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649 North Fourth Avenue, First Floor


Phoenix, Arizona 85003
(602) 382-4078

Kory A. Langhofer, Ariz. Bar No. 024722


kory@statecraftlaw.com
Thomas J. Basile, Ariz. Bar. No. 031150
tom@statecraftlaw.com

Attorneys for the Defendants

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IN THE SUPERIOR COURT FOR THE STATE OF ARIZONA


IN AND FOR THE COUNTY OF MARICOPA

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PAUL PENZONE, an individual,

Case No. CV2016-015464

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Plaintiff,

DEFENDANTS MOTION TO DISMISS

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vs.

(Assigned to the Hon. Jo Lynn Gentry)

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JOSEPH ARPAIO and AVA ARPAIO,


husband and wife,
Defendants.

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Because Plaintiff Paul Penzone has not and could not state a viable claim for

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defamation or false light against Defendants Joseph Arpaio and Ava Arpaio, the

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Defendants move that Penzones complaint be dismissed in its entirety, pursuant to

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Arizona Rule of Civil Procedure 12(b)(6).

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Waging political warfare through judicial means, Penzone seeks to enlist this Court

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in his efforts to suppress and obstruct the dissemination of accurate, factual information

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concerning his history of domestic violence.

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complaint, as supplemented by public records, itself establishes that the statements alleged

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by Penzone to be false and defamatory are substantially if not wholly true. And

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because the ad merely restates the contents of public records, the Defendants are immune
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For the reasons discussed below, the

from liability pursuant to Arizonas public records privilege. Finally, irrespective of the

ads accuracy, the complaint proffers no factual predicate for finding that the Defendants

acted with actual malice in publishing the statements at issue.

I.

Standard of Review

The Court must dismiss any complaint that fails to state a claim upon which relief

may be granted. See Ariz. R. Civ. P. 12(b)(6). In evaluating a motion to dismiss, the

Court will assume the complaints factual allegations to be true, but will enter a judgment

of dismissal if the plaintiff should be denied relief as a matter of law given the facts

alleged. Hogan v. Washington Mut. Bank, N.A., 230 Ariz. 584, 586, 277 P.3d 781, 783

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(2012) (internal quotation omitted). Although defamation claims are not subject to a

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heightened or special pleading standard, they carry singular hazards for the uninhibited

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exercise of First Amendment rights. Accordingly, there is good reason for a court to

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examine the complaint with a more rigorous eye in order not to burden public debate with

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insupportable litigation. AMCOR Inv. Corp. v. Cox Ariz. Publications, Inc., 158 Ariz.

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566, 568, 764 P.2d 327, 329 (App. 1988).

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While motions to dismiss generally are adjudicated solely by reference to the face

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of the complaint, public records regarding matters referenced in a complaint, are not

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outside the pleading, and courts may consider such documents without converting a

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Rule 12(b)(6) motion into a summary judgment motion. Coleman v. City of Mesa, 230

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Ariz. 352, 356, 9, 284 P.3d 863, 867 (2012); see also Strategic Dev. & Const., Inc. v.

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7th & Roosevelt Partners, LLC, 224 Ariz. 60, 64, 14, 226 P.3d 1046, 1050 (App. 2010)

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(noting the exception to the conversion rule that applies to matters that, although not

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appended to the complaint, are central to the complaint).

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II.

The Complaint Does Not State A Valid Claim of Defamation

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For Penzone to prevail on a claim of defamation, he must establish that (1)

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Defendants published a defamatory statement of fact concerning Penzone, (2) the

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statement was false; and (3) the statement caused Penzone to be damaged. In addition, as

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a public figure1 seeking to wield the law of defamation to constrict public discussion and

debate, Penzone is constitutionally compelled to prove, by clear and convincing evidence,

that at the time the statement was made the Defendants knew that the statement was false

or acted in reckless disregard of whether the statement was true or false. See generally

Currier v. W. Newspapers, Inc., 175 Ariz. 290, 292-93, 855 P.2d 1351, 1353-54 (1993);

Manriquez v. City of Phoenix, CV-11-1981-PHX-SMM, 2014 WL 1319297, at *12 (D.

