Summary
noting that process means "encompassing the entire range of court procedures incident to the litigation process"
Summary of this case from Hernandez v. Jefferson Cnty. Sheriff's OfficeOpinion
No. CV-05-3580-PCT-DGC.
August 10, 2007
ORDER
Defendant Teresa Jean Hutchens and Defendants City of Kingman and Bryan Bredenkamp have filed motions for summary judgment. Dkt. ##94, 95. Plaintiff Allen Hutchens has filed a cross-motion for summary judgment. Dkt. #99. The Court has reviewed the memoranda submitted by the parties. Dkt. ##94, 95, 99, 102, 104. For the reasons stated below, the Court will grant Defendants' motions for summary judgment and deny Plaintiff's motion.
The request for oral argument is denied because the parties have thoroughly discussed the law and evidence and oral argument will not aid the Court's decision. See Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir. 1999).
I. Background.
The facts are largely undisputed. On September 7, 2005, Defendant Hutchens called the City of Kingman Police Department and stated that she wanted to file a report regarding unwanted contacts at work. Dkt. #94-2, Ex. 1 at 94-95. Defendant Bryan Bredenkamp, a Kingman police officer, responded to Defendant Hutchens' request. Id., Ex. 2 at 17, 60. Defendant Hutchens reported that she had been sued in federal court in Oregon by her "crazy" uncle, Plaintiff Allen Hutchens. Id., Ex. 1 at 17-19; Dkt. #101, Ex. 11. There is some dispute over whether Defendant Hutchens, an attorney, was representing herself pro se at this point in the Oregon litigation or whether she was still represented by counsel to whom all of Plaintiff's contacts should have been directed. See, e.g., Dkt. ##98; 104 at 4. Defendant Hutchens told Defendant Bredenkamp that although the litigation was over, Plaintiff was still contacting her at her place of work, the Mohave County Mediation Office. Dkt. #94-2, Ex. 1 at 93-94. The letters Plaintiff sent and phone calls he made were upsetting to Defendant Hutchens and her coworkers, and her supervisor requested that she contact the police. Id. Defendants Hutchens and Bredenkamp agreed that Defendant Bredenkamp would call Plaintiff and warn him to stop contacting Defendant Hutchens or face possible harassment charges. Id., Ex. 1 at 96.
Later that day, Defendant Bredenkamp contacted Plaintiff by telephone at his Florida home. Id., Ex. 2 at 62. Defendant Bredenkamp states that he merely warned Plaintiff against contacting Defendant Hutchens at her workplace and told him that further contact could result in charges of harassment. Id. Plaintiff admits that it was his understanding that Defendant Bredenkamp was calling to warn him against contacting Defendant Hutchens, and that Defendant Bredenkamp did not state that he was planning to have Plaintiff arrested. Dkt. #94-2, Ex. 4 at 98, 112. Plaintiff claims, however, that Defendant Bredenkamp told him that if Defendant Hutchens filed another complaint, Plaintiff would be arrested, extradited, and sent to prison. Id. at 99.
During the call, Plaintiff requested that Defendant Bredenkamp serve him with a court order requiring him to refrain from contacting Defendant Hutchens at her workplace. Id. at 99-100. Defendant Bredenkamp advised Plaintiff that no court order would be served, and that the phone call was simply a warning. Dkt. #94-2, Ex. 2 at 29-30, 62-63; Ex. 4 at 89-90. When Plaintiff became argumentative, Defendant Bredenkamp ended the call. Id., Ex. 2 at 30. Virgilio Santana, who apparently helped Plaintiff around his house, testified that he heard this telephone conversation and that Plaintiff was visibly upset, but that he does not recall specifically what Defendant Bredenkamp told Plaintiff. Dkt. #106, Ex. 3 at 26.
Defendant Bredenkamp and Plaintiff spoke again on September 26, 2005, when the officer returned a phone call that Plaintiff had placed to him. Plaintiff discussed with Defendant Bredenkamp whether he could file a complaint against Defendant Hutchens for filing a false police report. Id., Ex. 4 at 102-03. Plaintiff stated that Defendant Hutchens had lied when she told Defendant Bredenkamp the Oregon litigation was over. See Dkt. #102 at 16-18. Defendant Bredenkamp told Plaintiff that he was quite sure Defendant Hutchens would not face criminal charges. Id. This was the final time Defendant Bredenkamp spoke with Plaintiff. Defendant Bredenkamp testified that he did not know or believe that either phone call would inflict fear on Plaintiff. Dkt. #94-2, Ex. 2 at 33-34. Plaintiff filed this complaint on November 8, 2005. Dkt. #1.
