Opinion
1 CA-CV 23-0562
10-29-2024
CHERYL HINTZEN-GAINES, Plaintiff/Appellant/Cross-Appellee, v. BARBARA JEAN ADELSON, et al., Defendants/Appellees/Cross-Appellants.
Wilenchik & Bartness, P.C., Phoenix By Dennis I. Wilenchik, Timothy R. Grimm Counsel for Plaintiff/Appellant/Cross-Appellee The Cavanagh Law Firm, P.A., Phoenix By Loren A. Suddes, Andrea M. Swan Counsel for Defendants/Appellees/Cross-Appellants
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2022-017228 The Honorable Jay R. Adleman, Judge
Wilenchik & Bartness, P.C., Phoenix By Dennis I. Wilenchik, Timothy R. Grimm Counsel for Plaintiff/Appellant/Cross-Appellee
The Cavanagh Law Firm, P.A., Phoenix By Loren A. Suddes, Andrea M. Swan Counsel for Defendants/Appellees/Cross-Appellants
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Angela K. Paton and Judge Michael S. Catlett joined. Judge Morse filed a special concurrence in which Presiding Judge Paton and Judge Catlett joined. Judge Catlett also filed an additional special concurrence in which Judge Morse joined.
MEMORANDUM DECISION
MORSE, JUDGE
¶1 Cheryl Hintzen-Gaines appeals from the dismissal of her lawsuit against Barbara and David Adelson. Cheryl raised claims of defamation/defamation per se and false light invasion of privacy. For the following reasons, we affirm the dismissal of her defamation and false-light claims as to Barbara's statements concerning Cheryl's husband's alleged criminality, vacate the dismissal of Cheryl's defamation and false-light claims as to Barbara's statements concerning Cheryl's philanthropy, and remand for further proceedings.
Because several of the individuals involved in this matter share last names, we use first names for ease of reference.
FACTS AND PROCEDURAL BACKGROUND
¶2 On appeal from a motion to dismiss, we "must assume the truth of all well-pleaded factual allegations and indulge all reasonable inferences from those facts, but mere conclusory statements are insufficient." Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012).
¶3 Over the last 50 years, Cheryl contributed to charities in Arizona through fundraising, donations, and events. Cheryl placed great importance on her reputation as a businesswoman, philanthropist, and community leader.
¶4 The Adelsons knew Cheryl for several years, and David is a relative of her husband, Ira Gaines. The Adelsons were familiar with Cheryl's philanthropy.
¶5 In September 2022, Barbara sent an email to 65 recipients with the following subject line concerning Ira and Cheryl:
The lurking criminal amongst us! It makes me so very sad. I was taken in by his and his wife Cheryl's apparent philanthropy, only to learn that it has strings attached and is only a "pledge" that may never happen. He is a repeat offender without remorse.
¶6 The recipients of the email included individuals, companies, real estate agencies, law firms, churches, hospitals, and charities acquainted with Cheryl through her charitable work. Barbara also sent the email to recipients of Cheryl's philanthropy and to several newspapers.
¶7 In December 2022, Cheryl filed a complaint against the Adelsons, alleging Barbara's email was defamatory and a false light invasion of her privacy. Cheryl alleged the contents of Barbara's email were false and constituted defamation and defamation per se because they "impute[d] a lack of fitness for Ms. Gaines in her charitable work and impeach[ed] her honesty, integrity, virtue or reputation, and/or impl[ied] that she engaged in illegal or criminal activity, and brought Ms. Gaines into disrepute, contempt, or ridicule."
¶8 Cheryl alleged Barbara's email was a false light invasion of her privacy because it "created a false implication about Ms. Gaines and placed her in a false light and [was] misleading." Cheryl further alleged the email "create[d] a false innuendo that Mr. Gaines is a fraud and a charlatan or worse, a criminal."
¶9 The Adelsons filed a motion to dismiss under both Arizona's A.R.S. § 12-751 ("Anti-SLAPP Statute") and Arizona Rule of Civil Procedure 12(b)(6) ("Rule"). They argued: (1) Cheryl could not recover for statements about her husband, (2) the statements about Cheryl were either substantially true or not provably false, and (3) the elements of defamation were not met. The Adelsons moved to dismiss the false-light claim for the same reasons.
¶10 The superior court held oral argument on the motion to dismiss and dismissed both claims under Rule 12(b)(6). The court noted a defamation claim requires: "(1) the defendant make[] a false statement concerning the plaintiff; (2) the statement was published without privilege to a third party; and (3) the defendant knowingly, recklessly, or negligently disregarded the falsity of the statement. "In support, the court cited Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315 (1977), and Turner v. Devlin, 174 Ariz. 201, 203-04 (1993). Additionally, the court noted a false-light claim requires: "(1) the defendant, with knowledge of falsity or reckless disregard for the truth, gave publicity to information placing the plaintiff in a false light; and (2) the false light in which the plaintiff was placed would be highly offensive to a reasonable person," citing Desert Palm Surgical Group, P.L.C. v. Petta, 236 Ariz. 568, 580, ¶ 29 (App. 2015), Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (1989), Restatement (Second) of Torts ("Restatement") § 652E (Am. L. Inst. 1977).
¶11 The court limited its analysis to the statement "I was taken in by his and his wife Cheryl's apparent philanthropy, only to learn that it has strings attached and is only a 'pledge' that may never happen," because Cheryl "acknowledge[d] that she is only pursuing statements that were ostensibly made 'specifically about her.'" The court found this statement non-actionable because both the terms "apparent philanthropy "and "strings attached" were not statements of objective fact that could be proven false. Likewise, the court found the phrase "pledges that may never happen" conveyed a prediction or subjective opinion.
¶12 The court dismissed the false-light-invasion-of-privacy claim because Cheryl did not identify any facts to distinguish this cause of action from her defamation claim. The court found Barbara's statement (1) did not offer an identifiable false implication and/or (2) could not be deemed "highly offensive" under the objective reasonable-person standard. The court also dismissed both claims under the Anti-SLAPP Statute because it found Cheryl's claims were not justified by existing law, but it denied the Adelsons' request for attorney fees under that statute.
