Towers v. Bentz

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TODD TOWERS, Plaintiff/Appellant,

v.

TIMOTHY A. BENTZ, et al., Defendants/Appellees.

No. 1 CA-CV 22-0285
FILED 3-9-2023

Appeal from the Superior Court in Maricopa County
No. CV2020-004825
The Honorable James D. Smith, Judge (Retired)

AFFIRMED

COUNSEL

Todd Towers, Mesa
Plaintiff/Appellant

Jaburg & Wilk, P.C., Phoenix
By Thomas S. Moring, Corrinne R. Viola, Jeffrey A. Silence
Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge Daniel J. Kiley joined.
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C R U Z, Judge:

¶1 Appellant Todd Towers challenges the superior court’s ruling
denying him leave to file a second amended complaint to assert libel per se,
false light invasion of privacy, and vicarious liability claims against Jenifer
Ingram, James Krowka, Timothy and Karen Bentz, and ToyVan Support
Group LLC (collectively the “ToyVan Defendants”). For the reasons stated
below, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Because Towers appeals the denial of his motion for leave to
amend his complaint, we state the relevant fact allegations from his
proposed amended complaint and assume they are true for purposes of this
appeal. See Timmons v. Ross Dress for Less, Inc., 234 Ariz. 569, 572-73, ¶ 17
(App. 2014).

¶3 Towers sued the ToyVan Defendants in April 2020 for libel
per se and false light invasion of privacy. Towers’ claims centered on
allegedly defamatory posts on the website toyotavantech.com. Towers
alleged that Tim Bentz posted on April 16, 2015, accusing him of “bad faith
dealing” and later edited his post to accuse him of “being involved in many
other scams.” Towers also alleged that Ingram posted on December 11,
2018, accusing him of engaging in the unauthorized practice of law in
Arizona and claiming authorship of various articles he did not write.

¶4 Several months after the second post, Towers posted in the
same toyotavantech.com thread using two pseudonymous accounts, but his
posts were quickly removed. Towers further alleged that Ingram posted
under the pseudonym “Claud” on another website, scambook.com,
accusing him of “forgery and criminal impersonation.” Towers also alleged
that someone edited a hyperlink within the toyotavantech.com thread to
link to the scambook.com post, then edited it a second time in December
2019 to link to a different site. He conceded, however, that the
scambook.com post “was the only post hyperlinked . . . whose statute of
limitations had prima facie not yet run.”

¶5 Towers amended his complaint a month later, adding a Doe
defendant who he alleged posted in the same toyotavantech.com thread
accusing him of “using multiple fictitious names, defrauding his clients,
scamming others or being a scam artist, and having a loathsome mental
disease.” Towers withdrew his allegation that Ingram authored the
scambook.com post, alleging the Doe defendant wrote it instead. Towers

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also amended his libel per se claim to assert it only against the Doe
defendant.

¶6 The ToyVan Defendants moved to dismiss the amended
complaint, contending in relevant part that Towers’ claims were barred by
the one-year limitations period of Arizona Revised Statutes (“A.R.S.”) § 12-
541(1). The superior court agreed and dismissed the complaint as against
the ToyVan Defendants. After unsuccessfully seeking reconsideration,
Towers moved for leave to conduct limited discovery to identify the Doe
defendant. The court placed the case on the dismissal calendar through
April 2, 2021, to allow Towers to “immediately begin and diligently
prosecute any discovery efforts.” The court then entered partial final
judgment under Arizona Rule of Civil Procedure (“Rule”) 54(b) dismissing
the ToyVan Defendants.

¶7 Towers did not appeal that judgment. He instead moved to
vacate it and reopen the case against Ingram, Krowka, and ToyVan, alleging
Ingram was the Doe defendant. The superior court denied that motion.
Towers also moved to expand the scope of discovery, which the court also
denied. The superior court then dismissed the Doe defendant claim
without prejudice because the time to conduct the Doe discovery had
expired.

