Liberti v. Scottsdale

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JEANNINE LIBERTI, Plaintiff/Appellant,

v.

CITY OF SCOTTSDALE, Defendant/Appellee.

No. 1 CA-CV 22-0599
FILED 6-20-2023

Appeal from the Superior Court in Maricopa County
No. CV2022-002189
The Honorable Joan M. Sinclair, Judge

AFFIRMED IN PART; VACATED IN PART AND REMANDED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix
By David L. Abney
Counsel for Plaintiff/Appellant

Scottsdale City Attorney’s Office, Scottsdale
By Lori S. Davis
Counsel for Defendant/Appellee
 LIBERTI v. SCOTTSDALE
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge David B. Gass delivered the decision of the court, in which
Judge Brian Y. Furuya and Judge Andrew M. Jacobs joined.

G A S S, Vice Chief Judge:

¶1 This case arises out of the July 16, 2016 death of Dylan Liberti.
During a response to a 911 call, a City of Scottsdale police officer shot and
killed Dylan. His parents timely pursued traditional tort claims against the
City in federal court but did not prevail. In 2022—six years after Dylan’s
death and more than two years after losing the federal case—Dylan’s
mother, Jeannine Liberti, brought this action in state court.

¶2 The superior court dismissed Liberti’s complaint with
prejudice, finding all her claims collaterally attacked the federal judgment.
Because Arizona does not recognize three of Liberti’s four claims as
independent torts, we affirm the superior court’s decision on those claims.
Because Liberti’s fourth claim, abuse of process, is an independent tort in
Arizona, it is not a collateral attack on the federal judgment. For these
reasons, we vacate in part and remand for the superior court to consider
Liberti’s abuse of process claim.

FACTUAL AND PROCEDURAL HISTORY

¶3 The facts leading to Dylan’s death are not at issue in this
appeal. For context, two City police officers responded to Dylan’s 911 call.
During their interaction, one officer shot and killed Dylan. The other
officer’s body camera captured the incident. A third officer arrived after the
first two. That third officer’s body camera captured the shooting or
moments after. This case is about Liberti’s allegations about changes to
body-camera footage from the two City police officers.

I. The Federal Lawsuit

¶4 In 2017, Dylan’s parents filed a lawsuit against the City and
other parties, which was removed to the federal court. In the federal
lawsuit, Dylan’s parents brought claims for wrongful death, negligence,
civil rights violations, and violation of the Americans with Disabilities Act.
During discovery, the City disclosed the body camera videos to Dylan’s
parents.

2
 LIBERTI v. SCOTTSDALE
Decision of the Court

¶5 The defendants then moved for summary judgment. Dylan’s
parents responded to the defendants’ statement of facts, denying the first
body camera video “necessarily represent[ed] every second of video
recorded by [the officer] at the time.” Dylan’s parents also denied the
second body camera video began when the officer fired the shots. In 2018,
the district court granted the defendants’ motion and dismissed the case,
reasoning “[b]ased on undisputed evidence, no reasonable jury could
conclude [] the [o]fficers acted unreasonabl[y] under the circumstances.”

¶6 In 2019, Dylan’s parents appealed the district court’s decision
to the Ninth Circuit, which affirmed the district court’s decision. Dylan’s
parents then petitioned for certiorari to the United States Supreme Court,
which denied their petition in 2021. See Liberti v. City of Scottsdale, No. CV-
17-02813-PHX-DLR, 2018 WL 4335442 (D. Ariz. Sept. 11, 2018), aff’d, 816
Fed. Appx. 89 (9th Cir. 2020), cert. denied, 141 S. Ct. 1387 (2021). With the
denial of certiorari, the federal judgment became final.

II. The Superior Court Case

¶7 On or about June 16, 2021 (a little less than four months after
the United States Supreme Court denied certiorari), Liberti filed a notice of
claim with the City. And on February 22, 2022, she filed a complaint in the
superior court. In the superior court case, Liberti alleged four civil causes
of action against the City: (1) intentional spoliation of evidence; (2)
obstruction of justice; (3) tampering with public records and physical
evidence; and (4) abuse of process. The City moved to dismiss, and the
superior court granted the motion dismissing the case with prejudice.

