Ledvina v. Cerasani, 2 CA-CV 2005-0035.

• Citation: 213 Ariz. 569,146 P.3d 70
• Decision Date: 31 October 2006
• Docket Number: No. 2 CA-CV 2005-0035.,2 CA-CV 2005-0035.
• Parties: Martial H. LEDVINA and Patricia F. Ledvina, Plaintiffs/Appellants, v. Anthony L. CERASANI and Margaret Cerasani, Defendants/Appellees.
• Court: Court of Appeals of Arizona

146 P.3d 70

213 Ariz. 569

Martial H. LEDVINA and Patricia F. Ledvina, Plaintiffs/Appellants, v. Anthony L. CERASANI and Margaret Cerasani, Defendants/Appellees.

No. 2 CA-CV 2005-0035.

Court of Appeals of Arizona, Division 2, Department B.

October 31, 2006.

David J. Euchner, Tucson, Attorneys for Plaintiffs/Appellants.

Bancroft Susa & Galloway, By Douglas S. John, Tucson, Attorneys for Defendants/Appellees.

OPINION

ESPINOSA, Judge.

¶ 1 In this case, we are asked to decide whether a person who reports an alleged crime to police is subject to being sued for making the report. Appellants Martial and Patricia Ledvina have appealed from the trial court's entry of summary judgment in favor of appellees Anthony and Margaret Cerasani in the Ledvinas' defamation action arising from such a report that Mr. Cerasani made to law enforcement authorities. Because we conclude the trial court correctly determined the report was absolutely privileged, we affirm.

Facts and Procedural Background

¶ 2 Although we view the evidence in the light most favorable to the non-moving party below, Johnson v. Hispanic Broadcasters of Tucson, 196 Ariz. 597, ¶ 2, 2 P.3d 687, 688 (App.2000), the essential facts are straightforward and undisputed. After Anthony Cerasani reported to the Marana Police Department that his neighbor, Martial Ledvina, had slashed the tires of Cerasani's recreational vehicle, the town prosecutor in December 2003 charged Ledvina with criminal damage under A.R.S. § 13-1602. A few weeks later, the Ledvinas sued the Cerasanis for defamation, claiming Cerasani's report was made "in reckless disregard of the truth" and "uttered maliciously." In April 2004, before trial, the prosecutor moved to dismiss the criminal charges against Ledvina without prejudice, due to insufficient evidence. In the defamation action, the Cerasanis moved for summary judgment on the sole ground that Cerasani's complaint to the police was absolutely privileged, precluding any recovery as a matter of law. After a hearing, the trial court found there was no controlling Arizona precedent, ruled that Cerasani's police complaint was absolutely privileged as statements related to a judicial proceeding under sections 587 and 598 of the Restatement (Second) of Torts (1977), and granted the Cerasanis' motion for summary judgment. This appeal followed.

Standard of Review

¶ 3 We review a trial court's grant of summary judgment de novo and independently determine whether a court's legal conclusions were correct. Valder Law Ofcs. v. Keenan Law Firm, 212 Ariz. 244, ¶ 14, 129 P.3d 966, 971 (App.2006). Summary judgment is properly granted when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(c), 16 A.R.S., Pt. 2. A defendant is entitled to summary judgment when he or she demonstrates that, with citations to relevant discovery, the plaintiff cannot establish a prima facie case. Hydroculture, Inc. v. Coopers & Lybrand, 174 Ariz. 277, 284, 848 P.2d 856, 863 (App.1992). Whether and to what extent a privilege applies is a matter of law we review de novo. See Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984).

Discussion

¶ 4 The Ledvinas contend the trial court erred in finding Cerasani's defamatory statements shielded by an absolute privilege. On appeal, as below, the Cerasanis have asserted that, even were the Ledvinas' claims true, Anthony Cerasani's complaint to law enforcement was absolutely privileged, preventing the Ledvinas from maintaining a defamation action. When statements are absolutely privileged, 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. Sobol v. Alarcon, 212 Ariz. 315, ¶ 11, 131 P.3d 487, 490 (App.2006) (also noting that the terms "absolute privilege" and "immunity" are often used interchangeably in defamation actions). In contrast, when statements are subject only to a qualified privilege, the declarant may lose the privilege by making false statements maliciously or in bad faith. S.H. Kress & Co. v. Self, 22 Ariz.App. 230, 232, 526 P.2d 754, 756 (1974). "Because absolute immunity immunizes absolutely, it 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, 212 Ariz. 315, ¶ 12, 131 P.3d at 490, quoting Burns v. Davis, 196 Ariz. 155, ¶ 11, 993 P.2d 1119, 1124 (App.1999), quoting Supry v. Bolduc, 112 N.H. 274, 293 A.2d 767, 769 (1972).