¶13 Cheryl timely appealed, and the Adelsons timely cross-appealed the denial of their request for attorney fees. We have jurisdiction under A.R.S. § 12-2101(A)(1).
DISCUSSION
¶14 "We review de novo an order granting a motion to dismiss for failure to state a claim." Abbott v. Banner Health Network, 239 Ariz. 409, 412, ¶ 7 (2016). "Dismissal is appropriate under Rule 12(b)(6) only if 'as a matter of law plaintiffs would not be entitled to relief under any interpretation of the facts susceptible of proof.'" Coleman, 230 Ariz. at 356, ¶ 8 (cleaned up).
I. Defamation.
¶15 On appeal, Cheryl argues the court erred in dismissing her defamation claim because it wrongly determined: (1) the statements in Barbara's email referring to Ira were not "of and concerning "Cheryl; and (2) the remaining portions of the email were incapable of being proven false.
A. The Court's Gatekeeping Role.
¶16 "To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation." Turner, 174 Ariz. at 20304 (quoting Godbehere, 162 Ariz. at 341). Our Court has held that because defamation claims implicate First Amendment rights, "the superior court must act as gatekeeper" against meritless claims. See Sign Here Petitions LLC v. Chavez, 243 Ariz. 99, 102-05, ¶¶ 1-17 (App. 2017); Takieh v. O'Meara, 252 Ariz. 51, 57, ¶ 13 (App. 2021) (quoting Sign Here, 243 Ariz. at 102, ¶ 1); BLK III, LLC v. Skelton, 252 Ariz. 583, 587, ¶ 11 (App. 2022) (quoting Sign Here, 243 Ariz. at 102, ¶ 1). Although Sign Here, Takieh, and BLK III did not distinguish between public and private figures and issues, the authorities on which those cases rely apply additional scrutiny only to statements made about public figures or issues of public concern. See, e.g., Turner, 174 Ariz. at 202; Yetman v. English, 168 Ariz. 71 (1991).
¶17 Recently, our supreme court reiterated that a court does not have a gatekeeping function in defamation actions between private individuals about private matters. Rogers v. Mroz, 252 Ariz. 335, 339, ¶ 12 (2022). In such defamation actions, unless a statement's meaning is "free from reasonable doubt, it is for the jury to determine the meaning and construction of the alleged defamatory language." Id. (quoting Restatement § 563 cmt. e (1977)). But neither party cites Rogers, much less argues that the superior court failed to apply the defamation standard for private figures as instructed by Rogers. Throughout this litigation, Cheryl has applied the defamation framework set forth in Sign Here, Takieh, and BLK III. For example, Cheryl quoted from Takieh, 252 Ariz. at 57, discussing the "objective facts" and "provably false" standard in her response to the Adelsons' motion to dismiss before the superior court. And, in her opening brief on appeal, Cheryl cites Sign Here and argues that Barbara's emails in fact state "objective facts" that are "provably false. "Finally, during oral argument, Cheryl conceded that defamatory statements "must be capable of being proven substantially true or not."
¶18 While we have concerns about whether Sign Here, Takieh, and BLK III are consistent with Rogers, we follow the parties' invitation and apply additional scrutiny to Barbara's email in our gatekeeping role as instructed by Sign Here, Takieh, and BLK III. See Harris v. Cochise Health Sys., 215 Ariz. 344, 349, ¶ 17 (App. 2007) ("[A]n appellate court will not consider issues not raised in the trial court.") (quoting Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987)); Ramos v. Nichols, 252 Ariz. 519, 522, ¶ (App. 2022) (stating that arguments omitted from an opening brief are deemed waived or abandoned); Gerow v. Covill, 192 Ariz. 9, 13, ¶ 15 n.2 (App. 1998) (enforcing a concession made during oral argument); Crystal E. v. Dep't of Child Safety, 241 Ariz. 576, 578, ¶ 7 (App. 2017) (stating that appellate courts "should not attempt to analyze and decide arguments that have been abandoned and waived").
¶19 In fulfilling this gatekeeping role, the superior court makes two threshold determinations. First, the court "must determine 'whether, under all the circumstances, a statement is capable of bearing a defamatory meaning.'" Takieh, 252 Ariz. at 57, ¶ 15 (quoting Yetman, 168 Ariz. at 79); see Dube v. Likins, 216 Ariz. 406, 419, ¶ 43 (App. 2007) ("Whether a statement is capable of defamatory meaning is a question of law for the court ...."). Second, "in deciding whether a statement is actionable, '[t]he key inquiry is whether the challenged expression . . . would reasonably appear to state or imply assertions of objective fact.'" Harris v. Warner ex rel. County of Maricopa, 255 Ariz. 29, 33, ¶ 13 (2023) (quoting Yetman, 168 Ariz. at 76). A statement is not actionable if it does not present "the kind of empirical question a fact-finder can resolve." Yetman, 168 Ariz. at 81. In other words, the statement cannot be comprised of "loose, figurative, or hyperbolic language" such that the statement is not reasonably "susceptible of being proved true or false." Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990). In this determination, the court "'must additionally consider the impression created by the words used as well as the general tenor of the expression, from the point of view of the reasonable person' at the time the statement was uttered and under the circumstances it was made." Sign Here, 243 Ariz. at 105, ¶ 21 (quoting Yetman, 168 Ariz. at 76).
B. Statements Concerning Ira.
¶20 "To be actionable as a matter of law, defamatory statements must be published in such a manner that they reasonably relate to specific individuals." Hansen v. Stoll, 130 Ariz. 454, 458 (App. 1981). Thus, the plaintiff must show that the publication was "of and concerning" her. Id. (citing Restatement §§ 564, 617 (1977)). "Traditionally, the 'of and concerning' requirement has been shorthand for a common law rule that a plaintiff in a defamation case must show that the statement referred to the plaintiff, either explicitly or by implication." Emerito Estrada Rivera-Isuzu de P.R., Inc. v. Consumers Union of U.S., Inc., 233 F.3d 24, 26 (1st Cir. 2000); see Rogers, 252 Ariz. at 339, ¶ 12 ("Arizona's tort of defamation traces to the common law."). In particular, "[t]he context of a defamatory imputation includes all parts of the communication that are ordinarily heard or read with it." Reynolds v. Reynolds, 231 Ariz. 313, 317, ¶ 10 (App. 2013) (quoting Restatement § 563 cmt. d (1977)).