¶8 Towers again moved for reconsideration. He also requested
leave to amend his complaint a second time to reassert his claims against
the ToyVan Defendants. The court reinstated the case on the dismissal
calendar and directed Towers to file a revised motion to amend and a
proposed amended complaint.

¶9 Towers’ revised motion was nearly identical to his previous
motion to amend. But his proposed amended complaint deleted all
allegations pertaining to the 2015 and 2018 toyotavantech.com posts and
instead relied on the July 2019 scambook.com post, which he again alleged
Ingram had written. He also alleged the “Claud” account that made the
scambook.com post was created with an email account he established in
2019 but could no longer access, implying that Ingram or Bentz had
accessed the email account. The proposed amended complaint also
included several quotations from the scambook.com post:

• “Towers Legal Consulting Corp . . . is a nonexistent
legal firm . . . . There is no such business registered
with the state of New Jersey.”

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• “Towers Legal Consulting Corp is actually an alias of
[Plaintiff] Todd Towers.”

• “[Towers] represents himself as a lawyer.”

• “As part of his scam legal cases, Todd Towers sends
threats and faked legal documents.”

• “[Towers] has used these accounts to impersonate
other parties, including actual lawyers, and also to
conduct harassment.”

• “Todd Towers’ typical modus operandi is to send
people faked AZ court documents.”

• “Todd Towers has fraudulently submitted signed
return receipts to the court system.”

• “[Towers] files so many frivolous lawsuits on trumped
up grounds.”

Towers also added a new count alleging the other ToyVan Defendants were
vicariously liable for the scambook.com post.

¶10 The superior court denied leave to amend, finding Towers
did not allege that any of the statements quoted above were false. The court
also found the statements either were not defamatory per se or were “non-
actionable opinions.” The court also ruled that Towers’ amended false light
claim was futile because Towers “did not allege the statements [were] false
or misleading” and the statements were not “major misrepresentation[s] of
[his] character, history, activities or beliefs.” Finally, the court determined
Towers had not pleaded any cogent theory under which the other ToyVan
Defendants could be held vicariously liable.

¶11 The superior court entered a final Rule 54(c) judgment “on all
claims alleged in Plaintiff’s Amended Claim . . . filed May 19, 2020, and
that Plaintiff sought to allege via a proposed amended pleading filed
August 9, 2021.” Towers appealed. We have jurisdiction under A.R.S. § 12-
2101(A)(1).

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DISCUSSION

I. Towers’ Motion for Leave to Amend

¶12 Leave to amend, when sought before trial, should be freely
given when justice requires. Rule 15(a)(2). A court may deny leave to
amend if it finds undue delay, bad faith, dilatory motive, repeated failure
to cure deficiencies by previous amendments, or undue prejudice to the
opposing party. Carranza v. Madrigal, 237 Ariz. 512, 515, ¶ 13 (2015) (citation
omitted). Leave to amend also may be denied if the proposed amendments
would be futile. Deutsche Bank Nat’l Tr. Co. v. Pheasant Grove LLC, 245 Ariz.
325, 331, ¶ 19 (App. 2018).

¶13 We review the denial of a motion to amend the complaint for
an abuse of discretion.1 Carranza, 237 Ariz. at 515, ¶ 13; Stair v. Maricopa
County, 245 Ariz. 357, 366, ¶ 37 (App. 2018); Timmons, 234 Ariz. at 573, ¶ 17.
We assume the facts alleged in the proposed amended complaint are true
for purposes of our review. Alosi v. Hewitt, 229 Ariz. 449, 452, ¶ 13 (App.
2012). We may affirm, however, if the result is correct for any reason.
Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 231 Ariz. 517, 519,
¶ 4 (App. 2013).

