Saban v. Maricopa County
| Decision Date | 29 July 2010 |
| Docket Number | 1 CA-CV 08-0607 |
| Parties | DANIEL SABAN, an individual, and DONNA SABAN, an individual, and as husband and wife, Plaintiffs-Appellants, v. MARICOPA COUNTY, a political subdivision of the State of Arizona; JOSEPH M. ARPAIO and AVA ARPAIO, husband and wife; DAVID HENDERSHOTT and JANE DOE HENDERSHOTT, husband and wife; STEVE BAILEY and JANE DOE BAILEY, husband and wife; RAY JONES and JANE DOE JONES, husband and wife, Defendants-Appellees. |
| Court | Arizona Court of Appeals |
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
(Not for Publication-Rule 28, Arizona Rules of Civil Appellate Procedure)
The Honorable Robert C. Houser, Judge
AFFIRMED
Robbins & Curtin, PLLC
By Joel B. Robbins
Anne E. Findling
Attorneys for Plaintiffs-Appellants
Phoenix
Wilenchik & Bartness PC Phoenix
By Dennis I. Wilenchik
Michael R. Somers
Attorneys for Defendants-Appellees
¶1 Plaintiffs-Appellants Daniel and Donna Saban1 appeal from a jury verdict in favor of Defendants-Appellees David Hendershott and Joseph M. Arpaio on Saban's claim for defamation. Saban argues the trial court made erroneous evidentiary rulings at trial, improperly instructed the jury regarding the elements of defamation, and improperly limited his damage claim. He also challenges the trial court's summary judgment prior to trial on his false light invasion of privacy and statutory claims, and its judgment as a matter of law in favor of Defendant-Appellee Steve Bailey and Arpaio in his capacity as supervisor of Detective Jeff Gentry. For the reasons discussed below, we affirm.
¶2 In 2004, Dan Saban was a candidate for the office of Maricopa County Sheriff in the Republican party primary election. Saban was opposed by incumbent Sheriff Joseph Arpaio.
¶3 On April 7, 2004, the Maricopa County Sheriff's Office (MCSO) received an e-mail addressed to Sheriff Arpaio from
Saban's adopted mother, Ruby Norman, in which she stated:
¶4 On April 27, 2004, Sheriff Arpaio's Chief Deputy David Hendershott telephoned Norman in response to the e-mail. During the call, Norman told Hendershott that Saban sexually assaulted her years earlier. She told Hendershott that she had already contacted the press regarding her allegations, and, infact, Norman had contacted both KNXV (Channel 15) reporter Robert Koebel and The East Valley Tribune. Hendershott recorded the telephone call on a personal handheld cassette tape recorder he used to assist his hearing impairment.3
¶5 Later that day, Hendershott spoke to Koebel and played the tape recording. Norman had already left a voicemail message for Koebel in which she asked him to call her regarding allegations of rape against a man running for Sheriff. Koebel testified at trial that the cassette contained the same allegations Norman had previously made in her voicemail message to him. Koebel asked Hendershott whether Norman had filed a report with MCSO. Hendershott told Koebel that there was not yet a report, and if he wanted any further information, he would need to submit a public records request to MCSO. After speaking to Hendershott, Koebel telephoned Norman and later interviewed her regarding her allegations against Saban.
¶6 On April 28, 2004, Hendershott asked Lieutenant Ray Jones to have deputies take an initial report from Norman. Sergeant Steve Bailey and Detective Jeff Gentry interviewed Norman. Bailey and Gentry met with Norman on April 28, 2004 and tape-recorded their interview. Norman alleged Saban hadsexually assaulted her in 1973, when he lived in her home as her adopted son. Bailey and Gentry found Norman to be credible, but noted that the statute of limitations applicable to her allegations may have expired. Bailey also believed MCSO would have a conflict of interest in conducting an investigation of Norman's allegations. In accordance with MCSO's usual practice, Bailey and Gentry returned to MCSO's headquarters and prepared an Incident Report that evening. Ultimately, the Sheriff decided to refer the matter to the Pima County Sheriff's Office for further review and disposition.