¶21 The court excluded the statements "the lurking criminal amongst us" and "he is a repeat offender without remorse "from its defamation analysis because Cheryl "acknowledge[d] that she is only pursuing statements that were ostensibly made 'specifically about her,' and not those statements pertaining to Mr. Gaines." Cheryl argues the court erred in excluding these statements because Barbara's "email falsely imputed criminality to both Mr. and Ms. Gaines." Cheryl also argues Barbara's statements about Ira "impeached Ms. Gaines' reputation by falsely implying Ms. Gaines was married to a criminal. "
¶22 Cheryl conceded in her response to the Adelsons' motion to dismiss that she "only brought her Complaint to address statements made specifically about her," and she "filed her Complaint on her own behalf. "Thus, statements concerning Ira's alleged criminality are at issue only to the extent they were "of and concerning" Cheryl. Hansen, 130 Ariz. at 458.
¶23 Here, Barbara's email referred to Ira, not Cheryl, as a criminal. Although the statement "the lurking criminal amongst us" did not specify to whom it referred, the rest of the email clarified this statement referred to Ira. Barbara's email followed this statement with the sentence, "I was taken in by his and his wife Cheryl's apparent philanthropy." (Emphasis added.) And, as Cheryl concedes in her opening brief, "[t]he statement that 'he is a repeat offender,'" could convey "no meaning other than Mr. Gaines has committed multiple crimes." (Emphasis added.) Thus, read in its full context, no part of the email asserted or implied that Cheryl is a criminal. See Reynolds, 231 Ariz. at 317, ¶ 10.
¶24 Likewise, an implication that Cheryl is married to a criminal, however false, does not make Barbara's statements about Ira "of and concerning" Cheryl. Although Cheryl may be affected incidentally by her husband's reputation, Barbara's criminality statements focused on Ira, not Cheryl. See id. at 317-18, ¶¶ 10-12 (finding that statement about mother's end-of-life plans did not "concern" her children); see also Talbot v. Johnson Newspaper Corp., 124 A.D.2d 284, 286 (N.Y.App.Div. 1986) (finding wife cannot bring a defamation claim for statements not personally mentioning her); Ramos v. City of Peru, 775 N.E.2d 184, 189 (Ill.App.Ct. 2002) (finding wife cannot recover for humiliation and embarrassment from defamatory statements not directed at her). The court therefore properly dismissed Cheryl's defamation claim as to the statements regarding Ira's criminality.
C. Statements Directly Concerning Cheryl.
¶25 The court erred in determining Barbara's statements regarding "apparent philanthropy," "strings attached," and "pledges that may never happen" are "not the kind of empirical question a fact-finder can resolve." Yetman, 168 Ariz. at 81. Cheryl argues that, taken as a whole, the email asserted as fact that "Ms. Gaines deceitfully leads people to believe she is charitable but her charity is false."
¶26 In response, the Adelsons argue that statements such as "apparent philanthropy," "strings attached, "and "pledges that may never happen" are loose terms for which there are no objective criteria by which to measure their falsity. However, those statements imply facts that can be measured with objective criteria. See Harris, 255 Ariz. at 33 (stating necessity of objective criteria by which a statement might be proven true or false for a defamation claim). At the very least, those statements "imply facts upon which the opinion [is] based." Dube, 216 Ariz. at 419, ¶ 46 (quoting Milkovich, 497 U.S. at 18-19 and Restatement § 566). As the Supreme Court explained in Milkovich, the statement, "In my opinion John Jones is a liar" can be actionable because "[e]ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact." 497 U.S. at 18-19.
¶27 Similarly, the philanthropy-related statements together at least imply that Cheryl's gifts come with specific conditions, which if not met, could lead to the right to recall the gift. This implication may be capable of being proven or disproven. And the statement "pledges that may never happen" can be a forward-looking prediction or imply a description of past events. At the motion-to-dismiss stage, we must construe the statement in a way most favorable to Cheryl. See Yetman, 168 Ariz. at 80 (concluding that because the statement at issue "was simply one that had no bright line meaning and that . . . could reasonably be interpreted either way," whether the statement was a factual assertion was a jury question). Cheryl sufficiently stated a defamation claim to survive a motion to dismiss.
II. False Light Invasion of Privacy.
¶28 The tort of false light invasion of privacy occurs when one "gives publicity to a matter concerning another that places the other before the public in a false light." Godbehere, 162 Ariz. at 338 (quoting Restatement § 652E (1977)). Unlike defamation, which protects a person's reputation, the tort of false light protects a person's mental and emotional interests. Reynolds, 231 Ariz. at 318, ¶ 14 (citing Godbehere, 162 Ariz. at 338). Either a false publication or a publication of "true information [that] creates a false implication about the individual" can give rise to a false-light claim. Godbehere, 162 Ariz. at 341 (emphasis added). "In the latter type of case, the false innuendo created by the highly offensive presentation of a true fact constitutes the injury." Id. But a defendant in a false-light case cannot be liable "unless the publication places the plaintiff in a false light highly offensive to a reasonable person." Id. at 340-41 (noting "highly offensive" encompasses "a narrow class of wrongful conduct that falls short of 'outrage'").
A. Identifiable False Implication.
¶29 Cheryl argues the court erred in dismissing her false-light-invasion-of-privacy claim because Barbara's email "offer[ed] an identifiable false implication." Specifically, Cheryl argues the email gave rise to the implication that Ms. Gaines' charity is false and conditional, that
Ms. Gaines deceives people into believing otherwise, that Ms. Gaines' gifts are false because they are merely pledges that may never happen, and Ms. Gaines is either a criminal herself or is married to a criminal.
