Walker v. U-Haul ( 2018 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
SUSAN WALKER, et al., Plaintiffs/Appellants,
v.
U-HAUL INTERNATIONAL INC, et al., Defendants/Appellees.
No. 1 CA-CV 16-0366
FILED 2-15-2018
Appeal from the Superior Court in Maricopa County
No. CV2012-005444
No. CV2013-005508
(Consolidated)
The Honorable Christopher T. Whitten, Judge
AFFIRMED
COUNSEL
McFadden, Ticen & Beam PLC, Chandler
By Garrick A. McFadden, Paul D. Ticen, Henry H. Beam
Co-Counsel for Plaintiffs/Appellants
Ahwatukee Legal Office, P.C., Phoenix
David L. Abney
Co-Counsel for Plaintiffs/Appellants
The Ward Firm, Sacramento, CA
By Justin L. Ward
Co-Counsel for Plaintiffs/Appellants appearing Pro Hac Vice
Snell & Wilmer L.L.P., Phoenix
By Patrick X. Fowler, Nicole E. Sornsin, Kelly A. Kszywienski
Counsel for Defendants/Appellees
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Judge
Kent E. Cattani joined. Presiding Judge James P. Beene specially concurred.
H O W E, Judge:
¶1 Susan Walker, doing business as Diamondback Movers, and
13 other moving-related service companies (collectively the “service
providers”) appeal the trial court’s grant of summary judgment in favor of
Defendants eMove, Inc., and U-Haul (collectively “U-Haul”). For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Starting in 2002, U-Haul, through its subsidiary eMove,
created a website that it called the Moving Help Marketplace (the
“Marketplace”), which allowed moving-related companies to advertise
their services in exchange for a fee. The service providers gave information
to eMove to advertise on the Marketplace, including rate information,
services offered, policies, and procedures. Without the service providers’
knowledge or express permission, however, U-Haul used the service
providers’ information to create profiles for advertising on third-party
websites. Although these advertisements used the service providers’ trade
names and addresses, they used phone numbers that led to U-Haul’s call
center. These advertisements also included hyperlinks to U-Haul’s web
pages, www.movinghelp.com and www.uhaul.com. After each plaintiff’s
participation in the Marketplace was terminated at various times, U-Haul
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continued to leave the hyperlinks and phone numbers active on the third-
party websites.
¶3 After learning of this practice, some of the service providers
used the phone numbers provided on the advertisements to call the U-Haul
call center to see if the employees were representing themselves to potential
consumers as the service providers. The call center employees identified
themselves as “Moving Help” and not as any of the service providers.
Additionally, when asked if they represented the service providers, the
employees stated that they did not.
¶4 Walker sued U-Haul alleging that it had misappropriated her
trademark, which allowed U-Haul to illegally obtain business using
Diamondback Movers’ trade name. She claimed this action violated A.R.S.
§ 44–7202 (2014),1 which prohibits using the internet to induce someone to
provide identifying information by misrepresenting that the information is
for an on-line business that has not authorized the solicitation. The other
moving-related service companies filed a separate lawsuit against U-Haul,
also alleging that U-Haul had violated § 44–7202. The court consolidated
the cases, combining the claims of all 14 plaintiffs against U-Haul.
¶5 U-Haul moved for summary judgment on all claims, arguing
that § 44–7202 was inapplicable because it was designed to prohibit
“phishing,” which is the impersonation of an online business or financial
institution for the purpose of stealing a victim’s personal identifiable or
financial information. The trial court granted U-Haul’s motion, finding §
44–7202 inapplicable because the third-party web pages (on which the
service providers’ names were used) did not solicit, request, or induce
another person to provide identifying information. The trial court noted
that on the website that requested identifying information, U-Haul did not
refer to the service providers, and thus did not violate § 44–7202. The court
reasoned that “[w]hile misrepresenting yourself as a different company
without their permission may be a basis for civil, or even criminal action,
that misrepresentation alone does not result in a violation of [§ 44–7202].”
After concluding that U-Haul’s conduct did not violate § 44–7202, the trial
court noted that its conclusion was consistent with the statute’s legislative
history, which evidenced an intent to criminalize phishing. The service
providers timely appealed.
1 This statute was amended in 2015. See H.B. 2413, 52d Leg., 1st Reg
Sess. (Ariz. 2015). However, the amendment was not made retroactive, and
therefore, the 2014 statute applies in this case.
