[00:00:02] Speaker 04:
I understand that, counsel, you've agreed to split your time, so the time shown on the clock is your total time.

[00:00:09] Speaker 01:
Thank you, Your Honor.

[00:00:11] Speaker 01:
Good morning.

[00:00:12] Speaker 01:
James Dekrom, on behalf of the appellant, may it please the Court.

[00:00:16] Speaker 01:
I will not belabor every point made in our extensive brief, but instead focus on just a few of the issues.

[00:00:21] Speaker 01:
First, on the element of severe emotional distress.

[00:00:24] Speaker 01:
The record contains ample evidence that Ms.

[00:00:26] Speaker 01:
Swady suffered severe emotional distress.

[00:00:29] Speaker 01:
In her verified complaint,

[00:00:30] Speaker 01:
she repeatedly attested to suffering severe emotional distress and pain and suffering and humiliation as a result of Appellee's conduct.

[00:00:38] Speaker 01:
Those verified allegations are evidence of summary judgment.

[00:00:41] Speaker 01:
On top of that, the record shows Ms.

[00:00:43] Speaker 01:
Swady's overwhelming and unrelenting efforts to ensure the safety of her daughter, including the relinquishment of custody as a last-ditch effort to bring her home.

[00:00:53] Speaker 01:
The drastic steps undertaken by Ms.

[00:00:55] Speaker 01:
Swady, combined with her unambiguous attestations,

[00:00:59] Speaker 01:
are enough for a reasonable jury to infer profound mental anguish and severe emotional distress.

[00:01:04] Speaker 01:
Indeed, a mother in these circumstances would inherently suffer distress well beyond ordinary upset.

[00:01:10] Speaker 01:
Hence, Ms.

[00:01:10] Speaker 01:
Swady's use of garden variety in discovery.

[00:01:13] Speaker 02:
Let me ask you this.

[00:01:14] Speaker 02:
I take it face value what you're saying, but what's your best analogous case for finding what your client suffered to be sufficient for an IIED claim?

[00:01:29] Speaker 02:
under Arizona law.

[00:01:31] Speaker 01:
That would be the pancreas case, your honor.

[00:01:34] Speaker 02:
And that's when there was a permanent separation from the child.

[00:01:38] Speaker 02:
That's different than this, is it not?

[00:01:40] Speaker 01:
This was an attempt to, at parental alienation and severance of the parent-child relationship.

[00:01:47] Speaker 01:
I'm not aware of anything in Arizona law requiring the actual permanent deprivation of the parent-child relationship.

[00:01:55] Speaker 01:
I think an attempt, the fact showed there was a clear attempt here at that severance.

[00:02:00] Speaker 01:
And under Arizona law, we believe that's enough, at least for this to be taken to the jury.

[00:02:05] Speaker 02:
And I respect that.

[00:02:07] Speaker 02:
But you agree that a pancreas is different in that sense that there was a permanent separation from a child.

[00:02:14] Speaker 02:
Do you agree with that?

[00:02:16] Speaker 01:
I would agree with that, Your Honor.

[00:02:19] Speaker 04:
Counselor, just so I understand your position.

[00:02:21] Speaker 04:
So you're relying on the allegations, the verified allegations of the complaint.

[00:02:26] Speaker 04:
to raise a material issue of fact on this, on the intentional affliction of emotional distress claim, correct?

[00:02:33] Speaker 04:
In part, yes, Your Honor.

[00:02:34] Speaker 04:
And what else is there?

[00:02:36] Speaker 04:
There are declarations submitted as well.

[00:02:38] Speaker 04:
Okay, which declarations are you relying upon to support a material issue of fact on this claim?

[00:02:45] Speaker 01:
As to this element, Your Honor, we are relying on the complaint, correct.

[00:02:51] Speaker 01:
The law does not require a psychiatric diagnosis or a heart attack or a permanent physical breakdown.

[00:02:55] Speaker 01:
The question is whether a reasonable juror could find that the distress is of such a serious nature that a reasonable person would not be expected to endure it.

[00:03:02] Speaker 04:
But doesn't it also require extreme and outrageous conduct?

[00:03:06] Speaker 04:
What was the extreme and outrageous conduct here?

[00:03:09] Speaker 01:
It was the attempt at parental alienation.

