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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHERYL MARIE MCCOY, et al., Plaintiffs/Appellants,

v.

KEN HASSEN, et al., Defendants/Appellees.

__________________________________

CHERYL MARIE MCCOY, et al., Plaintiffs/Appellants/Cross-Appellees,

v.

HENRY KARTAGENER and CLAIRE KARTAGENER,

Defendants/Appellees/Cross-Appellants.

1 CA-CV 21-0524

Appeal from the Superior Court in Maricopa County

No. CV2020-010557

The Honorable Joan M. Sinclair, Judge

The Honorable Andrew J. Russell, Judge

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

COUNSEL

Jardine, Baker, Hickman & Houston, P.L.L.C., Phoenix

By Bradley R. Jardine, Michael Warzynski

Co-Counsel for Plaintiffs/Appellants/Cross-Appellees Cheryl Marie McCoy, 

Marcianne Johnson, Melissa Wilson (Scovel)

FILED 8-30-2022
2

Elardo, Bragg, Rossi & Palumbo, P.C., Phoenix

By Venessa J. Bragg

Co-Counsel for Plaintiffs/Appellants/Cross-Appellees Cheryl Marie McCoy, 

Marcianne Johnson, Melissa Wilson (Scovel)

Goering, Roberts, Rubin, Brogna, Enos & Treadwell-Ruben, P.C., Tucson

By Andrew T. Apodaca, Christopher L. Enos

Counsel for Defendants/Appellees Sharon Maiden, Wilbur Maiden

Jaburg & Wilk, P.C., Phoenix, 

By Maria Crimi Speth, Aaron K. Haar

Counsel for Defendants/Appellees Samantha Kelley, William Suttell

Portmeirion Law Offices, PLLC, Phoenix

By Daniel Torrens

Co-Counsel for Defendant/Appellee Ken Hassen

Hill, Hall & DeCiancio, PLC, Phoenix

By Christopher Robbins, R. Corey Hill, Ginette M. Hill

Co-Counsel for Defendant/Appellee Ken Hassen

Jones, Skelton & Hochuli P.L.C., Phoenix

By Michael E. Hensley, John D. Lierman, Elizabeth B. N. Garcia

Counsel for Defendants/Appellees/Cross-Appellants Henry Kartagener, Claire 

Kartagener

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in 

which Judge Peter B. Swann and Judge D. Steven Williams joined.

B A I L E Y, Judge:

¶1 Cheryl Marie McCoy, Marcianne Johnson, and Melissa 

Wilson (Scovel) (“Wilson”) (collectively, “Plaintiffs”) filed a complaint 

against a host of defendants alleging defamation, false light invasion of 

privacy, intentional infliction of emotional distress, a violation of the 

Arizona Fair Housing Act,1 and private nuisance. The superior court 

1 See Ariz. Rev. Stat. (“A.R.S.”) §§ 41-1491 to -1491.37.
MCCOY, et al. v. HASSEN, et al.

Decision of the Court

3

granted several defendants’ motions to dismiss all counts, and entered 

judgments under Arizona Rule of Civil Procedure (“Rule”) 54(b).

¶2 In this appeal, Plaintiffs challenge only the dismissal of their 

claims for defamation and false light invasion of privacy against the marital 

communities of Samantha Kelley (and William Suttell), Henry (and Claire) 

Kartagener, Sharon (and Wilbur) Maiden, and Ken Hassen (collectively, 

“Defendants”).2 The Kartageners have filed a cross-appeal, challenging the 

superior court’s denial of their request for attorneys’ fees, expenses, and 

sanctions. For the following reasons, we affirm the judgments dismissing

Plaintiffs’ complaint as to Defendants, but we reverse the court’s denial of 

the Kartageners’ request for attorneys’ fees, expenses, and sanctions and 

remand for further consideration of that request.

FACTS AND PROCEDURAL HISTORY

¶3 The parties reside in a community known as Val Vista Lakes, 

located in Gilbert, Arizona. Val Vista Lakes residents are members of the 

Val Vista Lakes Master-Planned Community Association (“the 

Association”), which is governed by the Val Vista Lakes Community 

Association Board (“the Board”). All three Plaintiffs have served on the 

Board and held the role of President of the Board.

¶4 Before November 2019, the Board included eventual Plaintiffs 

Wilson—who was at that time the Board’s President—and Johnson; Todd 

McCoy, the husband of eventual Plaintiff and former Board President 

Cheryl McCoy; and eventual defendants James Rosebrough, Hassen, and 

Suttell. In November 2019, a regularly scheduled Board election was held, 

after which non-parties Dustin Snow and Dean Sanders joined the Board, 

Hassen was no longer on the Board, and Johnson became Board President.