¶30 Like a defamation claim, a false-light claim must "concern" the plaintiff to give rise to liability. See Reynolds, 231 Ariz. at 318, ¶ 15 ("Because the sentence relied upon by the siblings did not 'concern' them, the article therefore did not place the siblings 'before the public in a false light.'"). Here, the statements, "[t]he lurking criminal amongst us!" and "[h]e is a repeat offender without remorse," do not name or reference Cheryl. A reasonable listener would therefore conclude Barbara's statements about Ira's alleged criminality focus on Ira and do not "concern" Cheryl. See id.
¶31 Cheryl argues these assertions implied she is married to a criminal or is a criminal herself. As discussed, supra ¶¶ 23-24, this argument lacks merit. Similarly, although the statement "his and his wife's apparent philanthropy," referenced Cheryl's marriage to Ira, a single passing reference to their relationship does not make statements concerning Ira's criminality "of and concerning" Cheryl. Cf. Gonzalez v. Times Herald Printing Co., 513 S.W.2d 124, 125-26 (Tex. App. 1974) (noting statements implying that a non-party spouse was involved in criminal activity did not reflect on the "plaintiff's name, reputation or character" when "the only reference to [the plaintiff] in either article was a statement that she had confirmed the fact that her husband was missing"); Wildstein v. New York Post Corp., 40 Misc.2d 586, 587 (N.Y. Sup. Ct. 1963) (finding statement that wife was questioned by police "with her husband" during a murder investigation did not concern the husband where the article focused on the wife's association with the victim); Rose v. Daily Mirror, Inc., 31 N.E.2d 182, 182-83 (N.Y. 1940) (finding plaintiff was not defamed by being mistakenly described as the widow of an "underworld" murderer).
¶32 In other words, even if the statements about Ira necessarily implied that Cheryl is married to a criminal, this implication was incidental. Because the "standards for proving false light invasion of privacy are quite 'stringent,'" Godbehere, 162 Ariz. at 340, we decline to expand the scope of "of and concerning" to allow a false-light claim for a person who is only incidentally affected by a statement about another. The court properly dismissed Cheryl's false-light claim as to the statements regarding Ira's criminality.
¶33 As to the rest of the email, the court erred in determining that the disputed phrases are "so imprecise that they do not offer an identifiable false implication." To create false-light liability, the statement need only create "false innuendo" about the plaintiff. Godbehere, 162 Ariz. at 341; see also Desert Palm, 236 Ariz. at 579-80, ¶¶ 28-29 (noting a defamation claim requires a "statement of objective fact" but a false-light claim requires only that the speaker "gave publicity to information placing the plaintiff in a false light"). And innuendo, by its nature, does not need to create a precise implication but only a secondary meaning perceptible by others. See Innuendo, BLACK'S LAW DICTIONARY (12th ed. 2024) (defining "innuendo" as "[a]n oblique remark or indirect suggestion"); Innuendo, MERRIAM-WEBSTER'S DICTIONARY, https://www.merriam-webster.com/ dictionary/innuendo (last visited October 23, 2024) (defining "innuendo" as "an oblique allusion: hint, insinuation || especially: a veiled or equivocal reflection on character or reputation"). Thus, Cheryl sufficiently alleges the statements "apparent philanthropy," "strings attached," and "only a 'pledge' that may never happen" gave rise to innuendo that her philanthropy is not as altruistic as it may appear. And at this stage, we must assume the truth of her factual allegations and "indulge all reasonable inferences from those facts." Coleman, 230 Ariz. at 356, ¶ 9.
B. Highly Offensive.
¶34 in determining whether a "publication places the plaintiff in a false light highly offensive to a reasonable person," our supreme court applies an objective standard. "[T]he plaintiff's subjective threshold of sensibility is not the measure, and 'trivial indignities' are not actionable. "Godbehere, 162 Ariz. at 340. Thus, only when there is such "a major misrepresentation of [the plaintiff's] character, history, activities or beliefs, "can a false-light claim arise. Id. at 341 (quoting Restatement § 652E cmt. c (1977)).
¶35 Cheryl argues that Barbara's email implies Cheryl's charity is not altruistic and constitutes a major misrepresentation of her character. The superior court dismissed Cheryl's false-light claim in part because it concluded the email lacked any implication that would be highly offensive to a reasonable person. But in her complaint, Cheryl alleged she has "tirelessly support[ed]" numerous charities and "has put forth great effort and time to develop her reputation as a businesswoman, philanthropist, and community leader."
¶36 In Canas v. Bay Entertainment, LLC, we reversed the dismissal of a false-light claim brought by models against a country-western bar that used their photos in advertisements without authorization. 252 Ariz. 117, 122, ¶¶ 25-26 (App. 2021). We explained that, at the motion-to-dismiss stage, a fact finder could find the implied endorsement of the bar to be "highly offensive to a reasonable person in [the models'] positions." Id. at ¶ 25. Because the implication regarding Cheryl (i.e., her philanthropy is false) is at least as offensive as the implication in Canas, the superior court cannot determine at the dismissal stage that such an implication could not be highly offensive to a reasonable person in Cheryl's position -a donor deeply involved in the charitable community. Thus, the superior court erred by dismissing Cheryl's false-light claim as to Barbara's statements concerning Cheryl's philanthropy.
III. Anti-SLAPP Statute Claims.
¶37 Because the court erred in dismissing Cheryl's claims under Rule 12(b)(6), the court also erred in finding Cheryl's claims are not justified by existing law and dismissing her claims under the Anti-SLAPP Statute. A.R.S. § 12-751(B)(2).
IV. Attorney Fees Under Anti-SLAPP Statute.
¶38 In their cross-appeal, the Adelsons argue the court abused its discretion by declining to award attorney fees under A.R.S. § 12-751(F) despite granting their motion to dismiss under the statute. They argue the failure to award attorney fees was an abuse of discretion because the court dismissed Cheryl's action under the Anti-SLAPP Statute and found Cheryl's claims were not "justified by existing law." See A.R.S. § 12-751(B)(2).
