                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


             MELINDA G. VALENZUELA, Plaintiff/Appellant,

                                        v.

      MARICOPA COUNTY SHERIFF, et al., Defendants/Appellees.

                             No. 1 CA-CV 15-0049
                               FILED 11-5-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-094691
              The Honorable Mark F. Aceto, Retired Judge

                                  AFFIRMED


                                   COUNSEL

Melinda Gabriella Valenzuela, Buckeye
Plaintiff/Appellant

Maricopa County Attorney’s Office, Phoenix
By J. Randall Jue
Counsel for Defendants/Appellees



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
                    VALENZUELA v. MARICOPA et al.
                         Decision of the Court

J O N E S, Judge:

¶1           Melinda Valenzuela appeals the trial court’s order dismissing
the complaint and denying a request to disqualify opposing counsel. For
the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             On September 12, 2014, Valenzuela filed a complaint against
the Maricopa County Sheriff’s Office and several detention officers
(collectively, MCSO) alleging a First Amendment violation of the right to
maintain a religious diet by serving Valenzuela bologna for lunch. At that
time, Valenzuela was subject to Administrative Order 2006-052 (the Order),
which identified Valenzuela as a named party in at least 104 civil court cases
filed since 2002, the majority of which were dismissed for failure to state a
claim.1 The Order concluded Valenzuela was a “vexatious litigant” and
prohibited the filing of any new lawsuit in Maricopa County without
obtaining advance permission from the presiding judge.

¶3            MCSO moved to dismiss, asserting Valenzuela had not
complied with the Order and was therefore barred from filing the lawsuit.
Valenzuela did not file a response. The trial court, finding the motion to be
meritorious and deeming the failure to respond as consent to its granting,
entered a final order dismissing the case.

¶4            Four days after the dismissal, Valenzuela filed a response and
objection to the motion to dismiss, asserting compliance with the Order.
Valenzuela also requested the trial court disqualify MCSO’s counsel
because Valenzuela had previously filed a sexual harassment claim against
him. The court determined the untimely arguments had been waived and,
on its own motion, ordered the response stricken.

¶5           Valenzuela timely appealed. We have jurisdiction pursuant
to Arizona Revised Statutes sections 12-120.21(A)(1)2 and -2101(A)(1).




1     The order is addressed to “Quennel Devon Glover aka Enrique
Gabrielle Mendez,” names the State asserts are prior aliases of Valenzuela.

2     Absent material revisions from the relevant date, we cite a statute’s
current version.



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                    VALENZUELA v. MARICOPA et al.
                         Decision of the Court

                               DISCUSSION

    I.    Motion to Dismiss

¶6             Valenzuela first argues the trial court erred in granting
dismissal because Valenzuela purportedly complied with the Order. We
review de novo an order granting a motion to dismiss for failure to state a
claim. See Vortex Corp. v. Denkewicz, 235 Ariz. 551, 556, ¶ 17 (App. 2014)
(citing Coleman v. City of Mesa, 230 Ariz. 352, 355-56, ¶¶ 7-8 (2012)). In doing
so, we assume the truth of the material facts asserted by the plaintiff and
will affirm dismissal where the plaintiff is not entitled to relief under any
facts susceptible of proof under the claims stated. Mohave Disposal, Inc. v.
City of Kingman, 186 Ariz. 343, 346 (1996) (citing Menendez v. Paddock Pool
Constr. Co., 172 Ariz. 258, 261 (App. 1991)).

¶7             Valenzuela did not allege compliance with the Order within
the complaint. See Coleman, 230 Ariz. at 356, ¶ 9 (“‘[C]ourts look only to the
pleading itself’ when adjudicating a Rule 12(b)(6) motion.”) (quoting Cullen
v. Auto-Owners Ins., 218 Ariz. 417, 419, ¶ 7 (2008)). Moreover, when
presented with an opportunity to oppose the motion to dismiss and
demonstrate actual compliance, Valenzuela failed to do so. See Anson v.
Am. Motors Corp., 155 Ariz. 420, 421 (App. 1987) (noting the plaintiff carries
the burden when a motion to dismiss establishes the claim is facially
barred); see also Ariz. R. Civ. P. 7.1(b) (authorizing the trial court to deem a
party’s non-response as “a consent to the denial or granting of the motion”).
And even if the trial court had elected to consider Valenzuela’s belated
response,3 it offered only vague assertions that “the case was sent to the
[presiding judge] for ruling” and “plaintiff complied as required.” These
conclusory statements do not justify Valenzuela’s failure to establish a right
to file the lawsuit. Coleman, 230 Ariz. at 356, ¶ 9 (noting “mere conclusory