Ariz. Mar. 31, 2014) (citing Morris v. Warner, 160 Ariz. 55, 62, 770 P.2d 359, 366 (App.

1998)); Revised Arizona Civil Jury Instructions, Defamation 1A (5th ed. 2013).

Because [s]ensitivity to the values of free speech requires an analysis not only of

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the words used but also the context in which they appear, AMCOR, 158 Ariz. at 569, 764

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P.2d at 330, a full transcript of the advertisement underlying Penzones complaint is

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reproduced below:

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NARRATOR: This is the ad Paul Penzone doesnt want you to see.

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After Paul Penzone assaulted his ex-wife, she went to court to get an order
of protection. Penzone says nothing happened, but the judge found
Penzone to be a threat to her safety, or even her life.

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This isnt the type of person we need as Sheriff. Paul Penzone. Too
dangerous. Wrong for Sheriff.

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A.

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Penzones complaint is constructed entirely on the ads representations that (1)

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The Ads Statements Are Truthful and Accurate

Penzone assaulted his ex-wife, and (2) The judge found Penzone to be a threat to her

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Law enforcement personnel and candidates for public office inarguably are public
figures in the lexicon of defamation law. See Godbehere v. Phoenix Newspapers, Inc.,
162 Ariz. 335, 343, 783 P.2d 781, 789 (1989) (Police and other law enforcement
personnel are almost always classified as public officials.); Heuisler v. Phoenix
Newspapers, Inc., 168 Ariz. 278, 812 P.2d 1096 (App. 1991) (regarding a candidate for an
appointed position the governors administration as a public figure for defamation
purposes); see also Lewis v. Oliver, 178 Ariz. 330, 337, 873 P.2d 668, 675 (App. 1993).
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safety, or even her life. Compl. 21-24. Because both statements are demonstrably

true, however, the complaint cannot sustain a valid claim for relief.
1.

Penzone Did Assault His Ex-Wife

The complaints facile assertion that Penzone did not assault [Susan] Hubbard [his

ex-wife] does not insulate it from the strictures of Rule 12(b)(6) and is belied by

established facts in the public record.

Maricopa County Superior Court for an order of protection against Penzone. In her sworn

petition, Hubbard stated:

On March 21, 2003 Hubbard petitioned the

Paul [Penzone] came to my home with my son to pick up his hockey


equipment. He wouldnt allow me to see Austin & yelled at Austin to
unroll the truck window. He was intimidating & terrifying me. I put
Austins hockey bag outside the door, he pushed me into the door & I hit
my head, gave hockeysticks to Paul.

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Petition for Order of Protection, Penzone v. Penzone, Maricopa County Superior

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Court, Case

Relying on Hubbards account, a judge of the Maricopa County Superior Court


immediately issued an order or protection against Penzone. See Order of Protection,
Penzone v. Penzone, Maricopa County Superior Court, Case No. FC2002-008637;
FC2002-70835, March 21, 2003, attached hereto as Exhibit B.2
Crucially, the complaint does not controvert the specific, factual events related in

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No. FC2002-008637, March 21, 2003, attached hereto as Exhibit A.

Hubbards petition i.e., that Penzone was intimidating and terrifying and pushed
[Hubbard] into the door and Hubbard is not alleged to have retracted her sworn
statements.

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As noted above, public records concerning matters referenced in the complaint can
be attached to a motion to dismiss without converting it into a motion for summary
judgment. See Fifer v. City of Phoenix, CV 10-1727-PHX-RCB, 2011 WL 4708807, at *2
(D. Ariz. Oct. 7, 2011) (courts may take judicial notice of matters of public record
without converting the motion to dismiss into a motion for summary judgment);
Strategic Dev. & Const., 224 Ariz. at 64, 14, 226 P.3d at 1050 (motion to dismiss could
include notice of lien referenced in the complaint).
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Further, the two extrinsic sources cited in the complaint contain nothing that

detracts from or undermines Hubbards 2003 statements.