[00:03:11] Speaker 01:
Yes, Your Honor.

[00:03:14] Speaker 01:
And on top of that, Your Honor, the parent workshops and challenges were not the benign events described in the materials.

[00:03:21] Speaker 01:
The record shows ritualized shaming, being singled out and blamed for divorce, and coercive group exercises dressed up as treatment.

[00:03:29] Speaker 01:
A jury could reasonably see that as an abuse of clinical and institutional power, not mere rudeness.

[00:03:34] Speaker 03:
If we were to affirm across the board, what would be left of this case?

[00:03:41] Speaker 01:
The fraud claim, Your Honor.

[00:03:43] Speaker 01:
That's what was ultimately tried.

[00:03:45] Speaker 03:
And that would go to a new jury trial?

[00:03:49] Speaker 01:
Yes, Your Honor.

[00:03:51] Speaker 01:
I can reserve my time.

[00:03:53] Speaker 04:
All right.

[00:03:53] Speaker 04:
Thank you, counsel.

[00:04:03] Speaker 03:
Counsel, I assume you disclosed that you were once my clerk.

[00:04:09] Speaker 00:
I have not.

[00:04:11] Speaker 03:
He was my clerk 10, 15 years ago.

[00:04:14] Speaker 03:
You should know that.

[00:04:17] Speaker 03:
We won't hold that against you.

[00:04:19] Speaker 00:
You're making me much younger than I am, Judge.

[00:04:22] Speaker 00:
It was close to 30 years ago.

[00:04:24] Speaker 04:
Time flies.

[00:04:27] Speaker 00:
Good morning, counsel.

[00:04:28] Speaker 00:
Good morning, Your Honors.

[00:04:29] Speaker 00:
Tim Eckstein on behalf of the defendant at police.

[00:04:33] Speaker 00:
Following up on Judge Hawkins' question,

[00:04:37] Speaker 00:
Were this court to affirm across the board, the matter would go back for trial against Spring Ridge Academy and one of the individual defendants on the fraud claims for a retrial of the matter that was tried before.

[00:04:50] Speaker 00:
We're here today on appeal of the Rule 54B judgment claims against Spring Ridge and the other defendants on the non-fraud claims, all of which we submit never should have been brought in the first place and suffer from multiple legal defects.

[00:05:09] Speaker 00:
It sounds like the only questions the Court has entertained so far are ones related to the intentional infliction of emotional distress, so I'll respond to those arguments and if the Court has additional questions

[00:05:20] Speaker 00:
I'd be happy to answer those.

[00:05:22] Speaker 00:
As to the intentional infliction of emotional distress, severe emotional distress is required under Arizona law.

[00:05:31] Speaker 00:
There is no exception for the implied or assumed state of severe emotional distress based on the separation of a parent and child

[00:05:42] Speaker 00:
whether that be temporary, whether that be permanent.

[00:05:45] Speaker 00:
Severe emotional distress is required, and there has to be proof of that in some form.

[00:05:49] Speaker 00:
And following up on Judge Rawlinson's question, the only proof they have here are the allegations in the complaint.

[00:05:56] Speaker 00:
And the Lou V. Kona Hospital case, which they cite in the reply brief at 11, indicates that that's not sufficient.

[00:06:07] Speaker 00:
Like in that case, the allegations here are primarily statements of legal conclusions rather than facts relevant to the summary judgment motion.

[00:06:15] Speaker 00:
That's patently insufficient.

[00:06:18] Speaker 00:
As to the Pankratz case, there are two problems with that.

[00:06:23] Speaker 00:
The first problem, as Judge Smith identified, is the very distinct factual differences between that case and this case, a permanent deprivation

[00:06:35] Speaker 00:
versus a temporary deprivation, which is what the record here shows.

[00:06:39] Speaker 00:
The more significant problem is that case doesn't deal with severe emotional distress at all.

[00:06:44] Speaker 00:
What that case engages with is the question of whether there is proof there of extreme and outrageous conduct, a separate element of an intentional infliction claim.

[00:06:56] Speaker 00:
And then following up on Judge Rawlinson's questions regarding evidence for intentional infliction,

[00:07:04] Speaker 00:
in the form of extreme and outrageous conduct, Arizona law is clear that

[00:07:11] Speaker 00:
Conduct has to be so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency and be utterly intolerable in a civilized society.