A. Libel Per Se

¶14 Towers first challenges the court’s conclusion that he did not
allege the statements in the scambook.com post were false. In his proposed
amended complaint, Towers alleged the statements were “libelous on their
face” and “egregious, reckless, malicious and intended to cause Plaintiff
harm and to damage his businesses and professional reputation.” He also
alleged that Ingram did not “research” her claims with “reasonable
diligence and care” and “forward[ed] a false impression about the
Plaintiff.” It can be reasonably inferred from these allegations that Towers
contends the statements are false. See Cullen v. Auto-Owners Ins. Co., 218
Ariz. 417, 419, ¶ 7 (2008) (“Courts must . . . assume the truth of the well-
pled factual allegations and indulge all reasonable inferences therefrom.”).

¶15 But falsity alone does not establish libel per se. Libelous per
se statements are those that (1) charge a contagious or venereal disease; (2)

1 A recent decision of this court, Worldwide Jet Charter, Inc. v. Toulatos,
1 CA-CV 21-0717, 1 CA-CV 22-0173, 2022 WL 17684985, at *4, ¶ 22 (Ariz.
App. Dec. 15, 2022), suggests that a denial of leave to amend is reviewed
under a de novo standard of review. We need not decide the issue in this
case, because here we would affirm under either standard of review.

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charge that a woman is not chaste; (3) tend to injure a person in his
profession, trade, or business; or (4) impute the commission of a crime
involving moral turpitude. Modla v. Parker, 17 Ariz. App. 54, 56 n.1 (1972);
see also Restatement (Second) of Torts §§ 571-574.

¶16 Towers concedes on appeal the statements alleging he files
“scam legal cases” and “frivolous lawsuits on trumped up grounds” are not
actionable. He instead focuses on the statement that he creates “fake legal
documents,” contending that it is libelous per se because it “attacks his
fitness and character in his trade and[/]or profession.” To fall within this
category of libelous statements, the statement “must prejudice the person
in the profession, trade or business in which he is actually engaged,” as
“[w]ords which are merely injurious to one regardless of his occupation do
not qualify . . . .” Modla, 17 Ariz. App. at 56-57.

¶17 It is not clear from the proposed amended complaint what
Towers’ trade or profession is. He contends on appeal he is a “legal
professional” and that his “business relies entirely on his careful diligent
handling of legal records,” but he alleged in each of his complaints,
including the proposed amended complaint, that he “is a degreed medical
doctor” who had previously been “employed as a legal professional in a
reputable national law firm with offices in Phoenix.” He also alleged he
sought employment with “prospective employers” including “residency
program coordinators,” suggesting he was pursuing a medical career at
that time. He also represented to the superior court ten days after filing the
proposed amended complaint that he was “unemployed and performing
missionary work abroad with the Red Cross.”

¶18 Moreover, Towers did not dispute that he was not licensed to
practice law when the scambook.com post first appeared. While he now
contends he obtained a California provisional law license, he did not do so
until more than a year after he filed the proposed amended complaint.
Indeed, as discussed below, he requests leniency in this appeal because he
is not an attorney. And while he correctly states that some non-attorney
legal professionals are subject to character and fitness standards, he did not
allege he was a member of any such profession. Towers therefore did not
sufficiently allege that the “fake legal documents” statement prejudiced
him in any profession or business in which he was actually engaged. See
Modla, 17 Ariz. App. at 56-57.

¶19 Towers also contends the statement that Towers Legal
Consulting was a “non-existent legal firm” is defamatory per se. Towers
Legal Consulting is not a party to this case, as the superior court denied

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Towers’ attempt to add it as a plaintiff. In any event, the proposed
amended complaint says very little about what the company does.