First, Penzone avers that

[s]ince that time, Penzone and Hubbard have amicably shared custody of their son. In

fact, when Hubbard filed her Petition for Dissolution of Marriage, she left blank the box

that would have indicated that Domestic Violence. . .occurred during the marriage.

Compl. 13, Ex. 1. This representation bespeaks at best a gross inattention to detail and

at worst a troubling attempt to intentionally obfuscate the actual chronology of events.

Contrary to the complaints intimation that Hubbards Petition for Dissolution of Marriage

was executed after the domestic violence incident, the face of the document confirms that

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it actually was filed on August 5, 2002, some seven months prior to Penzone and

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Hubbards physical altercation on March 18, 2003. See Compl. Ex. 1, p. 1. Unless

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Penzone is contending that Hubbard is possessed of clairvoyant abilities, her

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representation that no domestic violence had occurred as of August 5, 2002 is intrinsically

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irrelevant to the events of March 18, 2003.

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Second, Penzone proffers an April 2016 affidavit from Hubbard in which she

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ambiguously asserts that a 2012 advertisement aired by Sheriff Arpaios campaign

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portraying Paul as physically aggressive during our marriage was inaccurate and

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misleading. Compl. Ex. 3. As an initial matter, the 2012 advertisement to which the

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affidavit pertains is not at issue in this lawsuit; although the earlier communication did

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recount the same domestic violence incident, the contents of the two advertisements are

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not, and are not alleged to be, identical.

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generically denounces the ads portrayal of Penzone, but conspicuously fails to identify

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specifically what statements in the advertisement were inaccurate and misleading.

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Hubbard tellingly does not repudiate the sworn factual narrative she provided to the court

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in her March 2003 petition for an order of protection, see Ex. A, or otherwise proffer

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additional statements of fact that contradict her earlier account.

More fundamentally, Hubbards affidavit

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Further, in criticizing any depiction of Penzone as physically aggressive during

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our marriage (emphasis added), the affidavit intentionally or not equivocates with
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respect to a key issue of temporal sequencing. The March 2003 encounter occurred after

Hubbard had initiated divorce proceedings and after the couple had physically separated

(albeit prior to the entry of a final order dissolving the marriage). Thus, Hubbards rather

opaque statement concerning Penzones conduct during our marriage is not necessarily

probative of the events of March 18, 2003, and certainly does not operate as a retraction of

the specific averments she made in her application for a protective order.
As a result, Penzone is left merely with his conclusory representation that he did

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not assault Hubbard.

Compl. 22.

Crucially, however, [g]eneral denials of

wrongdoing by the plaintiff without evidentiary facts to support the plaintiffs position are

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insufficient, as a matter of law, to establish that the defendants accusations are false. 50

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Am. Jur. 2d Libel and Slander 477; see also Worrell-Payne v. Gannett Co., Inc., 49 Fed.

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Appx. 105, 108 (9th Cir. 2002) (holding that plaintiffs denials did not prove the falsity

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of the essential facts upon which the stories were based, the statements themselves, or the

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impressions being reported). In this vein, simply denying that an assault occurred

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carries no talismanic significance and obscures the operative inquiry; the viability of

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Penzones defamation claim pivots on the truth or falsity of the underlying material facts,

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to wit, whether he was intimidating & terrifying [to Hubbard] and pushed [her] into the

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door, Ex. A. See Restatement (Second) of Torts 581A (1977) (If the accusation is

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general and implies the commission of unspecified misconduct of a particular type, the

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statement is true if the plaintiff committed any misconduct of that type.).3

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On its face, the complaint does not deny that Penzone pushed Hubbard into a door,

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but merely disputes the ads characterization of the encounter as an assault.

