Riedel v. Fuentes

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

NIEVES G. RIEDEL, Plaintiff/Appellant-Cross Appellee,

v.

GUILLERMINA FUENTES, Defendant/Appellee-Cross Appellant.

No. 1 CA-CV 18-0171
FILED 3-14-2019

Appeal from the Superior Court in Yuma County
No. S1400CV201700357
The Honorable Levi Gunderson, Judge Pro Tempore

AFFIRMED

COUNSEL

Garcia & Villarreal, P.L.C., Yuma
By Arturo I. Villarreal, Araceli Rodriguez
Counsel for Plaintiff/Appellant-Cross Appellee

Richardson & Richardson, P.C., Mesa
By William R. Richardson
Counsel for Defendant/Appellee-Cross Appellant
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MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Jon W. Thompson and Vice Chief Judge Peter B. Swann joined.

M O R S E, Judge:

¶1 Nieves Riedel appeals from the judgment of the superior
court following the dismissal of her defamation action against Guillermina
Fuentes. The superior court dismissed the action under Arizona Revised
Statutes ("A.R.S.") section 12-752 after finding that Fuentes' allegedly
defamatory statements were made in the exercise of the right of petition.
Because we hold that Fuentes' statements were made in connection with an
issue under consideration or review by a government body, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 This case involves statements concerning Riedel that Fuentes
made at two city council meetings. Riedel, through her entities, owns a
development company that sought approval to develop a property in San
Luis. The San Luis City Council held a meeting at which, among other
things, it decided to approve the proposed development. Then, during the
"call to the public" portion of the council meeting, Fuentes spoke, and said
that she had "two things" that she wanted to address. One was her concern
that a councilmember had a conflict of interest regarding Riedel's
development company. She asked if the alleged conflict could be
investigated by the city's attorney. The other was her request that the
government take some action to protect her from Riedel. Fuentes explained
that she felt that she could not seek a restraining order against Riedel
because the local courts "have a big conflict" and accused Riedel of doing
various things that made her feel unsafe. Fuentes concluded her remarks
with a request for the City Council to "take care of this matter because the
court will not take it; and on the other matter for the attorney, to please
investigate the conflict of interest."

¶3 Immediately after Fuentes spoke, Riedel addressed the City
Council, thanked various people for their participation in the development,
and assured the City Council members that they will "be very proud of
having approved this subdivision." Riedel also "promise[d]" the City

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Council that she would return "within a month" and "present another
property that is going to be 160 lots."

¶4 A month later, the City Council met again. At this meeting,
the formal agenda did not include any matters involving Riedel's
development company, but had two agenda items involving the
"evaluation of performance" and "possible action . . . on any and all matters
relating to the position of Chief of Police." Fuentes again appeared and,
during the call to the public portion of the meeting, made a lengthy
statement about her recent interactions with police officers, claimed that
officers were not following departmental "protocol," and asserted that the
police were essentially harassing her at the behest of Riedel. Fuentes asked
the City Council to stop the police from harassing her because she had
enough of Riedel. When discussing her issues with Riedel, Fuentes made
comments on Riedel's mental and physical health. Fuentes then discussed
"the second matter," which was the same conflict-of-interest complaint she
had voiced earlier, and concluded by pointing to the prior council votes that
she alleged to have been tainted by a conflict of interest involving Riedel
and a councilmember and described her comments as "a formal complaint
of a conflict of interest."

¶5 Riedel then brought this action against Fuentes, alleging that
the statements Fuentes made about her at the City Council meetings were
false and defamatory. Fuentes answered the complaint, and then moved to
dismiss under A.R.S. § 12-752. The superior court granted Fuentes' motion
to dismiss, finding, among other things, that her speech constituted an
"exercise of the right of petition."

¶6 The superior court entered final judgment and also awarded
attorney fees to Fuentes. Riedel timely appealed, and Fuentes cross-
appealed on the issue of attorney fees. We have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

I. Motion to Dismiss

¶7 We review the grant of a motion to dismiss for abuse of
discretion, but review issues of statutory interpretation de novo. Dressler v.
Morrison, 212 Ariz. 279, 281, ¶ 11 (2006).