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DISCUSSION
¶6 The service providers argue that summary judgment was
inappropriate because whether U-Haul violated § 44–7202 was a disputed
issue of fact. Entry of summary judgment is proper “if the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.
56(a). We determine de novo whether any genuine issue of material fact
exists and whether the trial court erred in applying the law. Sign Here
Petitions LLC v. Chavez, 243 Ariz. 99, 104 ¶ 13 (App. 2017). We construe the
evidence and reasonable inferences in the light most favorable to the non-
moving party. Sanders v. Alger, 242 Ariz. 246, 248 ¶ 2 (2017).
¶7 Issues of statutory construction and interpretation are
reviewed de novo. Green Cross Med., Inc. v. Gally, 242 Ariz. 293, 295 ¶ 5
(App. 2017). The Court’s primary goal in interpreting statutes is to
effectuate the legislature’s intent. Stambaugh v. Killian, 242 Ariz. 508, 509 ¶ 7
(2017). A statute’s language is the most reliable indicator of its meaning. See
Sempre Ltd. P’ship v. Maricopa Cty., 225 Ariz. 106, 108 ¶ 5 (App. 2010). When
the plain text of a statute is clear and unambiguous the court need not resort
to secondary methods of statutory interpretation to determine the
legislative intent because its intent is readily discernable from the face of
the statute. State v. Christian, 205 Ariz. 64, 66 ¶ 6 (2003).
¶8 The relevant statute here, section 44–7202, states:
A person shall not by means of a web page or electronic mail
message or otherwise using the internet solicit, request or take
any action to induce another person to provide identifying
information by representing that the person, either directly or
by implication, is an on-line business without the authority or
approval of the on-line business.
Section 44–7202’s language is clear and unambiguous.2 This statute
prohibits a person from (1) using a web page, email, or the internet (2) to
2 The service providers claim that the trial court improperly
considered the statute’s legislative history in ruling that U-Haul’s conduct
did not violate the statute. The service providers argue that the trial court
should not have consulted the legislative history because the statute was
unambiguous. We agree that the statute was unambiguous, but we disagree
with their assertion that the trial court examined the legislative history to
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solicit, request, or take any action that would induce another person to
provide identifying information, (3) by representing that the person is an
on-line business, (4) without authority or approval of the on-line business.
¶9 Here, U-Haul’s actions did not fall within the statute. On the
third-party web pages, U-Haul represented the service providers, but it did
not solicit, request, or induce potential customers to provide identifying
information. While the second web page (either www.movinghelp.com or
www.uhaul.com) and phone receptionists did request identifying
information, in no instance did U-Haul claim to represent the service
providers—either on the web page requesting identifying information or
during the phone calls. Thus, at no point in time did U-Haul’s use of its web
page or phone calls in which identifying information was requested result
in a violation of § 44–7202.
¶10 The service providers counter that the trial court incorrectly
concluded that § 44–7202 required direct solicitation, direct inducement, or
direct request of a consumer tied to the representation before someone
could be liable for its violation. The service providers contend that a person
can violate the statute without any direct solicitation, direct inducement, or
direct request of a consumer. But the statute provides that “[a] person shall
not . . . solicit, request or take any action to induce another person to provide
identifying information by representing that the person, either directly or
by implication, is an on-line business . . . .” Thus, the phrase “either directly
or by implication” relates to the act of misrepresenting the person or entity
that is requesting identifying information. Here, U-Haul did not purport to
be representing the service providers at any time when U-Haul solicited
identifying information from customers. Therefore, this argument fails.
¶11 Similarly, the service providers argue that the trial court erred
by concluding that U-Haul had not made any “communications” in which
it had misrepresented itself as the service providers. Specifically, the service
providers argue that § 44–7202’s plain wording does not limit violations to
“communications” in which the persons misrepresent themselves and that
“any action” that induces another person to provide identifying
information, either directly or by implication, is sufficient to support
liability. The service providers contend that U-Haul’s web page and other
internet-based actions induced potential consumers to eventually provide
resolve any ambiguity. The trial court found that the statute was
unambiguous, and it merely discussed the legislative history as further
support of its determination. As such, the service providers’ arguments
about the trial court’s analysis of the legislative history are inapplicable.
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identifying information and that no temporal link was required between
the alleged representation and alleged solicitation.
