                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                 LONNY BRITTNER, Plaintiff/Appellant,

                                   v.

            MARY ANN LANZILOTTA, Defendant/Appellee.

                           No. 1 CA-CV 18-0088
                             FILED 3-12-2019


          Appeal from the Superior Court in Maricopa County
                         No. CV 2017-094921
                The Honorable David K. Udall, Judge

                               AFFIRMED


                            APPEARANCES

Lonny Brittner, Chandler
Plaintiff/Appellant

Renaud Cook Drury Mesaros PA, Phoenix
By Michael D. Wolver, Karl J. Gruse, Steven G. Mesaros
Counsel for Defendant/Appellee



                               OPINION

Judge Jennifer B. Campbell delivered the opinion of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Randall M. Howe joined.
                        BRITTNER v. LANZILOTTA
                           Opinion of the Court

C A M P B E L L, Judge:

¶1            Lonny Brittner appeals the superior court’s dismissal of his
amended complaint. Because Dr. Mary Ann Lanzilotta is entitled to judicial
immunity as the court-appointed therapeutic interventionist (“TI”) in
Brittner’s family court matter, we affirm.

                              BACKGROUND

¶2             Brittner filed a civil action against Lanzilotta for intentional
infliction of emotional distress, abuse of power, breach of fiduciary duty,
and breach of contract after she resigned from her role as a court-appointed
TI in his dissolution matter. In that proceeding, Brittner sought joint legal
decision-making and equal parenting time of his children. The family court
appointed Dr. Daniel Christiano as a custody evaluator. Christiano
recommended the family see a TI. The parties provided the family court
with a stipulated agreement to appoint Lanzilotta, and the court appointed
her. Pursuant to the order, Lanzilotta was appointed to rehabilitate
relationships between Brittner and the minor children, establish “rules for
[the] exchange of [the] children in order to enhance safety and health in the
family,” make referrals for therapy as necessary, and facilitate conflict
resolution.1 In his amended complaint, Brittner acknowledged that
Lanzilotta was appointed by court order and that the court relied on
Lanzilotta’s recommendations in issuing its final decree.2

¶3            Lanzilotta moved to dismiss the complaint under Arizona
Rule of Civil Procedure 12(b)(6), arguing she was entitled to judicial
immunity as a court-appointed TI. The court dismissed the complaint with
prejudice. Brittner timely appealed from the resulting final judgment. See
Ariz. R. Civ. P. 54(c).




1       Brittner did not include the entire family court order in his amended
complaint; on appeal, Lanzilotta asks this court to take judicial notice of the
remainder of the order. See State v. McGuire, 124 Ariz. 64, 66 (App. 1978)
(“An appellate court can take judicial notice of any matter of which the trial
court may take judicial notice, even if the trial court was never asked to do
so.”). In our discretion and because we resolve this issue based on the
record before us, we deny Lanzilotta’s request.
2       For example, Brittner averred that the custody orders contained
“therapeutic supervised dinner visits with the minor children as
recommended by the therapeutic interventionist.” (Emphasis added.)


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                         BRITTNER v. LANZILOTTA
                            Opinion of the Court

                                 DISCUSSION

¶4             We review the dismissal of a claim under Rule 12(b)(6) de
novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). “When
adjudicating a Rule 12(b)(6) motion to dismiss, Arizona courts look only to
the pleading itself and consider the well-pled factual allegations contained
therein.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008). We
also “assume the truth of the well-pled factual allegations and indulge all
reasonable inferences therefrom.” Id. We will affirm the dismissal if, as a
matter of law, the plaintiff is not “entitled to relief under any interpretation
of the facts susceptible of proof.” Fed. Sec. Life Ins. Co. v. State Dep’t of Ins.,
191 Ariz. 222, 224, ¶ 4 (1998).

¶5             Brittner argues Lanzilotta is not entitled to judicial immunity
because she was hired to provide therapeutic services to the parties, and
not as an expert to assist the court, relying in part on Paul E. v. Courtney F.,
244 Ariz. 46, 56-57, ¶ 32 (App. 2018) (review granted in part Nov. 20, 2018).
Brittner, however, admits that Lanzilotta was appointed by the court. He
also acknowledges the court relied on Lanzilotta’s recommendations when
making the final custody determination.