[00:07:23] Speaker 00:
It is not, as counsel suggested, simply some insults that somebody suffered, a strong disagreement with the therapy and education that was provided to the plaintiff's daughter.

[00:07:36] Speaker 00:
It is something that truly shocks the conscience, and the facts here don't support that.

[00:07:40] Speaker 00:
As explained in our briefs, really what occurred here is a disagreement between two parents about the schooling for their 17-year-old daughter, where she was here in school in Arizona for roughly six months, after which she returned to live with her father in California.

[00:07:58] Speaker 00:
Shortly after that, she turned 18.

[00:08:01] Speaker 00:
And again, plaintiff has some disagreements, very strong disagreements, with what took place in the school

[00:08:08] Speaker 00:
But nothing, that is alleged in the complaint, nothing for which there is proof provided in the motion for summary judgment rise to the level of extreme and outrageous conduct as required under Arizona law.

[00:08:19] Speaker 03:
Is there a distinction in terms of the fraud claims between pre-enrollment fraud and post-enrollment fraud?

[00:08:31] Speaker 00:
Well, so the district court found that the distinction is one of pecuniary loss, that there is no pecuniary loss for anything that occurred post-enrollment.

[00:08:45] Speaker 03:
And so... That's because the ex-husband paid the tuition?

[00:08:49] Speaker 00:
Well, he paid, yes, the evidence shows that he is the one who paid the tuition.

[00:08:57] Speaker 00:
Put aside for the moment whether there's pecuniary loss to plaintiff or anything that occurred pre-enrollment, but he drew that sharp line that we think is a fair line, at least for purposes of today, that there is no evidence of any pecuniary loss to plaintiff post-enrollment.

[00:09:20] Speaker 04:
So, counsel, this is a little unusual, but they have asked to have separate arguments.

[00:09:25] Speaker 04:
So if you don't have anything else now, we'll have rebuttal on this issue, and then Ms.

[00:09:31] Speaker 04:
Waity will be able to present our case, and you'll be able to respond to that.

[00:09:35] Speaker 04:
Okay.

[00:09:35] Speaker 04:
All right.

[00:09:36] Speaker 04:
Thank you, counsel.

[00:09:43] Speaker 04:
I think it's four minutes.

[00:09:48] Speaker 01:
Thank you, Your Honor.

[00:09:49] Speaker 01:
Briefly on IID, viewing the record in Ms.

[00:09:52] Speaker 01:
Swady's favor, which is required here on appeal, a reasonable jury could conclude that a mother who discovers the program is abusive, rescinds the contract, retrieves her daughter, and then sees the defendants collude with her ex-husband to force the child back to that facility, cut off her private contact for weeks, and publicly weaponized confidential therapeutic information in family court, suffered distress well beyond ordinary upset.

[00:10:17] Speaker 01:
Arizona law does not require magic words or psychiatric diagnosis.

[00:10:21] Speaker 01:
It requires evidence from which severe distress can be reasonably inferred.

[00:10:26] Speaker 02:
Council, I respect your point.

[00:10:28] Speaker 02:
I've got a lot of children and my colleagues do as well.

[00:10:33] Speaker 02:
Any parent would be concerned, but as I understand Arizona law, you've got to show something just beyond the pale, outrageous.

[00:10:43] Speaker 02:
There are so many situations where parents

[00:10:48] Speaker 02:
enroll their children in academies or whatever, hoping to better their situation.

[00:10:54] Speaker 02:
It seems to me that if we just rely upon these conclusions, no academy would survive, basically, because every parent in a divorce situation, in this situation, would want something different.

[00:11:09] Speaker 02:
And who's to decide?

[00:11:11] Speaker 02:
It seems more, it's distressing, but it's more ordinary.

[00:11:16] Speaker 02:
What am I missing?

[00:11:18] Speaker 01:
Your Honor, we think the record shows a pattern here.

[00:11:22] Speaker 01:
Exploiting a position of power in a locked-door residential setting, isolating a child from her custodial parent after the parent rescinded consent, invoking a family court order to justify cutting off private communications and visits, and subjecting the parent to ritualized shaming and group workshops under the guise of therapy.

