Sobol v. McAlister

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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 DIVISION ONE FILED: 11-30-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ALLAN SOBOL, a single man, Plaintiff/Appellant, v. ROY E. MCALISTER, and KATHLEEN MCALISTER, husband and wife; and AMERICAN HYDROGEN ASSOCIATION, an Arizona Corporation, Defendants/Appellees. ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CV 09-0773 DEPARTMENT A MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CV2008-052199 The Honorable Brian R. Hauser, Judge AFFIRMED Allan Sobol Appellant, In Propria Persona B A R K E R, Judge Scottsdale ¶1 Allan Sobol ( Sobol ) appeals from the superior court order granting a motion to dismiss his complaint. 1 that the reports absolute by immunity putative crime from civil victims set liability out in He argues for police Ledvina v. Cerasani, 213 Ariz. 569, 146 P.3d 70 (App. 2006), was improperly applied to dismiss his defamation claim. We disagree, and for the reasons set forth below, affirm. Facts and Procedural History ¶2 In reviewing motions to dismiss for failure to state a claim, we assume that the allegations in the complaint are true and determine if the plaintiff is entitled to relief under any theory of law. Sensing v. Harris, 217 Ariz. 261, 262, ¶ 2, 172 P.3d 856, 857 (App. 2007). The facts set out by Sobol s complaint are as follows. ¶3 Sobol operates Consiglieri Legal Support Services, a referral service that provides access to private investigators, legal research, legal secretaries, and other support services. On March 24, 2008, Roy McAlister ( McAlister ), responding to an offer for a free consultation, met with Sobol at his office. McAlister was interested in retaining 1 Sobol to review and No answering brief was filed. Although we may regard [the] failure to respond as a confession of reversible error, we are not required to do so; and we do not do so here. Gonzales v. Gonzales, 134 Ariz. 437, 437, 657 P.2d 425, 425 (App. 1982). 2 organize files from a civil action and to assist typing documents for a civil appeal. ¶4 On office services. 25, signed and March a 2008, McAlister retainer returned agreement to Sobol s securing Sobol s As payment, McAlister presented Sobol with a check that listed Sobol as the payee but was signed by a third party. Sobol accepted the check and cashed it that day. delivered case files to Sobol. McAlister then The next day, McAlister called Sobol and requested he stop working on the case. McAlister sought a refund of the retainer amount, but Sobol told him the check was exhausted a retainer of his by working services, several which hours McAlister s on he had already case, and could not be refunded. ¶5 McAlister filed a report with the Phoenix Police Department alleging that Sobol had cashed the third-party check after altering it to state his name as the payee. On May 29, 2008, police officers arrived at Sobol s office with a criminal arrest warrant in connection with charges of theft and forgery; they arrested Sobol, placed him in handcuffs, and transported him to jail. Later that evening, after an initial appearance, Sobol was released on his own recognizance and ordered to appear on June 12, 2008, for a status conference. for the status conference he was informed underlying his arrest had been scratched. 3 When Sobol arrived that the charges ¶6 Sobol filed a civil action against McAlister, among others, 2 alleging intentional infliction of emotional distress, libel, and misrepresentation. In response, McAlister filed a motion to dismiss arguing that the entire action is premised on a police report and that [u]nder Arizona law, Defendants are absolutely immune from suit for filing a police report. The court the granted McAlister s motion to dismiss as all of defendants conduct complained of in the complaint is protected by absolute immunity, and ultimately counterclaims filed in the action. we have jurisdiction pursuant to disposed of all Sobol timely appealed, and Arizona Revised Statutes ( A.R.S. ) section 12-2101(B) (2003). Discussion ¶7 On improperly appeal, relied on Sobol contends Ledvina because that only the trial court putative crime victims in Arizona are entitled to absolute immunity when they complain to police. Ledvina, 213 Ariz. at 574, ¶ 14, 146 P.3d at to 75. 