Gonzalez v. Roney ( 2020 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
    GABRIELA GONZALEZ, Plaintiff/Appellant,
    v.
    HARVEY RONEY, et al., Defendants/Appellees.
    No. 1 CA-CV 20-0258
    FILED 12-17-2020
    Appeal from the Superior Court in Maricopa County
    No. CV2018-090577
    The Honorable Timothy J. Thomason, Judge
    AFFIRMED
    COUNSEL
    Gabriela Gonzalez, Phoenix
    Plaintiff/Appellant
    Jones, Skelton & Hochuli, P.L.C., Phoenix
    By Donn C. Alexander, Eileen Dennis GilBride, Andrea R. Logue
    Counsel for Defendants/Appellees
    GONZALEZ v. RONEY, et al.
    Decision of the Court
    MEMORANDUM DECISION
    Judge David B. Gass delivered the decision of the Court, in which Presiding
    Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
    G A S S , Judge:
    ¶1            Gabriela Gonzalez appeals from the superior court’s
    judgment as a matter of law on her defamation claim and the jury’s defense
    verdict on her battery and intentional infliction of emotional distress (IIED)
    claims. For the following reasons, we affirm.
    FACTUAL AND PROCEDURAL HISTORY
    ¶2           Gonzalez was working her shift at HonorHealth Scottsdale
    Shea Medical Center as a surgical technician. Harvey Roney was also
    present at the hospital as an employee of DePuy Synthes Sales, Inc.
    (DePuy), which supplied surgical equipment to HonorHealth. Gonzalez
    and Roney, who assisted in operating surgical equipment as necessary,
    were preparing to participate in an operation. As Gonzalez was putting on
    her mask, she alleged Roney “kicked her forcefully between the legs,
    making contact with her legs and vagina.”
    ¶3           Gonzalez reported the incident to HonorHealth’s human
    resources department. According to Gonzalez, coworkers later told her
    they heard she reported Roney for making an “off-color” joke. Gonzalez
    alleged Roney told coworkers she reported him because of the joke.
    Gonzalez sued Roney for defamation, battery, and IIED. Gonzalez also sued
    DePuy on a theory of respondeat superior.
    ¶4             At trial, Roney testified he had been a sales consultant for
    DePuy for 28 years. His job included providing technical knowledge and
    instruction to surgeons and operating room personnel. A doctor had asked
    Roney to attend surgery the day the incident occurred. As Roney walked to
    the surgery suite, he saw Gonzalez at the scrub sink. Roney walked past her
    and jokingly reminded her to put her glasses on. During the surgery, Roney
    needed to get Gonzalez’s attention. Roney would normally use a laser
    pointer to get someone’s attention during surgery to avoid entering the
    sterile field, but Gonzalez had previously told him the laser pointer
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    GONZALEZ v. RONEY, et al.
    Decision of the Court
    bothered her eyes. Roney did not use the laser pointer and instead called
    Gonzalez, but she did not respond. Roney then tapped the back of her lead
    apron near her knee to get her attention. Roney denied kicking Gonzalez.
    ¶5          Roney testified Gonzalez reported the incident to the police,
    claiming Roney kicked her during surgery. Later, Roney learned Gonzalez
    changed her allegations and now claimed Roney had kicked her in the
    vagina. The police and a prosecutor found Gonzalez’s allegations
    unsupported and the prosecutor did not charge Roney with any crimes.
    ¶6           Gonzalez admitted no one in the operating room backed her
    story. Gonzalez also admitted she never heard Roney talk about her to
    anyone else. Gonzalez’s licensed professional counselor testified Gonzalez
    has a mental illness. A neuropsychologist, who conducted over four hours
    of testing on Gonzalez, testified Gonzalez purposefully chose wrong
    answers on memory tests and exaggerated her emotional problems.
    ¶7             After Gonzalez’s case-in-chief, Roney moved for judgment as
    a matter of law on the defamation claim. The superior court granted the
    motion. The jury rendered a verdict for the defendants on the battery and
    IIED claims. Gonzalez timely appealed. This court has jurisdiction under
    Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1
    and -2101.A.1.
    ANALYSIS
    I.     The superior court properly entered judgment as a matter of law
    on the defamation claim.
    ¶8           Gonzalez argues the superior court erred when it granted
    judgment as a matter of law on the defamation claim. This court reviews a
    superior court’s entry of judgment as a matter of law de novo, “viewing the
    evidence and reasonable inferences in the light most favorable to”
    Gonzalez. See Spooner v. City of Phoenix, 
    246 Ariz. 119
    , 123, ¶ 7 (App. 2018).
    ¶9             Gonzalez alleged Roney published false statements about her
    to coworkers, including statements that her complaint to HR was made
    because of a joke Roney told. To succeed on her defamation claim, Gonzalez
    needed to prove Roney published a false and defamatory communication
    about her. See Dube v. Likins, 
    216 Ariz. 406
    , 417, ¶ 35 (App. 2007).
    “Publication for defamation purposes is communication to a third party.”
    Id. at ¶ 36.
    Though Gonzalez asserts Roney “published details of the
    battery,” the record does not support her assertion. Gonzalez testified she
    never heard Roney talk about her to anyone else. Gonzalez cites no
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    GONZALEZ v. RONEY, et al.
    Decision of the Court
    evidence in the record to support publication. Because Gonzalez could not
    prove publication, the superior court properly granted judgment as a
    matter of law on the defamation claim.
    II.    Substantial evidence supports the jury’s verdict.
    ¶10            Gonzalez also challenges the jury’s verdict on the battery and
    IIED claims. “In reviewing a jury verdict, we view the evidence in the light
    most favorable to sustaining the verdict. We will affirm the verdict if there
    is substantial evidence to support it.” S Dev. Co. v. Pima Capital Mgmt. Co.,
    
