Opinion
No. 1 CA-CV 18-0326
09-19-2019
KEITH ISAAC SHOCKLEY, Plaintiff/Appellant, v. SKY CARLTON MOORE, et al., Defendants/Appellees.
COUNSEL Keith Isaac Shockley, Phoenix Plaintiff/Appellant Burch & Cracchiolo, Phoenix By Bryan F. Murphy, Laura Meyer Counsel for Defendants/Appellees Sky Carlton Moore and Premier Pain Solutions, LLC Jennings Strouss & Salmon PLC By John J. Egbert, Patrick D. White Counsel for Defendant/Appellee Ayad Kamal Mahoub Agha
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CV2016-005283
The Honorable Carolyn K. Passamonte, Judge Pro Tempore
The Honorable Hugh E. Hegyi, Judge Retired
AFFIRMED IN PART, VACATED AND REMANDED IN PART
COUNSEL Keith Isaac Shockley, Phoenix
Plaintiff/Appellant Burch & Cracchiolo, Phoenix
By Bryan F. Murphy, Laura Meyer
Counsel for Defendants/Appellees Sky Carlton Moore and Premier Pain
Solutions, LLC Jennings Strouss & Salmon PLC
By John J. Egbert, Patrick D. White
Counsel for Defendant/Appellee Ayad Kamal Mahoub Agha
MEMORANDUM DECISION
Chief Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge James B. Morse Jr. and Judge Randall M. Howe joined. SWANN, Chief Judge:
¶1 Keith L. Shockley, II, an acquitted criminal defendant, commenced a civil action against Dr. Sky Carlton Moore, Dr. Ayad Kamal Mahoub Agha, and Premier Pain Solutions, LLC, based on statements that the doctors had provided in connection with Shockley's arrest and prosecution. Applying the judicial privilege, the superior court dismissed the first amended complaint. The court then denied as futile Shockley's request to file a second amended complaint that asserted a so-called "abuse of process" claim. We affirm the dismissal of the first amended complaint because all of the claims set forth therein were barred by common-law privilege. But we vacate the denial of Shockley's motion to amend, and we remand for further proceedings. Though the proposed second amended complaint failed to set forth a legally viable abuse of process claim, it adequately stated a claim for malicious prosecution.
FACTS AND PROCEDURAL HISTORY
¶2 The state criminally prosecuted Shockley for aggravated assault based on his April 2014 interaction with putative victims Drs. Moore and Agha at Premier Pain Solutions, a pain clinic. After being acquitted, Shockley immediately commenced a civil action against the doctors and the clinic.
¶3 Shockley's first amended complaint asserted claims for negligence, negligence per se, intentional infliction of emotional distress, and defamation, all wholly based on allegations that the doctors had lied in their complaints to law enforcement and when testifying at trial. The defendants moved to dismiss for failure to state a claim, arguing, among other things, that the doctors' statements were absolutely privileged. The superior court granted the defendants' motions on privilege grounds.
¶4 Shockley sought leave to file a second amended complaint that added counts for, inter alia, "malicious prosecution" and "abuse of process" based on the doctors' statements. Later, in open court and as recorded in the minutes, Shockley's counsel stated that amendment was sought as to the "abuse of process" claim only. Shockley thereafter appeared pro per and requested that the withdrawal of the other proposed counts be rescinded, explaining that he had felt "pressured to fall in line with what the attorneys said and never felt comfortable about it," and had since received other "legal advice." The court denied Shockley's request. The court rejected the defendants' contention that the request to amend was untimely, but denied amendment based on futility. The court then entered an appealable order dismissing the action. Shockley timely appeals.
DISCUSSION
¶5 As an initial matter, we note that though all the defendants styled their motions as motions to dismiss under Ariz. R. Civ. P. ("Rule") 12(b)(6) for failure to state a claim, Agha, because he had answered, sought judgment on the pleadings under Rule 12(c) for failure to state a claim. See Rule 12(b) (requiring that motion to dismiss be filed before responsive pleading); Rule 12(c) (permitting motion for judgment on pleadings); Rule 12(h)(2) (permitting motion for judgment on pleadings to raise defense of failure to state claim). We review the grant of Rule 12(b) and 12(c) motions de novo, taking as true the non-movant's well-pled factual allegations. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-9 (2012); Mobile Cmty. Council for Progress, Inc. v. Brock, 211 Ariz. 196, 198, ¶ 5 (App. 2005). We apply the same standard to review the denial of a proposed amendment as futile for failure to state a claim. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 893 (9th Cir. 2010); see also Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). We review de novo whether application of a privilege means that a pleading fails to state a claim. See Green Acres Tr. v. London, 141 Ariz. 609, 613 (1984); Johnson v. McDonald, 197 Ariz. 155, 157, ¶ 2 (App. 1999); Burns v. Davis, 196 Ariz. 155, 158, ¶ 4 (App. 1999).
