Cruz v. City of Tucson

• Decision Date: 01 August 2017
• Docket Number: No. 2 CA-CV 2016-0223.,2 CA-CV 2016-0223.
• Citation: 401 P.3d 1018
• Parties: Cecilia CRUZ, Plaintiff/Appellant, v. CITY OF TUCSON; Jonathan Rothschild as Mayor of the City of Tucson; Regina Romero, Paul Cunningham, Karin Uhlich, Shirley Scott, Richard Fimbres, and Steve Kozachik as elected members of the Tucson City Council; Richard Miranda as the appointed City Manager; Roger Randolph as the appointed Tucson City Clerk; Michael Rankin as the appointed City Attorney; and Dennis McLaughlin as a Principal City Attorney, Defendants/Appellees.
• Court: Arizona Court of Appeals

401 P.3d 1018

Cecilia CRUZ, Plaintiff/Appellant,

v.CITY OF TUCSON; Jonathan Rothschild as Mayor of the City of Tucson; Regina Romero, Paul Cunningham, Karin Uhlich, Shirley Scott, Richard Fimbres, and Steve Kozachik as elected members of the Tucson City Council; Richard Miranda as the appointed City Manager; Roger Randolph as the appointed Tucson City Clerk; Michael Rankin as the appointed City Attorney; and Dennis McLaughlin as a Principal City Attorney, Defendants/Appellees.

No. 2 CA-CV 2016-0223.

Court of Appeals of Arizona, Division 2.

Filed August 1, 2017

Risner & Graham, Tucson, By William J. Risner, Counsel for Plaintiff/Appellant

Bossé Rollman, P.C., Tucson, By Richard M. Rollman and Kevin J. Kristick, Counsel for Defendants/Appellees

Presiding Judge Vásquez authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Howard¹ concurred.

OPINION

VÁSQUEZ, Presiding Judge:

¶ 1 Cecilia Cruz appeals from the trial court's grant of summary judgment in favor of the City of Tucson (hereinafter "the City").² She argues the court erred by finding her notice of claim was untimely and by denying her request to delay ruling on the motion until she could conduct further discovery. Because we find no error, we affirm.

Factual and Procedural Background

¶ 2 "We view the facts in the light most favorable to the party against whom summary judgment was entered." Thompson v. Pima County , 226 Ariz. 42, ¶ 2, 243 P.3d 1024, 1026 (App. 2010). This appeal stems from a previous statutory special action that Cruz had filed pursuant to A.R.S. § 39–121.02(A) following the City's denial of her request for disclosure of public records, the facts of which appear in Cruz v. Miranda , No. 2 CA–CV 2015–0131, 2016 WL 1612748 (Ariz. App. Apr. 21, 2016) (mem. decision) (hereinafter "the public records case").

¶ 3 The trial court's final ruling in the public records case was issued on April 28, 2015, and Cruz was awarded a portion of her attorney fees and costs pursuant to A.R.S. § 12–349(A)(3). The court found the City had "intentionally obstructed Ms. Cruz's efforts to obtain a prompt response to her request, made multiple false representations to the Court, and [was] pervasively indifferent concerning compliance with the obligations imposed by Arizona public records law."

¶ 4 On October 6, 2015, Cruz sent the City a notice of claim asserting that she had "been greatly damaged by intentional lying and other abuses of process by [the City] or [its] agents" during the public records case. She alleged the City had willfully withheld public records, had destroyed public records, had misled and lied to both Cruz and the trial court, and had abused the attorney-client privilege.

¶ 5 Cruz filed the present action in December 2015, seeking damages for the City's alleged abuse of process and violations of § 39–121.02. The City filed a motion for summary judgment, contending that Cruz's notice of claim and complaint were untimely because her claim had accrued during the pendency of the public records case, as early as August 2013. Cruz responded that her claim could not have accrued until the final ruling was issued in that case and, alternatively, that the continuing tort doctrine applied and accrual did not occur until the City's wrongful acts terminated. Cruz additionally filed a request pursuant to Rule 56(d), Ariz. R. Civ. P.,³ stating that she needed to conduct additional discovery to uncover facts relevant to her opposition to the City's motion.

¶ 6 Following a hearing, the trial court denied Cruz's Rule 56(d) request, took the summary judgment matter under advisement, and, later, granted the City's motion. The court concluded that Cruz's claims accrued during the public records case, as early as August 2013 or as late as December 2014, making her notice of claim and complaint untimely under either scenario. We have jurisdiction of Cruz's appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1).