    201 Ariz. 10
    , 23, ¶ 42 (App. 2001) (quotation omitted).
    ¶11           To succeed on her battery claim, Gonzalez needed to prove
    Roney intentionally caused offensive or harmful contact with her. See
    Johnson v. Pankratz, 
    196 Ariz. 621
    , 623, ¶ 6 (App. 2000). The IIED claim
    required her to prove Roney “caused severe emotional distress by extreme
    and outrageous conduct committed with the intent to cause emotional
    distress or with reckless disregard of the near-certainty that such distress
    would result.” See Watkins v. Arpaio, 
    239 Ariz. 168
    , 170–71, ¶ 8 (App. 2016).
    ¶12          Roney testified he tapped the back of Gonzalez’s apron after
    unsuccessfully attempting to get her attention. Gonzalez, moreover,
    admitted no one in the surgery suite corroborated her story. And the
    neuropsychologist testified Gonzalez was untruthful and malingering.
    ¶13            In short, the jury heard conflicting testimony and found
    Roney did not intend to cause offensive or harmful contact or emotional
    distress. We will not, on this record, disturb that verdict. See S Dev. 
    Co., 201 Ariz. at 23
    , ¶ 42; United Cal. Bank v. Prudential Ins. Co. of Am., 
    140 Ariz. 238
    ,
    286 (App. 1983) (this court “will not substitute its judgment as to credibility
    of witnesses and weight of evidence for that of the jury”).
    III.   Gonzalez’s remaining arguments are waived.
    ¶14             Gonzalez raises several additional issues, but she fails to
    properly develop supporting argument or show where in the record she
    raised a proper objection. Accordingly, we find these arguments waived.
    See In re Aubuchon, 
    233 Ariz. 62
    , 64–65, ¶ 6 (2013) (“arguments not
    supported by adequate explanation, citations to the record, or authority”
    are waived); Best Choice Fund, LLC v. Low & Childers, P.C., 
    228 Ariz. 502
    , 508,
    ¶ 17 (App. 2012) (appellate courts generally do not consider issues raised
    for the first time on appeal).
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    GONZALEZ v. RONEY, et al.
    Decision of the Court
    CONCLUSION
    ¶15          We affirm the superior court’s entry of judgment as a matter
    of law and the jury verdicts. We award Roney his costs upon compliance
    with ARCAP 21.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    5
    

Document Info

Docket Number: 1 CA-CV 20-0258

Filed Date: 12/17/2020

Precedential Status: Non-Precedential

Modified Date: 12/17/2020