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Preliminarily, shoving a person into a door is, as a matter of law, properly denoted an act

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of assault. See generally Restatement (Second) of Torts 21 (1965) (An actor is

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subject to liability to another for assault if. . .he acts intending to cause a harmful or

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Arizona views the Restatement as authority for resolving questions concerning


rules in defamation cases. Burns v. Davis, 196 Ariz. 155, 162, 19, 993 P.2d 1119, 1126
(App. 1999).
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offensive contact with the person of the other or a third person, or an imminent

apprehension of such a contact.); In re P.D., 216 Ariz. 336, 337, 9, 166 P.3d 127, 128

(App. 2007) (noting that the former offense of battery, now incorporated in the offense of

assault, included spitting in the face as an example of how a battery could be committed

by any means capable of inflicting the slightest injury.).

Further, even if, through some means of semantic technicalities, Penzone could

forge a plausible argument that his shoving of Hubbard was something other than an

assault, the ads use of the term is, at the very least, substantially true. See Heuisler,

168 Ariz. at 285 n.4, 812 P.2d at 1103 (Slight inaccuracies will not prevent a statement

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from being true in substance, as long as the gist or sting of the publication is

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justified.); Pinal County v. Cooper, 238 Ariz. 346, 351, 17, 360 P.3d 142, 147 (App.

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2015) (A substantially true communication is not actionable.).

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countenanced even proven imprecisions or errors if the communication, taken as a whole

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and as understood by a reasonable listener, accurately imparts the material underlying

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facts. See, e.g., Read v. Phoenix Newspapers, Inc., 169 Ariz. 353, 356, 819 P.2d 939, 942

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(1991) (newspaper article reporting that plaintiff had been convicted of firing a gun when

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he actually had been convicted of displaying a weapon was substantially true, noting that

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although technically inaccurate, [it] is an accurate reflection of the underlying incident);

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Fendler v. Phoenix Newspapers Inc., 130 Ariz. 475, 480, 636 P.2d 1257, 1262 (App.

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1981) (newspaper article reporting that plaintiff was serving prison sentence was

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substantially true, even though plaintiff in fact had not been convicted of any crime and

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was awaiting trial). Thus, because Penzones act of shoving of Hubbard which is not

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denied or controverted in the complaint would, in common parlance, be reasonably

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understood as an assault, the ads statement that Penzone assaulted his ex-wife is

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substantially true as a matter of law.


2.
The Judge Found Penzone To Be A Threat to Hubbards Safety
or Life

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Courts have long

In a passage that straddles the outer perimeter separating good faith advocacy from

frivolous arguments, the complaint flatly denies that a Maricopa County Superior Court

judge found Penzone to be a threat to [Hubbards] safety, or even her life. Compl.

23-24. This allegation, of course, is easily dispatched by a simple review of the courts

March 21, 2003 order, which expressly found that the Defendant [Penzone] represents a

credible threat to the physical safety of the Plaintiff or other protected person and/or may

inflict bodily injury or death on the Plaintiff. The court further ordered Penzone to

immediately surrender all firearms and ammunition in his possession. See Ex. B. at 6.

The complaint also avers that [m]oreover, Penzone is not and was not a threat to

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Hubbards safety or her life. Compl. 24. True or not, however, this representation is

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wholly irrelevant to the veracity of the ad, which merely reported the established fact that

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the judge found Penzone to be a threat to her safety, or even her life (emphasis added).

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Penzones disagreement with the courts conclusion cannot transmute an objectively true

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statement of historical fact into an actionable traducement of Penzone. See Martin v.

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Hearst Corp., 777 F.3d 546, 553 (2d Cir. 2015) (holding that news accounts that reported

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plaintiffs prior arrest but omitted mention of the eventual expungement of her record

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were not defamatory, reasoning that they do not imply any fact about [plaintiff] that is

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not true. They simply state that she was arrested and criminally charged, both of which

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[plaintiff] admits are true.).

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More fundamentally, the ad, taken as a whole, is an expressive, political

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communication that relates a factual event about a candidate for public office. Penzones

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belief in the putative unfairness of the ad does not make it actionable.

