Opinion
2 CA-CV 2023-0234
03-18-2024
ERIC GABRIEL, A SINGLE MAN, Plaintiff/Appellant, v. MICHAEL LENT, ANNA FLOCKEN, KIM HASKELL, BRENT KISSEL, AND CHRISTINE ROY, Defendants/Appellees.
Eric Gabriel, Tucson In Propria Persona Bueler Jones LLP, Chandler By Gordon S. Bueler Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20230639 The Honorable Gary J. Cohen, Judge
Eric Gabriel, Tucson In Propria Persona
Bueler Jones LLP, Chandler By Gordon S. Bueler Counsel for Defendants/Appellees
Judge Sklar authored the decision of the Court, in which Vice Chief Judge Staring and Judge O'Neil concurred.
MEMORANDUM DECISION
SKLAR, JUDGE
¶1 Eric Gabriel appeals the trial court's judgment against him and in favor of defendants Anna Flocken, Michael Lent, Kim Haskell, Brent Kissel, and Christine Roy. Gabriel argues that the court improperly granted summary judgment to the defendants on Gabriel's claims for slander, libel, and defamation. We reject Gabriel's arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to Gabriel, the party opposing summary judgment. See Robertson v. Alling, 237 Ariz. 345, ¶ 8 (2015). In March 2020, Gabriel took his cat to Pantano Animal Clinic, where the cat was seen by Flocken, a veterinarian. The other defendants are employed at the clinic. Gabriel returned with the cat for a follow-up visit the next month.
¶3 The clinic's notes indicate that Gabriel made several follow-up calls to the clinic in May 2020. In May 2021, he returned to the clinic to serve paperwork concerning a lawsuit. After a conflict, Lent-the facility's medical director-told Gabriel to leave and not return. The facility reported Gabriel's conduct to the Tucson Police Department.
¶4 In July 2021, Gabriel filed a complaint with the Arizona State Veterinary Medical Examining Board. Among other things, the complaint concerned Lent's conduct during the May 2021 conflict. Lent and Flocken submitted written responses, which detailed their versions of their interactions with Gabriel. The complaint was later dismissed.
¶5 In February 2023, Gabriel separately sued the five defendants. Each complaint contained substantively identical factual allegations, namely, that the defendants had engaged in slander, libel, and defamation to the Tucson Police Department and the board. The cases were consolidated.
¶6 The defendants jointly moved for summary judgment. Gabriel did not file a response. The trial court granted the motion, concluding that the defendants' statements were privileged and caused no damages. It further concluded that the slander and libel claims were barred by the one-year statute of limitations. See A.R.S. § 12-541(1).
¶7 Gabriel subsequently filed a "Request to Stop Motion for Summary Judgment." The trial court treated this filing as a motion for reconsideration, which it denied. It also entered judgment in the defendants' favor. Gabriel appealed, and we have jurisdiction.
ANALYSIS
¶8 On appeal, Gabriel challenges the trial court's entry of summary judgment in the defendants' favor. However, his opening brief fails to comply with the Arizona Rules of Civil Appellate Procedure. It fails to provide legally cognizable reasons for Gabriel's contentions or citations to legal authority. See Ariz. R. Civ. App. P. 13(a)(7)(A). The reply brief contains some legal argument, though we are not required to consider arguments raised for the first time on reply. See United Bank v. Mesa N. O. Nelson Co., 121 Ariz. 438, 443 (1979). We therefore could conclude that Gabriel has waived his arguments on appeal, especially because we hold unrepresented litigants to the same standards as attorneys. See Ramos v. Nichols, 252 Ariz. 519, ¶ 8 (App. 2022). In our discretion, though, we address Gabriel's arguments. See Varco, Inc. v. UNS Electric, Inc., 242 Ariz. 166, n.5 (App. 2017) ("waiver for failure to comply with Rule 13(a) discretionary").
¶9 Gabriel's primary argument is that the trial court improperly resolved the case on summary judgment rather than at trial. However, a court may resolve a case through summary judgment where the "moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). If an opposing party fails to respond by setting forth "specific facts showing a genuine issue for trial," the court may grant the motion "if appropriate." Ariz. R. Civ. P. 56(e). In both procedure and substance, the court did not err.
¶10 Here, Gabriel did not respond by the deadline. Ariz. R. Civ. P. 56(c)(2) (response due within 30 days of service); see also Ariz. R. Civ. P. 6(c) (providing for five additional calendar days to respond where party is served by mail). Consistent with Rule 56(e), the trial court therefore acted properly in considering the motion based on the record before it. See Schwab v. Ames Const., 207 Ariz. 56, ¶ 15 (App. 2004) (requiring court to evaluate case based on record before it when party fails to respond to summary-judgment motion). The court also reconsidered the motion in the context of the additional facts and arguments Gabriel raised in his "Request to Stop Motion for Summary Judgment." The court did not err in following this procedure.
¶11 Substantively, the trial court properly granted summary judgment. As the court concluded, the defendants' statements to law enforcement were absolutely privileged. In Ledvina v. Cerasani, 213 Ariz. 569, ¶ 14 (App. 2006), this court concluded that "putative crime victims in Arizona are entitled to absolute immunity when they complain to police." Here, the defendants' report to police included assertions that Gabriel had trespassed on clinic property and engaged in harassing behavior. They therefore constituted complaints by putative crime victims-regardless of whether Gabriel actually committed any crimes. See A.R.S. §§ 13-1502(A)(1) (defining third-degree criminal trespass), 13-2921(A) (defining harassment).
¶12 As for Lent's and Flocken's statements to the board, the trial court properly concluded that they too were absolutely privileged. In general, witnesses in judicial proceedings are protected by an absolute privilege. Yeung v. Maric, 224 Ariz. 499, ¶ 10 (App. 2010). Although Gabriel argues to the contrary in his reply brief, this privilege also applies in quasi-judicial administrative proceedings. Ross v. Duke, 116 Ariz. 298, 301 (App. 1976) ("An absolute privilege against a defamation charge arises in the context of judicial proceedings, legislative proceedings and administrative or executive functions of the government."); see also Bailey v. Superior Court, 130 Ariz. 366, 367-68 (App. 1981) (applying privilege in defamation action involving statements made in complaint to Commission on Judicial Qualifications). The board proceedings at issue fit this description. A.R.S. §§ 32-2234 to 32-2237 (detailing procedures for complaints and investigations). Because the court properly granted summary judgment, we need not address the court's alternative bases- namely, the statute of limitations and Gabriel's lack of damages.
¶13 Gabriel also argues that the trial court was biased against him. Specifically, he contends the court simply accepted the defendants' facts and arguments raised in the summary-judgment motion. However, a judge's "rulings alone do not support a finding of bias or partiality without a showing of an extrajudicial source of bias or a deep-seated favoritism." Stagecoach Trails MHC, L.L.C. v. City of Benson, 232 Ariz. 562, ¶ 21 (App. 2013). Gabriel has pointed to no such evidence here.
DISPOSITION
¶14 We affirm the trial court's grant of summary judgment in favor of the defendants. As the prevailing party on appeal, the defendants are entitled to recover their taxable costs upon compliance with Rule 21 of the Arizona Rules of Civil Appellate Procedure.