¶5 According to Plaintiffs’ complaint, before and after the 

November 2019 election, a group of persons engaged in an on-line “hate 

and disinformation campaign” against Plaintiffs. That campaign resulted 

in a June 2020 recall election, pursuant to which Johnson and Wilson were 

voted off the Board, and continued for a time after the recall election.

2 Because Plaintiffs do not raise or develop any argument on appeal 

challenging the dismissal of their claims for intentional infliction of 

emotional distress, a violation of the Arizona Fair Housing Act, and private 

nuisance, they have waived any challenge to the dismissal of these claims 

as to Defendants. See Sholes v. Fernando, 228 Ariz. 455, 461, ¶ 16 (App. 2011);

Polanco v. Indus. Comm’n, 214 Ariz. 489, 491, ¶ 6 n.2 (App. 2007).
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4

¶6 In August 2020, Plaintiffs filed their complaint, which largely 

consisted of their characterizations and summary descriptions of 

statements allegedly made, and actions allegedly undertaken, by a

multitude of named defendants, but only included portions of a few actual

statements. Most of the allegedly defamatory statements had been 

published on social websites. Beginning in November 2020, various

defendants filed Rule 12(b)(6) motions to dismiss, including Kelley, the 

Kartageners, and the Maidens, who joined motions to dismiss filed by five 

other defendants, including Kelley and the Kartageners. Defendants all 

attached the full statements in their motions to dismiss instead of relying 

on Plaintiffs’ statement summaries contained in the complaint.

¶7 After responsive briefing, the superior court held oral 

argument in February 2021 on the motions to dismiss. Plaintiffs conceded

the court could dismiss without prejudice their claim for a Arizona Fair 

Housing Act violation, and the court otherwise took the various motions to 

dismiss under advisement.

¶8 In April 2021, the court issued a minute entry granting, as 

relevant here, motions to dismiss in favor of Kelley, the Kartageners, and 

the Maidens. The court’s ruling was based in part on its conclusion that 

Plaintiffs were “limited [purpose] public figures,” which required Plaintiffs 

to “prove by clear and convincing evidence that Defendants’ statements 

were false, and that Defendants either had actual knowledge of that falsity, 

or that Defendants acted ‘with reckless disregard for the truth.’” The court 

also held in part that Henry Kartagener and Sharon Maiden had made 

opinion statements, not actionable as defamation, and that Plaintiffs had 

failed to state a false light invasion of privacy claim because, as limited 

purpose public figures, Plaintiffs could not maintain such a claim based on 

statements related to their public life or duties.

¶9 Subsequently, Hassen also filed a Rule 12(b)(6) motion to 

dismiss,3 and the Kartageners moved for an award of attorneys’ fees, 

expenses, and sanctions against Plaintiffs. The court granted Hassen’s 

3 Counsel for Hassen appeared at the February 2021 oral argument, 

and in its April 2021 minute entry, the court held that Hassen had only 

expressed opinions, not actionable statements. According to Plaintiffs, 

Hassen’s motion to dismiss was simply a formal request for judgment on a 

specific ruling already made as to him, and Plaintiffs therefore did not 

object to the motion.
MCCOY, et al. v. HASSEN, et al.

Decision of the Court

5

motion, denied the Kartageners’ motion, and entered separate Rule 54(b) 

judgments in favor of each of the Defendants.4

¶10 Plaintiffs timely appealed the separate judgments entered in 

favor of Defendants, and the Kartageners filed a timely notice of crossappeal, challenging the denial of their request for attorneys’ fees, expenses, 

and sanctions. We have jurisdiction over this appeal under Article 6, 

Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) and 12-

2101(A)(1).

DISCUSSION

I. Standard of Review for a Rule 12(b)(6) Motion

¶11 We review de novo the superior court’s ruling on a Rule 

12(b)(6) motion. Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-8 (2012).

A motion to dismiss should be granted if the complaint fails to state a claim 

upon which relief can be granted. Ariz. R. Civ. P. 12(b)(6); see also Elm Ret. 

Ctr., LP v. Callaway, 226 Ariz. 287, 289, ¶ 5 (App. 2010) (stating that a motion 

to dismiss should only be granted if the plaintiffs are not “entitled to relief 

under any facts susceptible of proof in the statement of the claim” (citation 

omitted)).