The parties disagree over other facts that are immaterial. Much of Plaintiff's opposition brief is comprised of digressive passages that contradict minor facts and assertions by Defendants. For example, Plaintiff explains in detail why he called Defendant Bredenkamp by his first name (Dkt. #102 at 7-8), why Defendant Bredenkamp "knowingly lied" in stating that he did not believe Plaintiff was using a speaker phone ( Id. at 11-19), why he does not consider himself unemployed as alleged by Defendant Hutchens (Dkt. #104 at 12-14), and why his conviction and imprisonment for firing a gun at his wife in a Shoney's restaurant should not have caused Defendant Hutchens to fear him ( Id. at 8-10). The Court will consider only those disputed questions of fact that are material to a disposition on the motions for summary judgment.
II. Legal Standard.
III. Discussion.
56see Celotex Corp. v. Catrett, 477 U.S. 317322-23Anderson v. Liberty Lobby, Inc.,477 U.S. 242248Id. A. Defendants City of Kingman and Bryan Bredenkamp.
To prevail on a negligence claim, a plaintiff must prove (1) that defendants owed a duty to conform to a certain standard of care, (2) that defendants breached that standard, (3) that defendants' conduct caused the resulting injury, and (4) that the plaintiff incurred actual damages. Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). The first element is a question of law for the court to decide. Id. The second element — whether there has been a breach of duty — "is an issue of fact that turns on the specifics of the individual case." Id. Summary judgment may be granted, however, "if no reasonable juror could conclude that the standard of care was breached." Id. n. 1.
Arizona law broadly states that police officers "have a duty to act as would a reasonably careful and prudent police [officer] in the same circumstances." Austin v. City of Scottsdale, 684 P.2d 151, 153-54 (1984); Newman v. Maricopa County, 808 P.2d 1253, 1256 (Ariz.App. 1991). When responding to Defendant Hutchens' complaint and contacting Plaintiff, Defendant Bredenkamp therefore had a duty to conduct himself as would a reasonably careful and prudent police officer.
Defendants argue that they are entitled to summary judgment because Plaintiff has not presented testimony of a police officer on whether Defendant Bredenkamp's actions breached the standard of care of a reasonable police officer in his position. Dkt. #94 at 5. Defendants claim that to prevail on a negligence claim against a defendant in a particular profession, a plaintiff must present expert testimony by a member of that profession. Id. Defendants are incorrect. In Arizona, the rule is merely that expert testimony "may be required in those cases in which factual issues are outside the common understanding of jurors." Rossell v. Volkswagen of America, 709 P.2d 517, 524 (Ariz. 1985). While Defendants cite cases suggesting that expert testimony regarding the standard of care may be necessary in the fields of air conditioning repair, civil engineering, and medicine (Dkt. #94 at 5), they cite no case suggesting that the standard of care for police officers is outside the ken of jurors. As Plaintiff argues, the jury could determine whether Defendant Bredenkamp breached his duty without expert testimony. See, e.g., Dkt. #102 at 21-22.
In his complaint, Plaintiff alleges that Defendant Bredenkamp was negligent in several ways: (1) "by not asking to see the . . . letters Defendant [Hutchens] claimed w[ere] mailed to her by Plaintiff," (2) "by not checking with the District Court in Oregon to verify that Defendant [Hutchens'] story was true and the case had in fact ended," (3) by not asking [Defendant Hutchens'] supervisor, if the supervisor did instruct the Defendant to phone the police," (4) "[by phoning] the elderly Plaintiff, while knowing the Plaintiff was elderly and venerable [sic], and wrongfully inform[ing] the Plaintiff that the Plaintiff would be arrested; extradited and imprisoned (without due process) if the defendant Teresa Jean Hutchens ever filed another harassment complaint against the Plaintiff," (5) "by conspiring with the Defendant Teresa Jean Hutchens to use scare tactics and inflict fear and severe emotional distress upon the elderly crippled Plaintiff," and (6) "[by not] check[ing] in any manner whatsoever, contrary to basic common sense, and rather than making a simple phone call to the United States District Court in Oregon and asking the question, "Has the civil case, Allen Hutchens vs. Teresa Hutchens ended." Dkt. #1 at 12. These allegations essentially claim that Defendant Bredenkamp was negligent in failing to investigate Defendant Hutchens' claims more carefully and in threatening Plaintiff with arrest, extradition, and imprisonment. See, e.g., Dkt. ##1-4 at 12.