[00:11:40] Speaker 01:
In the context of a behavioral health facility entrusted with a minor, this is precisely the kind of abuse that the courts can recognize crosses the line into an extreme.

[00:11:50] Speaker 02:
And again, your best Arizona case to that effect is what?

[00:11:55] Speaker 01:
We have nothing further to add other than what we put in the briefs, Your Honor.

[00:11:59] Speaker 02:
Okay.

[00:12:00] Speaker 02:
So basically you're asking us to, if you will, expand the reach of Arizona law in a situation like this.

[00:12:07] Speaker 01:
Or interpret it.

[00:12:09] Speaker 01:
I wouldn't use the word expand.

[00:12:11] Speaker 01:
I would say the law is flexible here.

[00:12:14] Speaker 01:
And a jury could reasonably find that this pattern or this conduct exceeds all bounds of decency.

[00:12:21] Speaker 01:
And that's what we're dealing with here.

[00:12:22] Speaker 01:
Could a jury find that this exceeds all bounds of decency?

[00:12:25] Speaker 01:
And we believe this matter should be submitted to the jury.

[00:12:29] Speaker 02:
But doing so again, coming back, doing so would, if you will,

[00:12:36] Speaker 02:
We're not dealing with current Arizona law.

[00:12:38] Speaker 02:
You're asking us to expand the scope of what would be covered by Arizona law.

[00:12:43] Speaker 02:
Is that correct?

[00:12:44] Speaker 01:
We believe that a jury could find, based on Arizona law, that this conduct exceeds all bounds of decency.

[00:12:49] Speaker 01:
If reasonable minds could differ as to whether the conduct is extreme and outrageous, the matter goes to the jury.

[00:12:57] Speaker 02:
Even though the law doesn't get you there right now?

[00:13:01] Speaker 01:
We believe that the law does get us there.

[00:13:03] Speaker 02:
And your best case, again, is by

[00:13:06] Speaker 01:
Apologies your honor if reasonable minds can differ as to whether the conduct exceeds all bounds of decency the matters to go to the jury Okay, thank you your honor.

[00:13:16] Speaker 04:
Thank you counsel sweetie

[00:13:35] Speaker 05:
Good morning.

[00:13:36] Speaker 05:
May it please the court?

[00:13:37] Speaker 05:
I am Kimberly Swady.

[00:13:38] Speaker 05:
I am the plaintiff, a mother, and the face of this lawsuit.

[00:13:45] Speaker 05:
We talked briefly about permanent deprivation.

[00:13:49] Speaker 05:
And while it's true that I was deprived of my daughter because I had to give up full custody and even the right to see her,

[00:13:57] Speaker 05:
and engage in family law court ordered reconnection therapy.

[00:14:01] Speaker 05:
While I was doing that, defendants would not let go.

[00:14:04] Speaker 05:
They continued to illegally, in violation of California and Arizona statute, provide teletherapy across state lines unlicensed to my daughter in an attempt to sabotage and undermine the reconnection therapy ordered by the California courts.

[00:14:22] Speaker 04:
Counsel, wouldn't your remedy have been to go back to the family courts to

[00:14:27] Speaker 04:
say that they were in contempt of court or otherwise were violating the order?

[00:14:34] Speaker 05:
The order in family law court, I don't want to underplay the emotionality and the seriousness and the trauma that my daughter had suffered and was dysfunctional.

[00:14:50] Speaker 05:
And it was a decision we made because it was so close to her 18th birthday.

[00:14:54] Speaker 05:
not to continue this litigation because it was not helping my reconnection with my daughter.

[00:15:01] Speaker 05:
And there is a question about what authority California has over a Arizona school because they had complied with none of the orders before.

[00:15:10] Speaker 05:
They continued to do that.

[00:15:12] Speaker 05:
They continued to violate the law.

[00:15:14] Speaker 05:
They continued after my daughter's 18th birthday to continue to brainwash her

[00:15:19] Speaker 05:
and engage in parental alienation.

[00:15:21] Speaker 05:
And while my daughter was not physically in their grasp, to this day she is mentally and emotionally in their grasp.

[00:15:30] Speaker 05:
They affected such an effective campaign of parental alienation that my relationship with my daughter is nonexistent today because of them, but I will never give up trying to get

[00:15:44] Speaker 05:
that relationship restored or finding someone and researching therapists to help us do that.