¶20 Towers also contends the statement that “there are no such
corporations registered in New Jersey” is defamatory per se, but he
concedes the statement is true. See Sign Here Petitions LLC v. Chavez, 243
Ariz. 99, 107, ¶ 30 (App. 2017) (“In an action for defamation, ‘the truth of
the contents of . . . [a] statement is a complete defense.’”) (quoting Read v.
Phoenix Newspapers, Inc., 169 Ariz. 353, 355 (1991)). Indeed, the only
indication in the record that Towers Legal Consulting is registered
anywhere is a document Towers filed with his motion to add the company
as a plaintiff. That document suggests the company is registered in Israel,
not New Jersey. For these reasons, we conclude the superior court did not
err in denying Towers leave to assert his amended libel per se claim. See
Takieh v. O’Meara, 252 Ariz. 51, 57, ¶ 13 (App. 2021) (“[B]ecause the expense
of defending a meritless defamation case can have a chilling effect on First
Amendment rights, the superior court must act as gatekeeper protecting the
right to free speech from encroachment.”) (internal quotation marks and
citations omitted).

B. False Light

¶21 To establish a claim for false light invasion of privacy, Towers
must show (1) the defendant, with knowledge of falsity or reckless
disregard for the truth, gave publicity to information placing Towers in a
false light; and (2) the false light in which Towers was placed would be
highly offensive to a reasonable person in his position. Desert Palm Surgical
Grp., P.L.C. v. Petta, 236 Ariz. 568, 580, ¶ 29 (App. 2015). The publication
must be “to the public at large, or to so many persons that the matter must
be regarded substantially certain to become one of public knowledge.”
Christakis v. Deitsch, 250 Ariz. 246, 249, ¶ 8 (App. 2020) (citation and internal
quotation marks omitted). It also “must contain a major misrepresentation
of [the plaintiff’s] character, history, activities or beliefs, not just slight
inaccuracies.” Canas v. Bay Ent., LLC, 252 Ariz. 117, 122, ¶ 23 (App. 2021)
(citation and internal quotation marks omitted); see also Restatement
(Second) of Torts § 652E, cmt. c. The tort also requires proof of outrageous
conduct, in short, conduct that exceeds any reasonable limit of social
toleration. Rowland v. Union Hills Country Club, 157 Ariz. 301, 304 (App.
1988).

¶22 Towers argues the scambook.com post was outrageous
because, he maintains, it alleged he had “resort[ed] to a life of crime.” This
is not so; none of the statements to which he objects accuse him of

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committing any crimes. He also alleged in the proposed amended
complaint that the scambook.com post was intended “to maximally harm
[his] ability to earn a living as a trained professional and to hurt his
reputation.” The tort of false light does not protect reputation or good
name. Reynolds v. Reynolds, 231 Ariz. 313, 318, ¶ 14 (App. 2013). It instead
protects “a person’s interest in being let alone.” Godbehere v. Phoenix
Newspapers, Inc., 162 Ariz. 335, 341 (1989).

¶23 The scambook.com post does not implicate that interest. It
instead alleged that he “sends threats and faked legal documents” to others,
“impersonate[s] . . . actual lawyers” in interacting with others, and
“fraudulently submitted signed return receipts to the court system,” with
Towers Legal Consulting allegedly serving as his “alias.” These actions, to
the extent they occurred, were not private. As such, statements that Towers
did these things could not, as a matter of law, support a false light claim.
See Godbehere, 162 Ariz. at 343 (“[P]rotection for privacy interests generally
applies only to private matters.”); cf. Restatement (Second) of Torts § 652D,
cmt. b (“There is no liability when the defendant merely gives further
publicity to information about the plaintiff that is already public.”). The
court therefore did not err in denying leave to amend to reassert the false
light claim against the ToyVan Defendants.

C. Vicarious Liability

¶24 Towers also contends the other ToyVan Defendants can be
held vicariously liable for the statements made in the scambook.com post.
The superior court found, and we agree, that Towers “did not allege any
facts about Ingram’s employment with Toyvan Support Group or how
posting on an unrelated webpage was in the course and scope of the
putative employment.” See Engler v. Gulf Interstate Eng’g, Inc., 230 Ariz. 55,
57, ¶ 9 (2012) (stating the general rule that an employer can be held
vicariously liable for an employee’s torts if the employee is acting “within
the scope of employment when the accident occurs”) (citation and internal
quotation marks omitted). He instead baldly alleged that the ToyVan
Defendants are “one and the same” and therefore “joint[ly] and severally
liable.” We need not accept this conclusory allegation as true. See Matter of
ABB Tr., 251 Ariz. 313, 317, ¶ 19 (App. 2021). The court did not err in
denying leave to amend to add a vicarious liability claim against the other
ToyVan Defendants.