¶6             Judicial immunity protects judges from civil liability for
judicial acts performed in the exercise of their judicial functions. In re
Alexander, 232 Ariz. 1, 11, ¶ 41 (2013). “Judicial immunity protects a non-
judicial officer performing a function pursuant to a court directive related
to the judicial process.” Lavit v. Superior Court, 173 Ariz. 96, 99 (App. 1992)
(citing Acevedo ex rel Acevedo v. Pima Cty. Adult Prob. Dep’t, 142 Ariz. 319,
321 (1984)). Absolute judicial immunity has been extended to “certain other
court officials who perform functions integral to the judicial process,”
including court-appointed psychologists and psychiatrists who assist the
court. Id. (citing Acevedo, 142 Ariz. at 321). The existence of judicial
immunity is a question of law we review de novo. Widoff v. Wiens, 202 Ariz.
383, 385-86, ¶ 8 (App. 2002). Whether absolute immunity protects a
nonjudicial officer hinges on “the nature of the function performed, not on
the identity of the actor.” Lavit, 173 Ariz. at 99.

¶7             Here, the court appointed Lanzilotta to provide therapeutic
services and to give recommendations to the family court regarding “rules
for [the] exchange of [the] children in order to enhance safety and health in
the family” and referrals for therapy, which the court ultimately relied on
in issuing its final order. Therapeutic services in this matter are incidental
to the court’s purpose—Lanzilotta was appointed to provide the court
information and make recommendations to assist in a custody


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                        BRITTNER v. LANZILOTTA
                           Opinion of the Court

determination. To formulate her expert opinion, therapeutic sessions were
necessary to gather and evaluate the family dynamics and challenges to
various proposed custody arrangements. Thus, Lanzilotta is a court-
appointed therapist who performed functions integral to the judicial
process.

¶8             Brittner’s reliance on Paul E. is misplaced because the court-
appointed therapist there was not ordered to report to the court. 244 Ariz.
at 56, ¶ 31. The therapist’s role was not to provide the court with
information to resolve disputes, id. at 51, ¶ 13; rather, the court appointed
the therapist to aid the family in a treating capacity, id. at 56, ¶ 31. See Ariz.
Rev. Stat. § 25-405(B) (allowing the court to “seek the advice of a
professional . . . whether or not employed by the court on a regular basis”).

¶9             While the trial court couched the therapist’s appointment in
terms of § 25-405(B) language, we noted that the therapist’s appointment
was essentially an order for therapy, and “[a] treating therapist . . . performs
a nonjudicial function that does not justify immunity.” Id. at 57, ¶¶ 31-32.
This court ultimately concluded that the therapist in Paul E. was not entitled
to judicial immunity because the trial court expressly ordered that she
continue in the role of a privately retained therapist, rather than an advisor
to the court. Id. at 56, ¶ 31. Necessarily, the expert must be formulating an
opinion about an issue currently pending before the court to advise the
court. To invoke § 25-405(B) and appoint an expert to advise the court, there
must be a pending motion, scheduled review hearing, or some other
unresolved proceeding before the court. See id. at 57, ¶ 33 (applying same
principle to the court’s appointment of a gender expert).

¶10            Brittner argues that not all of the services provided by
Dr. Lanzilotta should be cloaked in immunity. Brittner cites Lavit for the
proposition that judicial immunity is not afforded to a nonjudicial officer
who works exclusively for one party or who performs ministerial activities
that are not part of the clinical and reporting function. See Lavit, 173 Ariz. at
101. But we do not parcel out therapeutic service from evaluation and
reporting to the court nor do we limit immunity only for services related to
the judicial process. To do so is neither practical nor possible. Here, therapy
sessions were not separate from the evaluation leading to an expert opinion;
the sessions are the observation and information gathering that enable the
expert to formulate her opinion.

¶11         Looking solely at the facts alleged in the amended complaint,
Lanzilotta was appointed to provide therapeutic services and make
recommendations to the court. Brittner did not allege that Lanzilotta


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                       BRITTNER v. LANZILOTTA
                          Opinion of the Court

worked exclusively for one party or that his causes of action against her
were based on “ministerial activities” unrelated to the formulation of her
expert opinion. Rather, he alleged that Lanzilotta’s work “in the Family
Action” was deficient: she caused harm to his family, she “has a Duty of
Care to both [him] and [his] minor children in the Family Action,” she owes
him and “each one of his children in the Family Action” a standard of care,
and he and his children “in the Family Action relied on that Standard of
Care.” The facts and causes of action alleged in the complaint are all derived
from Lanzilotta’s work as a court-appointed TI. Judicial immunity for a
court-appointed therapist is appropriate. The therapist cannot serve two
masters—her obligation is ultimately to the court.

¶12           Lanzilotta acted as a nonjudicial officer when she performed
a court ordered function by aiding the court in making its final custody
order. Judicial immunity applies.

                               CONCLUSION

¶13          For the foregoing reasons, we affirm the superior court’s grant
of the motion to dismiss.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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