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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    DAVID NOVAK, Plaintiff/Appellant,

                                        v.

               PAUL PENZONE, et al., Defendants/Appellees.

                             No. 1 CA-CV 19-0129
                               FILED 12-10-2019


           Appeal from the Superior Court in Maricopa County
                          No. CV2017-055923
             The Honorable Theodore Campagnolo, Judge

                                  AFFIRMED


                                   COUNSEL

David Novak, Fountain Hills
Plaintiff/Appellant

Maricopa County Attorney’s Office, Phoenix
By Christine B. Stutz
Counsel for Defendants/Appellees



                       MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jennifer M. Perkins joined.
                       NOVAK v. PENZONE, et al.
                         Decision of the Court

M c M U R D I E, Judge:

¶1             David Novak appeals from the superior court’s order
entering judgment for and dismissing his action against Maricopa County
Sheriff Paul Penzone, Maricopa County Sheriff’s Office Deputy S. Bowers,
and Maricopa County Sheriff’s Office Captain David Letourneau
(collectively, the “Officers”). For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            This case stems from an encounter between Deputy Bowers,
Captain Letourneau, and Novak on November 7, 2016, which resulted in
Novak receiving two citations for violating a provision of the Fountain
Hills’ code governing residential parking. Novak challenged the citations
in the Fountain Hills Municipal Court. After a hearing, the municipal court
found Novak violated the town code and fined Novak $260. After Novak
appealed, the superior court affirmed the municipal court’s ruling.

¶3            In November 2017, while his appeal from the municipal court
was pending, Novak filed a civil complaint in the superior court alleging
that the Officers had engaged in tortious misconduct during the encounter
as they had no authority to issue the citations. Novak described his causes
of action as “unlawful citations (arrest), harassment, defamation of
character, retaliation[,] and [illegal] entrance of a U.S.[] mailbox in
attempted service of Novak.” He later recharacterized all but the
defamation cause of action as a claim for abuse of process. Novak identified
a question and a statement allegedly made by Captain Letourneau to a
female tenant residing at Novak’s home as the statements underlying his
defamation claim. Captain Letourneau’s allegedly defamatory question
was whether the female tenant “felt safe” in Novak’s residence, and his
allegedly defamatory statement was that “other women were not safe at the
residence.”

¶4            At a scheduling conference in October 2018, the superior
court judge presiding over the case disclosed that he had worked for the
Maricopa County Attorney’s Office for eight years ending in January 2004;
he had worked only on criminal matters; and he did not know Sheriff
Penzone. The judge then explained that he did not believe he was required
to disqualify himself but asked the parties if they had any objection to him
continuing to preside over the case. In response, Novak stated:

      My thoughts are this. I think, you know, you’re being very
      upfront about, you know, certain situations, and it doesn’t



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                        NOVAK v. PENZONE, et al.
                          Decision of the Court

       sound to me like you would have any bias or prejudice one
       way or the other. So, you know, I think we’re okay there.

After discussing his concerns about the Maricopa County Superior Court
presiding over a lawsuit involving Maricopa County employees with the
judge, Novak further stated that “it doesn’t sound like, to me, from what
you said, that there’s going to be any conflict of interest or anything.”

¶5             The Officers subsequently moved for summary judgment on
both the abuse of process and defamation claims, arguing, inter alia, that:
(1) Novak had failed to produce any evidence to support the essential
elements of either claim; (2) Captain Letourneau was entitled to qualified
immunity regarding his allegedly defamatory statements under Arizona
law; and (3) to the extent Novak raised any claim against Sheriff Penzone,
he could not be held personally or vicariously liable for Deputy Bowers’
and Captain Letourneau’s allegedly tortious actions. In response, Novak
filed a document entitled “Plaintiff’s Objection to Defendant[’]s Motion for
Summary Judgment,” in which he accused the Officers’ counsel of lying to
the court, repeated the allegations in the complaint, claimed he would call
witnesses and present evidence at trial, and asserted he had a right to a jury
trial. The superior court heard argument on the motion. During the
argument, Novak again stated the Officers had no reason to issue the
citations, witnesses would testify at trial to support his claims, and the sole
purpose of the Officers’ conduct was to harass him in retaliation for a prior
lawsuit that settled in his favor. Novak failed to identify evidence in the
record to support these arguments.