¶8 This court has jurisdiction over Liberti’s timely appeal under
article VI, section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21.A.1,
and -2101.A.1.

ANALYSIS

¶9 Liberti argues this court should recognize as independent
causes of action three new tort claims in Arizona: (1) spoliation; (2)
obstruction of justice; and (3) tampering with public records and physical
evidence. She then asks this court to rule those new tort claims and her civil
abuse of process claim are not collateral attacks on the federal judgment.

¶10 This court reviews de novo the superior court’s ruling on a
motion to dismiss and may affirm on any ground supported by the record.
See id. at 355 ¶ 7; Mirchandani v. BMO Harris Bank, N.A., 235 Ariz. 68, 72
¶ 15 (App. 2014). When reviewing a motion to dismiss, this court must

3
 LIBERTI v. SCOTTSDALE
Decision of the Court

“assume the truth of all of the complaint’s material allegations.” Stauffer v.
Premier Serv. Mortg., LLC, 240 Ariz. 575, 577 ¶ 9 (App. 2016) (quotation
omitted).

¶11 But this court does not accept as true “allegations consisting
of conclusions of law, inferences or deductions that are not necessarily
implied by well-pleaded facts, unreasonable inferences or unsupported
conclusions from such facts, or legal conclusions alleged as facts.” Jeter v.
Mayo Clinic Ariz., 211 Ariz. 386, 389 ¶ 4 (App. 2005). And this court will
affirm the superior court’s dismissal only if, as a matter of law, Liberti is not
“entitled to relief under any interpretation of the facts susceptible of proof.”
See Fid. Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224 ¶ 4 (1998).

I. Arizona does not recognize spoliation, obstruction of justice, and
tampering with public records and physical evidence as independent
torts.

¶12 To date, Arizona has not recognized spoliation, obstruction of
justice, and tampering with public records and physical evidence as
independent torts. See, e.g., Tobel v. Travelers Ins. Co., 195 Ariz. 363, 371 ¶ 43
(App. 1999). As to the first of these would-be torts, we have ample guidance
in Arizona case law. The Arizona Supreme Court has repeatedly declined
to recognize spoliation as an independent tort. See Lips v. Scottsdale
Healthcare Corp., 224 Ariz. 266 (2010); La Raia v. Superior Court, 150 Ariz. 118
(1986). And this court is bound by the Arizona Supreme Court’s decisions.
Sell v. Gama, 231 Ariz. 323, 330 ¶ 31 (2013) (recognizing the Arizona
Supreme Court alone is responsible for modifying its precedent).

¶13 The Arizona Supreme Court has yet to address the viability
of the other two potential tort claims—obstruction of justice and tampering
with public records and physical evidence. Liberti points to no Arizona
authority recognizing them as such. And this court found none. Without
any case law or statutory authority, this court looks to the Restatement
(Third) of Torts for guidance. See Arellano v. Primerica Life Ins. Co., 235 Ariz.
371, 378 ¶ 32 (App. 2014). The Restatement also does not recognize those
claims as independent torts. See generally Restatement (Third) of Torts.
Moreover, obstruction of justice and tampering with public records already
exist as criminal offenses. See A.R.S. §§ 13-2407, -2409. And as a general rule,
this court will not infer a private cause of action for a criminal offense unless
the legislature expresses an intent to create one “to protect any special
group.” Phoenix Baptist Hosp. & Med. Ctr. Inc. v. Aiken, 179 Ariz. 289, 294
(App. 1994). Our legislature has not. We, thus, discern no basis in Arizona
law that supports our creation of the torts for which Liberti advocates.