¶12 In deciding a motion to dismiss under Rule 12(b)(6), courts

“assume the truth of the well-pled factual allegations and indulge all 

reasonable inferences therefrom.” Cullen v. Auto-Owners Ins. Co., 218 Ariz. 

417, 419, ¶ 7 (2008) (citations omitted). However, courts should not 

speculate about facts that might entitle plaintiffs to relief, see id. at 420, ¶ 14, 

nor should courts “accept as true allegations consisting of conclusions of 

law, inferences or deductions that are not necessarily implied by wellpleaded facts, unreasonable inferences or unsupported conclusions from 

such facts, or legal conclusions alleged as facts,” Jeter v. Mayo Clinic Ariz., 

211 Ariz. 386, 389, ¶ 4 (App. 2005) (citations omitted).

II. Propriety of Utilizing Rule 12(b)(6)

¶13 Plaintiffs argue the superior court erred in utilizing Rule 

12(b)(6)—as opposed to, for example, summary judgment—in dismissing

4 After the Rule 54(b) judgments were filed, Plaintiffs filed an 

amended complaint, clarifying allegations as to another defendant. That 

amended complaint has no effect on the issues raised or our analysis in this 

appeal.
MCCOY, et al. v. HASSEN, et al.

Decision of the Court

6

their claims. They question the court’s propriety in making determinations 

at the motion to dismiss stage of a defamation case and whether 

Defendants’ motions should have been converted into motions for 

summary judgment. Their argument is unavailing, given that this court has 

previously decided similar claims at the Rule 12(b)(6) stage. See Reynolds v. 

Reynolds, 231 Ariz. 313, 315, ¶¶ 1-2 (App. 2013) (affirming dismissal of a 

complaint for defamation and false light invasion of privacy at the motion 

to dismiss stage); Sobol v. Marsh, 212 Ariz. 301, 305, ¶ 14 (App. 2006) 

(defamation); AMCOR Inv. Corp. v. Cox Ariz. Publ’ns Inc., 158 Ariz. 566, 568 

(App. 1988) (corporate defamation and commercial disparagement); see also 

Citizen Publ’g Co. v. Miller, 210 Ariz. 513, 515, 521, ¶¶ 6, 34 (2005) (granting 

special action relief and dismissing intentional infliction of emotional 

distress claim on First Amendment grounds). Moreover, the standard for 

evaluating Rule 12(b)(6) motions supports the superior court utilizing that 

rule in this case.

¶14 When adjudicating a Rule 12(b)(6) motion, “Arizona courts 

look only to the pleading itself.” Cullen, 218 Ariz. at 419, ¶ 7. If matters 

outside the pleading are necessarily considered, we treat the motion as one 

for summary judgment. Coleman, 230 Ariz. at 356, ¶ 9. However, “[a]

complaint’s exhibits, or public records regarding matters referenced in a 

complaint, are not ‘outside the pleading,’ and courts may consider such 

documents without converting a Rule 12(b)(6) motion into a summary 

judgment motion.” Id. (citing Strategic Dev. & Constr., Inc. v. 7th & Roosevelt 

Partners, LLC, 224 Ariz. 60, 63-64, ¶¶ 10, 13 (App. 2010)); accord Workman v. 

Verde Wellness Ctr., Inc., 240 Ariz. 597, 601, ¶ 10 (App. 2016).

¶15 Another exception to the conversion rule includes “matters 

that, although not appended to the complaint, are central to the complaint.” 

Strategic Dev., 224 Ariz. at 64, ¶ 14 (citations omitted); accord Elm Ret. Ctr., 

226 Ariz. at 289, ¶ 7; but see Workman, 240 Ariz. at 602, ¶ 13 (calling this 

exception into doubt). In this case, that would include considering the 

actual and full allegedly defamatory statements included in Defendants’ 

motions to dismiss, evaluated in their “content and context.” Yetman v. 

English, 168 Ariz. 71, 76 (1991). On this record, we find no error in the 

court’s utilizating Rule 12(b)(6).5

5 The superior court did not indicate whether it relied on the complete 

statements provided by Defendants in their motions to dismiss instead of 

Plaintiffs’ statement summaries contained in the complaint. Thus, even if 

the full statements were not central to the complaint—which they are—the 
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7

III. Limited Purpose Public Figures

¶16 Plaintiffs also argue the superior court erred in concluding 

they were limited purpose public figures, thereby limiting their ability to 

bring and maintain defamation and false light invasion of privacy claims. 

