Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund (2002)

Fund, 38 P.3d 12, 31 (Ariz. 2002) (citing Restatement (Second) of Torts § 766 (Am.

Fund, 38 P.3d 12, 23 (Ariz. 2002) (claims of aiding and abetting tortious conduct require proof that the primary tortfeasor committed a tort that caused injury to the plaintiff). 7 24-7605 Echols v. Beauty Built Homes, Inc., 647 P.2d 629, 631 (Ariz. 1982) (fraud); St.

Fund, 38 P.3d 12, 23 (Ariz. 2002) (en banc) (noting that “defendants must know that the conduct they are aiding and abetting is a tort” because liability is based on proof of a scienter (citations and internal quotation marks omitted)). 4.

See Wells Fargo, 201 Ariz. at 489, ¶ 54 , 38 P.3d at 27 (“The test is whether the assistance makes it ‘easier’ for the violation to occur, not whether the assistance was necessary.”); Restatement of Torts § 876 cmt. d (“If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act.”). ¶48 First American argues the superior court erroneously “elimin…

See Wells Fargo, 38 P.3d at 23 (“Because aiding and 23 abetting is a form of secondary liability, there must first be a primary violation by another 24 party, and the defendant must be aware of it.”). “[M]ore fundamentally, Lipsky never 25 6 The Court is not persuaded by Plaintiff’s citation to Gastelo because the court in 26 that case also accepted threadbare allegations of the aiding and abetting elements. 2020 WL 1285912 , at *3 (“The Complaint also sets forth allegations…

See Wells Fargo Bank, 38 P.3d at 30 (“A party may breach an express covenant of 1 the contract without breaching the implied covenant of good faith and fair dealing.”).

The Arizona Supreme Court has observed that 14 “because a party may be injured when the other party to a contract manipulates 15 bargaining power to its own advantage, a party may nevertheless breach its duty of good 16 faith without actually breaching an express covenant in the contract.” Id. at 29 (citations 17 omitted).

(Doc. 58 ¶ 26, citing Doc. 58-2 at 12 ¶ 21.) Nevertheless, Plaintiff’s 8 allegations at most describe breaches of certain provisions of the contract, and a breach of 9 a contractual provision does not necessarily equate to a breach of the implied covenant. 10 Wells Fargo Bank, 38 P.3d at 29 (“A party may breach an express covenant of the contract 11 without breaching the implied covenant of good faith and fair dealing.”) More important, 12 as discussed in Part II above, Plai…

Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 496, ¶ 87 (2002).

Wells Fargo Bank, 38 P.3d at 21 (“Negligence and 11 nondisclosure claims differ from intentional tort claims . . . ; each has different elements 12 and different requirements of proof.”).

Dawson v. Withycombe, 216 Ariz. 84 , 163 P.3d 1034 (App.2007) (knowledge may be inferred from the circumstances presented); Wells Fargo Bank, 201 Ariz. 474 , 38 P.3d 12 (2002) (“such knowledge may be inferred from the circumstances”).

Fund, 201 Ariz. 474, ¶ 74 (2002).

Fund, 25 38 P.3d 12 , 28 (Ariz. 2002) (“The implied covenant of good faith and fair dealing prohibits 26 a party from doing anything to prevent other parties to the contract from receiving the 27 benefits and entitlements of the agreement.”).

Fund, 201 Ariz. 474, 498, ¶ 99 (2002) (citations omitted) (“For a civil conspiracy to occur[,] two or more people must agree to accomplish an unlawful purpose or to accomplish a lawful object by unlawful means, causing damages.”).

Civil Conspiracy 1 It is unclear if Plaintiff is alleging civil conspiracy under state or federal law. 2 However, the Court finds the SAC survives Defendants’ Motions under either standard. 3 Under Arizona law, “[f]or a civil conspiracy to occur two or more people must agree to 4 accomplish an unlawful purpose or to accomplish a lawful object by unlawful means, 5 causing damages.” Wells Fargo Bank, 38 P.3d 12, 36 (Ariz. 2002).

Fund, 201 Ariz. 474, 491, ¶ 64 (2002)).

Fund, 201 Ariz. 474, 485, ¶ 34 (2002).

Cf. Wells Fargo, 201 Ariz. at 488, ¶ 45 (“A showing of actual and complete knowledge of the [underlying] tort is not uniformly necessary to hold a secondary tortfeasor liable under an aiding and abetting theory.”).

Fund, 201 Ariz. 474, 491, ¶ 63 (2002) (“The duty of good faith extends beyond the written words of the contract.”).

