Ulibarri v. Gerstenberger, 1

CourtCourt of Appeals of Arizona
Citation178 Ariz. 151,871 P.2d 698
Docket NumberNo. 1,CA-CV,1
PartiesPatricia Ann ULIBARRI and Peter Ulibarri, her husband, Plaintiffs-Appellants, v. Dean GERSTENBERGER, M.D. and Marta Gerstenberger, his wife, Defendants-Appellees. 91-0154.
Decision Date20 May 1993

GRANT, Presiding Judge.

This is an appeal from summary judgment entered against the plaintiff, 1 Patricia Ann Ulibarri, on the grounds that her action was barred by the statute of limitations. The defendant's motion for summary judgment was granted after the plaintiff failed to file a timely response. She then filed a motion to set aside the summary judgment asserting that her failure to respond was the result of excusable neglect. The trial court found there was no excusable neglect. The court further reaffirmed the summary judgment, holding the plaintiff's "supplemental" response to the motion for summary judgment failed to refute the defendant's showing that the action was time-barred.


On June 14, 1990, the plaintiff filed her verified complaint. In it she alleged that while she was being treated by the defendant Dr. Dean Gerstenberger, in 1983 and 1984, he engaged in improper conduct, including sexual fondling and intercourse with her. She asserted causes of action for medical malpractice, sexual touching (of a negligent, willful, wanton and/or malicious nature), intentional infliction of emotional distress and invasion of privacy. The defendant filed an answer and counterclaim on August 24, 1990. The answer admits that the parties had a sexual affair but claims that the affair was consensual. The counterclaim asserts that plaintiff blackmailed defendant in 1986 for the very affair that forms the basis of her complaint. The counterclaim also alleges that the current suit constitutes abuse of process. The plaintiff filed a reply to the counterclaim on September 5, 1990.

On October 17, 1990, the defendant filed a motion for summary judgment. The motion certifies that service on the plaintiff's attorney, Peter T. Van Baalen, was accomplished by mail on October 16. Under the Arizona Rules of Civil Procedure ("Ariz.R.Civ.P.") 56(e) and 6(e), the response was due November 6, 1990. As of Wednesday, November 21, 1990, the plaintiff had not filed a response. On that date, which was the day before Thanksgiving, Judge Anderson's office called Van Baalen's secretary to inquire if a response would be filed. Van Baalen had already left town for Las Vegas for the four-day weekend. His secretary did not call him in Las Vegas.

Van Baalen's secretary informed him of the phone call when he returned on Monday, November 26, 1990. At his direction, the secretary called the defendant's attorney's secretary to request a fax copy of the motion. The motion was not faxed but was placed in the mail. Van Baalen also dictated a letter to defendant's attorney, with a copy to Judge Anderson, noting that he had not received a copy of the motion and asking that one be sent. The letter was mailed on Tuesday, November 27.

Van Baalen received the motion on Wednesday, November 28. The same day, Judge Anderson granted the motion as unopposed and also received his copy of Van Baalen's letter to defense counsel. On December 24, 1990, the judge signed the formal judgment, 2 which was entered on December 27, 1990.

On December 18, 1990, Van Baalen filed a "motion for reconsideration/motion for new trial: and motion to vacate judgment." 3 The motion asserted cause under Rules 59(a) and 60(c)(1) and (6) Ariz.R.Civ.P. but contained no affidavits, only arguments of counsel. He also filed a "supplemental" response to the motion for summary judgment. This response contained no statement of facts, but attached affidavits of the plaintiff and Dr. John Ritland, a purported expert in hypnosis. On December 28, 1990, the defendant filed a response to the motion to vacate and reply to the response to the motion for summary judgment. The defendant noted the lack of any affidavit asserting that Van Baalen had not received the motion. Attached was the affidavit of a worker in defense counsel's office asserting the motion was mailed as certified. In reply to the plaintiff's response to the motion for summary judgment, the defendant noted that the affidavits contained inadmissible testimony and that there was no competent evidence refuting the defendant's motion.

On January 15, 1991, the plaintiff filed a reply in support of the motion to vacate attaching affidavits of Van Baalen and two secretaries. Van Baalen stated in his affidavit that his office policy was to have a secretary date stamp motions as they are received and then give the motions to him; that his office had conducted a thorough search and determined that they did not receive a copy of the defendant's motion for summary judgment until November 28, 1990.