A court may decide as a matter of law whether a person is a public figure. 

See Rosenblatt v. Baer, 383 U.S. 75, 88 (1966).

¶17 Generally, a private person claiming defamation must prove 

a defendant published a false and defamatory statement concerning the 

person and (1) knew the statement was false and defamed the other, (2) 

acted in reckless disregard of these matters, or (3) negligently failed to 

ascertain them. Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315 (1977) 

(citing Restatement (Second) of Torts § 580B (1975)); accord Reynolds, 231 

Ariz. at 317, ¶ 8 (citations omitted). However, a plaintiff who is either a 

public official or a public figure must prove by clear and convincing 

evidence the allegedly defamatory statements were made with “actual 

malice”—that is, with knowledge the statements were false or with reckless 

disregard of their falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 

(1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974); Selby v. Savard, 

134 Ariz. 222, 225 (1982) (citing Sullivan, 376 U.S. at 279-80; Gertz, 418 U.S. 

at 342); see also Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 487 (1986)

(“The disregard must be more than ‘reckless’—conscious disregard would 

be a better description of the test.”). Thus, the law generally provides 

private persons with greater protection from defamation than it does for 

more public persons.

¶18 “[P]ublic figures may reach that status because of their 

position, their ‘purposeful activity’ in ‘thrusting’ themselves into matters of 

public controversy or their close involvement with the resolution of matters 

of public concern.” Dombey, 150 Ariz. at 483 (citing Antwerp Diamond Exch. 

of Am., Inc. v. Better Bus. Bureau of Maricopa Cnty., Inc., 130 Ariz. 523, 527 

(1981)). Some persons “may achieve such pervasive fame or notoriety that 

[they] become[] a public figure for all purposes and in all contexts.” Gertz, 

418 U.S. at 351. Other persons, such as those active in community and 

professional affairs, may voluntarily inject themselves or be drawn into a 

particular public controversy and thereby become a public figure for a 

limited range of issues, especially when we “reduce the public-figure 

question to a more meaningful context by looking to the nature and extent 

motions to dismiss need not have been converted. See Belen Loan Invs., LLC 

v. Bradley, 231 Ariz. 448, 452, ¶ 7 (App. 2012).
MCCOY, et al. v. HASSEN, et al.

Decision of the Court

8

of an individual’s participation in the particular controversy giving rise to 

the defamation.” Id. at 351-52.

¶19 Arizona long ago determined that candidates running for a 

public office waive some rights as a private citizen in terms of defamation 

claims. See Connor v. Timothy, 43 Ariz. 517, 523 (1934) (“It is true that 

statements respecting political affairs, public officers, and candidates for 

office are in a measure privileged, for one who seeks public office waives 

his right of privacy, so that he cannot object to any [pr]oper investigation 

into the conduct of his private life which will throw light on the question as 

to whether the public, which bestows upon him the office which he seeks, 

shall elect him or not, and a charge made in good faith against such 

candi[d]ate which affects his fitness for the office which he seeks is 

privileged, even though untrue.”).

¶20 Several courts in other jurisdictions have similarly held that 

homeowners’ association board members or managers are limited purpose 

public figures. See, e.g., Cabrera v. Alam, 129 Cal. Rptr. 3d 74, 78 (Cal. Ct. 

App. 2011); Metge v. Cent. Neighborhood Improvement Ass’n, 649 N.W.2d 488, 

496 (Minn. Ct. App. 2002); Gulrajaney v. Petricha, 885 A.2d 496, 504-05 (N.J. 

Super. Ct. App. Div. 2005); Verna v. Links at Valleybrook Neighborhood Ass’n, 

852 A.2d 202, 214 (N.J. Super. Ct. App. Div. 2004); Martin v. Comm. for 

Honesty & Justice at Star Valley Ranch, 101 P.3d 123, 125 (Wyo. 2004).

¶21 In this case, the superior court, relying in part on Verna, 

concluded that a candidate for election to an HOA board of directors 

“should be deemed a limited purpose public figure.” 852 A.2d at 214. In 

so deciding, the Verna court noted that HOA boards “perform[] many 

quasi-municipal functions in order to provide the [home]owners with what 

they sought upon purchasing their [properties]—a stable, planned 

environment.” Id.

