Houston v. Penzone

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

BRIAN HOUSTON, Plaintiff/Appellant,

v.

PAUL PENZONE, et al., Defendants/Appellees.

No. 1 CA-CV 25-0511
FILED 6-25-2026

Appeal from the Superior Court in Maricopa County
No. CV2023-051342
The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Andrew Ivchenko, PLLC, Chandler
By Andrew Ivchenko
Co-Counsel for Plaintiff/Appellant

Milberg Coleman Bryson Phillips Grossman, PLLC, Beverly Hills, CA
By Alex R. Straus
Co-Counsel for Plaintiff/Appellant

Milberg Coleman Bryson Phillips Grossman, PLLC, Knoxville, TN
By William A. Ladnier
Co-Counsel for Plaintiff/Appellant

Kozub Kloberdanz, Scottsdale
By Daniel L. Kloberdanz
Co-Counsel for Plaintiff/Appellant
Broening Oberg Woods & Wilson, P.C., Phoenix
By Sarah L. Barnes, Roshin Bhangoo
Counsel for Defendants/Appellees

OPINION

Judge D. Andrew Gaona delivered the opinion of the Court, in which
Presiding Judge David B. Gass and Judge Anni Hill Foster joined.

G A O N A, Judge:

¶1 Heads up: if the Maricopa County Sheriff’s Office booked you
into jail before September 9, 2024, it probably posted your mugshot,
birthdate, and other personal information on its website without explaining
in that public post that you hadn’t been convicted of a crime and were
presumed innocent. Plaintiff Brian Houston was one of thousands affected
by this longstanding policy. After prosecutors dropped the charges that led
to Houston’s booking, he filed a putative class action against the Sheriff
seeking damages. Before taking any discovery, Houston moved to certify a
class on one tort claim—false light, as recognized in Godbehere v. Phoenix
Newspapers, Inc., 162 Ariz. 335 (1989), and Restatement (Second) of Torts
§ 652E (1977) (“Section 652E”). The superior court denied his motion.

¶2 Houston appeals that denial, which turned on a
determination that false light requires a “case-by-case” analysis of each
putative class member’s claim. Houston says the superior court abused its
discretion because all putative class members suffered the same
reputational injury “at the moment [the Sheriff] published their mugshots
and personal information” online. As Houston’s argument goes, this means
all class members’ claims turn on an “objective standard” that can be
satisfied on a class-wide basis.

¶3 We disagree. Under Section 652E, cmt. c, a false light claim
requires the defendant to make “a major misrepresentation of [plaintiff’s]
character, history, activities or beliefs” such that “serious offense may
reasonably be expected to be taken by a reasonable [person] in [plaintiff’s]
position.” Because proving this element of false light requires plaintiff-
specific facts, the superior court correctly denied Houston’s motion to
certify a class. We affirm.

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FACTS AND PROCEDURAL HISTORY

¶4 In January 2022, Phoenix Police arrested Houston, charged
him with assault, and transferred him to the Sheriff’s custody. The Sheriff
booked Houston into jail and published Houston’s booking photograph,
birthdate, and other personal information on its website titled “Mugshot
Lookup” for about three days. During that time, a third-party “scraped”
Houston’s mugshot and personal information from the Sheriff’s website
and republished it. According to the complaint, that information is now
“memorialized on the internet for all time.” The Sheriff’s website did not
include a disclaimer saying Houston hadn’t been convicted or was
presumed innocent. After Houston’s information appeared on the
“Mugshot Lookup” page, prosecutors dismissed the charges against him.

¶5 Houston then filed a class action complaint in the United
States District Court for the District of Arizona against the Sheriff (and
others) asserting federal and state-law claims. The district court dismissed
Houston’s federal claims and declined to exercise supplemental jurisdiction
over his state-law claims. Houston appealed, and the United States Court
of Appeals for the Ninth Circuit reversed in part. Houston v. Maricopa Cnty.,
116 F.4th 935, 939, 947 (9th Cir. 2024). After that reversal, the Sheriff added
a disclaimer to the “Mugshot Lookup” page.

¶6 Houston also filed this class action in Arizona Superior Court,
asserting claims for: (1) “invasion of privacy and false light and violation of
Arizona’s public records laws”; (2) violation of the Arizona Mugshot Act
(A.R.S. §§ 44-7901 to -7902); and (3) violation of the Arizona Constitution,
article 2, § 8. The superior court granted the Sheriff’s motion to dismiss
Houston’s public records and Arizona Mugshot Act claims. The parties
agreed to stay the state constitutional claim pending the federal appeal’s
outcome.