The Court must first determine whether Defendant Bredenkamp breached his duty by failing to investigate the veracity of everything Defendant Hutchens told him. The undisputed facts show that Defendant Hutchens told Defendant Bredenkamp that the Oregon litigation was over, that Plaintiff was "crazy," that Plaintiff had been contacting her at her workplace, that her supervisor had requested that she file a police report, and that she hoped Defendant Bredenkamp would call Plaintiff and ask him to leave her alone. See, e.g., Dkt. #101, Ex. 11. Had Defendant Bredenkamp investigated further, he may have discovered that the Oregon litigation was not over. (Defendant Hutchens was granted summary judgment in the Oregon litigation on November 30, 2006. Dkt. #101, Ex. 1.) He may have formed a belief that Plaintiff had a right to contact Defendant Hutchens for purposes relating to the Oregon litigation. But further investigation would not have changed the undisputed facts that Plaintiff was making repetitive phone calls and sending letters to Defendant Hutchens at her workplace, in a manner perceived as harassing and distracting to Defendant Hutchens and her co-workers. In the face of such repeated and apparently harassing conduct, Defendant Bredenkamp acted reasonably and prudently in choosing to call Plaintiff rather than launch an investigation. Defendant Bredenkamp did not breach his duty to act as a reasonably careful and prudent police officer under the circumstances.
The Court must also determine if Defendant Bredenkamp breached his duty during his conversation with Plaintiff. Although Plaintiff testified, and the Court must accept as true, that Defendant Bredenkamp told him he would be extradited, arrested, and placed in prison if Defendant Hutchens filed another complaint, it is clear from Plaintiff's own testimony that Plaintiff interpreted Defendant Bredenkamp's call as merely a warning. Plaintiff testified during his deposition that he understood Defendant Bredenkamp was calling simply to request that he stop harassing Defendant Hutchens and to warn him that future unwelcome contact could result in criminal charges of harassment. Plaintiff further testified that he knew Defendant Bredenkamp was not going to arrest him, and that he believed Defendant Bredenkamp's phone call was based on the officer's true belief of Plaintiff's conduct toward Defendant Hutchens. Plaintiff even told Defendant Bredenkamp in a second phone conversation that he would have responded to Defendant Hutchens' report in precisely the same manner. See Dkt. #102 at 15-16.
In his opposition to Defendants' motion, Plaintiff asserts that the testimony admitting that he did not believe Defendant Bredenkamp was going to arrest him, but was merely issuing a warning, is fabricated. Dkt. #102 at 7. Plaintiff does not explain the basis for this bold assertion. Plaintiff does state in an affidavit that during his deposition he "was incoherent to the point that [the attorneys] both laughed at some of [his] questions and answers, and . . . even asked [him] if [he] could read." Dkt. #99 at 22. In the same affidavit and attached letter, however, he states that he has no objection to Defendants using his deposition testimony in any lawful manner. Id. The Court has reviewed Plaintiff's deposition and finds no basis to believe that any portion of it is fabricated.
While Plaintiff alleges there was a conspiracy between Defendants to inflict emotional distress (Dkt. #1 at 12), he has absolutely no evidence of a plan between Defendants Hutchens and Bredenkamp, and Defendant Hutchens testified that no such plan existed. Dkt. #98, T. Hutchens Depo. In addition, although Virgilio Santana testified that Plaintiff appeared disturbed by the contact from Defendant Bredenkamp, he also stated that he could not recall specifically what Defendant Bredenkamp said. See, e.g., Dkt. #106, Ex. 3 at 26.
Because Plaintiff's own testimony corroborates Defendant Bredenkamp's assertion that he merely issued a warning to Plaintiff, the Court finds that Plaintiff has produced no evidence from which a reasonable jury could conclude that Defendant Bredenkamp breached his duty to act as a reasonable police officer under the circumstances.
In addition to this holding, the Court concludes that Plaintiff has produced no evidence of actual damages. The only negligence damages he alleges are various types of emotional distress. Dkt. #1-4 at 13. Under Arizona law, however, a plaintiff may recover for negligent infliction of emotional distress only if "the shock or mental anguish of the plaintiff [is] manifested as a physical injury. Damages for emotional disturbance alone are too speculative." Keck v. Jackson, 593 P.2d 668, 669 (Ariz. 1979). Plaintiff repeatedly states that he is elderly, crippled, and ill (Dkt. #102 at 3, 7, 9, 10, 19, 20, 21), but he has not alleged that any of these physical ailments occurred as a result of Defendant Bredenkamp's conduct. In fact, he specifically states that Defendant Bredenkamp's conduct resulted only in "severe and lasting emotional distress[.]" Id. at 10 (emphasis added). Plaintiff has not shown that he experienced other actual damages that are recoverable in negligence actions in Arizona, such as physical harm, Felder v. Physiotherapy Assocs., 158 P.3d 877, 889 (Ariz.App. 2007); greater susceptibility to illness or a decreased physical ability, Destories v. City of Phoenix, 744 P.2d 705, 709 (Ariz.App. 1987); or pecuniary damages, Standard Chartered PLC v. Price Waterhouse, 945 P.2d 317, 345 (Ariz.App. 1996).