¶ 5 The Ledvinas rely on Selby v. Savard, 134 Ariz. 222, 655 P.2d 342 (1982), in support of their argument that only a conditional privilege should apply to statements made in a complaint to police. But we agree with the Cerasanis that Selby does not address the issue that is presented here. In Selby, a disgruntled resort owner had made disparaging allegations about a liquor department official and had contacted a Department of Public Safety (DPS) officer to report "allegations of [the official's] criminal conduct of the most serious nature." Id. at 224, 655 P.2d at 344. On appeal from a judgment awarding damages to the official in his defamation action against the resort owner, the appellant owner asserted that his report to DPS was conditionally privileged. Our supreme court, without addressing whether an absolute privilege might apply, noted the official was a public figure subject to the "actual malice" standard of New York Times v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). Because it had been shown the defendant had published the defamatory statements with actual malice, the plaintiff had "overcome" the defendant's "conditional privilege." Selby at 225, 655 P.2d at 345. Consequently, the defendant could not avoid liability for defamation arising from his police report.

¶ 6 Somewhat more relevant is a case cited by neither party, Kress. There, the plaintiff had prevailed on a defamation action against an off-duty police officer working as a security guard, who had reported to law enforcement that the plaintiff had stolen items from a department store. On appeal, the defendant security guard argued his report was absolutely privileged as statements made by a public officer in the discharge of official duties. Division One of this court held that the guard's report of a crime to law enforcement "w[as] protected by a conditional privilege" because the guard had not been acting in his official capacity as a public officer when he made the complaint. Kress, 22 Ariz. App. at 232, 526 P.2d at 756. The court reversed the defamation judgment because the plaintiff had failed to plead and prove the guard had made "the statements during the investigation and in the police reports out of malice or in the absence of good faith." Id. at 233, 526 P.2d at 757. Although Kress bears some resemblance to the case at hand we do not find it controlling or persuasive for several reasons.

¶ 7 First, Kress relied on an earlier Division One case, Long v. Mertz, 2 Ariz.App. 215, 407 P.2d 404 (1965), which examined the question of absolute versus qualified immunity in terms of the status and obligations of appointed public officials whose official duties require them to make reports in the public interest, a situation clearly not present here. Second, as Cerasani points out, Arizona's courts have consistently afforded absolute immunity for statements made in furtherance of judicial proceedings. See Green Acres Trust, 141 Ariz. at 613, 688 P.2d at 621 (noting various settings in which courts have applied absolute privilege to defame in connection with judicial proceedings). Thirdly, there is substantial persuasive authority, which we examine below, for the principle that reports to police should be viewed as related to judicial proceedings. Thus, to the extent Kress and Long arguably stand for the proposition that only conditional immunity applies to citizen complaints to law enforcement authorities, we must determine whether Arizona jurisprudence as well as public policy have since evolved to a point that has vitiated that precept.

¶ 8 In Drummond v. Stahl, 127 Ariz. 122, 125, 618 P.2d 616, 619 (App.1980), Division One of this court held that an absolute rather than qualified privilege applied to statements made in a complaint to the State Bar of Arizona alleging unethical conduct by an attorney. Although when the complaint was filed, no investigation or proceedings had been instituted, the court noted that the State Bar "is an arm of the Arizona Supreme Court" and, as such, "acts in a judicial capacity in dealing with the conduct of attorneys." Id. at 126, 618 P.2d 616. The court explained that granting immunity for State Bar complaints was necessary "because of an `overriding public interest' that persons should speak freely and fearlessly in litigation." Id. at 125, 618 P.2d at 619, quoting Stewart v. Fahey, 14 Ariz.App. 149, 150, 481 P.2d 519, 520 (1971). Similarly, in Ashton-Blair v. Merrill, 187 Ariz. 315, 317-18, 928 P.2d 1244, 1246-47 (App.1996), the court concluded that an attorney's defamatory statements made in response to a complaint to the State Bar were shielded by absolute immunity. In both cases, the court noted that sections 585 through 589 of the Restatement (Second) of Torts (1977) provide an absolute privilege for defamatory statements made in a judicial proceeding, "so long as such statements bear some relationship to the proceedings." Drummond, 127 Ariz. at 126, 618 P.2d at 620.

¶ 9 More recently, in Sobol, Division One reached a similar conclusion with regard to a complainant to the Arizona Board of Legal Document Preparers, who had alleged unethical conduct by Sobol, a document preparer. The court upheld the dismissal of Sobol's defamation action against the complainant, finding that absolute immunity applied. 212 Ariz. 315, ¶ 15, 131 P.3d at...