[00:15:51] Speaker 05:
I think.

[00:15:51] Speaker 02:
Perhaps I misunderstand, but it sounds to me like your primary complaint is against the Arizona, I mean, the California family law court.

[00:16:01] Speaker 02:
Is that wrong?

[00:16:03] Speaker 05:
No, your honor.

[00:16:03] Speaker 05:
I think that they were lied to by the defendants.

[00:16:07] Speaker 05:
They misrepresented their program to the defendants in the exact same

[00:16:11] Speaker 05:
that the program to the family law court in the exact same manner that they misrepresented it to parents for 25 years.

[00:16:18] Speaker 05:
They claimed to be things that they weren't.

[00:16:20] Speaker 05:
And the court, many of them have never heard of the troubled teen industry that this is a part of, took them at face value and reduced it to the, oh, father and mother are in disagreement.

[00:16:32] Speaker 05:
And I continued to produce evidence to them, and they continued to deny this.

[00:16:38] Speaker 02:
They couldn't deny it.

[00:16:39] Speaker 02:
Forgive me, guys.

[00:16:41] Speaker 02:
Taking all of that at face value, it seems to me your complaint is against the California Family Law Court.

[00:16:48] Speaker 02:
We're in an Arizona setting here.

[00:16:51] Speaker 02:
Even taking at face value all you said, it seems like your complaint is that the Family Law Court bought this line, if you will, from the Academy.

[00:17:03] Speaker 02:
And as a result, you have all these problems.

[00:17:05] Speaker 02:
But it's the Family Law Court

[00:17:08] Speaker 02:
not in Arizona, if you will, series of torts and so on.

[00:17:13] Speaker 02:
Isn't that correct?

[00:17:15] Speaker 05:
I don't agree with that, your honor.

[00:17:16] Speaker 05:
I've never, my parents were public school teachers for over 30 years each.

[00:17:20] Speaker 05:
I've never heard in my life of a school becoming involved in the closed family law matter of one of their students, much less when they were hired, though they're not, as a therapeutic facility and releasing confidential

[00:17:34] Speaker 05:
very sensitive information to be weaponized against me in a family law court.

[00:17:41] Speaker 03:
I can stop for just a minute.

[00:17:43] Speaker 03:
The question is, number one, what court had jurisdiction at the moment you're talking about to control the behavior, alleged or otherwise, of the academy?

[00:17:58] Speaker 03:
Was it the California Family Court?

[00:18:00] Speaker 03:
Yes or no?

[00:18:02] Speaker 05:
Do they have authority?

[00:18:04] Speaker 05:
Yes or no?

[00:18:05] Speaker 05:
No, the California court cannot control the behavior of the academy.

[00:18:09] Speaker 05:
It has no jurisdiction over, and this was one of the arguments I made in family law, it has no jurisdiction over any school necessarily, even in California.

[00:18:21] Speaker 05:
They issue orders to public schools in California, and they would have to bring them in as a party.

[00:18:27] Speaker 05:
They can't just issue orders if they're not a party, much less in Arizona.

[00:18:31] Speaker 04:
Why is it that the court, that the placement was in accordance with an agreement made in the family court in California?

[00:18:41] Speaker 05:
That is not correct, Your Honor.

[00:18:43] Speaker 04:
What was it about the family court proceedings that resulted in your daughter continuing her placement at the Academy?

[00:18:51] Speaker 05:
My ex-husband and my divorce was completed.

[00:18:54] Speaker 05:
It was done.

[00:18:55] Speaker 05:
The only thing that was continuing was that we had a minor child.

[00:18:59] Speaker 04:
Someone authorized this child to be at the academy.

[00:19:03] Speaker 04:
Who authorized it?

[00:19:04] Speaker 04:
Not originally.

[00:19:05] Speaker 04:
So you're saying no one authorized the child to be there?

[00:19:07] Speaker 04:
Not the courts originally, no.

[00:19:09] Speaker 05:
Did your husband, ex-husband, authorize her to be there?

[00:19:12] Speaker 05:
Originally, it was my ex-husband and I in agreement

[00:19:16] Speaker 05:
enrolled her based on representations.