¶22 We agree with the superior court that, under the facts 

presented here, Plaintiffs are “limited purpose public figures” by reason of 

their individual decisions to inject themselves into the public controversies 

that ultimately gave rise to the alleged defamation. Plaintiffs argue they 

merely served at some time on the Board, but they did much more than that 

in this case. Plaintiffs not only ran in elections for and served on the Board, 

but each sought and ultimately achieved the position of Board President, 

overseeing an extremely large HOA, encompassing a multitude of 
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Decision of the Court

9

residents.6 McCoy previously held such a position (and at the time of the 

complaint, her husband continued to serve on the Board), and Johnson and 

Wilson held that position during and/or around the times when 

Defendants made the allegedly defamatory statements. Accordingly, the 

heightened scrutiny relevant to statements made about persons who are 

limited purpose public figures applies here, even to statements made 

shortly after the contentious June 2020 recall election.7

¶23 Plaintiffs raise several arguments as to why they should not 

be considered limited purpose public figures, but we find each argument 

unavailing. Plaintiffs argue they cannot be considered limited purpose 

public figures because the Board’s activities are not of general public 

concern, and they frame the relevant inquiry as examining whether the 

subject matter is newsworthy or of interest to the public at large. However, 

“[t]o deserve First Amendment protection, it is sufficient that the speech 

concern matters in which even a relatively small segment of the general 

public might be interested.” Roe v. City & Cnty. of San Francisco, 109 F.3d 

578, 585 (9th Cir. 1997) (citation omitted); see also Rodriguez v. Fox News 

Network, L.L.C., 238 Ariz. 36, 40, ¶ 11 (App. 2015) (“Speech deals with 

matters of public concern when it can be fairly considered as relating to any 

matter of political, social, or other concern to the community . . . .“ (citations 

and internal quotations omitted)); Damon v. Ocean Hills J’ism Club, 102 Cal. 

Rptr. 2d 205, 213 (Cal. Ct. App. 2000) (holding that discussions about HOA 

matters addressed matters of public concern, in part because “they 

concerned ‘issues of critical importance to a large segment of our local 

population’”). Here, the Board’s composition is a matter of public concern 

to, at minimum, the many Val Vista Lakes residents who are Association

members and governed by the Board.

¶24 Plaintiffs also argue they engaged in no purposeful activity 

thrusting them into a public controversy. “An individual may become a 

public figure if [s]he ‘thrusts [her]self or [her] views into public controversy 

to influence others.’” Dombey, 150 Ariz. at 483 (citing Hutchinson v. 

Proxmire, 443 U.S. 111, 135 (1979)). “Whatever requirement there might be 

6 Plaintiffs state there are 2280 members of the Association.

7 Plaintiffs argue the superior court’s decision effectively results in 

them being full “public figures” and not “limited purpose public figures”

because the court did not specify the duration or scope of its public figure 

declaration as to them. That argument is of no moment here because the 

complaint indicates that all the allegedly defamatory statements occurred 

close in time and/or were related to the 2019 and 2020 Board elections.
MCCOY, et al. v. HASSEN, et al.

Decision of the Court

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to ‘thrust’ oneself into a public controversy was satisfied by [Plaintiffs’] 

voluntary participation in activity calculated to lead to public scrutiny.” Id.

at 485. Moreover, a fair reading of the complaint makes clear the fall of 2019 

was not the genesis of Plaintiffs’ status as limited purpose public figures; 

rather, the facts and statements provided support the conclusion that they 

and the Board had been mired in public conflict for some time.8

¶25 We also find unhelpful Plaintiffs’ other arguments, including 

their reliance on Arizona’s Planned Communities Act, see A.R.S. §§ 33-1801 

to -1818, and their argument that because the Association’s Board and 

members are subject to a private contract, the Board should not be viewed 

as acting as a “quasi-governmental” agency. Additionally, we reject 

Plaintiffs’ argument that the superior court’s ruling means that any person 

who sits on any elected private board becomes a limited purpose public 

figure. Purely private businesses are different from HOA boards, such as 

the Board here, in that the legislature has, in part, extended First 

Amendment-type protections—via A.R.S. §§ 33-1804 and 33-1808—to HOA 

members. Thus, Plaintiffs’ stated fear of rampant, uncontrolled defamation 

for other private governing boards appears unfounded and, in any event,

is not an issue directly before us. The superior court correctly concluded 

that Plaintiffs are limited purpose public figures.9

8 Because it is not necessary to our decision, we need not decide (1) 

whether the superior court could also have taken judicial notice of 

Maricopa County Superior Court Case No. CV2015-090368 in deciding the 

motions to dismiss, and (2) whether the Maidens’ equitable estoppel 

argument regarding this issue constitutes an improper cross-appeal of a 

previously denied motion for judicial estoppel. See generally Reidy v. 