¶6            After taking the matter under advisement, the court issued a
detailed ruling granting the motion for summary judgment in favor of the
Officers on all claims. The court then entered a final judgment dismissing
Novak’s action with prejudice. Novak appealed, and we have jurisdiction
under Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1)
and -2101(A)(1).

                               DISCUSSION

¶7             Novak’s opening brief appears to argue that: (1) the superior
court judge who decided the Officers’ motion for summary judgment had
a conflict of interest with the Officers’ counsel and the Maricopa County
Attorney’s Office generally, meaning the judge was biased towards the
Officers, and should have sua sponte disqualified himself; and (2) the court
erred by granting summary judgment in favor of the Officers. We address
each argument in turn.



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                        NOVAK v. PENZONE, et al.
                          Decision of the Court

A.     Novak’s Judicial Bias Claim is Without Merit.

¶8              Novak argues the superior court judge who presided over the
case was biased in favor of the Officers due to his prior employment with
the Maricopa County Attorney’s Office. Specifically, Novak claims that the
judge had a conflict of interest and was biased because he “worked in the
Maricopa County Attorney’s Office with [the Officers’ counsel] for 8 years”
and that they “worked . . . in the same division . . . defending lawsuits
against the Maricopa County Sheriff.” Without citation to relevant legal
authority or the record, Novak concludes the judge “was required by [the]
judicial code to recuse himself from the case,” and that “he stayed on the
case so that . . . he could get rid of the lawsuit for his former employer.”

¶9            We presume judges are impartial, and the party seeking
disqualification “must prove bias or prejudice by a preponderance of the
evidence.” State v. Carver, 160 Ariz. 167, 172 (1989). “Bias and prejudice are
evidenced by ‘a hostile feeling or spirit of ill-will, or undue friendship or
favoritism, towards one of the litigants.’” In re Aubuchon, 233 Ariz. 62, 66,
¶ 14 (2013) (quoting State v. Myers, 117Ariz. 79, 86 (1977)). Also, the Arizona
Code of Judicial Conduct provides that “[a] judge shall disqualify himself
or herself in any proceeding in which the judge’s impartiality might
reasonably be questioned.” Ariz. R. Sup. Ct. 81, Code of Judicial Conduct
Rule (“Judicial Rule”) 2.11(A). This includes situations where the judge
“served in governmental employment, and in such capacity participated
personally and substantially as a lawyer . . . concerning the proceeding.”
Judicial Rule 2.11(A)(6)(b).

¶10           Novak has not cited to, nor our review of the record has
revealed, a basis upon which the judge’s impartiality might reasonably be
questioned. The judge’s prior employment with the Maricopa County
Attorney’s Office—more than a decade before the events underlying
Novak’s suit occurred and involving only criminal matters 1—is a far cry
from the situations requiring disqualification discussed in Judicial Rule
2.11. See Judicial Rule 2.11(A)(6)(b) (requiring recusal when judge’s prior
governmental employment involved personal and substantial involvement
in the proceedings at issue); see also, e.g., United States v. Dorsey, 829 F.3d
831, 836 (7th Cir. 2016) (under statute nearly identical to Judicial Rule
2.11(A)(6)(b), former employment with United States Attorney’s Office

1     The record contradicts Novak’s statement that the judge worked
with the Officers’ counsel “defending lawsuits against the Maricopa
County Sheriff.”



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                        NOVAK v. PENZONE, et al.
                          Decision of the Court

insufficient to mandate judge’s recusal absent actual participation in instant
proceedings); Mangum v. Hargett, 67 F.3d 80, 83 (5th Cir. 1995) (same);
Kendrick v. Carlson, 995 F.2d 1440, 1444 (8th Cir. 1993) (same).

¶11           Nevertheless, the judge did precisely as Judicial Rule 2.11
advises; he disclosed the information on the record and gave the parties an
opportunity to raise any concerns. Judicial Rule 2.11, cmt. 5 (“A judge
should disclose on the record information that the judge believes the parties
or their lawyers might reasonably consider relevant to a possible motion for
disqualification . . . .”). Novak offered no objection; indeed, he affirmatively
stated that he did not believe the judge would be biased or prejudiced
against him. Now, before this court, he offers no evidence to support his
claims of bias and prejudice beyond the very disclosures he took no issue
with before the judge ruled against him. The allegations do not survive
scrutiny, and we will not address them further.