Timeliness

¶ 7 Cruz argues the trial court erred in finding her notice of claim untimely.⁴ On appeal from the grant of summary judgment, we determine de novo whether the court correctly applied the law and whether there are any genuine disputes as to any material fact. Dayka & Hackett, L.L.C. v. Del Monte Fresh Produce N.A., Inc. , 228 Ariz. 533, ¶ 6, 269 P.3d 709, 712 (App. 2012). When a cause of action accrued is generally a question of fact for the jury, but it may be decided as a matter of law if the record shows when the plaintiff "unquestionably [was] aware of the necessary facts underlying [his or her] cause of action." Thompson , 226 Ariz. 42, ¶ 14, 243 P.3d at 1029.

¶ 8 Section 12–821.01(A), A.R.S., provides that a claimant who wishes to bring an action against a public entity must, "within one hundred eighty days after the cause of action accrues," file a notice of claim with the entity. "[A] cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage." § 12–821.01(B) ; see Rogers v. Bd. of Regents of Univ. of Ariz ., 233 Ariz. 262, ¶ 7, 311 P.3d 1075, 1078 (App. 2013). The plaintiff "must at least possess a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury," but "need not know all the facts underlying a cause of action to trigger accrual." Doe v. Roe , 191 Ariz. 313, ¶ 32, 955 P.2d 951, 961 (1998) (emphasis omitted). Put another way, "the core question" of when a claim accrued is not when the plaintiff was conclusively aware she had a cause of action against a particular party, but instead when "a reasonable person would have been on notice to investigate." Walk v. Ring , 202 Ariz. 310, ¶¶ 23–24, 44 P.3d 990, 996 (2002).

¶ 9 An abuse-of-process claim requires the plaintiff to show "(1) a willful act in the use of judicial process; (2) for an ulterior purpose not proper in the regular conduct of the proceedings." Crackel v. Allstate Ins. Co. , 208 Ariz. 252, ¶ 11, 92 P.3d 882, 887 (App. 2004), quoting Nienstedt v. Wetzel , 133 Ariz. 348, 353, 651 P.2d 876, 881 (App. 1982). The essence of Cruz's complaint is that the City committed an abuse of legal process and willfully violated § 39–121.02 by withholding public records and misleading Cruz and the trial court in the public records case. Her claim therefore accrued when she was first aware she had been injured by the City's action and was put on notice to investigate these issues. See Doe , 191 Ariz. 313, ¶ 32, 955 P.2d at 961 ; see also Walk , 202 Ariz. 310, ¶¶ 23–24, 44 P.3d at 996. In order for her notice of claim to be timely, Cruz's claim must have accrued no earlier than April 9, 2015.

¶ 10 The record shows that Cruz was first aware that the City had abused process and withheld public records in August 2013, when she filed a motion for a new trial in the public records case. She asserted that the City "continue[d] to refuse to comply with the [May 2013] public record request" and had not disclosed "public records known to exist." Indeed, the week before Cruz filed her motion, the City disclosed approximately 170 pages of records, even though it had attested in the previous month that it had "fully responded" to Cruz's public records request.

¶ 11 Notably, as the public records case progressed, a pattern developed in which the City would repeatedly state it had fully complied with Cruz's request, only to later disclose hundreds of additional documents. During the nearly two-year pendency of that case, Cruz filed numerous motions for a new trial and for relief from judgment based on her claims that the City was continuing to withhold available public records, misleading both Cruz and the court about its efforts to disclose those records, abusing the discovery process, and intentionally destroying relevant public records. Consequently, she had been making the precise claims she makes in this case throughout the litigation in the public records case.

¶ 12 Additionally, Cruz was not merely on notice to investigate, she in fact did so. She repeatedly sought leave to conduct discovery to investigate her claims. And the trial court allowed her to depose certain City employees based on "the mounting evidence of [the City's] disregard for the obligations imposed by" § 39–121.02, with some of the depositions conducted in November and December of 2013. Those depositions revealed discrepancies between what City employees turned over to the City's in-house counsel shortly after Cruz's request and what was later disclosed to Cruz. The depositions also established that the City's in-house counsel did not notify the City's information technology (IT) department about Cruz's request until August 2013 and did not instruct the IT department to search for e-mails responsive to Cruz's request until September 2013. Based on the City's practice of periodically purging e-mails, this meant that many relevant e-mails had already been expunged from the City's computer system by the time they had been requested.

¶ 13 In December 2014, Cruz sought to amend her complaint in the public records case to include a request for damages pursuant to § 39–121.02(C), just as she has requested in this case. The trial court denied the motion because she had not filed a notice of claim with the City on that issue.

¶ 14 As the trial court in the public records case noted in its final ruling, "while the case was initially about whether [the City] could withhold certain specifically identified documents from production, it [became] about the extent to which the actions of [the City] and its in-house attorneys, who are [City] employees, have unreasonably expanded and delayed these proceedings." The record demonstrates that Cruz "unquestionably [was] aware" of the facts underlying her current claim as early as August 2013. Thompson , 226 Ariz. 42, ¶ 14, 243 P.3d at 1029. As a result, her claim accrued well before April 9,...