Roberts v. City Of Phoenix

• Citation: 235 P.3d 265,225 Ariz. 112
• Decision Date: 01 July 2010
• Docket Number: No. 1 CA-CV 09-0283.,1 CA-CV 09-0283.
• Parties: Randy E. ROBERTS, a single man, Plaintiff/Appellee/Cross-Appellant,v.CITY OF PHOENIX, a municipal entity; Michael and Shirl Rogers, husband and wife; William E. Niles, Jr., Defendants/Appellants/Cross-Appellees.
• Court: Court of Appeals of Arizona

225 Ariz. 112

235 P.3d 265

Randy E. ROBERTS, a single man, Plaintiff/Appellee/Cross-Appellant,v.CITY OF PHOENIX, a municipal entity; Michael and Shirl Rogers, husband and wife; William E. Niles, Jr., Defendants/Appellants/Cross-Appellees.

No. 1 CA-CV 09-0283.

Court of Appeals of Arizona,

Division 1, Department C.

July 1, 2010.

COPYRIGHT MATERIAL OMITTED

Kent & Ryan, P.L.C. By Michael S. Ryan and Candace H. Kent, Phoenix, Attorneys for Plaintiff/Appellee/Cross-Appellant.

Sanders & Parks, P.C. By J. Arthur Eaves, Phoenix, Attorneys for Defendants/Appellants/Cross-Appellees.

OPINION

BROWN, Judge.

¶ 1 The City of Phoenix (“City”) appeals the trial court's order striking its answer and the resulting default judgment entered against the City as a sanction for discovery violations. The City also challenges the amounts awarded for damages and attorneys' fees. Randy E. Roberts cross-appeals from the judgment, asserting the court erred in failing to award the full amounts of the damages and attorneys' fees he requested. Roberts also challenges the denial of his request to hold the City's legal counsel jointly liable for attorneys' fees. For the following reasons, we affirm.

BACKGROUND

¶ 2 In March 2001, Phoenix police officer Michael Rogers stopped Roberts, who was allegedly exceeding the speed limit, moments after Roberts left “Charlie's,” a well-known gay bar in Phoenix. Rogers later claimed that during the stop Roberts disobeyed police orders and was uncooperative. Roberts contended he was not speeding and that Rogers refused to tell him why he had been pulled over. He also claimed Rogers was aggressive, pounded on the car windows with a flashlight, and threatened to pull him out of the car window. Additional officers arrived on the scene in response to Rogers' request for backup and Roberts was arrested for failure to comply with the lawful order of a police officer.

¶ 3 All charges against Roberts were eventually dismissed. Roberts then sued Rogers and the City in March 2002 for violations of his civil rights pursuant to 42 U.S.C. § 1983 (2006), alleging selective enforcement of the law, assault, failure to supervise, and malicious prosecution. Roberts claimed in part that the City knew or should have known that Rogers and other Phoenix police officers were engaged in the practice of targeting persons leaving gay bars under the ruse of conducting routine traffic stops.

¶ 4 In preparation for trial, Roberts requested production of Rogers' personnel records, including disciplinary records, and asserted such information would reveal a pattern of discrimination against gay persons. The City refused to turn over the records, claiming they were irrelevant to Roberts' claims. He disagreed and filed a motion to compel. The City sought in camera review of Rogers' personnel records, after which the trial court determined the records were irrelevant.

¶ 5 Trial before a jury commenced in February 2004. At the close of Roberts' evidence, the City moved for judgment as a matter of law regarding Roberts' § 1983 claims. The court granted the motion, finding no general policy relating to “deliberate indifference on the part of the City” or denying the “citizens their constitutional rights.” Roberts then agreed to dismiss the remaining claims, with each party to pay their own expenses except that Roberts agreed to pay jury fees.

¶ 6 In August 2004, Roberts filed a motion for relief from the judgment pursuant to Arizona Rule of Civil Procedure 60(c) based on newly discovered documents which predated Roberts' trial but had not been disclosed by the City. In the motion, Roberts explained that through his counsel's efforts he had obtained specific information relating to Rogers' personnel file. The documents included two citizen complaints of anti-gay bias filed against Rogers asserting he targeted individuals leaving gay bars for traffic stops; one was filed in 2001 and the other in 2003. The City opposed Roberts' motion, arguing he was attempting to circumvent the trial court's determination that the documents produced for in camera inspection were not discoverable. The City also moved to enforce the parties' settlement agreement. After review of the previously undisclosed documents, the court granted Roberts' motion for relief from the judgment and denied the City's motion to enforce.

