Doe v. Arizona Board of Regents ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
JOHN DOE, Plaintiff/Appellant,
v.
ARIZONA BOARD OF REGENTS, Defendant/Appellee.
No. 1 CA-CV 21-0509
FILED 6-28-2022
Appeal from the Superior Court in Maricopa County
No. CV2020-017426
The Honorable Timothy J. Thomason, Judge
AFFIRMED
COUNSEL
Mick Levin, P.L.C., Phoenix
By Mick Levin
Counsel for Plaintiff/Appellant
Arizona Attorney General’s Office, Tucson
By Claudia A. Collings, Rebecca A. Banes
Counsel for Defendant/Appellee
O’STEEN & HARRISON, PLC, Phoenix
By Johnathan V. O’Steen
Counsel for Amicus Curiae CHILD USA
DOE v. ARIZONA BOARD OF REGENTS, et al.
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.
W I L L I A M S, Judge:
¶1 John Doe appeals the dismissal of his tort action against the
Arizona Board of Regents. For reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 The University of Arizona, a legal subdivision of the Arizona
Board of Regents (“ABOR”), administers a 4-H program for children.
¶3 Between 2005 and 2007, Doe attended a 4-H program
directed by Pamela Padilla. Jose Torres assisted Padilla in the
administration of the 4-H program. Torres sexually abused Doe, then a
minor, before, during, and after 4-H activities.
¶4 In 2017, Doe reported the sexual abuse to the police. Torres
later pled guilty to attempted sexual conduct with a minor.
¶5 On October 30, 2020, Doe served a notice of claim on ABOR.
The notice of claim alleged Padilla “had actual notice of misconduct that
created an unreasonable risk of sexual conduct or contact with [Doe] by
[Torres].”
¶6 On December 30, 2020, Doe filed this tort action against
ABOR. Doe alleged:
“[ABOR], through [its] employees, volunteers, and/or
agents, knew or otherwise had actual notice of misconduct
by Jose Torres that created an unreasonable risk of sexual
conduct or sexual contact with [Doe] and negligently failed
to protect [Doe] . . . from sexual contact and sexual conduct
with Jose Torres.”
¶7 ABOR moved to dismiss the complaint under Arizona Rule
of Civil Procedure (“Rule”) 12(b)(6). ABOR argued: (1) Doe’s action was
time barred by the notice of claim statute, A.R.S. § 12-821.01; (2) even if
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DOE v. ARIZONA BOARD OF REGENTS, et al.
Decision of the Court
Doe’s action was not time barred by the notice of claim statute, Doe’s
notice was “insufficient” to “allow ABOR to understand the basis of
[Doe’s] claims”; and (3) Doe’s complaint failed to state a claim upon which
relief could be granted.
¶8 The superior court dismissed the complaint with prejudice.
Doe timely appealed. We have jurisdiction under Article 6, Section 9, of
the Arizona Constitution, and A.R.S. § 12-2101(A)(1).
DISCUSSION
¶9 We review a court’s grant of a motion to dismiss de novo.
Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7 (2012). This case involves an
issue of statutory interpretation, which we also review de novo. See
Southwest Airlines Co. v. Ariz. Dep’t of Revenue, 217 Ariz. 451, 452, ¶ 6 (App.
2008).
¶10 Dismissal of a complaint is appropriate only if plaintiff
“would not be entitled to relief under any facts susceptible of proof in the
statement of the claim.” Mohave Disposal, Inc. v. City of Kingman, 186 Ariz.
343, 346 (1996).
¶11 Generally, a cause of action against a public entity must be
brought within one year after the cause of action accrues. A.R.S. § 12-821;
see also A.R.S. § 12-502 (providing a minor may bring a cause of action
within one year after turning eighteen). Such cause of action must be
preceded by a notice of claim that satisfies A.R.S. § 12-821.01(A).
¶12 A person with a claim against a public entity is required to
serve their notice of claim “within one hundred eighty days after the cause
of action accrues.” A.R.S. § 12-821.01(A); see also A.R.S. § 12-821.01(D)
(providing a minor may serve a notice of claim within one hundred eighty
days after turning eighteen).
¶13 A cause of action “accrues” when the plaintiff “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.” A.R.S. § 12-821.01(B).
¶14 House Bill 2466, effective May 27, 2019, provides an
exception to the general rule that an action against a public entity must be
filed within one year after the cause of action accrues. 2019 Ariz. Sess.
Laws, ch. 259, § 1 (1st Reg. Sess.) (codified, in part, at A.R.S. § 12-514).
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DOE v. ARIZONA BOARD OF REGENTS, et al.
Decision of the Court
¶15 Under House Bill 2466, an action for recovery of damages
based on “an injury that a minor suffers as a result of another person’s
negligent or intentional act if that act is a cause of sexual conduct or sexual
contact committed against the minor,” may be commenced within twelve
years after the minor reaches eighteen years of age. Id.
¶16 In addition to enlarging the statute of limitations for such
claims, the bill revived certain civil actions arising from sexual conduct or
sexual contact committed against a minor. Id. § 3. The bill also provided
that, in certain circumstances, a revived cause of action could be brought
against a person1 who was not the perpetrator of the sexual conduct or
sexual contact. Id. Section three provides:
Notwithstanding any other law, a cause of action for
damages . . . that involves sexual conduct or sexual contact
. . . that would otherwise be time barred because of an
applicable statute of limitation, a claim presentation
deadline or the expiration of any other time limit is revived
and may be commenced before December 31, 2020.