Fund , 201 Ariz. 474 , 483 ¶ 19, 38 P.3d 12 , 21 (2002) ("Negligence ... claims differ from the intentional tort claims on review here; each has different elements and different requirements of proof."). ¶17 To recover on a negligence claim, a plaintiff must prove a duty requiring the defendant to conform to a standard of care, breach of that duty, a causal connection between breach and injury, and resulting damages.

Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474, 494, ¶ 78 , 38 P.3d 12 (2002) (“The essential thing is the intent to cause the result.”) (quoting Restatement (Second) of Torts § 766 cmt. h), ¶ 40 The record shows that Banning’s action discing the alfalfa constituted an intentional interference with Landlords’ lease with Double Anchor Farms.

See Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395, 201 Ariz. 474, n. 18 , 38 P.3d 12 , 31 n. 18 (2002) (“Proof of a breach of the implied covenant of good faith and fair dealing requires a preponderance of the evidence.”). 16 Wetzel, 143 Ariz. 35, 43 , 691 P.2d 1063, 1071 (1984) (“An ‘affidavit’ is a signed, written statement, made under oath before an officer authorized to administer an oath or affirmation in which the affiant vouches that what…

See Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395, 201 Ariz. 474, n. 18 , 38 P.3d 12 , 31 n. 18 (2002) (“Proof of a breach of the implied covenant of good faith and fair dealing requires a preponderance of the evidence.”). 11 .

Wells 19 Fargo, 38 P.3d at 37.

Wells Fargo Bank v. Arizona Laborers, 38 P.3d 12, 28 (Ariz. 2002).

Count III: Good Faith and Fair Dealing 18 Under Arizona law, the implied covenant of good faith and fair dealing “prohibits a 19 party from doing anything to prevent other parties to [a] contract from receiving the 20 benefits. . .of the agreement.” Wells Fargo Bank v. Arizona Laborers, Local No. 395 21 Pension Trust Fund, 201 Ariz. 474, 490, ¶ 59 , 38 P.3d 12 , 28 (2002).

Wells Fargo Bank, 38 P.3d at 32; see 18 also Mac Enters. v. Del E.

(Doc. 154 at 25.) “A prima facie case of intentional interference 28 requires: (1) existence of a valid contractual relationship, (2) knowledge of the relationship 1 || on the part of the interferor, (3) intentional interference inducing or causing a breach, (4) 2|| resultant damage to the party whose relationship has been disrupted, and (5) that the || defendant acted improperly.” Ariz. Laborers, Teamsters, & Cement Masons, 38 P.3d at 31 (emphasis added).

Co., Inc. v. Guerrero, 5 106 P.3d 1020, 1024 (Ariz. 2005) (citing Wells Fargo Bank v. Ariz. Laborers, Teamsters 6 & Cement Masons Local No. 395 Pension Trust, 38 P.3d 12, 31 (Ariz. 2002)).

Arizona law implies in every contract a “covenant of good faith and fair 27 dealing” which “prohibits a party from doing anything to prevent other parties to the contract from receiving the benefits and entitlements of the agreement.” Wells Fargo 28 Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 38 P.3d 12, 28 (Ariz. 2002). || claims that Defendant breached the policy and the implied covenant of good faith and fair 2|| dealing by refusing…

See 15 Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons Local No. 395 Pension 16 Trust Fund, 38 P.3d 12 , 29 (2002) (“A party may breach an express covenant of a contract 17 without breaching the implied covenant of good faith and fair dealing.

Fund, 201 Ariz. 474, 490, ¶ 59 (2002).

(Doc. 16 at 16.) 13 “Arizona law implies a covenant of good faith and fair dealing in every 14 contract . . . [, which] prohibits a party from doing anything to prevent other parties to the 15 contract from receiving the benefits and entitlements of the agreement.” Wells Fargo Bank, 16 38 P.3d at 28 (citation omitted); see also Rawlings v. Apodaca, 151 Ariz. 149, 153 , 726 17 P.2d 565 , 569 (1986).

Fund, 201 Ariz. 474, 490, ¶ 59 (2002).

Fund, 201 Ariz. 474, 499, ¶ 103 , as corrected (2002) (citation omitted). ¶13 In granting summary judgment for Pinnacle, the superior court found that Dr. Kemper’s claims against Pinnacle were based on speculation and that no evidence supported the claim that Dr. Harding acted on Pinnacle’s behalf. ¶14 We disagree with the superior court that summary judgment was appropriate here.