Because the Court will grant summary judgment on Plaintiff's negligence claim against Defendant Bredenkamp, the Court will also grant summary judgment to Defendant City of Kingman, whose alleged liability is based solely on a theory of respondeat superior. See Hernandez v. Maricopa County, 673 P.2d 341, 343 (Ariz.App. 1983).
2. Intentional Infliction of Emotional Distress.
To recover for intentional infliction of emotional distress ("IIED"), a plaintiff must prove that (1) the defendant's conduct was extreme and outrageous, (2) the defendant either intended to cause emotional distress or recklessly disregarded the near certainty that distress would result from the conduct, and (3) the conduct caused the plaintiff severe emotional distress. See Lucchesi v. Stimmell, 716 P.2d 1013, 1015-16 (Ariz. 1986) (citing Watts v. Golden Age Nursing Home, 619 P.2d 1032, 1035 (Ariz. 1980)).
Under the first element, a plaintiff "may recover for [IIED] only where the defendant's acts are `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.'" Patton v. First Fed. Sav. Loan Ass'n of Phoenix, 578 P.2d 152, 155 (Ariz. 1978) (quoting Cluff v. Farmers Ins. Exch., 460 P.2d 666, 668 (Ariz. 1969)). It is not enough "that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Restatement (Second) of Torts, § 46 cmt. d (1965).
No reasonable jury could find that Defendant Bredenkamp's actions were so outrageous or extreme as to be utterly intolerable. He received a complaint from Defendant Hutchens that Plaintiff was harassing her. He called Plaintiff at his home in Florida and warned him to stop contacting Defendant Hutchens. Defendant Bredenkamp believed Defendant Hutchens' reports of harassment to be true. Defendant Bredenkamp's conduct in attempting to act on these reports does not come close to the outrageous and extreme conduct required for IIED claims.
Further, Defendant Bredenkamp testified that he did not believe that he would invoke fear in Plaintiff, and Plaintiff has not contradicted this testimony. Dkt. #94-2, Ex. 2 at 33-34. In fact, Plaintiff has testified that he interpreted Defendant Bredenkamp's call as only a warning. Id., Ex. 4 at 97-98, 112. When Plaintiff called Defendant Bredenkamp after their first phone conversation, he told Defendant Bredenkamp that he understood Defendant Bredenkamp's position and that Defendant Bredenkamp must have believed Defendant Hutchens was telling the truth. Id. at 103. Plaintiff has produced no evidence that Defendant Bredenkamp either intended to cause or recklessly disregarded the near certainty that his conduct would cause Plaintiff severe emotional distress. The Court will therefore grant summary judgment to Defendant Bredenkamp on Plaintiff's IIED claim.
Because the Court will grant summary judgment to Defendant Bredenkamp on Plaintiff's IIED claim, the Court will also grant summary judgment to Defendant City of Kingman, whose liability is based solely on a theory of respondeat superior. See Hernandez, 673 P.2d at 343.
B. Defendant Hutchens.
1. Abuse of Process.
Defendant Hutchens argues that Plaintiff is collaterally estopped from bringing an abuse of process or IIED claim because of a temporary restraining order issued by a federal court in Oregon that precluded Plaintiff from contacting Defendant Hutchens "for any reason whatsoever." Dkt. #97 at 3. This argument fails for two reasons. First, there is no evidence that the temporary restraining order lasted long enough to preclude Plaintiff from contacting Defendant Hutchens in Arizona. Second, the issue of whether Plaintiff was or was not allowed to contact Defendant Hutchens is not the same issue as whether Defendant Hutchens committed abuse of process, defamation, or IIED. Collateral estoppel does not apply because "the issue at stake [is not] identical to the one alleged in the prior litigation." See Town of Bonneville v. Calloway, 10 F.3d 1505, 1508 (9th Cir. 1993). Contrary to Defendant Hutchens' assertion, Plaintiff is not trying to relitigate whether he had a right to contact Defendant.