O’Malley Lumber Co., 92 Ariz. 130, 132 (1962) (“A court may take judicial 

notice of the record in another action tried in the same court.” (citations 

omitted)); Ariz. R. Evid. 201(c). In Case No. CV2015-090368, Plaintiffs 

McCoy and Johnson, but not Wilson, were named defendants in an earlier

defamation lawsuit and successfully defended on the basis that the 

plaintiff, as a Board member, was a public figure. 

9 Because we agree with the superior court that Plaintiffs are limited 

purpose public figures, we need not decide whether they might be 

characterized as public officials, see Dombey, 150 Ariz. at 485 n.3, and in this 

context, that appears to be a distinction without a difference, see id. at 480 

(citing Curtis Publ’g Co. v. Butts, 388 U.S. 130, 148-51 (1967) (finding no 

rational distinction between the concept of a “public official” and private 
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 IV. Plaintiffs’ Claims for False Light Invasion of Privacy

¶26 Plaintiffs concede that if they qualify as limited purpose 

public figures, then the superior court correctly dismissed their false light 

invasion of privacy claim against each Defendant. A claim for false light 

invasion of privacy must be dismissed if a plaintiff “is a public official and

the publication relates to performance of his or her public life or duties.” 

Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 343 (1989) (“We have 

specifically held that the right of privacy does not exist “where the plaintiff 

has become a public character.” (quoting Reed v. Real Detective Publ’g Co., 63 

Ariz. 294, 304 (1945))). Given that Plaintiffs qualify as limited purpose 

public figures and their claims relate to statements about their performance 

as Board members, we accept Plaintiffs’ concession and waiver of any 

further argument as related to their false light invasion of privacy claims.

V. Plaintiffs’ Defamation Claims

¶27 Plaintiffs nevertheless argue the superior court erred in 

dismissing their defamation claims against Defendants. They maintain that 

the court erred in concluding that Defendants merely expressed nonactionable opinions and did not make false factual statements actionable as 

defamation. See generally id. at 341 (stating that, to qualify as defamation 

under Arizona common law, “a publication must be false and must bring 

the defamed person into disrepute, contempt, or ridicule, or must impeach 

plaintiff’s honesty, integrity, virtue, or reputation”).

¶28 We review Plaintiffs’ argument de novo. See Sign Here Petitions 

LLC v. Chavez, 243 Ariz. 99, 106, ¶ 22 (App. 2017) (citing L. Harvey Concrete, 

Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180 (App. 1997)).

¶29 “The right to speak on political matters is the quintessential 

subject of our constitutional protections of the right of free speech.” Damon, 

102 Cal. Rptr. 2d at 213 (citations and internal quotations omitted). Thus, 

the law vigorously protects various types of political speech, even that 

which may be deemed to be offensive. See, e.g., Texas v. Johnson, 491 U.S. 

397 (1989) (flag burning); Nat’l Socialist Party of Am. v. Skokie, 432 U.S. 43 

(1977) (Nazi march through Jewish neighborhood); Cohen v. California, 403 

U.S. 15 (1971) (profane antiwar slogan). “Public discussion about the 

qualifications of those who hold or who wish to hold positions of public 

trust presents the strongest possible case for applications of the safeguards 

citizens who are “public figures”)). In any event, Plaintiffs have waived 

any argument in this regard.
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afforded by the First Amendment.” Damon, 102 Cal. Rptr. 2d at 213

(citations and internal quotations omitted).

¶30 In Arizona, “the First Amendment . . . limits the scope of state 

defamation law when applied to public figures and matters of public 

concern.” Rogers v. Mroz, 252 Ariz. 335, 337, ¶ 2 (2022) (citing Dombey, 150

Ariz. at 481). Toward that end, “courts must ensure that only truly 

meritorious defamation lawsuits are allowed to proceed.” Id. at 338, ¶ 4. 

Courts serve this gatekeeper function because “the expense of defending a 

meritless defamation case could have a chilling effect on First Amendment 

rights.” Read v. Phoenix Newspapers, Inc., 169 Ariz. 353, 357 (1991) (citations 

omitted); accord BLK III, LLC v. Skelton, 252 Ariz. 583, 587-88, ¶ 11 (App. 

2022).

¶31 As we have recognized, see supra ¶ 17, a plaintiff who is a 

public official or figure claiming defamation must prove not only that a 

defendant published a false and defamatory statement concerning the 

plaintiff, but did so with actual malice, i.e., with knowledge the statements 

were false or with what amounts to conscious disregard of their falsity. See 

Dombey, 150 Ariz. at 487; Sullivan, 376 U.S. at 279-80; Gertz, 418 U.S. at 342.