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discourse lies at the crux of the First Amendment, and courts recognize that the language

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of public commentary is almost limitless in its richness and variety, frequently

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intermixing statements of fact with evaluations, conclusions, and argumentation. Any

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standard for determining whether a particular piece of commentary is actionable

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must. . .leave considerable room for rhetorical hyperbole. AMCOR, 158 Ariz. at 569.

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B.

The Ads Statements Are Privileged


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Political

Statements that merely reflect information contained in public records are

privileged and cannot engender liability for defamation or other privacy torts even if the

contents of the public records later are proved to be inaccurate. See Sallomi v. Phoenix

Newspapers, Inc., 160 Ariz. 144, 147, 771 P.2d 469, 472 (App. 1989) (privilege applies to

statements that were a fair and accurate abridgement of the public records used); see

also Jorgensen v. Channel 5 KPHO TV, 249 Fed. Appx. 526, 527 (9th Cir. 2007) ([E]ven

if Jorgensen could establish every element of his tort claims [for libel and false light

invasion of privacy], the [public records] privilege would bar recovery).

assertion that Penzone assaulted his ex-wife is a wholly accurate distillation of

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Hubbards account in court records that Penzone had pushed me against the door, Ex.

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A, as is its paraphrase of the judges order, Ex. B. See Sallomi, 160 Ariz. at 147, 771 P.2d

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at 472 (articles statement that resort was a hang out for narcotics dealers and users was

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privileged as accurate reflection of contents of police records and affidavits). Thus, even

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if it were established that Penzone did not push Hubbard, the Defendants good faith

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restatement of the contents of court records shields them from defamation liability.

The ads

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C.

The Complaint Does Not Adequately Allege Actual Malice

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Even assuming the ads statement that Penzone assaulted his ex-wife is somehow

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factually false, the complaint fails to state a prima facie claim that Defendants acted with

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actual malice, and thus is fatally defective.

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Seeking to establish an equipoise between the reputational interests vindicated by

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the common law of defamation and the First Amendment imperative of unfettered

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discussion and debate, the U.S. Supreme Court has been willing to insulate even

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demonstrably false speech [concerning public figures] from liability, and has imposed

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additional requirements of fault upon the plaintiff in a suit for defamation. Philadelphia

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Newspapers, Inc. v. Hepps, 475 U.S. 767, 778 (1986). Specifically, public figures such as

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Penzone can sustain a cognizable defamation claim if, and only if, they prove actual

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malice, that is, knowledge that [the defamatory statement] was false or with reckless

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disregard of whether it was false or not. Currier, 175 Ariz. at 292, 855 P.2d at 1353
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(quoting N.Y. Times v. Sullivan, 376 U.S. 254, 279-80 (1964)). Indeed, the Arizona

Supreme Court has formulated a rubric more stringent than the constitutional minimum

prescribed in Sullivan, explaining that the defendants disregard must be more than

recklessconscious disregard would be a better description of the test. Dombey v.

Phoenix Newspapers, Inc., 150 Ariz. 476, 487, 724 P.2d 562, 573 (1986). As the Dombey

court explained, the locus of the actual malice standard is the defendants subjective belief

in the truth or falsity of the statement; how an abstract reasonable person would have

acted or other objective gauges are inapposite.

Despite being under no legal compulsion to investigate the underlying events, see

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St. Amant v. Thompson, 390 U.S. 727, 733 (1968) (Failure to investigate does not in

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itself establish bad faith in defamation context), Sheriff Arpaio and his campaign took

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care to retrieve and review the relevant police reports and court records in full. The ads

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statements that Penzone assaulted his ex-wife is directly corroborated by Hubbards

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sworn averment that Penzone was intimidating & terrifying me and pushed me into the

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door. See Ex. A. Similarly, the ads representation that the judge found Penzone to be

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a threat to her safety, or even her life is a nearly verbatim transcription of the courts

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express finding that the Defendant [Penzone] represents a credible threat to the physical

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safety of the Plaintiff or other protected person and/or may inflict bodily injury or death

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on the Plaintiff. See Ex. B. Sheriff Arpaios reliance on, and accurate reporting of, these

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public records forecloses any finding of actual malice. See Flowers v. Carville, 310 F.3d

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1118, 1130 (9th Cir. 2002) (One who repeats what he hears from a reputable news

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source, with no individualized reason external to the news report to doubt its accuracy, has

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not acted recklessly.).