Deanne L. Norton stated in her affidavit that she reviews all of Van Baalen's mail and first became aware of the defendant's motion on Wednesday, November 21, 1990, when she received a call from "Jean" in Judge Anderson's office. She told Jean that Van Baalen had not received a copy of any such motion and that he would more than likely respond to the motion, if and when received. On November 26, 1990, she requested a copy of the motion from Peter G. Kline's secretary, requesting her to fax the motion as soon as possible. The motion was not faxed, but a copy was received by Van Baalen's office in the mail on November 28, 1990.

Following oral argument on January 30, 1991, the judge denied the motion to vacate and reaffirmed the summary judgment. The court stated:

The Court has chosen to consider two issues, as well as admissible evidence regarding the Motion for Summary Judgment: 1) if, under Rules 59 or 60, the Court ought to set aside a judgment based primarily upon excusable neglect; and 2) whether, in fact, the plaintiffs' action is time barred. The Court notes that some of the evidence submitted by plaintiffs has been objected to by defendants' counsel, and those objections are well taken. The Court is unable to find excusable neglect and, therefore, sees no reason to set aside the judgment. Equally important is the Court's opinion, which is based upon the evidence that was before the Court on November 28 when the Motion for Summary Judgment was granted and the evidence before the Court today, that the Motion for Summary Judgment is well taken and the plaintiffs' action is time barred.

The court entered a formal order on February 12, 1991. On March 4, the plaintiff filed a notice of appeal from both the judgment and the denial of the motion for reconsideration.


The plaintiff's motion to vacate was moot if the trial court properly held that she failed to adequately refute the motion for summary judgment. All that a grant of the motion to vacate would do is give her the opportunity to respond to the merits of the summary judgment motion. 4 The trial court explicitly held that the plaintiff had failed to refute the statute of limitations defense, leaving the summary judgment standing on its merits. We will therefore address the merits of the summary judgment first, bearing in mind that we do so in a light most favorable to the plaintiff. Chaparral Development v. RMED Int'l Inc., 170 Ariz. 309, 823 P.2d 1317 (App.1991).


On the face of the complaint the cause of action appears time-barred. In response to the motion for summary judgment, the plaintiff tacitly conceded that the limitations period is two years under Ariz.Rev.Stat.Ann. ("A.R.S.") section 12-542(1). When a complaint shows on its face that the cause of action is barred by the statute of limitations, the burden is on the plaintiff to show the statute should be tolled. Cooney v. Phoenix Newspapers, Inc., 160 Ariz. 139, 141, 770 P.2d 1185, 1187 (App.1989). The complaint was filed on June 14, 1990, and the alleged acts "commenc[ed] in or about December, 1983." No ending date is asserted, but the plaintiff concedes that she was the defendant's patient during 1983 and 1984 and "remained his patient for approximately one and one half years." The plaintiff asserts that she did not discover and could not have discovered the wrongful acts until about 1990.

The motion for summary judgment responded to the plaintiff's assertion that she could not have known of the acts prior to 1990, with the defendant's own affidavit, acting as his own expert, asserting that, in his opinion, there was no reason why the plaintiff could not have remembered the pertinent events, and that she was given no treatment that would have caused her to be unable to remember. 5 The motion asserted: "It is now incumbent upon the Plaintiff to present by expert testimony why she did not or could not discover the acts of which she complains. Unless she can demonstrate she was under a disability recognized under the law as tolling the statute of limitations, then this motion should be granted...." Once the defendant has established a prima facie case entitling him to summary judgment, the plaintiff has the burden of showing available, competent evidence that would justify a trial. State v. Mecham, 173 Ariz. 474, 844 P.2d 641 (App.1992).

The plaintiff's response stated that her memory of the events was impaired because of hypnotic suggestions made to her by the defendant. She alleged that he had conducted the sexual activity while she was under hypnosis and that he had given her post-hypnotic suggestions that she would not remember his conduct. She submitted her own affidavit and that of Dr. John Ritland, M.D. We do not decide in this appeal whether plaintiff's evidence regarding hypnosis...

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