¶39 In general, "we review a trial court's award or denial of attorney fees for an abuse of discretion." Democratic Party of Pima County v. Ford, 228 Ariz. 545, 547, ¶ 6 (App. 2012). As discussed, supra ¶ 17, Cheryl's defamation claim is at least justified by Rogers. Likewise, at this stage of the proceedings, Cheryl's false-light claim as to the philanthropy statements is justified by Canas. See supra ¶ 36. And independent of whether her claims were justified by existing law, if the court grants a motion to dismiss, "the court may award the moving party costs and reasonable attorney fees." A.R.S. § 12-751(F) (emphasis added). Because the statute uses the word "may," we "presume the legislature intended the court to have broad discretion in deciding whether to award attorney fees." Ford, 228 Ariz. at 548, ¶ 10; see Associated Indem. Corp. v. Warner, 143 Ariz. 567, 570-71 (1985) (stating that, in cases involving discretionary awards of attorney fees, appellate courts should not "substitute our discretion for that of the trial judge") (quoting Davis v. Davis, 78 Ariz. 174, 179 (1954) (Windes, J., specially concurring)). The court did not abuse its discretion by declining to award attorney fees.
CONCLUSION
¶40 We affirm the dismissal of Cheryl's defamation and false-light claims as to the criminality statements, but we vacate the dismissal of her defamation and false-light claims as to the philanthropy statements, and remand for further proceedings. On balance, Cheryl is the successful party in this appeal and may recover taxable costs incurred in this Court upon compliance with ARCAP 21.
MORSE, Judge, joined by Presiding Judge Paton and Judge Catlett, specially concurring:
¶41 If we were writing on a blank slate, we would likely join the several post-Godbehere state supreme courts that have rejected the false light tort. See, e.g., Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008); Denver Pub. Co. v. Bueno, 54 P.3d 893 (Colo. 2002); Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994); Howell v. New York Post Co., Inc., 612 N.E.2d 699 (N.Y. 1993). But as judges on an intermediate court of appeals, we are "bound" by the decisions of our supreme court, which "alone is responsible for modifying that precedent." Sell v. Gama, 231 Ariz. 323, 330, ¶ 31 (2013).
¶42 So this decision applies Godbehere to find that Cheryl has Alleged sufficient facts to survive dismissal. But we are also mindful that false light applies only "against a narrow class of wrongful conduct that falls short of 'outrage.'" Godbehere, 162 Ariz. at 340-41. And "the plaintiff's subjective threshold of sensibility is not the measure, and 'trivial indignities' are not actionable." Id. at 340. It is difficult to square Godbehere's limitations on false-light claims with Canas's holding that an allegation of simple unwanted association with a bar, standing alone, could rise to the level of "highly offensive" conduct sufficient to sustain a false-light claim. See Canas, 252 Ariz. at 122, ¶¶ 24-25. But neither party has cited Canas, much less argued that we should reject its reasoning. Accordingly, we apply Canas despite our misgivings. See Castillo v. Indus. Comm'n, 21 Ariz. 465, 471 (App. 1974) (noting that we consider this Court's previous decisions "as highly persuasive and binding, unless we are convinced that the prior decisions are based upon clearly erroneous principles, or conditions have changed so as to render these prior decisions inapplicable ").
Moreover, to the extent that such wrongful association requires a tort remedy, false light is not the only vehicle. See False Light Privacy: A Requiem, 32 Santa Clara L. Rev. 783, 785 (1992) ("False light is on the periphery, and the core of the case lies elsewhere, in defamation, in misappropriation, or in intentional infliction of emotional distress." (footnotes omitted)).
CATLETT, Judge, joined by Judge Morse, specially concurring:
¶43 We join the majority decision vacating the superior court's judgment dismissing Cheryl Hintzen-Gaines's ("plaintiff") false light invasion of privacy and defamation claims. We write separately to explain, in our view, the proper framework courts should employ when a defamation action is brought by a plaintiff who is a private figure and involves speech only about matters of private concern. We also explain why plaintiff states a valid claim for defamation using that framework.
I.
¶44 Like most defamation cases, this appeal requires us to navigate the interplay between common law defamation and free speech rights. But what makes this appeal different is that plaintiff is a private figure and the speech involved deals solely with matters of private concern.
A.
¶45 At common law, one could say whatever one wanted in public so long as he was prepared to face the consequences of uttering a false statement. See 4 William Blackstone, Commentaries on the Laws of England 151-52 (1769) ("Every freeman has an undoubted right to lay what sentiments he pleases before the public . . . but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity."). As originally understood, the First Amendment was primarily a restriction only on the prior restraint of speech, and not a restriction on later punishing speech deemed contrary to public welfare. See Near v. Minnesota, 283 U.S. 697, 714-15 (1931). Both "[c]ivil and criminal liability for defamation was well established in the common law when the First Amendment was adopted, and there is no indication that the Framers intended to abolish such liability." Herbert v. Lando, 441 U.S. 153, 158 (1979). "The accepted view was that neither civil nor criminal liability for defamatory publications abridges freedom of speech or freedom of the press, and a majority of jurisdictions made publishers liable civilly for their defamatory publications regardless of their intent." Id. at 158-59.
¶46 Arizona's framers followed that approach in the Arizona Constitution, which provides that "[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." Ariz. Const. art. 2, § 6 (emphasis added). Early on, our supreme court recognized that being responsible for abusing the right to speak means facing liability for damages. See Truax v. Bisbee Local No. 380, 19 Ariz. 379, 394 (1918) ("If this right is abused to the harm of another, the remedy given is an action for damages, and that remedy is deemed adequate."). And, later, the court acknowledged that "[n]one of the language in article 2, § 6 of the Arizona Constitution even remotely suggests an absolute privilege to damage the reputation of another person." Yetman v. English, 168 Ariz. 71, 82 (1991). To ensure that the "being responsible" portion of the free speech clause remains vibrant, the judiciary has "an independent constitutional obligation to ensure that the right to recover damages for injury to reputation is not unduly impinged." Id.
B.
¶47 Things changed in 1964. That year, in New York Times v. Sullivan, the U.S. Supreme Court constitutionalized the common law of libel and defamation, fearing that an Alabama state court judgment and follow-on judgments could spell the demise of the New York Times. 376 U.S. 254 (1964). The Court created "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 279-80. The Court set aside the judgment against the Times for failure to prove actual malice. Id. at 286-87.