4
 LIBERTI v. SCOTTSDALE
Decision of the Court

¶14 True, “Arizona’s judiciary shares responsibility for the
evolution of the law of torts.” See Estate of Hernandez-Wheeler v. Ariz. Bd. of
Regents, 177 Ariz. 244, 254 (1994). But the judiciary exercises “great
restraint” in declaring public policy absent legislative guidance. Zambrano
v. M & RC II LLC, et al., 254 Ariz. 53, 72 ¶ 43 (2022). Notably, in declining to
recognize the proposed tort of third-party spoliation, the Arizona Supreme
Court expressed concern about recognizing novel torts grounded in duties
of care for “the purely economic well-being of others, as distinguished from
their physical safety.” Lips, 224 Ariz. at 268 ¶ 11. These policy
considerations, which apply with equal force to the other two novel torts
Liberti asks us to recognize, include “concerns to avoid imposing onerous
and possibly indeterminate liability on defendants and undesirably
burdening courts with litigation.” See id.

¶15 The other remedies available to Liberti, short of altering
Arizona tort law, likewise cut against recognizing these novel torts. Liberti
could have achieved the remedies she seeks now in the federal lawsuit
through “sanctions, including adverse inference instructions and other
mechanisms.” See id. at 267 ¶ 8.

¶16 Finally, this court seldom recognizes new causes of action
without guidance from the Arizona Supreme Court. See Zambrano v. M &
RC II LLC, et al., 252 Ariz. 10, 13 ¶ 17 (App. 2021) review granted (Mar. 1,
2022), vacated on other grounds, 254 Ariz. 53 (2022). Taking all these reasons
together, we decline to expand the scope of tort liability here.

¶17 Because we affirm the superior court’s decision based on
current tort liability law, we need not address whether Liberti’s first three
claims are a collateral attack on the federal judgment. See Mirchandani, 235
Ariz. at 72 ¶ 15 (explaining this court may affirm the superior court’s
decision on any ground supported by the record).

II. Liberti’s abuse of process claim is not a collateral attack on the
federal judgment.

¶18 Arizona recognizes Liberti’s fourth claim, abuse of process, as
an independent tort. See Neindstedt v. Wetzel, 133 Ariz. 348, 353 (App. 1982).
Abuse of process is a willful act in the use of judicial process for an ulterior
purpose not proper in the regular conduct of the proceedings. Crackel v.
Allstate Ins. Co., 208 Ariz. 252, 257 ¶ 11 (App. 2004). Liberti’s complaint
alleges the City “committed civil abuse of process by willfully using the
judicial process for the purpose of avoiding liability for the wrongful death
of Dylan Liberti,” which Liberti argues is an “ulterior purpose not proper

5
 LIBERTI v. SCOTTSDALE
Decision of the Court

in the regular conduct of civil proceedings.” Because the complaint’s
allegations are sufficient to state a claim for abuse of process, we vacate the
superior court’s ruling in part and remand for the superior court to consider
the claim on its merits. See Gatecliff v. Great Republic Life Ins. Co., 154 Ariz.
502, 508 (App. 1987).

III. This court will not consider the City’s statute of limitations
arguments raised for the first time on appeal.

¶19 On appeal, the City argues Liberti’s abuse of process claim is
time-barred for two reasons. First, the City argues Liberti filed her notice of
claim more than 180 days after the claim arose. See A.R.S. § 12-821.01.A.
Second, she filed her superior court lawsuit more than a year after the claim
arose. See A.R.S. § 12-821.

¶20 Significantly, the City did not ask the superior court to
dismiss Liberti’s abuse of process claim on either basis. Indeed, the City
seems to have considered and specifically rejected moving to dismiss on the
untimeliness ground. The City’s motion to dismiss explained, “In asserting
limited grounds in this Motion to Dismiss, the Defendant is not waiving
and hereby is expressly preserving all other defenses to this suit including
but not limited to statutes of limitations and failure to state a claim on other
grounds.” We decline to consider the City’s new argument in this appeal.
See Paloma Inv. Ltd. P’ship v. Jenkins, 194 Ariz. 133, 137 ¶ 17 (App. 1998)
(“New arguments may not be raised for the first time on appeal.”).

COSTS

¶21 Liberti requests costs she incurred on appeal under A.R.S.
§§ 12-331, -341, -342, and ARCAP 21. We award Liberti her reasonable costs
upon compliance with ARCAP 21.

CONCLUSION

¶22 We affirm in part, vacate in part, and remand for the superior
court to consider the abuse of process claim.

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

6