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Penzone pleads no countervailing facts that could support a claim that Sheriff

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Arpaio had actual knowledge or even reason to believe that the ads representations were

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false. The complaint points to four informational sources that it alleges placed Sheriff

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Arpaio on notice of the advertisements ostensible inaccuracy, specifically (1) Hubbards

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divorce petition, see Compl. 13, Ex. 1; (2) Hubbards April 2016 affidavit, see id. 16,
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Ex. 3, (3) an October 2012 blog posting, see id. 15, Ex. 2; and (4) a June 28, 2016 press

conference held by Penzone, see id. 19. A closer examination of each, however, reveals

nothing that contradicts or cast into doubt the ads representations.


1.

Hubbards Divorce Petition

Penzone emphasizes that because Hubbard did not report any incident of domestic

violence when submitting her Petition for Dissolution of Marriage, see Compl. Ex. 1,

Sheriff Arpaio should have divined that no such physical confrontations had occurred.

Even assuming that Sheriff Arpaio was affirmatively obligated to unearth and review

Hubbards divorce filings, however, the petition illuminates nothing about whether

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Penzone in fact assaulted Hubbard on March 18, 2003 for the simple reason that the

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petition was filed over seven months before the events of that day. See id.
2.

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Hubbards 2016 Affidavit

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Hubbards April 2016 affidavit likewise furnishes no predicate for a finding of

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actual malice. The affidavit states only that the Arpaio campaigns 2012 advertisement

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portraying Paul as physically aggressive during our marriage was inaccurate and

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misleading.

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unspecific demands for retraction are, of course, of no weight. Dombey, 150 Ariz. at

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489, 724 P.2d at 575; see also Harris v. City of Seattle, 152 Fed. Appx. 565, 569 (9th Cir.

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2005) (The fact that [plaintiff] issued such a generalized denial falls well short of

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demonstrating that [defendant] acted with malice.). Rather, it is incumbent upon the

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plaintiff to provide specific inaccuracies and the facts to rebut them if he wishes to later

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maintain a claim of actual malice. Dombey, 150 Ariz. at 489, 724 P.2d at 575; see also

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Smolla, Law of Defamation (2d ed. 2009) 3:65.50 (A denial only serves to buttress a

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case for actual malice when there is something in the content of the denial or supporting

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evidence produced in conjunction with the denial that carries a doubt-inducing quality.).

As the Arizona Supreme Court has explained, however, [g]eneral

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Hubbards conclusory assertion that the advertisement was inaccurate and

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misleading is a non sequitur absent (1) an explicit retraction of her 2003 sworn

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statements or (2) specific, concrete factual representations that would apprise Defendants
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as to the precise alleged inaccuracies in the 2012 advertisement. Accordingly, it cannot,

as a matter of law, support a claim of actual malice.4


3.

Arizonas Politics Blog Post

Even assuming that a polemical political blog authored by an unidentified

individual were a credible source of information, it affords no basis for an allegation of

actual malice. As an initial matter, the complaint does not allege that Sheriff Arpaio had

reviewed or even been made aware of the blogs existence; there thus is no factual

predicate for an inference that he was subjectively aware of but disregarded the post.

More fundamentally, the post offers no factual information that contradicts or undermines

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the advertisement at issue. The blogger merely points out that Penzone and Hubbards

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physical altercation was a he-said, she-said situation, and faults the 2012 advertisement

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for [p]resenting a disputed and unadjudicated incident as fact. Compl. Ex. 2 at 2.