¶32 Here, the claims and alleged statements pled in Plaintiffs’ 

complaint are insufficient to meet the high scienter requirement placed on 

defamation claims by public officials or public figures under Dombey and 

Sullivan and to overcome Defendants’ First Amendment rights to publicly 

discuss the Board elections and the qualifications of those seeking, holding, 

or otherwise intertwined in positions of public trust within the Association. 

Although Arizona is a notice-pleading state, see Ariz. R. Civ. P. 8(a); Cullen 

v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 6 (2008), “’conclusory 

statements are insufficient to state a claim upon which relief can be 

granted,’ and ‘legal conclusions, without any supporting factual 

allegations,’ fail to satisfy Arizona’s notice pleading standard. This is 

especially true in a defamation action . . . .” BLK III, 252 Ariz. at 588-89, 

¶¶ 15, 17 (affirming the grant of a motion to dismiss and rejecting the 

plaintiff’s claim that the defendants’ statements were defamatory because 

the plaintiff offered “broad summaries” of the defendants’ alleged 

statements that “lack[ed] the requisite specificity to allow the court to 

determine that they contained objectively verifiable statements of fact” 

(quoting Cullen, 218 Ariz. at 419, ¶ 7)). Plaintiffs’ complaint, which largely

contains their characterizations of Defendants’ allegedly defamatory 

statements and provides no specificity as to how the actual malice 

requirement is met, is facially insufficient.
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¶33 Moreover, even if Plaintiffs’ allegations could be considered 

sufficient to satisfy Dombey and Sullivan—which they are not—Plaintiffs’ 

claims as to Defendants were nevertheless properly dismissed. The 

allegedly defamatory statements—as appended to Defendants’ motions to 

dismiss—generally regarded matters of public concern in the context of 

hotly contested Board elections, and/or were political speech and opinions 

incapable of being objectively characterized as true or false or otherwise not 

capable of a defamatory meaning, and were protected by the First 

Amendment. Plaintiffs concede that their first claim against Sharon Maiden 

is not a defamatory statement, and Plaintiffs have waived and abandoned 

several of their claims of defamation against Samantha Kelley and Henry 

Kartagener by failing to either raise any issues or present cogent arguments 

in their opening brief regarding those claims. See Van Loan v. Van Loan, 116 

Ariz. 272, 274 (1977); Polanco, 214 Ariz. at 492, ¶ 6 n.2. Further, although 

Plaintiffs claimed each allegedly defamatory statement injured all three of 

them, most of Defendants’ statements clearly concerned only one or two, 

but not all three, Plaintiffs. See Hansen v. Stoll, 130 Ariz. 454, 458 (App. 1981)

(stating that the burden is on the individual plaintiff to show a publication 

is “of and concerning” her). Even assuming the superior court considered 

the appendices to Defendants’ motions to dismiss, the superior court did 

not err in dismissing Plaintiffs’ defamation claims.10

 VI. The Kartageners’ Cross-Appeal

¶34 As we have noted, following dismissal of the claims against 

them, the Kartageners moved for attorneys’ fees, expenses, and sanctions

under A.R.S. §§ 12-349 and 41-1491.36. See supra ¶ 9. Plaintiffs failed to 

respond to the motion, but the superior court summarily denied it, finding 

“no good cause” for the motion when the court entered judgment for the 

10 Relying on language from our previous memorandum decision in 

Tarter v. Bendt, 1 CA-CV 19-0703, 2021 WL 282265 (Ariz. App. Jan. 28, 2021), 

Plaintiffs argue that Sharon Maiden’s post-election comment that “ex-board 

members secretly hatched up a scheme to seek retaliation on residents who 

did not support them during the election” may be actionable due to its use 

of the word “secret.” Plaintiffs note that, in Tarter, a panel of this court held 

that the statement “the HOA Board held a ‘secret meeting’” was actionable. 

Id. at *3, ¶ 14. Unlike the statement in Tarter, however, Maiden’s statement 

makes no reference to a Board meeting and read carefully, makes clear the 

persons about whom Maiden was referring were “ex-board members.” 

Accordingly, Tarter is distinguishable.
MCCOY, et al. v. HASSEN, et al.

Decision of the Court

14

Kartageners. On cross-appeal, the Kartageners argue the superior court 

erred in denying their motion.