¶7 Before the Sheriff answered, and before seeking discovery,
Houston moved to certify a class on the false light claim. The motion
defined the proposed class as individuals who “were arrested and booked
into the Maricopa County jail system between September 24, 2021, and
September 9, 2024,” and whose “booking photograph and other personal
identifying information [were] digitally published by the Sheriff on the
Mugshot Lookup page.”

¶8 The superior court denied the motion, finding Houston didn’t
satisfy the commonality and typicality requirements of Arizona Rule of
Civil Procedure (“Rule”) 23(a)(2) and (a)(3). It also found that Houston
didn’t establish at least one of Rule 23(b)’s requirements addressing the

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types of class actions that plaintiffs can maintain. The superior court
explained that “whether the publication of each putative Class member’s
mugshot and private information cast that Class member in a false light and
caused injury must be evaluated on a case-by-case basis depending on each
Class member’s individual circumstances.”

¶9 Houston timely appealed that decision. We have jurisdiction
under A.R.S. §§ 12-1873(A) and -2101(A).

DISCUSSION

¶10 Because cases arising under Rule 23 are rare, we begin with
the basics.

¶11 In seeking class certification, Houston had to show that he
“meet[s] all the requirements of Rule 23(a) and at least one of the
requirements of Rule 23(b).” Ferrara v. 21st Century N. Am. Ins., 245 Ariz.
377, 380 ¶ 6 (App. 2018). Rule 23(a) requires the plaintiff to prove:

(1) the class is so numerous that joinder of all members is
impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately
protect the interests of the class.

These requirements “effectively limit the class claims to those fairly
encompassed by the named plaintiff’s claims.” Ferrara, 245 Ariz. at 380 ¶ 7
(citation omitted).

¶12 As for Rule 23(b), Houston sought certification under Rule
23(b)(1) and (b)(3), which required him to show that either:

(1) prosecuting separate actions by or against individual class
members would create a risk of:

(A) inconsistent or varying adjudications with respect
to individual class members that would establish
incompatible standards of conduct for the party
opposing the class; or

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(B) adjudications with respect to individual class
members that, as a practical matter, would be
dispositive of the interests of the other members not
parties to the individual adjudications or would
substantially impair or impede the other members’
ability to protect their interests; [or]

...

(3) . . . questions of law or fact common to class members
predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the
controversy.1

Rule 23(b)(1) authorizes class actions when allowing separate lawsuits
would either force the party opposing the class to comply with
contradictory court orders or prejudice the interests or rights of non-party
class members. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).2 For
its part, Rule 23(b)(3) permits class certification when aggregate
adjudication is “convenient and desirable.” Id. at 615.

¶13 Class certification “is proper only if the trial court is satisfied,
after a rigorous analysis, that the prerequisites of Rule 23(a) have been
satisfied.” Ferrara, 245 Ariz. at 380 ¶ 6 (citation omitted). We review a trial
court’s decision on whether to certify a class for abuse of discretion, Godbey
v. Roosevelt Sch. Dist., 131 Ariz. 13, 16 (App. 1981), but review any
“underlying legal questions” de novo, Noohi v. Johnson & Johnson Consumer
Inc., 146 F.4th 854, 863 (9th Cir. 2025).

¶14 On appeal, Houston contends the superior court erred by: (1)
applying incorrect legal standards to his false light claim; (2) finding that
he didn’t meet Rule 23(a)’s commonality and typicality requirements and

1 Though not invoked by Houston, Rule 23(b)(2) provides the third
potential avenue: “the party opposing the class has acted or refused to act
on grounds that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate for the class as a whole.”

2 “Because Rule 23 is identical to Rule 23 of the Federal Rules of Civil
Procedure, we view federal cases construing the federal rule as
authoritative.” ESI Ergonomic Sols., LLC v. United Artists Theatre Cir., Inc.,
203 Ariz. 94, 98 n.2 (App. 2002).

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that class certification wasn’t proper under Rule 23(b)(1) or (b)(3); and (3)
denying him discovery. We address each in turn.

I. False Light Claims Require Plaintiff-Specific Facts.

¶15 Houston first argues the superior court erred in interpreting
the false light tort’s elements, which he says are all “objective” and thus
“susceptible to classwide proof.”

¶16 In Godbehere, our Supreme Court first recognized the false
light tort “as articulated by Restatement § 652E.” 162 Ariz. at 342. Under
Section 652E:

One who gives publicity to a matter concerning another that
places the other before the public in a false light is subject to
liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be
highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard
as to the falsity of the publicized matter and the false light in
which the other would be placed.