¶48 In the ensuing decades, the Court continued to federalize the common law of defamation and libel, resulting in a confusing thicket of rules and protections. In Curtis Publishing Company v. Butts, the Court extended the New York Times standard to cases involving "public figures." 388 U.S. 130, 164-65 (1967) (Warren, C.J., concurring). In Gertz v. Robert Welch, Inc., the Court said private claimants must show actual malice to obtain presumed or punitive damages for libel involving a matter of public concern. 418 U.S. 323, 347, 350 (1974). In Philadelphia Newspapers, Inc. v. Hepps, the Court held that a plaintiff has the burden to show a statement is provably false when the statement is a matter of public concern. 475 U.S. 767, 776-77 (1986). And, in Milkovich v. Lorain Journal Co., the Court said a statement on a matter of public concern must imply some factual assertion for state defamation law to impose liability. 497 U.S. 1, 19 (1990).
¶49 The Court, however, did not fully federalize the common law of defamation and libel-it stopped just short of doing so. In Dunn and Bradstreet, Inc. v. Greenmoss Builders, Inc., a three-justice plurality of the Court concluded that states "should not lightly be required to abandon" their "interest in compensating private individuals for injury to their reputation." 472 U.S. 749, 757 (1985). Because speech involving matters of private concern has "reduced constitutional value," the Court recognized that the state interest in ensuring effective defamation remedies "adequately supports awards of presumed and punitive damages -even absent a showing of 'actual malice.'" Id. at 761. Chief Justice Burger concurred in the judgment, agreeing that Gertz doesn't apply where the speech in question "relates to a matter of essentially private concern." Id. at 764 (Burger, C.J., concurring). And Justice White concurred in the judgment for two reasons: he thought Gertz should be overruled and the speech at issue did "not deal with a matter of public importance." Id. at 774 (White, J., concurring).
II.
¶50 Thus, New York Times v. Sullivan and its progeny have no application to private figures engaging in speech addressing only private matters. That being the case, plaintiff's complaint should have been analyzed under the ordinary pleading rules in civil cases and common law standards for defamation.
A.
¶51 Once the U.S. Supreme Court finished constitutionalizing the field of defamation, many questions remained for lower courts. One question was whether a judge or a jury interprets the statement at issue to determine whether it has defamatory meaning (versus merely stating an opinion or containing hyperbole). Another was whether the plaintiff is required to establish the statement is provably false or the defendant is required to show the statement is true.
¶52 Our supreme court addressed both questions in Yetman v. English. Yetman involved statements on a matter of public concern. The court explained that such statements must state or imply facts before liability can be imposed. 168 Ariz. at 76. The court acknowledged that "courts have tended to characterize the fact/opinion-hyperbole determination as one of constitutional law for the judge to decide and not for the jury." 168 Ariz. at 78. But the court rejected that bright-line rule. Instead, even where speech addresses a matter of public concern, the court reviews the statement only to determine whether, in all cases, the statement can or cannot be characterized as stating a fact. Id. at 78-79. If a statement is ambiguous or reasonable minds might differ on the fact versus opinion question, it is for the jury to determine whether an ordinary reader would have understood the statement as a factual assertion. Id. Because the statement at issue in Yetman "was simply one that had no bright line meaning and that . . . could reasonably be interpreted either way," whether the statement was a factual assertion was a jury question. Id. at 80.
¶53 The court also discussed when a plaintiff is required to show that a defamatory statement is provably false. The court explained that, when a statement addresses a matter of public concern, the U.S. Supreme Court has "shifted the burden of proof by requiring the plaintiff to prove falsity, thus ensuring that true but unprovable statements of fact would remain protected." Id. at 81. That is a departure from the common law, where "the defendant had the burden of proving the truth of a defamatory publication as an affirmative defense." Id. Thus, if a statement could not be proven untrue, "the defendant could not meet this burden, and liability would result." Id. Because the statement at issue in Yetman was about a matter of public concern, the plaintiff had the burden to show that the statement could be proven false, but the court concluded the plaintiff had met that burden. See id.
¶54 Our supreme court provided further guidance in Turner v. Devlin, 174 Ariz. 201 (1993). Turner, like Yetman, involved statements about a matter of public concern-alleged police misconduct. 174 Ariz. at 205. To determine whether the superior court correctly granted summary judgment to the defendant, the court analyzed whether the statements at issue were provably false. Id. at 206. Like in Yetman, the court explained that "[a]t common law the defendant has the burden of proving the truth of a defamatory publication as an affirmative defense." Id. The court acknowledged that the U.S. Supreme Court altered that rule in Hepps, "requiring the plaintiff to prove falsity," but only "in cases where damages are sought for speech of public concern." Id.
¶55 Most recently, in Rogers v. Mroz, our supreme court restated the common law rule that "[i]n an ordinary defamation action between private individuals, a speaker may be liable for damages if a falsehood is published that injures the plaintiff's reputation"-and that is all that's required. 252 Ariz. 335, 337 ¶ 12 (2022); see also Godbehere v. Phx. Newspapers, Inc., 162 Ariz. 335, 341 (1989). If there is any reasonable doubt about how recipients of a communication would have understood it, "it is for the jury to determine the meaning and construction of the alleged defamatory language." Rogers, 252 Ariz. at 337 ¶ 12 (quoting the Restatement (Second) of Torts § 563 cmt. e (Am. L. Inst. 1977)).
B.
¶56 So, in our view, here is how we should proceed when analyzing defamation claims. We start by asking whether the plaintiff is a public official or figure. If yes, heightened speech protections apply. See Harris v. Warner, 255 Ariz. 29, 32 ¶ 11 (2023). If no, we ask whether the statement at issue addresses a matter of public concern. If yes, the heightened speech protections and legal framework in Yetman apply, including that the statement must at least imply a factual assertion and the plaintiff must show it to be provably false. 168 Ariz. at 75-76. If no, then only common law rules regarding defamation apply. See Rogers, 252 Ariz. at 337 ¶ 12.
