 1024, 1028 (App. 2009) (citations omitted). La Canasta's statements to DES regarding "the circumstances and characterization of [Anzures's] termination" were protected by a privilege, and Anzures did not allege that La Canasta abused this privilege. Therefore, the trial court properly dismissed Anzures's defamation claim. See Sewell v. Brookbank, 119 Ariz. 422, 426, 581 P.2d 267, 271 (App. 1978) (stating that absent evidence of malice or of excessive publication, the applicability of conditional privilege to defamation claim is to be resolved by the court).
Intentional Infliction of Emotional Distress Claim
¶17 Anzures contends that because "reasonable minds may differ" as to whether La Canasta's conduct was extreme or outrageous, the trial court's dismissal of the intentional infliction of emotional distress claim was improper." An intentional infliction of emotional distress claim requires proof of: (1) extreme and outrageous conduct; (2) an intent to cause emotional distress or reckless disregard of the near certainty that distress would result from such conduct; and (3) severe emotional distress. Helfond v. Stamper, 149 Ariz. 9, 11, 716 P.2d 70, 72 (App. 1986). The plaintiff must show that the defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community." Mintz v. Bell Atlantic Sys. Leasing Int'l, 183 Ariz. 550, 554, 905 P.2d 559, 563 (App. 1995) (citation omitted); see also Watts v. Golden Age Nursing Home, 127 Ariz. 255, 258, 619 P.2d 1032, 1035 (1980) ( "[C]onduct necessary to sustain an intentional infliction claim falls at the very extreme edge of the spectrum of possible conduct."). If the court determines that the conduct is not, as a matter of law, "extreme and outrageous," judgment must be entered for the defendant. Watts, 127 Ariz. at 258, 619 P.2d at 1035.
¶18 We agree with the trial court that Anzures's allegations could not support a finding of "extreme and outrageous" conduct. See Citizen Publishing Co. v. Miller, 210 Ariz. 513 (2005). La Canasta's termination of Anzures's employment does not "go beyond all possible bounds of decency," even if it was motivated by retaliation. See Mintz, 183 Ariz. at 554, 905 P.2d at 563 ("[I]t is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress."). Thus, we find no error in the trial court's dismissal of this claim.
Refusal to Allow Amended Complaint
¶19 Lastly, Anzures challenges the trial court's refusal to grant leave to amend his complaint. We review the court's denial of a motion for leave to amend for an abuse of discretion. Dewey v. Arnold, 159 Ariz. 65, 68, 764 P.2d 1124, 1127 (App. 1988). While amendments to a complaint should be liberally granted, a trial court may deny such a motion where "the court finds undue delay in the request, bad faith, undue prejudice, or futility in the amendment." MacCollum v. Perkinson, 185 Ariz. 179, 185, 913 P.2d 1097, 1103 (App. 1996).
Because we reverse and remand the trial court's dismissal of Anzures's retaliatory termination claim as discussed supra, we review only the futility of an amendment to the claims of defamation and intentional infliction of emotional distress. --------
¶20 Anzures neither filed a motion for leave to amend, nor did he offer a copy of a proposed amended complaint, as required by Arizona Rule of Civil Procedure 15(a)(2). Rather, in his response to La Canasta's motion to dismiss, Anzures vaguely requested leave to amend the compliant if the court found any defects in the allegations. Nonetheless, we agree with the trial court's determination that an amendment to the complaint would be futile. As already discussed, Anzures would not be entitled to relief in his claims for defamation or intentional infliction of emotional distress under any interpretation of the facts contained in his complaint. Furthermore, nothing in the record indicates that Anzures would be able to amend his complaint in a way that would cure the defect. Accordingly, because it would have been futile to allow Anzures to amend his complaint, the trial court did not abuse its discretion in denying leave to amend.
CONCLUSION
¶21 For the foregoing reasons, we reverse the portion of the judgment dismissing the claim of wrongful termination/retaliation, and remand for proceedings consistent with this decision. We affirm the remainder of the judgment. La Canasta requests its reasonable attorneys' fees and costs pursuant to Arizona Rule of Civil Appellate Procedure 21, A.R.S. § 12-341.01 (Supp. 2014) and -342 (2003). Anzures requests his attorneys' fees pursuant to A.R.S. § 12-349(A) (Supp. 2014). In our discretion, we deny both requests.