¶ 7 The City appealed to this court, and we affirmed the trial court's order granting Rule 60(c) relief. Roberts v. City of Phoenix, 1 CA-CV 04-0765 (Ariz.App. Jan. 19, 2006) (mem. decision). We found that the documents the City provided for in camera inspection, together with the undisclosed 2001 and 2003 complaints, could be relevant to establish selective enforcement and to show the City had a “policy” of failing to appropriately discipline officers. We further held that the City's failure to produce the 2001 and 2003 complaints for in camera inspection was clear and convincing evidence of misconduct on the part of the City.

¶ 8 In May 2006, in preparation for a pretrial scheduling conference, Roberts submitted a memorandum alerting the court that production of Rogers' entire personnel file was necessary to allow him to conduct meaningful depositions. The City countered it was not required to produce documents the trial court had previously determined were not discoverable. In addition, the City asserted Roberts' request was premature prior to the trial court determining what issues were pending for litigation. In response, at the next scheduling conference, the trial court ordered the City to produce, within three days, “all files maintained by the City of Phoenix regarding Mr. Rogers.” The court further ordered the City to create a list of all such files not in the possession of City's counsel at that time and the date the information would be produced. Additionally, the court ordered that no redactions be made to the files and that the parties submit a confidentiality agreement.

¶ 9 Three days later, the City filed a notice of production with the court stating that, “pursuant to the court's order at the status conference on May 16, 2006,” it had produced the Personnel and Professional Standards Bureau files pertaining to Rogers in redacted form. The City indicated it had requested “unredacted” copies of the files from the police department and “if so ordered by the court, [would] produce those files when they are received.” In July 2006, following a court order reaffirming the prior requirement that the City produce unredacted versions of all files on Rogers, the City augmented its disclosure by providing an updated Personnel File (Fiscal Management Bureau File) and Professional Standards Bureau File, as well as records from Rogers' Division File, City of Phoenix File, and Training File. The City again stated that such documents were “pursuant to the court's order” requiring production of “all” of Rogers' file information.

¶ 10 By June 2007, Roberts' counsel had learned a number of documents and reports had not been provided by the City in its previous disclosures despite the requirement that everything be produced. He also learned that documents from Rogers' file had been purged during the pendency of the litigation notwithstanding the court's order to disclose all records to Roberts.¹ Roberts sought sanctions against the City and its counsel for these discovery violations. During the August 2007 oral argument on Roberts' motion for sanctions, the trial judge expressed her displeasure with the manner in which discovery had proceeded. Addressing the City's counsel, she stated, “I'm very troubled by the fact that documents are not being produced. I'm very troubled by the fact that the only time documents are being produced is when [Roberts' counsel] seems to find out about them and brings them to [the City's] attention.” Following oral argument, the judge further admonished the City for its failure to disclose all of Rogers' information, particularly in light of her prior order requiring such disclosure, stating “we've gone around and around about producing documents[,]” “I'm not playing games[.]”

¶ 11 The trial judge then ordered the City to “identify any and all documentation regarding Officer Rogers that ha[d] been purged from his file from the inception of this lawsuit.” (Emphasis in original.) It also ordered the City to produce “any documents regarding Officer Rogers that are currently being generated, without regard to the significance of the subject matter, ... forthwith.” The court specifically commented that “[s]hould [it] be apprised that specific documents were not produced that [predate the] hearing, the Court will strongly consider imposing serious sanctions and striking [City's] Answer as a [s]anction.” ² In response, counsel for the City again represented that the “Phoenix Police Department, according to what's been told to me, has conducted a diligent inspection of their records and we have disclosed everything.”

¶ 12 Four days later, the City filed a notice of compliance accompanied by an affidavit of Lieutenant Johnston, head of the Law Specialist Bureau, the department that responds to records requests, avowing that “the City of Phoenix had located and produced the complete records ... of Officer Michael T. Rogers.” Johnston further avowed that any documentation that “may have been purged since the implementation of this civil action had been previously provided” to the City's counsel prior to the purge occurring, with the exception of interview tapes or photographs as they were not asked for or produced. Despite this affirmation, and less than one week after the City's notice of compliance, the City produced four audiotapes and a CD/cassette tape from investigations conducted on Rogers in 2003 and 2006 that had not previously been produced. In a subsequent notice of correction, the City asserted that notwithstanding its prior avowal that all information regarding Rogers had been turned over, its “counsel ha[d]...