¶7 Both before and after Bailey interviewed Norman, he spoke with Koebel, with whom he had a professional relationship arising out of Koebel's coverage of other MCSO cases. Bailey told Koebel that the allegations were not a "set-up" by Hendershott and that, in his opinion, Norman was a credible witness. On April 30, 2004, in response to Koebel's public records request, MCSO Public Information Officer Lisa Allen McPherson provided Koebel with a copy of the Incident Report.
¶8 On April 29, 2004, Koebel conducted a videotaped interview of Norman regarding her allegations. The next day, on April 30, 2004, Koebel attended a Saban campaign event and afterward conducted a videotaped interview with Saban in which he questioned him about Norman's claims. Saban denied the allegations. That evening, Channel 15 broadcast a storyregarding Norman's accusations and featuring Koebel's interviews with Norman and Saban.
¶9 Saban filed a complaint against Koebel and Scripps Howard Broadcasting Company in which he alleged claims for false light invasion of privacy, wrongful intrusion upon private affairs, intentional infliction of emotional distress, and aiding and abetting tortious conduct, but later agreed to dismiss those claims with prejudice.4 Saban's complaint also alleged claims against Maricopa County, Arpaio, Hendershott, Bailey, and Jones for abuse of process, false light invasion of privacy, wrongful intrusion upon private affairs, intentional infliction of emotional distress, and negligence. Saban later amended his complaint to plead additional claims for defamation, violation of the right to privacy guaranteed by the Arizona constitution, violation of Arizona Revised Statutes (A.R.S.) section 11-410 (2001), and public disclosure of private facts. The Maricopa County defendants moved for summary judgment on all claims, and argued that neither Maricopa County nor Sheriff Arpaio could be held vicariously liable for the conduct of MCSO's employees. The trial court granted the motion with respect to the abuse of process, negligence, intentionalinfliction of emotional distress, and statutory claims, but denied it with respect to the defamation, false light, and wrongful public disclosure claims. The court also ruled that Maricopa County could not be held vicariously liable and granted it summary judgment, but denied the motion with respect to Arpaio.
¶10 The remaining defendants then moved for summary judgment on the surviving claims, arguing that Saban had not suffered any quantifiable damages and, even if Saban could show damage, the defendants were not the proximate cause of any compensable or special damage. The court granted summary judgment for the defendants on Saban's claim for invasion of privacy because it determined that no reasonable jury could find that the defendants, rather than Channel 15, gave publicity to false information or private facts about Saban. The court denied the motion insofar as it related to Saban's defamation claim, but limited the damages Saban could recover for that claim to those arising out of the defendants' republication of Norman's alleged defamatory statements to Koebel, and not Channel 15's subsequent broadcast of the statements.
¶11 The trial court conducted a ten-day jury trial on Saban's defamation claim. After Saban rested his case, the court granted Bailey's and Jones' motions for judgment as a matter of law, and granted Arpaio's motion to the extent thedefamation claim arose out of Gentry's conduct.5 Thus, the only issues submitted to the jury were whether Hendershott defamed Saban and whether Arpaio was vicariously liable for any such defamation. The jury returned a general verdict for Hendershott and Arpaio.
¶12 Saban moved for new trial on the basis that the court had made prejudicial evidentiary rulings and legal errors during the trial, and that a new trial was warranted by defendants' misconduct. The trial court denied Saban's motion and entered judgment for defendants.
¶13 Saban timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003).
¶14 Saban argues the court erred by granting defendants summary judgment on his claims for false light invasion of privacy and violation of A.R.S. § 11-410 and A.R.S. § 38-503 (2001), and challenges the court's judgment as a matter of law.
¶15 He contends the court improperly instructed the jury by failing to give his requested instruction regarding defamation and by limiting the damages Saban could recover to those resulting from publication to Koebel. Saban also challenges the court's evidentiary rulings allowing admission ofevidence regarding the City of Mesa's investigation of Saban, Saban's Town of Buckeye employment application, and Hendershott's testimony concerning Norman's stroke.
¶16 Finally, Saban argues the court erred by ordering him to return documents produced by the Accounting Office of John A. Hasslacher.6
¶17 Saban challenges the trial court's summary judgment for defendants on his invasion of privacy and statutory claims.
¶18 A court shall grant summary judgment when "there is no genuine issue as to any material fact and [] the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(c). Summary judgment should be granted, "if the facts produced in support of the claim or defense have so little probative value, given the...
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