Gonzalez v. Roney ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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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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
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