BLK III, LLC v. Skelton
Arizona Court of Appeals
February 17, 2022
JSH Attorneys: Ashley Caballero-Daltrey
In a recent ruling, the Arizona Court of Appeals held that Arizona’s strategic lawsuits against public participation (anti-SLAPP) statute, A.R.S. § 12-752, applied to a case involving noise complaints about a neighboring property. Arizona’s anti-SLAPP statute is intended to protect those who are exercising their right to petition the government, and to prevent retaliatory suits against those “petitioners.” Such a suit will be dismissed unless the filer shows that the petitioners’ complaints to the government lacked any reasonable factual support or arguable basis in law.
This case concerned a dining and entertainment business, BLK Live, which regularly featured live music. BLK leased a space that was subject to a conditional use permit which had specific noise limitations beyond the City’s general noise ordinance. After residents who lived near BLK reported noise to the Scottsdale Police Department and City Council, BLK sued the residents claiming they had “conspired to intentionally destroy” BLK Live.
The residents moved to dismiss, arguing that BLK filed the complaint in retaliation for the residents’ exercise of their constitutional right to petition the government for redress. The residents argued that they were protected by Arizona’s anti-SLAPP statute. The trial court agreed and dismissed BLK’s suit. BLK appealed.
The court of appeals affirmed. To survive the residents’ motion to dismiss under the anti-SLAPP statute, BLK had to: (1) allege facts showing that the residents’ complaints to the government were not constitutionally-protected speech, or that their statements were not part of their exercise of their right to petition the government; or (2) show that the residents’ statements had no reasonable factual support or arguable basis in law, and caused BLK actual compensable injury.
First, the noise complaints to police and council members were protected speech. Although BLK argued that the statements were defamatory and therefore not protected, BLK failed to identify any actual statement uttered by any of the residents. Because of this lack of specificity, BLK had not shown that the statements were defamatory. Also, to the extent the statements were subjective statements of perception, they were not defamatory because subjective statements cannot be proven to be true or false.
Second, the residents were exercising “the right of petition” under the anti-SLAPP statute when they made their noise complaints. BLK had a pending request to amend its use permit at the time of the complaints. The residents’ complaints were made to persuade the City to deny BLK’s use permit request. The statements were therefore “for the purpose of influencing a governmental action, decision or result” as required by the statute.
Finally, the residents’ statements had reasonable factual support. The residents had reported only that BLK’s music disturbed the peace and enjoyment of their homes, and BLK could not negate that showing. It did not matter whether BLK had or had not violated the sound ordinance because the residents were not claiming that BLK had specifically violated the sound ordinance.
As a result, the anti-SLAPP statute clearly applied, and the court affirmed the superior court’s dismissal of the suit.