[00:19:19] Speaker 05:
The Family Law Court was not originally involved in that.

[00:19:22] Speaker 05:
Once I, as the primary legal and physical custodian, within seven weeks realized that what they had promised was very different from what they were delivering, I went with sheriffs, picked up my daughter and rescinded the contract, returned to California and notified her father immediately and resumed the visitation schedule.

[00:19:43] Speaker 05:
At that point, Spring Range Academy and the defendants were not willing to give up the $9,000 a month.

[00:19:52] Speaker 05:
and colluded and conspired with my ex-husband who ran into family law court in a close matter ex parte to order her back even though Spring Ridge Academy as an institution is not legal in the state of California.

[00:20:06] Speaker 04:
So the court did order her back.

[00:20:08] Speaker 05:
On an ex parte while Spring Ridge Academy was colluding with my ex-husband.

[00:20:12] Speaker 04:
But the fact remains that the California court ordered her back.

[00:20:16] Speaker 04:
But you said they had no authority to do that.

[00:20:18] Speaker 04:
But they, they.

[00:20:19] Speaker 05:
No, they didn't do it originally.

[00:20:20] Speaker 05:
Excuse me, Your Honor, I'm sorry.

[00:20:22] Speaker 05:
Originally, they did not order her there.

[00:20:24] Speaker 05:
They ordered her back after she was removed.

[00:20:27] Speaker 05:
That is correct.

[00:20:29] Speaker 02:
But they did order her.

[00:20:30] Speaker 02:
It was an order of the family law court.

[00:20:33] Speaker 05:
They didn't order the way it was interpreted.

[00:20:34] Speaker 05:
They didn't order that I would have no access to therapeutic records, no access to academic records, no access to my daughter.

[00:20:42] Speaker 02:
But the problem with... I'm sorry.

[00:20:44] Speaker 02:
No, please.

[00:20:45] Speaker 02:
I just say that you're talking about the minutiae of the order of the family law court, right?

[00:20:51] Speaker 05:
It's an ex parte order, it's only a few lines.

[00:20:55] Speaker 04:
But if there's a problem with that order, you're saying that the academy did not comply with the intent of the order, then your remedy was to go back to the court and explain to the court why the academy was of not compliant with their order.

[00:21:13] Speaker 05:
Which I did, as explained in the complaint, which I did.

[00:21:16] Speaker 05:
I went back, I explained what they were doing, and the court issued another order and said,

[00:21:21] Speaker 05:
In summary, and this is all in the complaint, mother and father have to have the same rights and they still did not comply.

[00:21:28] Speaker 05:
So they were not complying all along and then COVID hit and the courts were closed and I was banging on the courthouse door to an empty courthouse saying I have an emergency order.

[00:21:38] Speaker 05:
The courts were closed and I was frantic and I needed my daughter and I was having no contact with her.

[00:21:45] Speaker 05:
And therefore, I thought, I need to get her home.

[00:21:47] Speaker 05:
She has a virus.

[00:21:48] Speaker 05:
She has symptoms.

[00:21:49] Speaker 05:
There's a school shortly over there that had a COVID outbreak.

[00:21:54] Speaker 05:
Congregate care is dangerous.

[00:21:56] Speaker 05:
All of this emotionality, excuse me, was going on at the time I needed to go fighting in court and trying to prove a case that we proved a part of in three weeks of trial in ex parte in Zoom hearings.

[00:22:10] Speaker 05:
This stuff is incredible.

[00:22:11] Speaker 05:
It's hard for a court to believe that this is going on.

[00:22:15] Speaker 05:
But it's time to believe these victims, including me and my daughter, of what was going on.

[00:22:19] Speaker 05:
All right, counsel, any more questions?

[00:22:21] Speaker 05:
Yeah, one more thing about the loss.

[00:22:23] Speaker 04:
You're over your time.

[00:22:25] Speaker 04:
Oh, I'm sorry.

[00:22:25] Speaker 04:
All right, thank you, counsel.

[00:22:33] Speaker 00:
Unless the court has questions, I have nothing further.

[00:22:36] Speaker 04:
All right, thank you, counsel.

[00:22:37] Speaker 04:
Thank you to all counsel for your arguments.

[00:22:39] Speaker 04:
The case just argued is submitted for decision by the court.