¶6 Absolute privileges "recogni[ze] that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interest." Green Acres Tr., 141 Ariz. at 612. The protection afforded by absolute privileges is "reserved for '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.'" Sobol v. Alarcon, 212 Ariz. 315, 318, ¶ 12 (App. 2006) (citation omitted).
¶7 A party or witness in a judicial proceeding holds an absolute privilege ("the judicial privilege" or "judicial immunity") with respect to his or her statements that relate to, bear on, or otherwise are connected to the proceeding. Green Acres Tr., 141 Ariz. at 613. The privilege "is absolute in that the speaker's motive, purpose or reasonableness in uttering a false statement do not affect the defense." Id. A putative crime victim's trial testimony falls within the privilege, with perjury and contempt as available remedies to discourage false testimony. See Ledvina v. Cerasani, 213 Ariz. 569, 575, ¶ 15 (App. 2006); Burns, 196 Ariz. at 163, ¶ 25; Darragh v. Superior Court (Michael), 183 Ariz. 79, 81 (App. 1995); Lewis v. Swenson, 126 Ariz. 561, 565 (App. 1980); see also Restatement (Second) of Torts § 588 & cmt. a (1977). A putative victim's complaint to law enforcement also falls within the privilege. Ledvina, 213 Ariz. at 575, ¶ 14. The privilege's promotion of unfettered speech serves vital public interests in both the context of the victim's complaint and his or her testimony—fulsome disclosures assist law enforcement in detecting crimes and tribunals in reaching informed decisions. See Green Acres Tr., 141 Ariz. at 613; Ledvina, 213 Ariz. at 573, ¶ 12. Further, application of the privilege to victims' statements serves our constitution's goal of preventing victim intimidation, harassment, and abuse. Ledvina, 213 Ariz. at 574, ¶ 14.
Crime-reporting is not the only context in which we have applied the privilege to statements made in furtherance of a judicial proceeding's initiation. See Darragh, 183 Ariz. at 82-83 (applying absolute privilege to consultant's valuation appraisals prepared to assist party seriously contemplating litigation); W. Techs., Inc. v. Sverdrup & Parcel, Inc., 154 Ariz. 1, 5 (App. 1986) (applying absolute privilege to consultant's fault assessment prepared to assist party seriously contemplating litigation); see also Restatement (Second) of Torts § 588 cmt. g (providing that witness holds absolute privilege to defame in communications preliminary to proposed judicial proceeding seriously contemplated in good faith).
¶8 Contrary to Shockley's contention, the judicial privilege does not unconstitutionally abrogate a plaintiff's right to sue—"[c]ommon law immunities, including judicial immunity, do not abrogate a cause of action but are longstanding public policy determinations that causes of action do not exist in certain privileged situations." Ashton-Blair v. Merrill, 187 Ariz. 315, 318 (App. 1996). The privilege can interfere with the prosecution of many civil claims, including defamation and intentional infliction of emotional distress ("IIED"). See, e.g., Green Acres Tr., 141 Ariz. at 612-13 (applying privilege to defamation claim); Yeung v. Maric, 224 Ariz. 499, 502, ¶ 14 (App. 2010) (holding that privilege applies to false light invasion of privacy claims); Linder v. Brown & Herrick, 189 Ariz. 398, 406 (App. 1997) (applying privilege to fraud and IIED claims); Drummond v. Stahl, 127 Ariz. 122, 123, 126 (App. 1980) (applying privilege to tortious interference with contractual relationship claim). But the privilege is not unlimited—it does not apply to claims for abuse of process or malicious prosecution. Ledvina, 213 Ariz. at 574-75 ¶¶ 13, 15; Sierra Madre Dev., Inc. v. Via Entrada Townhouses Ass'n, 20 Ariz. App. 550, 554 (1973).
¶9 Shockley's first amended complaint was based entirely on allegations that he was wrongly subjected to arrest and prosecution by reason of the doctors' false complaints to law enforcement, and false testimony at trial that he had pointed a firearm at them during an altercation. The judicial privilege applied to the doctors' complaints and testimony, and precluded the defamation, IIED, and negligence claims set forth in the pleading.
We therefore do not address any of the alternative grounds for dismissal raised in the superior court.
