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Sign Here Petitions LLC v. Chavez

Court of Appeals of Arizona, First Division

August 29, 2017

SIGN HERE PETITIONS LLC, Plaintiff/Appellant,
ANDREW D. CHAVEZ, et al., Defendants/Appellees.

         Appeal from the Superior Court in Maricopa County No. CV2015-091483 The Honorable Robert H. Oberbillig, Judge

          Law Offices of Paul Weich, Tempe By Paul M. Weich Counsel for Plaintiff/Appellant.

          Coppersmith Brockelman PLC, Phoenix By Roopali H. Desai, D. Andrew Gaona Counsel for Defendants/Appellees.

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Kent E. Cattani and Judge Jon W. Thompson joined.


          MCMURDIE, JUDGE.

         ¶1 Sign Here Petitions, LLC ("Sign Here") appeals from a judgment dismissing, with prejudice, all claims against Andrew D. Chavez, Petition Partners, LLC, and AZ Petition Partners, LLC ("Petition Partners") and the denial of Sign Here's post-judgment motion. We affirm and hold when ruling on a motion for summary judgment in a defamation case: (1) the superior court must act as gatekeeper protecting the right to free speech from meritless litigation to avoid a chilling effect on free expression; (2) in that role, before allowing a defamation claim to proceed to trial, the superior court must first determine whether a statement is capable of bearing a defamatory meaning by considering all of the circumstances surrounding the statement; and (3) in doing so, the superior court is to evaluate the circumstances surrounding an allegedly defamatory statement from the point of view of a reasonable person.


         ¶2 Sign Here and Petition Partners are in the business of collecting voter signatures on petitions proposing ballot measures in Arizona. Each also engages in "suppression" of signature-gathering efforts. Chavez is a managing member of Petition Partners. Chavez participates in social media websites, such as Twitter and Facebook, to promote his businesses. Approximately 1000 people followed Chavez on Twitter in November 2015.

         ¶3 In late 2014, Sign Here conducted a signature drive on behalf of Citizens for Fair Dealing to place a zoning referendum measure on the ballot in the City of Phoenix. In December, 2014, the city clerk found the referendum petition insufficient because it lacked the required 16, 987 valid signatures to qualify. While Sign Here provided 20, 172 signatures, only 12, 659 of those signatures were valid, a failure rate of almost 40%. The failure rate was based in part on Sign Here's use of two convicted felons to gather signatures. The City disqualified all signatures gathered by those two circulators because they were ineligible to circulate petition sheets, invalidating 714 signatures. Sign Here's managing member, Bonita Burks, stated in 2015 that Sign Here conducted criminal background checks on potential circulators, but she acknowledged the disqualified felons passed their background checks.

         ¶4 It is undisputed that the total amount Sign Here was to be paid on the Cholla referendum contract with Citizens for Fair Dealing was approximately $71, 000. Citizens for Fair Dealing withheld approximately $17, 000 of that amount because of a dispute with Sign Here related to the terms of, and performance under, the contract.

         ¶5 Chavez published several statements on his Twitter account about Sign Here's signature collection effort. In March 2015, Sign Here filed a complaint against Chavez and Petition Partners, alleging Chavez's Twitter postings defamed Sign Here. The tweets posted on Chavez's account included the following statements:

September 24, 2014: "Rivals ready for referendum on #Phoenix 19thAve and Cholla Castle renovation project. Expensive pissing match begins on Thursday Oct. 3rd."
November 14, 2014: "Phx 19thAve/Cholla referendum failure eminent. If so, it's 38th of 38 municipal projects across country we worked against to fail this year."[1]
November 25, 2014 (two tweets): (1) "The first and only project Sign Here Petitions attempted to qualify on their own will fail. #Phx 19th Ave Castle Referendum is a disaster"; and (2) "#PHX 19th/Cholla Referendum will fail b/c of bad signatures. Company that failed in hot water for using felons. @petitionpartner wins again."
December 11, 2014: "To date more than 1/3 of sigs collected by Sign Here Petitions are suspected of being collected by felons. Bad gets worse on #phx referendum."
January 23, 2015: "Phx 19th Ave/Cholla Referendum failure official today. $100k spent w/ Sign Here Petitions who delivered less than 1/2 valid sigs necessary."

         ¶6 Petition Partners moved for summary judgment arguing the six tweets were incapable of defamatory meaning, any claim relating to other unidentified statements was time-barred, the claim of tortious interference was unsupported by a single fact, and the measure of damages (the $17, 000 withheld by its client) was unrelated to statements or actions by Petition Partners. The superior court granted the motion and dismissed the case with prejudice.

         ¶7 Petition Partners filed a Motion for Relief from Judgment per Arizona Rule of Civil Procedure 60(c), taking issue with two tweets Chavez posted after the grant of summary judgment:

(1) "ICYMI: Judge dismisses case against us and our honest tweets about Sign Here Petitions failed signature drive. Good guys win again"; and
(2) "Chicken dinner!"

         ¶8 The superior court denied the post-judgment motion. This timely appeal followed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ...

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