¶8 Arizona's anti-SLAPP (Strategic Lawsuit Against Public
Participation) statute creates a special procedure for a defendant to file a
motion to dismiss an action that involves the "exercise of the right of

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petition." A.R.S. § 12-752. The statute does not grant immunity for acts
involved in the "exercise of the right of petition," but creates a procedural
mechanism for the expedited review of motions to dismiss, and provides
for dismissal unless the non-movant shows that the "exercise of the right of
petition did not contain any reasonable factual support or any arguable
basis in law and that the moving party's acts caused actual compensable
injury . . . ." A.R.S. § 12-752(A), (B), and (E)(3).

¶9 The superior court found that Fuentes' statements were made
during the exercise of her right to petition. Further, the court found that
Riedel had not met her burden of showing that there was no reasonable
factual support or basis in the law for the statements, nor had she shown
that Fuentes' acts caused compensable injury. On appeal, Riedel only
challenges the finding that the statements involved the exercise of the right
of petition.

¶10 "Exercise of the right of petition" is defined, in relevant part,
as,

any written or oral statement that falls within the
constitutional protection of free speech and . . . that is all of
the following:

(a) Made before or submitted to a legislative or executive
body or any other governmental proceeding.

(b) Made in connection with an issue that is under
consideration or review by a legislative or executive body or
any other governmental proceeding.

(c) Made for the purpose of influencing a governmental
action, decision or result.

A.R.S. § 12-751. When interpreting a statute, we first look to its plain text,
and only engage in secondary methods of statutory interpretation if the text
is ambiguous or unclear. State v. Burbey, 243 Ariz. 145, 147, ¶ 7 (2017).

¶11 Riedel's sole argument in her opening brief is that Fuentes'
statements did not fall within the subsection (b) of the definition because

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they were not "made in connection with an issue under consideration or
review by the San Luis City Council."1 We disagree.

¶12 Fuentes twice stood and made statements about Riedel. The
superior court found that "[w]hen [Fuentes] spoke about . . . Riedel
personally, she was speaking about the person who was listed in the
Resolution as the owner of the land being developed." At the first meeting,
the City Council debated and approved a project involving Riedel's
development company. Riedel argues that because Fuentes' comments
were about her personally, and she was not on the agenda as an individual,
the comments were not directed toward a subject under consideration by
the City Council. This splits too fine a hair. An issue is "under
consideration or review" if it is subject to reflection, inspection, or
examination by the governmental body. See Maranatha Corrections, LLC v.
Dep't of Corr. & Rehab., 158 Cal. App. 4th 1075, 1085 (2008). And the
ownership of the company involved in a proposed development is a matter
for reflection, inspection, and examination by a city council in evaluating
the development proposal. Thus, in the first meeting, Riedel, via her
involvement with the development, was under consideration by the City
Council. Riedel was the proponent of the development, she spoke during
the same meeting to thank the City Council, and her company stood to
benefit from the approval. Fuentes stated she had two matters to discuss,
began her statements by complaining of an alleged conflict of interest
between the development company (owned by Riedel) and a council
member, and then voiced her concerns with Riedel's alleged behavior
toward her. In this context, the superior court did not abuse its discretion
in determining that Fuentes' statements about Riedel were made in
connection with the City Council's consideration of the development
project sought by Riedel's company.

¶13 The superior court did not clearly analyze or distinguish
between Fuentes' statements at the first and second meeting. The second
City Council meeting presents a different situation because neither Riedel
nor a development involving Riedel's company were on the agenda.2

1 While Riedel argues in her reply brief that Fuentes does not meet the
requirements of subsection (c), she failed to raise this argument in her
opening brief, and for that reason we will not consider it. See Dawson v.
Withycombe, 216 Ariz. 84, 111, ¶ 91 (App. 2007).
2 Fuentes argues that "an invitation to the public to appear and express
their concerns and frustrations, by definition, makes the citizen complaint[]
an issue under consideration." The statutory language does not support

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However, we must "affirm the trial court's decision if it is correct for any
reason, even if that reason was not considered by the trial court." Glaze v.
Marcus, 151 Ariz. 538, 540 (App. 1986) (citing Cross v. Cross, 94 Ariz. 28, 31
(1963)). As noted above, supra ¶ 4, the City Council's agenda included "any
and all matters relating to the position of Chief of Police including
evaluation of performance." Although Fuentes made allegedly defamatory
statements regarding Riedel, the statements were made in connection with
her complaints about alleged police harassment, and police violations of
protocol. In this light, the record amply supports the conclusion that
Fuentes was commenting on a matter under consideration by the City
Council. Accordingly, we cannot find that the superior court abused its
discretion when it found that Fuentes' statements were made in an "exercise
of her right to petition" and granted the motion to dismiss.