¶10 With respect to the proposed second amended complaint, we perceive no error in the court's decision to hold Shockley to his statement that he sought to pursue the proposed "abuse of process" claim only. See Higgins v. Guerin, 74 Ariz. 187, 190 (1952) (holding that binding stipulation may be undone only "for good cause shown"); Indus. Park Corp. v. U.S.I.F. Palo Verde Corp., 19 Ariz. App. 342, 344 (1973) (holding that "stipulations made during a lawsuit are binding," and observing that supreme court had "looked with favor upon stipulations designed to simplify and settle litigation"); Ariz. R. Civ. P. 80(a)(2) (providing that agreements or consents between parties or attorneys are binding if "made orally in open court and entered in the minutes"). That claim was based solely on the doctors' statements to law enforcement. Such statements cannot constitute abuse of process. Abuse of process requires the defendant's willful act in the use of judicial process for an improper purpose. Neinstedt v. Wetzel, 133 Ariz. 348, 353 (App. 1982). Though "process" is broadly defined as "the entire range of court procedures incident to the litigation process," id. at 352, the tort requires misuse of a specific judicially sanctioned process, Crackel v. Allstate Ins. Co., 208 Ariz. 252, 257, ¶ 14 (App. 2004). One does not use judicial process by merely reporting crime to law enforcement. Fappani v. Bratton, 243 Ariz. 306, 311, ¶ 14 (App. 2017).
¶11 But while complaining to law enforcement cannot constitute abuse of process, it may constitute malicious prosecution. Malicious prosecution requires the defendant's malicious actuation of a criminal prosecution, without probable cause, that terminates in the plaintiff's favor and causes damages. Slade v. City of Phoenix, 112 Ariz. 298, 300 (1975). A private citizen who knowingly provides false information to public officials may be said to have actuated the prosecution. See Griswold v. Horne, 19 Ariz. 56, 57-58, 60 (1917) (reviewing malicious prosecution claim based on criminal complaint sworn to by private individual); Bearup v. Bearup, 122 Ariz. 509, 510 (App. 1979) (describing elements of malicious prosecution in terms of acts undertaken by "prosecutor or complaining witness"); see also Restatement (Second) of Torts § 653 cmt. g.
¶12 We look to the substantive factual allegations of Shockley's proposed "abuse of process" claim—not its title—to determine whether it alleged a legally viable malicious prosecution claim. A complaint is sufficient if its well-pled factual allegations, and all reasonable inferences therefrom, "give the opponent fair notice of the nature and basis of the claim and indicate generally the type of litigation involved." Cullen, 218 Ariz. at 419, ¶ 6 (citation omitted). Because the law favors the resolution of cases on their merits, courts must construe pleadings liberally, see Long v. Ariz. Portland Cement Co., 89 Ariz. 366, 369 (1961), "look[ing] to substance rather than to form," Rodriquez v. Williams, 104 Ariz. 280, 283 (1969). The mislabeling of a tort claim does not mean that it must automatically fail. Cf. Toney v. Bouthillier, 129 Ariz. 402, 408 (App. 1981) ("[F]ailure to make reference to a statute is not fatal to a claim.").
¶13 We conclude that the proposed second amended complaint's so-called "abuse of process" claim sufficiently alleged malicious prosecution. (In fact, the claim's allegations concerning the doctors' statements to law enforcement were functionally equivalent to those set forth in the withdrawn "malicious prosecution" claim.) In the "abuse of process" claim, Shockley alleged that the doctors damaged him by providing baseless information to law enforcement, causing the institution of the unsuccessful criminal proceedings against him. Shockley further alleged that the doctors' "conduct . . . was intentional and malicious, and was guided by an evil mind and intended to cause injury to him[,] . . . was motivated by spite or ill will, calculated to serve his/her/its/their interests[, and they] . . . had reason to know and consciously disregarded a substantial risk that their conduct might significantly injure [Shockley]'s rights." Based on the foregoing allegations, Shockley's proposed claim was not futile. We therefore vacate and remand with respect to the court's order denying leave to amend.
The defendants do not challenge the superior court's determination that Shockley's delay in seeking amendment did not categorically bar new claims, and we discern no abuse of discretion in that determination. See Owen v. Superior Court (Donald), 133 Ariz. 75, 79 (1982) (holding that "amendments will be liberally allowed" and that "'[m]ere delay'—the mere fact that the attempt to amend comes late—is not justification for denial of leave to amend"); Hall v. Romero, 141 Ariz. 120, 124 (App. 1984) ("A motion for leave to amend the pleadings is within the sound discretion of the trial court, and we will not overturn that decision absent a clear abuse of discretion.").
CONCLUSION
¶14 We affirm the superior court's dismissal of the first amended complaint. We vacate the denial of the motion for leave to amend and we remand for further proceedings. We deny Shockley's requests for attorney's fees expended in the superior court and for legal-document-preparation fees.