A cause of action revived [under] this section may be
brought against a person who was not the perpetrator of the
sexual conduct or sexual contact if that person knew or
otherwise had actual notice of any misconduct that creates
an unreasonable risk of sexual conduct or sexual contact
with a minor by an employee, a volunteer, a representative
or an agent.
¶17 The parties agree that the passage of House Bill 2466 revived
Doe’s claim against ABOR. The parties disagree, however, as to whether
Doe was required to serve a notice of claim under A.R.S. § 12-821.01 and
whether, if notice was required, Doe’s notice was timely.
¶18 Doe argues that because the bill revives an action that would
otherwise be time barred because of a “claim presentation deadline,” he
was not required to serve a notice of claim at all. We disagree.
¶19 In interpreting a statute, our goal is to discern the
legislature’s intent. Knauss v. DND Neffson Co., 192 Ariz. 192, 199 (App.
1A person includes the “state . . . a local government unit . . . [or a] public
agency.” Id. § 1.
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DOE v. ARIZONA BOARD OF REGENTS, et al.
Decision of the Court
1997). Accordingly, we “look first to the statute’s words,” id. (quoting In re
Denton, 190 Ariz. 152, 155 (1997)), and “adhere to the plain language of the
statute, leaving any deficiencies or inequities to be corrected by the
legislature,” Bowslaugh v. Bowslaugh, 126 Ariz. 517, 519 (1979).
¶20 House Bill 2466, effective May 27, 2019, revived causes of
action that would have otherwise been time barred because of a failure to
meet a claim presentation deadline, so long as those actions were
commenced before December 31, 2020. 2019 Ariz. Sess. Laws, ch. 259, § 3.
¶21 A notice of claim is a prerequisite to filing a lawsuit against a
public entity. A.R.S. § 12-821.01(A); Donovan v. Yavapai Cnty. Cmty. Coll.
Dist., 244 Ariz. 608, 610, ¶ 7 (App. 2018). The purpose of the notice of
claim statute is to “provide the entity an opportunity to investigate the
claim, to assess its potential liability, to reach a settlement before litigation,
and to budget and plan.” Donovan, 244 Ariz. at 610, ¶ 7.
¶22 Repeal of a statute by implication is disfavored. UNUM Life
Ins. Co. of Am. v. Craig, 200 Ariz. 327, 333, ¶ 28 (2001). In fact, “[w]here a
later statute does not expressly repeal a former one, they should be
construed so as to give effect to each, if possible.” State v. Cassius, 110 Ariz.
485, 487 (1974).
¶23 Although House Bill 2466 revived causes of action that
would otherwise have been time barred by a failure to meet a statute of
limitation or claim presentation deadline, it did not provide an exception
to or repeal the notice requirement in A.R.S. § 12-821.01(A).
¶24 Construing House Bill 2466 and A.R.S. § 12-821.01 to give
effect to both, we conclude that a plaintiff with a cause of action against a
public entity revived under House Bill 2466 was still required to provide
notice to the public entity. See, e.g., Cassius, 110 Ariz. at 487. Moreover,
because our interpretation of a statute is guided by the “presumption that
what the [l]egislature means, it will say,” Padilla v. Indus. Comm’n, 113
Ariz. 104, 106 (1976), we decline to “read into a statute something which is
not within the manifest intention of the legislature as indicated by the
statute itself,” Town of Scottsdale v. State ex rel. Pickrell, 98 Ariz. 382, 386
(1965).
¶25 Doe also argues that, even if a notice of claim was required,
his notice was timely because it was served before December 31, 2020.
According to Doe, because the bill provides that revived causes of action
may be commenced before December 31, 2020, a notice of claim is timely so
long as it is served before December 31, 2020. We disagree.
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DOE v. ARIZONA BOARD OF REGENTS, et al.
Decision of the Court
¶26 A person with a claim against a public entity is required to
serve a notice of their claim with the public entity “within one hundred
eighty days after the cause of action accrues.” See A.R.S. § 12-821.01(A).
Like the requirement to provide notice, House Bill 2466 does not expressly
amend the time in which to provide notice. Moreover, Doe conflates the
requirement that revived actions be “commenced before December 31,
2020,” with the notice requirement. 2019 Ariz. Sess. Laws, ch. 259, § 3. An
action, even one against a public entity, is “commenced” by the filing of
the lawsuit, not by merely providing notice of the claim. See, e.g., Ariz. R.
Civ. P. 3 (“A civil action is commenced by filing a complaint with the
court.”).
¶27 Doe’s claim was revived on and accrued on May 27, 2019,
the effective date of the bill. See Greismer v. Griesmer, 116 Ariz. 512, 512-13
(App. 1977) (holding that where alleged tort giving rise to husband’s
action against former wife occurred while the parties were married, cause
of action did not accrue until the dissolution of marriage, since before the
dissolution, husband was precluded from bringing an action by the
doctrine of interspousal immunity). Doe therefore had one hundred
eighty days from May 27, 2019, to serve his notice of claim on ABOR. See
A.R.S. § 12-821.01(A). Doe failed to do so.
¶28 Because Doe failed to timely serve his notice of claim, we
need not address whether the notice was sufficient or whether the
complaint failed to state a claim upon which relief could be granted.
CONCLUSION
¶29 For the foregoing reasons, we affirm the judgment of the
superior court.
AMY M. WOOD • Clerk of the Court
FILED: JT
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