¶57 When only common law rules apply, a plaintiff must plead and prove that the defendant published a statement about the plaintiff that was false and impeached the plaintiff's honesty, integrity, virtue, or reputation. Godbehere, 162 Ariz. at 341. The plaintiff is not required to show the statement is provably false; rather, the defendant must assert and prove the statements were true, as an affirmative defense. Yetman, 168 Ariz. at 81; Turner, 174 Ariz. at 205 ("Because truth is an affirmative defense, the burden of proving falsity lies only on those plaintiffs who are defamed by speech that is a matter of public concern."). If the defendant can't do so, then the plaintiff can prevail. As the Court explained in Hepps, "under [a] rule placing the burden of showing truth on defendants, there [will] be some cases in which defendants [cannot] bear their burden despite the fact that the speech is in fact true." 475 U.S. at 776. In that situation, the plaintiff will succeed, "despite the fact that, in some abstract sense, those suits are unmeritorious." Id.
¶58 Moreover, at common law, even statements of opinion can be actionable, so long as the statement implies that it is based on undisclosed defamatory facts. Restatement (Second) of Torts § 566 (Am. L. Inst. 1977) ("Restatement"); Turner, 174 Ariz. at 206 (relying on Restatement § 566 cmt. c). Thus, if a defendant is alleged to have published a derogatory opinion without disclosing the underlying facts, the defendant can be held liable if the opinion "creates the reasonable inference" that the opinion is based on "the existence of unexpressed defamatory facts." Restatement § 566 cmt. c. The Restatement gives the following example: "A writes to B about his neighbor C: 'I think he must be an alcoholic.' A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion." Id. at illus. 3.
¶59 So, how should a defamation action brought by a private plaintiff and based on a statement addressing a matter of private concern be handled at the pleading stage? Like any other civil action. The pleading party is required to include "[a] short and plain statement of the claim showing that the pleader is entitled to relief." Ariz. R. Civ. P. 8(a)(2). If the defending party thinks the pleading party has fallen short of doing so, the defending party may file a motion to dismiss under Rule 12(b)(6). Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7 (2008). But we will only affirm a judgment dismissing a defamation claim if, after assuming the well-pled allegations in the pleading are true and indulging all reasonable inferences therefrom, the pleading does not state a valid claim for relief. See id.
¶60 If there is any doubt whether the statement at issue could be understood as defamatory (versus containing only pure opinion or hyperbole), a defamation claim should survive dismissal. See Rogers, 252 Ariz. at 337 ¶ 12. The plaintiff is not required to show the statement is provably false. See Yetman, 168 Ariz. at 81; Turner, 174 Ariz. at 205. Instead, because truth is an affirmative defense, see id., dismissing based on that defense is appropriate only if the facts establishing it appear in the complaint (or counterclaim). See Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, 514 ¶ 16 (2021) ("To raise an affirmative defense in a motion to dismiss, though, the facts to establish the defense must appear in the complaint."). And because a statement of opinion implying the existence of undisclosed facts can be actionable, we should affirm dismissal only when the complaint itself reveals all possible undisclosed facts and those facts cannot possibly be understood as having defamatory meaning. See Rogers, 252 Ariz. at 337 ¶ 12.
C.
¶61 In a series of cases, this court has strayed from the proper framework for analyzing defamation claims involving private plaintiffs and statements on matters of private concern. In each, the allegedly defamatory statement was made by a private figure and addressed a private matter, yet this court applied the heightened protections in Yetman.
¶62 The first to do so was Sign Here Petitions LLC v. Chavez, 243 Ariz. 99 (App. 2017). There, this court recognized that the defamation claim involved a "publication by a private figure on matters of private concern." Id. at 104 ¶ 15. But the court nonetheless discussed "the right to free speech" and applied the Yetman framework. Id. at 104-06 ¶¶ 11, 20-22. After performing its perceived role "as a gatekeeper, protecting the right to free speech," the court affirmed summary judgment for the defendant because the plaintiff "did not present evidence sufficient to establish a prima facie case of defamation with convincing clarity[.]" Id. at 105 ¶ 20, 107 ¶ 28.
¶63 Next came Takieh v. O'Meara, 252 Ariz. 51 (App. 2021). the plaintiff in Takieh was a private individual (a cardiologist) and the allegedly defamatory statements addressed matters of private concern (the plaintiff's intelligence and reputation in the medical community). Id. at 57 ¶¶ 14, 17 (acknowledging that the statements at issue were "about a private figure on a matter of private concern"). This court, however, applied the heightened protections in Yetman for statements addressing matters of public concern. See id. at 57 ¶¶ 15-16. And the court affirmed summary judgment in favor of the defendants because the plaintiff "lacked clear and convincing evidence" that the statements at issue "convey[ed] an objective fact[.]" See id. at 58 ¶¶ 19-20.
¶64 Lastly, in BLK III v. Shelton, this court considered whether noise complaints (a matter of private concern) against a company "operating a dining and entertainment business" (a private figure) were protected speech under A.R.S. § 12-752 (now A.R.S. § 12-751, which is better known as the anti-SLAPP statute). 252 Ariz. 583, 586 ¶ 2, 587 ¶¶ 10-11 (App. 2022). The court, however, did not acknowledge the private nature of the parties and the topic of the speech. Instead, the court applied the "gatekeeper" standard from Milkovich and Yetman-cases involving matters of public concern-and required the plaintiff to show that the defendants' statements were verifiably false. See id. at 588 ¶ 15. In so doing, the court said the plaintiff "bore the burden of alleging specific facts that, if true, proved that the Defendants' statements to the police and council members were defamatory and therefore not constitutionally protected," thereby applying a heightened pleading standard in a case involving a private plaintiff and matters of private concern. Id. at 589 ¶ 17 n.2.
¶65 We don't question the disposition in any of those three opinions. But applying the correct legal standards is particularly important in this area, when doing otherwise further displaces state common law with federal constitutional law. See Gertz, 418 U.S. at 381 (White, J., dissenting) ("Scant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel[.]"). Every new decision wrongly applying federal protections to ordinary state common law claims further erodes state sovereignty. In a future case where the plaintiff has properly raised the issue, we should correct course by making clear that only common law rules of defamation apply when the action involves a private-figure plaintiff and speech solely about a matter of private concern.
III.