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D. Reinstatement of 2015 and 2018 Toyotavantech.com Claims

¶25 Towers also cites Larue v. Brown, 235 Ariz. 440 (App. 2014), to
contend the scambook.com post “was part of . . . an egregious and lewd
smear campaign that had begun in 2017 and then was added to again in
December 2018 on the [toyotavantech.com] website . . . and eventually
spilled over onto scambook.com and possibly others not yet discovered.”
Towers appears to contend Larue allows him to reinstate his claims based
on the 2015 and 2018 toyotavantech.com posts.

¶26 In Larue, we applied the “single publication rule,” which
states that a defamation action typically accrues the first time a statement is
published and that later circulations of the same statement do not restart
the limitations period. Id. at 444, ¶ 19. That rule has no application here.
In any event, Towers’ toyotavantech.com claims are not before us because
(1) he did not appeal from the January 2021 judgment dismissing them, and
(2) he removed those allegations from his proposed amended complaint.

¶27 Citing Tenth Circuit caselaw, Towers contends the superior
court should have been more lenient in reviewing his proposed amended
complaint because he is not an attorney. See Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). But Arizona law does not afford special leniency to
pro se litigants. Flynn v. Campbell, 243 Ariz. 76, 83-84, ¶ 24 (2017); see also In
re Marriage of Williams, 219 Ariz. 546, 549, ¶ 13 (App. 2008) (“Parties who
choose to represent themselves . . . are held to the same standards as
attorneys with respect to ‘familiarity with required procedures and . . .
notice of statutes and local rules.’”) (citation and internal quotation marks
omitted).

II. Towers’ Motion to Expand Discovery

¶28 Finally, Towers challenges the denial of his May 2021 motion
to expand the scope of discovery seeking to identify the Doe defendant. We
review the superior court’s discovery rulings for an abuse of discretion.
Tritschler v. Allstate Ins. Co., 213 Ariz. 505, 518, ¶ 41 (App. 2006).

¶29 Towers contends the court should have given him additional
time to serve a subpoena duces tecum on Google that, according to him,
would have led to additional information about the email account used to
create the “Claud” profile on scambook.com. His motion asked for far
more, including “a more thorough discovery request [to a different
company] who hosts the [toyotavantech.com] server,” “permission for
Plaintiff to allow inspection of [that company’s] server by a licensed
computer forensic specialist,” and “depositions of . . . Jenifer Ingram and

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Tim Bentz.” In any event, Towers does not say why he would need
additional discovery “likely to lead to substantive evidence identifying [the
Doe defendant]” after he removed the Doe defendant from his proposed
amended complaint. On this record, we see no abuse of discretion.

III. Attorneys’ Fees on Appeal

¶30 The ToyVan Defendants request their attorneys’ fees incurred
in this appeal under A.R.S. §§ 12-1809(P) and 12-349. Section 12-1809(P)
applies to injunctions against harassment; the ToyVan Defendants do not
show any such injunction was entered in this case. Section 12-349(A)
authorizes sanctions if a party (1) brings or defends a claim without
substantial justification or solely or primarily for delay or harassment; (2)
unreasonably expands or delays the proceeding; or (3) engages in abuse of
discovery. The ToyVan Defendants do not show that any of the above
apply to this appeal. We therefore decline to award § 12-349 sanctions.

CONCLUSION

¶31 We affirm. The ToyVan Defendants may recover their taxable
costs incurred in this appeal upon compliance with ARCAP 21.

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

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