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Cruz v. City of Tucson

Court of Appeals of Arizona, Second Division

August 1, 2017

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.

         Appeal from the Superior Court in Pima County No. C20155573 The Honorable Catherine Woods, Judge

          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 Howard[1] 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 (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 ...


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