AZAPP Blog Your resource for news and analysis of cases in Arizona's appellate courts.

AZAPP Blog header image

BLK III, LLC v. Skelton - 2/17/2022

Arizona Court of Appeals Division One holds challenged noise complaints to local authorities were protected by Arizona’s anti-SLAPP statute.

A food and entertainment venue closed its doors after succumbing to what it described as its neighbors’ efforts to “intentionally destroy” its business.  The venue’s complaint alleged its neighbors had conspired to report “hundreds of false sound complaints” to law enforcement and influence the local city council to revoke its property permit.  The venue was leasing the property subject to an existing conditional use permit with certain noise restrictions as well as the city’s general noise ordinance.  The neighbors moved for expedited dismissal, arguing Arizona’s anti-SLAPP statute protected its constitutional right to petition for government redress.

The trial court dismissed the complaint with prejudice pursuant to Arizona’s anti-SLAPP statute and the venue appealed.  The Court of Appeals affirmed the trial court’s dismissal and awarded fees and costs.

The Court explained that Arizona’s anti-SLAPP statute, A.R.S. § 12-752, provides a mechanism for expedited consideration of a complaint targeting the defending party’s exercise of its “right to petition.”  The right to petition protects from legal action constitutionally protected free speech (i.e., non-defamatory speech) that is (a) made to an executive or legislative body, or before a government proceeding; (b) related to an issue pending “consideration or review”; and (c) made to intentionally influence government action.  Dismissal is required unless the plaintiff can show the defending party’s statements did not constitute a petition under the elements above, or the statements did not contain “any reasonable factual support or any arguable basis in law,” and caused the plaintiff compensable injury.

First, the Court found that because the venue only provided the trial court with general summaries of the neighbors’ reports to local authorities rather than specific noise complaints, it failed to clearly and specifically allege the content and context “crucial to the court’s analysis” of whether the statements were defamatory.

Second, the Court found that the broad statutory definition of “governmental proceeding,” which includes any proceeding by executive and legislative officers and bodies, covered the neighbors’ reports to local law enforcement officers and statements at informal city council meetings.

Next, the Court found that because the neighbors’ statements were made to persuade the city to deny the venue’s pending request to amend its use permit, the statements were made in connection with and for the purpose of influencing an issue “under consideration.”

Finally, the Court noted that even if the venue could show that it had not violated the sound ordinance, it would still fail to demonstrate the neighbors’ reports to local authorities lacked reasonable or factual legal support given the statements concerned the disturbance of the neighbors’ peace and enjoyment of their homes.

Judge Campbell authored the opinion of the Court, in which Judge Thumma and Ret. Judge Portley joined.

Posted by: Payslie M. Bowman

Posted On: 3/7/2022