To prevail on an abuse of process claim, a plaintiff must show that a defendant committed (1) a willful act in the use of judicial process (2) for an ulterior and primary purpose not proper in the regular conduct of the proceedings. Niendstedt v. Wetzel, 651 P.2d 876, 881 (Ariz.App. 1982). Arizona courts, following authority from other jurisdictions, have defined the first part of the test as "encompassing the entire range of court procedures incident to the litigation process." Id.; see also Gray v. Kohlase, 502 P.2d 169, 173 (Ariz.App. 1973) (granting summary judgment when "defendants took no action pursuant to authority of court, directly or by ancillary proceedings, [and] no judicial process was abused"). "Thus, the essence of the tort `abuse of process' lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice." Gray, 502 P.2d at 173 (quoting Meadows v. Bakersfield Sav. Loan Ass'n, 59 Cal.Rptr. 34, 37 (1967)).
Defendant Hutchens did not use the judicial process when she filed a report with Defendant Bredenkamp. The police report was not part of the Oregon litigation, which was the only ongoing litigation between Plaintiff and Defendant Hutchens. The police report was entirely removed from the judicial process. Even if Defendant Hutchens lied to Defendant Bredenkamp, an abuse of process claim does not provide the means to remedy such deceit. Because Plaintiff cannot satisfy the first element of a claim for abuse of process, the Court will grant summary judgment to Defendant Hutchens on this claim.
2. Defamation.
Defendant Hutchens correctly argues that any statements she made to Defendant Bredenkamp were absolutely privileged. Dkt. #97 at 8-9. Arizona recognizes an absolute privilege for formal and informal statements or complaints made to police officers. See Ledvina v. Cerasani, 146 P.3d 70, 74 (Ariz.App. 2006). While Plaintiff cites cases that he alleges contradict Defendant's argument, these cases deal with qualified, not absolute privilege. Dkt. #104 at 20 (citing, e.g., Green Acres Trust v. London, 688 P.2d 617, 624 (Ariz. 1984)). An absolute privilege for statements made to police furthers the sound public policy of protecting speech in "those situations where the public interest is so vital and apparent that it mandates complete freedom of expression without inquiry into a defendant's motives." Ledvina, 146 P.3d at 72 (citing Sobol v. Alarcon, 131 P.3d 487, 490 (Ariz.App. 2006)). Because all of Defendant Hutchens' allegedly defamatory statements were made during the course of her report to Defendant Bredenkamp, the Court will grant summary judgment to Defendant Hutchens on Plaintiff's defamation claim.
3. Intentional Infliction of Emotional Distress.
Defendant Hutchens' actions were not so extreme and outrageous as to satisfy the first element of the claim for IIED. Much of Plaintiff's opposition is dedicated to showing that Defendant Hutchens either had no grounds to believe that Plaintiff lacked the right to contact her or, alternatively, no grounds to feel harassed or threatened by Plaintiff. Dkt. #104 at 5-10. Even if Defendant Hutchens knew that Plaintiff might have a right to contact her, the filing of a police report to stop distracting conduct she considered harassment — contact from Plaintiff at her place of work — is not sufficiently extreme and outrageous to make out a claim for IIED under Arizona law. See Patton, 578 P.2d at 155.
In addition, Plaintiff has produced no evidence that Defendant Hutchens intended to cause Plaintiff distress or recklessly disregarded the near certainty that severe distress would occur. While Plaintiff argues that he had a right to contact Defendant Hutchens because she was representing herself in the Oregon litigation (Dkt. #104 at 4), no reasonable jury could find that Defendant Hutchens' attempt to stop workplace contact from Plaintiff was intended to cause him severe emotional distress. Rather, the evidence leads only to the conclusion that Defendant Hutchens wanted Plaintiff to stop contacting her. In addition, although Plaintiff repeatedly accuses Defendant Hutchens of lying to police ( see, e.g., Dkt. #104 at 11-12), such bare accusations do not suffice to demonstrate a question of fact regarding Defendant Hutchens' intent.
4. Punitive Damages.
Punitive damages are not permitted when no underlying tort has been committed. Quiroga v. Allstate Ins. Co., 726 P.2d 224, 226 (Ariz.App. 1986). The Court will grant summary judgment to Defendants on Plaintiff's request for punitive damages.
IT IS ORDERED:
1. Defendants City of Kingman and Bryan Bredenkamp's motion for summary judgment (Dkt. #94) is granted.
2. Defendant Teresa Jean Hutchens' motion for summary judgment (Dkt. #95) is granted.
3. Plaintiff Allen G. Hutchens' motion for summary judgment (Dkt. #99) is denied.
4. The Clerk of the Court is directed to terminate this action.