B.     Summary Judgment Was Correct Regarding Novak’s Claims.

¶12            Novak argues the court erred by granting summary judgment
in the Officers’ favor on his abuse of process and defamation claims because
“there were in fact issues of material fact[] in dispute.” We disagree.

¶13           We review a grant of summary judgment de novo and view
the evidence and reasonable inferences drawn from it in the light most
favorable to the non-moving party. BMO Harris Bank, N.A. v. Wildwood
Creek Ranch, LLC, 236 Ariz. 363, 365, ¶ 7 (2015). Summary judgment is
appropriate when “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). “[A] party moving for summary
judgment need merely point out by specific reference to the relevant
discovery that no evidence existed to support an essential element of the
claim.” Orme Sch. v. Reeves, 166 Ariz. 301, 310 (1990). “If the party with the
burden of proof on the claim or defense cannot respond to the motion by
showing that there is evidence creating a genuine issue of fact on the
element in question, then the motion for summary judgment should be
granted.” Id.

¶14           Here, the Officers supported their motion with citations to
relevant legal authority and a statement of facts accompanied by affidavits
from both Deputy Bowers and Captain Letourneau. Ariz. R. Civ. P. 56(a)
(the moving party must show both no genuine dispute of material fact and
entitlement to judgment as a matter of law); Ariz. R. Civ. P. 56(c)(3)(A) (the
moving party must set forth facts supporting the motion with citations to



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                         NOVAK v. PENZONE, et al.
                           Decision of the Court

record). The Officers thus carried their initial burden, and Novak was
required to produce “in some form . . . proof by admissible evidence to
establish a genuine dispute as to a material fact.” State ex rel. Corbin v. Sabel,
138 Ariz. 253, 256 (App. 1983); see also Ariz. R. Civ. P. 56(e); Orme Sch., 166
Ariz. at 310.

¶15           Novak produced no admissible evidence to oppose the
summary judgment motion. In both his written response and at oral
argument, Novak merely repeated the allegations contained within the
complaint, asserted that evidence existed and would be presented at trial to
prove his claims, and claimed he was entitled to take his case before a jury.
His opening brief follows the same pattern. Conclusory assertions and
assurances that evidence will be produced at trial are insufficient to survive
a properly raised motion for summary judgment. Ariz. R. Civ. P. 56(e);
Florez v. Sargeant, 185 Ariz. 521, 526–27 (1996) (conclusory affidavits “can
neither support nor defeat a motion for summary judgment”); Orme Sch.,
166 Ariz. at 310; Perez v. Tomberlin, 86 Ariz. 66, 71 (1959) (“[I]f the party
against whom a motion for a summary judgment is directed wants to stay
in court he cannot withhold an appropriate showing until time of trial.”).

¶16            “If [a] plaintiff merely rests on his pleadings when defendants
support a motion for summary judgment with an affidavit alleging specific
facts, [the] plaintiff risks a finding by the court that the facts stated in the
affidavit negate the existence of a genuine material factual dispute and that
summary judgment is appropriate.” Ins. Agencies Co. v. Weaver, 124 Ariz.
327, 328 (1979). By failing to support his claims, Novak was unable to meet
his burden to establish a genuine dispute as to a material fact or to
undermine the Officers’ showing that they were entitled to judgment as a
matter of law. And even though we view all the evidence in the light most
favorable to Novak, our review of the record has not revealed any evidence
upon which a jury could reasonably agree with the conclusions he asserted
in his complaint. Orme Sch., 166 Ariz. at 309 (summary judgment should be
granted “if the facts produced in support of the claim or defense have so
little probative value . . . that reasonable people could not agree with the
conclusion advanced by the proponent of the claim or defense”).
Accordingly, we conclude the superior court’s grant of summary judgment
was correct.




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                    NOVAK v. PENZONE, et al.
                      Decision of the Court

                            CONCLUSION

¶17         We affirm the superior court’s orders granting summary
judgment in favor of the Officers and dismissing Novak’s claims with
prejudice.




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




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