Houston focuses on the first element, pointing to Godbehere‘s statement that
in determining what is “highly offensive,” a “plaintiff’s subjective
threshold of sensibility is not the measure, and ‘trivial indignities’ are not
actionable.” 162 Ariz. at 340. This, Houston contends, means it’s possible to
prove class-wide liability based on an objective standard. His view is that a
fact finder applying a “reasonable person” standard could find the Sheriff’s
actions “highly offensive” without regard to any individual’s
circumstances “because all suffered the false light tortious injury the very
moment” of posting.

¶17 True, the “reasonable person” standard is objective. But the
mere fact that a tort claim involves an objective standard doesn’t render it
automatically suitable for class-action treatment. The elements, and how
plaintiffs prove them, matter. And proving one element of false light
requires that a defendant published something that was “a major
misrepresentation of [plaintiff’s] character, history, activities or beliefs,”
such that “serious offense may reasonably be expected to be taken by a
reasonable [person] in [plaintiff’s] position.” Section 652E, cmt. c (emphases
added); see also Godbehere, 162 Ariz. at 341 (citing this comment when
recognizing the false light tort). Plaintiff-specific facts are required to show:
(1) that a defendant published “a major misrepresentation”; and (2) the

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relevant “reasonable person” to allow the fact finder to determine whether
that major misrepresentation caused “serious offense.”

¶18 As to the required “major misrepresentation,” it’s not difficult
to see why individualized facts are relevant. See, e.g., Pinder v. 4716 Inc., 494
F. Supp. 3d 618, 629 (D. Ariz. 2020) (district court couldn’t decide “major
misrepresentation” element because a fact finder could find either way). On
the facts alleged here, take the examples of three people booked into jail on
the same night for alleged assault and whose mugshots appear on the
Sheriff’s website without a disclaimer of presumed innocence:

• One has no previous criminal record, a leadership position on a
parent-teacher association, and no history of violence.

• The second has several prior convictions for non-violent crimes, is a
black belt in taekwondo, and serves on the board of a prominent
community organization.

• The third has prior assault convictions, a reputation in the
community for violence, and an order of protection against them
obtained by an ex-spouse.

Whether the Sheriff’s publication of their mugshots and personal
information without a disclaimer constitutes a “major misrepresentation”
of each person’s “character, history, activities or beliefs” could differ
between these three hypothetical plaintiffs. And that’s before even
considering the validity of their arrests or the disposition of the charges
after arrest.

¶19 A plaintiff-specific notion of the “reasonable person” in the
context of a false light claim is also nothing new under Arizona law.
Consider Canas v. Bay Entertainment, LLC, 252 Ariz. 117 (App. 2021). There,
we reversed the superior court’s grant of judgment on the pleadings for the
defendant on a false light claim brought by “professional models who
‘actively participate[ ] in vetting and selecting modeling, acting, brand
spokesperson, or hosting engagements.’” Id. at 122 ¶ 24. Plaintiffs alleged
the defendant posted their pictures on its social media pages and thus
falsely implied they endorsed defendant’s nightclub. Id. The superior court
found that nothing about this implication would be “highly offensive to a
reasonable person.” Id. at 122 ¶ 22. We reversed because “[i]t is possible that
the finder of fact will determine [it] is highly offensive to a reasonable
person in Appellants’ positions—models and influencers who regularly pose
for such photographs.” Id. at 122 ¶ 25 (emphasis added). The “reasonable
person” standard for a false light claim thus remains objective, but defining

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the relevant “reasonable person” requires the fact finder to consider the
plaintiff’s circumstances before applying the objective standard.

¶20 Considering the false light tort’s elements, the superior court
did not, as Houston posits, misapply any legal standards when evaluating
the only substantive legal claim underlying his certification motion.

II. The Superior Court Correctly Applied Rule 23.

¶21 Houston next maintains the superior court erred when it
found he failed to satisfy Rule 23(a)(2) and (a)(3)’s commonality and
typicality requirements and met none of Rule 23(b)’s requirements.

¶22 “We have said that commonality requires simply that there
exist questions of law or fact common to the class,” but it also “requires the
plaintiff to demonstrate that the class members have suffered the same
injury.” Ferrara, 245 Ariz. at 380–81 ¶ 10 (cleaned up). On the other hand,
“[t]ypicality is said to limit the class claims to those fairly encompassed by
the named plaintiff’s claims.” Id. at 381 ¶ 10 (cleaned up). These two
requirements “tend to merge,” and as relevant here, “serve as guideposts
for determining whether . . . the named plaintiff’s claim and the class claims
are so interrelated that the interests of the class members will be fairly and
adequately protected in their absence.” Id. at 380 ¶ 9 (cleaned up).