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This line of argument is unavailing for at least three reasons. First, the 2016

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advertisement does not assert that Penzone was adjudicated to have committed assault;

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rather, it reasonably relies on Hubbards sworn averment that Penzone had pushed me

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into the door, see Ex. A, in reporting that Penzone assaulted his ex-wife.

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statement is entirely accurate and thus not actionable. See Pinal Cnty. v. Cooper, 238

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Ariz. 346, 351, 360 P.3d 142, 147 & n.3 (App. 2015) (holding that defendant did not act

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with actual malice in stating that plaintiff was a felon, even though plaintiff had never

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been criminally charged, adding that defendant had not represented that plaintiff had

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been convicted of a felony and that the use of the term felon by itself implies merely

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[defendants] belief that [plaintiff] had committed a felonious act.).

The

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Second, the judge evaluating Hubbards petition for a protective order determined

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that Penzone represents a credible threat to the physical safety of [Hubbard] or other

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protected person and/or may inflict bodily injury or death on [Hubbard].

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While

If the complaint survives a motion to dismiss, discovery will reveal that Sheriff
Arpaios campaign expressly invited Penzone to identify specific alleged falsehoods in the
advertisement, so that any appropriate corrections could be made. This solicitation went
unanswered.
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Hubbards representations in her application alone amply corroborate the ads statement

that Penzone assaulted his ex-wife, the judges order only fortifies the accuracy of the

ad and underscores the dearth of evidence of actual malice.

Third, even crediting for the sake of argument the blogs spurious suggestion that

the Arpaio campaign was legally obligated to disclose that Hubbards account was

disputed by Penzone, the 2016 ad in fact does note that Penzone says nothing happened.

This caveat, though not required, extinguishes any viable allegation of actual malice. See

Harris, 152 Fed. Appx. at 569 ([T]he fact that [defendant] included [plaintiffs] denials

in its broadcast rebuts an inference of actual malice.).5


4.

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Penzones June 2016 Press Conference

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The complaint alleges that [o]n June 28, 2016, Penzone held a press conference at

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which he answered questions about the 2003 incident and once again put Arpaio on notice

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that the allegations in Arpaios 2012 ads were utterly false. Compl. 19. As noted

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above, however, Penzones conclusory denials and self-serving disquisitions about the

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putative unfairness of the 2012 ad did not put Sheriff Arpaio on notice of anything.

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See Dombey, 150 Ariz. at 489, 724 P.2d at 575. Because the press conference did not

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provide and is not alleged to have provided specific factual information rebutting the

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representations in the 2012 ad, it is not a plausible predicate for an actual malice claim.

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III.

The Complaint Does Not State A Valid Claim of False Light

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Penzones allegation that the advertisement portrayed him in a false light suffers

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from the same defects. Under Arizona law, [t]o establish a claim for false light invasion

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of privacy, a plaintiff must show (1) the defendant, with knowledge of falsity or reckless

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disregard for the truth, gave publicity to information placing the plaintiff in a false light,

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and (2) the false light in which the plaintiff was placed would be highly offensive to a

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reasonable person in the plaintiff's position. Desert Palm Surgical Group, P.L.C. v.

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The blog post concerning the 2012 advertisement also criticizes certain specific
phrases (hitting a woman, only silent witness is his ex-wife) and visual graphics that
were not, and are not alleged to be, included in the 2016 advertisement at issue here.
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Petta, 236 Ariz. 568, 580, 29, 343 P.3d 438, 450 (App. 2015). Importantly, false light

claims by public figures such as Penzone are encumbered by an additional limitation.

Specifically, a plaintiff cannot sue for false light invasion of privacy if he or she is a

public official and the publication relates to performance of his or her public life or

duties. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 343, 783 P.2d 781, 789

(1989). The complaint fails to adequately allege at a prima facie false light claim, and

thus must be dismissed.

A.