Fund, 201 Ariz. 474, 490, ¶ 59 (2002). ¶25 We discern no error for two reasons.

Fund, 201 Ariz. 474, 482, ¶ 13 (2002).

Fund, 201 Ariz. 474, 482, ¶ 13 (2002).

Wells Fargo 20 Bank, 38 P.3d at 29 (“Conversely, because a party may be injured when the other party to 21 a contract manipulates bargaining power to its own advantage, a party may nevertheless 22 breach its duty of good faith without actually breaching an express covenant in the 23 contract.”). 24 Here, Plaintiff has not proffered sufficient evidence to avoid summary judgment on 25 his bad faith claim.

Ariz. Nov. 25, 2015); see also Wells Fargo, 38 P.3d at 33-34 (“[S]elf- 26 interest does not justify an affirmative strategy to deprive the Funds of information which 27 the Bank knows is vital to the Funds’ legitimate expectations under the Permanent 28 Commitment.”) (citation omitted). 1 The Court will not dismiss Plaintiff’s tortious interference with contract claim. 2 C.

Ariz. 2012). 28 7 The parties both apply Arizona law to Plaintiffs’ claims, which the Court accepts for the purpose of resolving the Motion to Dismiss. 1 Cement Masons Local No. 395 Pension Trust Fund, 38 P.3d 12, 28 (Ariz. 2002), as corrected 2 (Apr. 9, 2002).

Fund, 38 P.3d 12, 21 (Ariz. 2002).

Ariz. 27 2014) (citing Wells Fargo Bank, 38 P.3d at 23).

“A party 25 may breach the implied covenant even in the absence of a breach of an express provision 26 of the contract by denying the other party the reasonably expected benefits of the 27 agreement.” Nolan, 167 P.3d at 1284 ; see also Wells Fargo Bank, 38 P.3d at 29 (“The 28 duty of good faith extends beyond the written words of the contract. . . . [A] party may 1 nevertheless breach its duty of good faith without actually breaching an express covenant 2 in the contract.”).…

Co. of the W, 203 Ariz. at 91 (citing Rawlings v. Apodaca, 151 2 Ariz. 149 , 153-54 (1986)) (emphasis added); see Wells Fargo Bank v. Arizona Laborers, 3 Teamsters & Cement Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474 , 490 4 (2002) (“The implied covenant of good faith and fair dealing prohibits a party from doing 5 anything to prevent other parties to the contract from receiving the benefits and 6 entitlements of the agreement.”); Rawlings, 151 Ariz. at 155 (“The …

No. 395, 38 P.3d 12, 29 (Ariz. 2002) (“[B]ecause a party may be injured when the other party to a contract manipulates bargaining power to its own advantage, a party may nevertheless breach its duty of good faith without actually breaching an express covenant in the contract.”) (citations omitted).

The duty of good faith is breached when one party 20 “exercises discretion retained or unforeclosed under a contract in such a way as to deny the 21 other a reasonably expected benefit of the bargain.” Id. (citing Southwest Sav. & Loan 22 Assoc. v. Sunamp Sys., Inc., 172 Ariz. 553 , 558, 838 P.2d 1314 , 1319 (Ct. App. 1992)) 23 (emphasis added); accord Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement 24 Masons Local No. 395 Pension Trust Fund, 201 Ariz. 474 , 490 (20…

Thus, “[w]here a seller knows of facts materially 1 affecting the value of property and knows that the facts are not known to the buyer, the 2 seller has a legal duty to disclose such facts.” Lombardo v. Albu, 14 P.3d 288, 290 (Ariz. 3 2000), see also Wells Fargo Bank v. Ariz. Laborers, Teamsters and Cement Masons Local 4 No. 395 Pension Trust Fund, 38 P.3d 12 , 21 (2002) (“Unlike simple nondisclosure, a party 5 may be liable for acts taken to conceal, mislead or otherwise d…

Fund, 201 Ariz. 474, 490, ¶ 59 (2002) (“Such implied terms are as much a part of a contract as the express terms.”) (citations omitted).

“Thus, Arizona law recognizes that a party can breach the implied covenant of good faith and fair dealing both by exercising express discretion in a way inconsistent with a party’s reasonable expectations and by acting in ways not expressly excluded by the contract’s terms but which nevertheless bear adversely on the party’s reasonably expected benefits of the bargain.” Bike Fashion Corp., 46 P.3d at 435 ; accord Wells Fargo Bank, 38 P.3d at 30 (“[i]nstances inevitably arise…