Mendoza v. Rio Rico Medical & Fire District

          ORDER

          Cindy K. Jorgenson, Judge

         Pending before the Court is Defendants' Motion to Dismiss Counts Five and Seven of the First Amended Complaint (Doc. 21). Plaintiffs filed a Response (Doc. 23) to Defendants' Motion to Dismiss and Defendants filed a Reply. (Doc. 24).

         Factual and Procedural Background

          On October 9, 2018, Plaintiffs Rene Mendoza (“Mr. Mendoza”), Lani Salazar (“Mrs. Salazar”), and Lionel Salazar filed an Amended Complaint against Rio Rico Medical & Fire District (“Rio Rico”), Albert Ibarra (“Mr. Ibarra”), Carmen Ibarra, Albert Flores (“Mr. Flores”), and Beatrice Flores. Among other things, Plaintiffs' alleged claims of intentional infliction of emotional distress (Count Five) and a violation of the Arizona Employment Protection Act (Count Seven) in connection with various incidents of sexual assault and harassment.

         Arizona requires that a Notice of Claim be filed before an individual files suit against a public entity, such as Rio Rico. See Ariz. Rev. Stat. Ann. § 12-821.01. On March 14, 2018, the Salazars sent Rio Rico and Mr. Flores a Notice of Claim. (Doc. 23-1). The notice included a variety of factual claims against Rio Rico and Mr. Flores and included a specific amount for which the claims could be settled. On May 2, 2018, Mr. Mendoza sent Rio Rico and Mr. Ibarra a Notice of Claim. (Doc. 23-3). The notice included a variety of factual claims against Rio Rico and Mr. Ibarra and included a specific amount for which the claims could be settled.

         Neither Notice of Claim was accepted within 60 days of receipt, deeming them denied under § 12-821.01(E).^[1] On December 24, 2018, Defendants filed the pending Motion to Dismiss Counts Five and Seven of the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants allege that neither Mrs. Salazar nor Mr. Mendoza included claims for intentional infliction of emotional distress or a violation of the Arizona Employment Protection Act in their Notices of Claim and, therefore, those claims should be dismissed.

         Analysis

         Arizona's Notice of Claim requirement relating to public entities is codified in Ariz.

         Rev. Stat. Ann. § 12-821.01(A), which provides:

Persons who have claims against a public entity, public school or a public employee shall file claims with the person or persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues. The claim shall contain facts sufficient to permit the public entity, public school or public employee to understand the basis on which liability is claimed. The claim shall also contain a specific amount for which the claim can be settled and the facts supporting that amount. Any claim that is not filed within one hundred eighty days after the cause of action accrues is barred and no action may be maintained thereon.

         Therefore, a Notice of Claim must include: “(1) facts sufficient to permit the public entity to understand the basis upon which liability is claimed, (2) a specific amount for which the claim can be settled, and (3) the facts supporting the amount claimed.” Backus v. State, 203 P.3d 499, 502 (Ariz. 2009). “The purpose of the notice is to allow the public employee and his employer to investigate and assess their liability, to permit the possibility of settlement prior to litigation and to assist the public entity in financial planning and budgeting.” Crum v. Superior Court, 922 P.2d 316, 317 (Ariz.Ct.App. 1996). The notice of claim must “at least contain enough information to allow the state to intelligently ascertain these purposes so it can conscientiously allow or disallow the claim.” Howland v. State, 818 P.2d 1169, 1175 (Ariz.Ct.App. 1991).

         1. Intentional Infliction of Emotional Distress

         The Salazars' Notice of Claim contains a myriad of factual allegations that would permit Defendants to understand the basis upon which Plaintiffs raise a claim for intentional infliction of emotional distress. See (Doc. 23-1, pg. 3) (“Flores then proceeded to rape Mrs. Salazar. Mrs. Salazar fought Flores, but Flores penetrated her.”); id. (“Flores grabbed Mrs. Salazar by the arm and forced her into the gym at the First District's fire station. Flores forced Mrs. Salazar to have sex with him on top of a bench.”); id. at 4 (“As a result of Flores actions and Rio Rico's as described above, Mrs. Salazar suffered severe mental distress that requires therapy by a psychologist that is expected to span years to treat the psychological damage that Flores inflicted upon her.”).

         Similarly, Mr. Mendoza's Notice of Claim contains numerous factual allegations that would permit Defendants to understand the basis upon which Plaintiffs raise a claim for intentional infliction of emotional distress. See (Doc. 23-3, pg. 2) (“Captain Ibarra saw Mr. Mendoza standing by the metal storage box and approached Mr. Mendoza to strike Mr. Mendoza in the testicles with a flexible antenna from a radio. Mr. Mendoza grimaced in pain. Captain Ibarra looked at Mr. Mendoza grimacing, laughed and left the area. Mr. Mendoza suffered physical pain and garden variety mental distress including depression, anger, dignity, loss of self-esteem, humiliation and worry about keeping his job.”); ...