Penzones Domestic Violence Is An Issue of Public Concern

Recognizing the First Amendment precept that protection for privacy interests

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generally applies only to private matters, Godbehere, 162 Ariz. at 343, speech

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concerning public figures statements and actions with respect to matters of public

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concern is insulated from false light liability. See id. To posit that the ambit of public

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concern envelops only the conduct of public officials while on the clock performing

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government business, however, reflects an erroneous and artificially constricted

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understanding of the concept. To the contrary, [t]he extent to which a statement as to [a

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public figures] private conduct should be treated as affecting him in his capacity as a

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public official cannot be reduced to a specific rule of law. The determination depends

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upon both the nature of the office involved, with its responsibilities and necessary

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qualifications, and the nature of the private conduct and the implications that it has as to

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his fitness for the office. Restatement (Second) of Torts 580A; see also Obsidian Fin.

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Group, LLC v. Cox, 740 F.3d 1284, 1292 (9th Cir. 2014) (Public allegations that

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someone is involved in crime generally are speech on a matter of public concern.).

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At the time the advertisement aired, Penzone was a candidate for Maricopa County

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Sheriff, an office vested with the authority and responsibility to enforce the law, including

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domestic violence offenses. That the 2003 incident between Penzone and Hubbard is

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intertwined with facets of Penzones personal life does not abate its salience to a matter of

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paramount public concern i.e., Penzones qualifications, temperament and fitness for the

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office of Sheriff. See Godbehere, 162 Ariz. at 343 (It is difficult to conceive of an area
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of greater public interest than law enforcement. Certainly the public has a legitimate

interest in the manner in which law enforcement officers perform their duties.). The

established and unrefuted fact that Penzone was once subject to an order of protection

finding him to be a threat to Hubbards safety and compelling the surrender of his

firearms is information to which the voters of Maricopa County were undoubtedly entitled

when selecting their Sheriff. See id. ([P]rivacy rights are absent or limited in connection

with the life of a person in whom the public has a rightful interest, [or] where the

information would be of public benefit.).

B.

The Advertisement Is An Accurate Report of Factual Events

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False light does not offer Penzone an alternative vehicle for pursuing his deficient

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defamation claim. The two causes of action are nearly coterminous and the same rigorous

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rubric of actual malice governs both. See Godbehere, 162 Ariz. at 342, 783 P.2d at 788

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(noting that the false light theory will add little if anything beyond the relief a defamation

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or emotional distress claim will provide.). For the reasons discussed in Section II supra,

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the advertisement at issue accurately imparts factual information amply corroborated by

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court records. See Jorgenson, 249 Fed. Appx. at 527 (Arizonas public records privilege

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applies to false light claims). Hubbard has never retracted or repudiated her sworn

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statements, and neither Penzone nor any third party has ever apprised Defendants of

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additional, particularized facts that would have cast doubt on the veracity of the

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advertisement.

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Accordingly, the complaint fails to state a valid prima facie claim of either
defamation or false light, and must be dismissed.
CONCLUSION
For the foregoing reasons, Penzones complaint should be dismissed in its entirety
pursuant to Arizona Rule of Civil Procedure 12(b)(6).

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RESPECTFULLY submitted on this 15th day of November, 2016.

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STATECRAFT PLLC

By: /s/Thomas J. Basile


Kory A. Langhofer
Thomas J. Basile
649 North Fourth Avenue
Phoenix, Arizona 85003
Counsel for the Defendants

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ELECTRONICALLY FILED on the 15th day


of November 2016 with the Clerk of the Maricopa
County Superior Court using AZTurboCourt.
COPY mailed via First Class Mail this same date to:
The Honorable Jo Lynn Gentry
MARICOPA COUNTY SUPERIOR COURT
101 West Jefferson Street
Phoenix, Arizona 85003-2243

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COPY electronically served this same date on:

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Michael C. Manning
James E. Holland
STINSON LEONARD STREET LLP
1850 North Central Avenue, Suite 2100
Phoenix, Arizona 85004-4584
Michael.Manning@stinson.com
James.Holland@stinson.com

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By

/s/Thomas Basile

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Exhibit A

Exhibit B