¶35 Although we generally review the denial of an award for 

attorneys’ fees for an abuse of discretion, we review de novo the denial of a 

motion for sanctions and fees. Hormel v. Maricopa Cnty., 224 Ariz. 454, 461, 

¶ 27 (App. 2010) (citations omitted).

¶36 Under A.R.S. § 12-349, “the court shall assess reasonable 

attorney fees, expenses and, at the court’s discretion, double damages of not 

to exceed five thousand dollars against an attorney or party . . . if the 

attorney or party does any of the following: 1. Brings or defends a claim 

without substantial justification[;] 2. Brings or defends a claim solely or 

primarily for delay or harassment[; or] 3. Unreasonably expands or delays 

the proceeding. . . .” A claim lacks substantial justification when it “is 

groundless and is not made in good faith.” A.R.S. § 12-349(F). Under § 12–

349, the standard for these findings is preponderance of the evidence. Fisher 

ex rel. Fisher v. Nat’l Gen. Ins. Co., 192 Ariz. 366, 370, ¶ 13 (App. 1998) (citation 

omitted).

¶37 Under A.R.S. § 41-1491.36, “[t]he court shall not award 

attorney fees to a prevailing defendant unless the plaintiff’s complaint was 

frivolous, unreasonable or without foundation.”

¶38 Here, Plaintiffs’ complaint was devoid of any factual basis for 

McCoy to bring any claim against the Kartageners, rendering her claims 

groundless and, on this record, strongly indicating a lack of good faith in 

bringing them. Plaintiffs appear to chalk this discrepancy up to a lack of 

precise pleading, and they argue the “fair import” of their pleading “would 

allow one to presume” they did not mean to include McCoy as a Plaintiff 

against the Kartageners. We disagree with their suggestion that they 

should be excused from any responsibility on this basis or that the 

Kartageners have waived this argument.

¶39 As to Johnson and Wilson, we disagree with the Kartageners 

that Plaintiffs’ argument that they were not limited purpose public figures 

was “not rational,” even in light of the fact that Johnson (and McCoy) had 

argued Board members are public figures in defending a previous lawsuit. 

Wilson was not involved in the previous lawsuit, and although Johnson’s 

contrary position in this lawsuit might appear disingenuous, that previous 

lawsuit did not establish binding precedent. We also disagree that, on this 

record, Johnson’s and Wilson’s claims for defamation, false light invasion 

of privacy, and intentional infliction of emotional distress can be said to be 
MCCOY, et al. v. HASSEN, et al.

Decision of the Court

15

both groundless and not made in good faith merely because they were 

unsuccessful.

¶40 As for Plaintiffs’ claim for a violation of the Arizona Fair 

Housing Act, no factual allegations regarding the Kartageners supported 

this claim. Further, although Plaintiffs argue they voluntarily withdrew 

this claim, Plaintiffs did not agree to do so as to the Kartageners until 

Plaintiffs filed their response to the Kartageners’ motion to dismiss in 

January 2021, approximately five months after they filed their complaint 

and after the Kartageners were forced to brief the issue in their motion to 

dismiss. On this record, with no real basis in fact, the claim simply 

expanded the proceedings and was frivolous, unreasonable, and without 

foundation. See A.R.S. § 41-1491.36.

¶41 As for Plaintiffs’ claim of private nuisance, Plaintiffs provided 

no factual or legal basis for asserting this admittedly novel claim against the 

Kartageners. Plaintiffs did not allege the Kartageners used their property 

to create a nuisance, and Plaintiffs failed to identify any property right the 

Kartageners denied Plaintiffs. See Graber v. City of Peoria, 156 Ariz. 553, 555 

(App. 1988) (“[A] nuisance is a condition which represents an unreasonable 

interference with another person’s use and enjoyment of his property and 

causes damage.”). On this record, Plaintiffs’ claim for private nuisance was 

groundless and not made in good faith.

¶42 Accordingly, we reverse the superior court’s denial of the 

Kartageners’ motion for attorneys’ fees, expenses, and sanctions and 

remand for further consideration of that request in light of this decision.

CONCLUSION

¶43 We affirm the superior court’s Rule 54(b) judgments 

dismissing Plaintiffs’ complaint as to Defendants, but we reverse the court’s 

denial of the Kartageners’ request for attorneys’ fees, expenses, and 

sanctions and remand for further consideration of that request. We award 

Defendants taxable costs on appeal upon compliance with Arizona Rule of 

Civil Appellate Procedure 21.