¶66 That brings us to the allegations plaintiff made here. We agree with the majority decision that plaintiffs did not ask us or the superior court to deviate from Sign Here, Takieh, and BLK III, and thus we should not do so. We also agree that even applying the framework from those cases, plaintiff's allegations were sufficient to survive a motion to dismiss. But if plaintiff had asked us to apply the proper framework, we would've done so. And plaintiff's allegations, when considered with that framework in mind, are clearly sufficient to survive a motion to dismiss. We explain why.
A.
¶67 Again, to survive a motion to dismiss, plaintiff needed only to allege that defendant published false information that brought her "disrepute, contempt, or ridicule" or impeached her "honesty, integrity, virtue, or reputation." Godbehere, 162 Ariz. at 341. Plaintiff alleged that Barbara Jean Adelson ("defendant") sent an email to 65 different email addresses, including for the Los Angeles Times and Arizona Business Gazette and "individuals, companies, real estate agencies, law firms, churches, hospitals, and charities that are well-acquainted with [plaintiff] through . . . her charity work." In the email, defendant stated, "I was taken in by his and his wife Cheryl's apparent philanthropy, only to learn that it has strings attached and is only a 'pledge' that may never happen." Plaintiff alleged that statement was false and defamatory, and she included several allegations explaining why. She alleged, for example, that the statement falsely accused plaintiff of having a lack of fitness for charity. She alleged the statement falsely accused her of dishonesty when it comes to charitable giving. She alleged that "[n]othing about [her] 50 years of charitable work is merely 'apparent;'" instead, she "gives freely for the sole benefit of others with no expectation of remuneration for herself." She alleged that "[n]one of [her] charitable work has 'strings' attached." And she alleged that "[n]othing about her charitable work are mere 'pledge[s] that may never happen.'" Finally, she alleged that plaintiff's email "subjected [her] to hatred, contempt, ridicule, or obloquy, and lowered her reputation in the estimation of the business, public, and charitable communities."
¶68 Assuming the foregoing allegations are true, they state a claim for common law defamation. Plaintiff alleged defendant published false information that has subjected her to ridicule and impeached her honesty and integrity. The statements defendant made about plaintiff could be understood by a jury to convey at least the following defamatory facts: (1) plaintiff tricked defendant into believing plaintiff is charitable when she is not; (2) plaintiff has been dishonest about her charity; (3) plaintiff's charity is not genuine but, instead, has ulterior motives; (4) plaintiff is only charitable when she receives something in return; and (5) plaintiff falsely promises charity and then doesn't follow through. See Rogers, 252 Ariz. at 337 ¶ 12. While we think it's clear that defendant's statement conveyed, at a minimum, each of those five facts, whether it did so is certainly not free from doubt, so a jury should decide "the meaning and construction of the alleged defamatory language." See id. Finally, plaintiff was not required to establish in her complaint that defendant's statement is provably false. Defendant, instead, has the burden to prove that the statement was true (remember, truth is an affirmative defense). If defendant cannot do so, then plaintiff prevails. See Yetman, 168 Ariz. at 81; Turner, 174 Ariz. at 206. At the dismissal stage, though, all we need to decide is whether the truth of the facts conveyed is apparent on the face of the complaint. See Shepherd, 250 Ariz. at 514 ¶ 16. That clearly is not the case. Using the common law framework, therefore, we would vacate the judgment of dismissal as to plaintiff's defamation claims, at least in part.
We say "in part" because we also agree that, under any framework, plaintiff has not stated a claim for defamation based on statements defendant made about plaintiff's husband.
B.
¶69 Defendant argues that statements such as "apparent philanthropy" and "strings attached" are loose terms for which there are no objective criteria by which to measure their falsity. Again, under the common law, plaintiff does not have the burden to show falsity. See supra ¶ 53. But even if she did, those statements imply facts that can be measured with objective criteria-for example, plaintiff's philanthropy is false. Maj. Dec. ¶ 26. At the very least, those statements "create[] the reasonable inference" that they are based on "the existence of unexpressed defamatory facts." Restatement § 566 cmt. c. Much like the illustration in the Restatement about accusing a neighbor of being an alcoholic, defendant's statement "implied that [she] knew undisclosed facts [about plaintiff's philanthropy] that would justify" the statements. See id. illus. 3; see also Milkovich, 497 U.S. at 18-19 (explaining that the statement, "In my opinion John Jones is a liar" can be actionable because "[e] ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact."). Plaintiff should be able to suss out what facts, if any, defendant based her statements on, and she should be able to inquire whether those facts were incorrect or incomplete or whether defendant's assessment of them was erroneous.
¶70 Defendant also asserts defendant's description of plaintiff's philanthropy as "only a 'pledge' that may never happen" is speculation about future events that cannot be proven false. The problem with that argument is that the statement could be viewed as defendant talking about plaintiff's past philanthropy (or the statement could reasonably be interpreted that way). In other words, the statement is backward looking. Thus, the statement can be proven false with evidence showing that plaintiff didn't just make pledges of charity, but that she followed through and donated on multiple occasions. The statement also implies that defendant knew facts about plaintiff's past philanthropy (e.g., she knew plaintiff made enough empty pledges in the past to be unreliable when it comes to giving). See Restatement § 566 cmt. c. We cannot know at this juncture what evidence exists about plaintiff's reliability when it comes to giving or what facts defendant knew that prompted her statement, but both of those unknowns are beside the point when we are reviewing a dismissal under Rule 12(b)(6). The parties should be permitted to try to fill the gaps during discovery, and the trial court can reassess if one or more of them moves for summary judgment.
IV.
¶71 We need not apply Newton's First Law of Motion to legal precedent-erroneous precedent once in motion need not stay in motion. See White v. Bateman, 89 Ariz. 110, 113 (1961); Gamble v. United States, 587 U.S. 678, 718 (2019) (Thomas, J., concurring) ("When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it."). Thus, when properly raised, this court should set things right in this area of law by making clear that only common law rules apply when a private-figure plaintiff brings a defamation claim based on speech addressing only matters of private concern. Ultimately, however, we agree with the majority decision that plaintiff did enough under existing caselaw to survive a motion to dismiss, and therefore we join the majority decision in full.