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Yahweh v. City of Phoenix

Court of Appeals of Arizona, First Division

July 11, 2017

TERRY YAHWEH, Plaintiff/Appellant,
v.
CITY OF PHOENIX, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County No. CV2015-011887 The Honorable Arthur T. Anderson, Judge

         COUNSEL

          Terry Yahweh, Chandler Plaintiff/Appellant

          Sanders & Parks, P.C. By Mark G. Worischeck, Anoop Bhatheja, Phoenix Counsel for Defendant/Appellee

          Judge James P. Beene delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Margaret H. Downie joined.

          OPINION

          James P. Beene, Judge

         ¶1Terry Yahweh appeals from the superior court's ruling dismissing his complaint against the City of Phoenix ("the City"). Because Yahweh's notice of claim did not include a sum-certain settlement offer as required by A.R.S. § 12-821.01, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2We assume the truth of all well-pleaded factual allegations and draw all reasonable inferences from those facts. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012). Yahweh worked as a detective for the Phoenix Police Department ("the Department") for many years, but his relationship with the Department began deteriorating in 2009, and in 2014, Yahweh's employment with the Department ended. In November 2014, the Department issued a summary of Public Standards Bureau Report #PSB14-0096, which Yahweh contends included defamatory statements about him. As a result of the report, Yahweh's name was added to the "Brady List" of police officers who have been implicated in professional misconduct.[1]

         ¶3In May 2015, Yahweh delivered a Notice of Claim letter

         ("NOC") to the City, alleging defamation and violations of the Family Medical Leave Act. The relevant portion of the NOC stated:

The Claimant will be bringing legal action against the Phoenix Police Department and the City of Phoenix seeking damages for 1.5 million dollars, as the Claimant planned to earn for the next ten years and these were his projected earnings. He is suing for defamation of his character in the public, as the PSB report is a public record, and among his peers, and it has affected his earning potential to obtain employment. He will also be bringing action for violations of the Family Medical Leave Act.

In order to obtain an agreeable resolution to this matter, contact his lawyer Jess Lorona Esq., promptly.

         ¶4The City did not respond to the NOC, and by statute the City's failure to respond was deemed a denial after sixty days. Ariz. Rev. Stat. ("A.R.S.") § 12-821.01(E) (2017).[2] In November 2015, Yahweh filed a complaint against the City, alleging defamation, false light and due process violations. The City moved to dismiss pursuant to Arizona Rule of Civil Procedure 12(b)(6), arguing Yahweh's claims were barred for failure to file a proper NOC in accordance with A.R.S. ยง 12-821.01. ...


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