2 Attempting read Ledvina The narrowly, Sobol argues parties listed in the original complaint were Sobol as Plaintiff, Roy McAlister, Kathleen McAlister (McAlister s wife), and American Hydrogen Association (asserted to be a corporation controlled by McAlister that caused the alleged events to occur) as Defendants. The motion to dismiss was filed and granted as to all Defendants. Our analysis is identical as to each. Accordingly, we simply refer to McAlister throughout. 4 McAlister should not receive the protection of absolute immunity because, with the charges against Sobol scratched, McAlister is not a victim. ¶8 We do not agree with Sobol s interpretation. In Ledvina, a neighbor filed a police report against Ledvina alleging that Ledvina had neighbor s recreational vehicle. 71. The prosecutor slashed the tires of the Id. at 570, ¶ 2, 146 P.3d at subsequently filed charges for criminal damages against Ledvina. Id. Ledvina then sued the reporting neighbor for defamation. Id. Prior to the criminal trial, the prosecutor dismissed the criminal charges against Ledvina due to insufficient evidence. Id. In the underlying defamation action, the reporting neighbor moved for summary judgment on the sole ground that absolutely privileged. ¶9 On encouraging appeal, free and [his] Id. we complaint to the police was the policy of communications applied to The trial court agreed. determined unhindered that communications to law enforcement authorities in the same way it applied to complainants alleging unethical Arizona Board of Legal Document Preparers. conduct to the Id. at 572, ¶ 9, 146 P.3d at 73 (referencing Sobol v. Alarcon, 212 Ariz. 315, 318, ¶ 15, 131 P.3d 487, 490 (App. 2006)). We found no reason why a person who reports a crime to police should be afforded any less protection than a person reporting ethical attorney or a licensed document preparer. 5 misconduct Id. by an Based on this rationale, we conclude[d] putative crime victims in Arizona are entitled to absolute immunity when they complain to police. Id. at 574, reporting ¶ 14, a 146 crime, P.3d at 75. complain[ed] McAlister, to police. as a person Additionally, A.R.S. § 13-4402 provides that victims rights arise on the arrest . . . of the person or persons who are alleged to be responsible for a criminal offense against a victim. As such, McAlister was a putative victim entitled to absolute immunity from civil liability. ¶10 Sobol also argues that granting absolute immunity to McAlister s report would contradict A.R.S. § 13-2907.01 (2010). the policy furthered by That section provides that a person who knowingly makes a false, fraudulent, or unfounded report to a law enforcement agency is guilty of a class one misdemeanor. There is no conflict between § 13-2907.01 and our holding in Ledvina. As we discussed in Ledvina, § 13-2907.01 acts as a safeguard[] for the subjects of malicious accusations, and [a] disincentive[] for making scurrilous 213 Ariz. at 575, ¶ 15, 146 P.3d at 76. allegations to police. Although putative crime victims are immune from civil liability, they are still subject to criminal prosecution if they knowingly make . . . a false, fraudulent or unfounded report to a law enforcement agency. A.R.S. § 13-2907.01(a). if a crime victim takes Additionally, as we noted in Ledvina, affirmative 6 steps to file a civil action, he could also face civil liability for abuse of process and malicious prosecution. Id.; see also Sierra Madre Dev. Inc. v. Via Entrada Townhouses Ass n, 20 Ariz. App. 550, 554, 514 P.2d 503, 507 (1973) (stating that absolute privilege for defamatory statements in judicial pleadings is not intended to affect the validity of any claim for relief based upon malicious prosecution or abuse of process ). Thus, the court did not err in granting summary judgment. Conclusion ¶11 Because determine absolute that the court McAlister s immunity, we correctly police affirm the relied report court s on was Ledvina to entitled to order granting McAlister s motion to dismiss. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ DONN KESSLER, Presiding Judge /s/ ___________________________________ JON W. THOMPSON, Judge 7

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