¶12 As stated earlier, however, the phrase “either directly or by
implication” applies only to the statutory language of “by representing”
and not to the language of “any action to induce.” The record reflects that
when consumers clicked on the third-party web page advertisement with
the misrepresentation, they were directed to a second web page at either
www.movinghelp.com or www.uhaul.com, both of which did not display
any information related to the service providers. Furthermore, after
consumers inserted moving information onto the second web page it
displayed a list of available moving companies, and none of these
companies were the service providers. As for consumers who called U-
Haul based on the third-party web page’s advertisement, they were greeted
with the phrase “Moving Help” and not the names of the service providers.
Moreover, when asked if Moving Help was any of the service providers,
the call center employees replied that they were not. To follow the service
providers’ interpretation would lead to absurd results. For instance, if U-
Haul had affirmatively informed a consumer that it had no connection to
the service providers, but in spite of that the consumer still decided to use
U-Haul’s services, then U-Haul would still be liable under the statute
because the initial third-party web page advertisement “induced” the
consumer to contact U-Haul and to eventually purchase its services.
Consequently, this argument also fails.
¶13 Additionally, the service providers claim that the trial court’s
ruling that the misrepresentation must also “solicit, request or take any
action to induce another person to provide identifying information” is not
accurate because the statute only discusses “representing” rather than
“misrepresenting.” The attempted distinction between “representing” and
“misrepresenting” in the context of the statute is not persuasive because the
act of representing oneself as another party without authority is a
misrepresentation.
¶14 Last, the service providers argue that the trial court’s
“misrepresentation” analysis implied that the 2005 version of § 44–7202
imposed a requirement to prove an intent to commit fraud or theft, but the
implication was erased by the statute’s 2015 amendment in which a specific
intent requirement was added. Because the statute is criminal in nature,
however, it necessarily implies intent or would otherwise constitute an
improper strict liability crime. See State v. Averyt, 179 Ariz. 123, 129 (App.
1994) (noting that “the established rule, with few exceptions, prohibits
criminal punishment without wrongful intent”). An exception to the rule
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occurs only when the legislature clearly determines so. State v. Crisp, 175
Ariz. 281, 282–83 (App. 1993). The record does not clearly show that the
legislature intended this statute to be one of strict liability, so the 2015
amendment must be interpreted as simply clarifying the legislature’s
original intent. Consequently, the service providers’ argument fails, and the
trial court did not err by granting U-Haul summary judgment.
CONCLUSION
¶15 For the foregoing reasons, we affirm.
BEENE, J., specially concurring:
¶16 I concur with the majority’s determination that A.R.S. § 44-
7202 was unambiguous and that the statute did not apply. I write
separately, however, because I disagree that the superior court found § 44-
7202 to be unambiguous and therefore erred by reviewing the statute’s
legislative history.
¶17 “In any case involving statutory interpretation we begin with
the text of the statute . . . because the best and most reliable index of a
statute’s meaning is the plain text of the statute.” State v. Christian, 205 Ariz.
64, 66, ¶ 6 (2003). If the language of the statute is clear, we must “apply it
without resorting to other methods of statutory interpretation,” such as
reviewing legislative history to determine legislative intent. Bilke v. State,
206 Ariz. 462, 464, ¶ 11 (2003) (citation omitted).
¶18 The language of § 44-7202 is clear and unambiguous. Because
of the clear prohibitions set forth in § 44-7202, it was unnecessary for the
superior court to resort to secondary rules of construction to determine its
meaning. See In re Adam P., 201 Ariz. 289, 291, ¶¶ 12-13 (App. 2001)
(refusing, where statute was clear, to consider argument based on
legislative fact sheets); Hounshell v. White, 219 Ariz. 381, 388, ¶ 24 (App.
2008) (“The law is the legislation, not the fact sheets or bill summaries. The
latter do not always faithfully capture every aspect of the former[.]”).
¶19 The superior court did not explicitly find that § 44-7202 was
unambiguous and seemingly relied upon § 44-7202’s legislative history to
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BEENE, J., specially concurring
determine that it did not apply. The parties spent considerable time
litigating whether § 44-7202 was ambiguous and arguing over the
legislative history. The court’s in-depth discussion of the legislative history
suggests that the court used it to interpret § 44-7202.
¶20 For the foregoing reasons, I concur with the majority’s
determination that the statute was unambiguous and the affirmance of the
superior court’s grant of summary judgment in favor of U-Haul.
AMY M. WOOD • Clerk of the Court
FILED: AA
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