¶23 The superior court found that Houston failed to show
commonality and typicality based mainly on its analysis of the false light
claim’s elements. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)
(Rule 23(a) analysis may “entail some overlap with the merits of the
plaintiff’s underlying claim.”). As the superior court summarized, “each
putative Class member’s false light claim is highly personalized.”

¶24 Given our analysis in Paragraphs 14 through 19, we agree.
Houston failed to prove commonality or typicality because he can’t prove
the Sheriff’s publication put any other person in an actionable “false light,”
let alone that all “class members have suffered the same injury” (or any
injury at all). Ferrara, 245 Ariz. at 380–81 ¶ 10 (cleaned up). As applied,
commonality and typicality under Rule 23(a) require much more than the
mere fact that the Sheriff published the mugshots and personal information
of all putative class members on the “Mugshot Lookup” website.

¶25 The two cases Houston discusses to dispute the superior
court’s findings under Rule 23(a) do not suggest otherwise. Those cases
challenged the constitutional and statutory adequacy of government-run
health care systems that served defined groups of people who were all

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exposed to potential harm, and in which the plaintiffs sought only
injunctive relief. See Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) (class action
challenging the constitutionality of the state’s provision of health care in
prisons); Arnold v. Arizona Dep’t of Health Servs., 160 Ariz. 593 (1989) (class
action to compel government defendants to comply with statutory
mandates to provide services to mental health patients). Houston, in
contrast, brings a tort claim, seeks only monetary relief, and purports to
bring claims on behalf of individuals who may not have suffered any harm
at all. Parsons and Arnold thus fail to bridge the gap.

¶26 Our conclusion aligns, at least as to typicality, with the sole
putative class action involving false light claims that either the parties or
our research identified. See Taig v. Currey, No. 9:21-CV-80391-RLR, 2022 WL
18539319 (S.D. Fla. June 28, 2022). In Taig, the plaintiff sought to certify a
class of 100 individuals whose identities and pictures became public after a
police surveillance operation at a massage parlor (East Spa) suspected of
prostitution. Id. at *1. Taig concluded the plaintiff couldn’t satisfy Rule
23(a)’s typicality requirement because, among other things, “[t]he nature of
the claims asserted requires [the plaintiff] to put on evidence that is specific
to him and to him alone.” Id. at *5. As Taig further noted, “[s]ure, every
member of the class . . . went to East Spa in the relevant time span and
alleges [their] Fourth Amendment rights were violated [by the same
publicity]. [The plaintiff] is thus representative of the class to that extent.
But that’s where the common thread ends.” Id.

¶27 So too here. Because the superior court correctly found
Houston failed to satisfy Rule 23(a), we need not review its separate
determinations under Rule 23(b). See Ferrara, 245 Ariz. at 380 ¶ 6 (class
action proponent must prove they “meet all the requirements of Rule 23(a)
and at least one of the requirements of Rule 23(b)”). At bottom, Houston
failed to carry his burden under Rule 23.

III. Houston’s Discovery Request Was Both Late and Futile.

¶28 Finally, Houston asserts the superior court erred by denying
his certification motion without allowing him “fulsome discovery,” and
that the superior court couldn’t have made “an informed class certification
determination” without a record he wasn’t “permitted” to make.

¶29 To start, Houston filed his certification motion before seeking
any discovery. Houston could have used all the discovery tools under the
Rules of Civil Procedure before filing that motion but chose not to. He said
nothing about discovery until his reply in superior court, and in a footnote
at that. An issue first raised in a reply is generally waived, and we’d thus

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be within our discretion to consider Houston’s discovery argument waived
on appeal because he didn’t properly raise it below. See Westin Tucson Hotel
Co. v. State Dep’t of Revenue, 188 Ariz. 360, 364 (App. 1997) (issue raised for
the first time in a reply supporting a motion for summary judgment is
waived on appeal).

¶30 Waiver aside, Houston’s discovery argument fails because it’s
futile. No discovery could solve the fundamental problem identified above:
that proving an element of false light requires at least some plaintiff-specific
facts, which makes it unsuitable for class treatment. The superior court thus
didn’t err when it denied Houston’s class certification motion without first
permitting him to conduct discovery.

CONCLUSION

¶31 We affirm and award the Sheriff his costs on appeal under
A.R.S. § 12-341 subject to compliance with Arizona Rule of Civil Appellate
Procedure 21(b). And we emphasize that our opinion today doesn’t decide
whether Houston or any other person has a viable claim against the Sheriff.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JT

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