II. Attorney Fees

¶14 We review the amount of an award of attorney fees for an
abuse of discretion. Lee v. ING Inv. Mgmt., LLC, 240 Ariz. 158, 161, ¶ 11
(App. 2016). Thus, we will not disturb an award unless the party contesting
the award can show that there was "no reasonable basis" for the award. Id.
at 161, ¶¶ 8, 12.

¶15 Riedel argues that a few specific time entries were excessive.
First, she argues that ten hours of research on defamation law, done before
the motion to dismiss was drafted, was excessive because it was neither
necessary for the answer nor relevant to the motion to dismiss. She
contends that much of the research was unnecessary because it dealt with
defamation law, while the merits are irrelevant to the motion to dismiss.
However, to prevail on a motion to dismiss, a defendant must do more than
simply prove that the statements were made in the exercise of the right to
petition. The court cannot grant the motion if the plaintiff can show that
the statements "did not contain any reasonable factual support or any
arguable basis in law." A.R.S. § 12-752(B).

¶16 She then argues that the nine hours spent on drafting the
motion to dismiss was excessive because the motion was only five pages
long, and the motion mostly focused on defamation law analysis rather

such a broad reading as it would essentially eliminate the requirement of
subsection (b). Cf. Paul v. Friedman, 95 Cal. App. 4th 853, 867-68 (2002) ("[A]
lawyer's attempt to inject an issue into a proceeding does not . . . transform
it into an issue 'under consideration or review' in the proceeding.").

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than analysis of the anti-SLAPP statute. We disagree that spending nine
hours on the motion to dismiss was "clearly excessive."

¶17 She also takes issue with an eight-hour entry wherein Riedel's
attorneys billed for: researching; preparing the answer, verification, proof
of service, and notice of appearance; meeting with client; calendaring; and
filing and serving. A case of this nature is unlikely to involve the use of
standard form pleadings, and we cannot say that eight hours for those tasks
was clearly excessive. We also cannot find that the court abused its
discretion by awarding fees simply because the attorney employed block-
billing. See RS Indus., Inc. v. Candrian, 240 Ariz. 132, 138, ¶ 21 (App. 2016)
("Although the better practice may be to avoid block-billing when it can be
done reasonably . . . no Arizona authority holds that a court abuses its
discretion by awarding fees that have been block-billed.").

¶18 Fuentes argues that the court abused its discretion because it
did not grant her supplemental request for fees that were incurred after the
filing of her fee application. As discussed above, the superior court has
broad discretion in determining the "reasonable" amount of attorney fees.
See also McDowell Mountain Ranch Cmty. Ass'n, Inc. v. Simons, 216 Ariz. 266,
271, ¶ 21 (App. 2007) (listing cases discussing the discretion a trial court has
in determining reasonable attorney fees in different contexts). The superior
court properly awarded attorney fees as mandated by A.R.S. § 12-752(D),
and because Fuentes does not show that there was no reasonable basis for
the award, we will not disturb the amount of fees awarded. Citing Grand
Real Estate, Inc. v. Sirignano, 139 Ariz. 8, 15 (App. 1983), Fuentes argues that
the court abused its discretion by failing to give a reason for not granting
the subsequent attorney fee request. However, Grand Real Estate dealt with
a decision on whether to grant or deny fees, not, as in this case, the amount
of fees ultimately awarded. It is also disputed by later case law. See Fulton
Homes Corp. v. BBP Concrete, 214 Ariz. 566, 569, ¶ 9 (App. 2007) ("We will
affirm an award with a reasonable basis even if the trial court gives no
reasons for its decision regarding whether to award fees.").

¶19 For the foregoing reasons, we cannot say that the superior
court abused its discretion in awarding the attorney fees to Fuentes.

CONCLUSION

¶20 Because Fuentes' statements involved Fuentes' right of
petition, we affirm the judgment of the superior court. Fuentes asks for
costs and attorney fees on appeal, but does not cite any authority for
attorney fees outside ARCAP 21(a). See ARCAP 21(a)(2) (stating this Court

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may decline to award fees if a party fails to "specifically state the statute,
rule, decisional law, contract, or other authority for an award of attorneys'
fees"). We decline to award Fuentes attorney fees on appeal, but award her
costs upon compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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