3      Valenzuela’s reply brief on appeal argues for the first time that the
response should be considered filed on the day it was provided to jail
personnel, which could be no earlier than December 4, 2015, the date it was
signed. The motion to dismiss, however, was served November 3, 2014,
meaning a response was due November 18, 2014, ten business days later.
Ariz. R. Civ. P. 6(a), 7.1(a). Adding five mailing days extended the deadline
to November 23, 2014, a Sunday, meaning the last day for filing was
Monday, November 24, 2014. See Ariz. R. Civ. P. 6(a), (e). Valenzuela did
not purportedly transmit the response to jail personnel until December 4,
2014, ten days past the date the response was due.


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                    VALENZUELA v. MARICOPA et al.
                         Decision of the Court

statements are insufficient” to state a claim for relief) (citing Cullen, 218
Ariz. at 419, ¶ 7).

¶8            Only on appeal does Valenzuela attempt to prove compliance
with the Order and establish a right to file the lawsuit. Because Valenzuela
did not present any evidence in this regard to the trial court, we will not
consider it on appeal. See West v. Baker, 109 Ariz. 415, 418-19 (1973) (“[A]n
appellate court is confined in the determination of a case to what is shown
by the record only and cannot consider such extraneous matters.”). Even if
we were to consider information outside of the record, the application
seeking leave to file the lawsuit against MCSO, included in the appendix to
Valenzuela’s opening brief, although dated July 17, 2014, bears no
indication that it was filed with the court and does not include a signed
order from the presiding judge granting the application.

¶9           Under these circumstances, the trial court properly dismissed
Valenzuela’s complaint.

   II.     Disqualification of Counsel

¶10            Valenzuela next argues the trial court erred in denying the
request to disqualify MCSO’s counsel. We review a ruling on a
disqualification motion for an abuse of discretion. Burch & Cracchiolo, P.A.
v. Myers, 237 Ariz. 369, 381, ¶ 14 (App. 2015) (citing Simms v. Rayes, 23 Ariz.
47, 49, ¶ 8 (App. 2014)). “To find an abuse of discretion, there must either
be no evidence to support the court’s conclusion or the reasons given by the
court must be ‘clearly untenable, [be] legally incorrect, or amount to a
denial of justice.’” Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344,
350, ¶ 17 (App. 2006) (quoting State v. Chapple, 135 Ariz. 281, 297 n.18 (1983),
and citing United Imps. & Exps., Inc. v. Superior Court, 134 Ariz. 43, 46 (1982)).
We are further mindful that “[o]nly in extreme circumstances should a
party to a lawsuit be allowed to interfere with the attorney-client
relationship of his opponent,” Alexander v. Superior Court, 141 Ariz. 157, 161
(1984), and “[t]he burden is on the party moving to disqualify opposing
counsel to show ‘sufficient reason’ why the attorney should be
disqualified,” Amparano v. Asarco, Inc., 208 Ariz. 370, 377, ¶ 24 (App. 2004)
(citing Alexander, 141 Ariz. at 161).

¶11          Although the trial court did not explicitly state why it denied
the motion, Valenzuela’s request for disqualification was made after the
court entered the order of dismissal. Moreover, a prior personal conflict
between a party and opposing counsel is not, alone, an “extreme
circumstance” that may trump the opposing party’s right to counsel of his



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                    VALENZUELA v. MARICOPA et al.
                         Decision of the Court

choice. This is particularly true here, given Valenzuela’s apparent litigious
nature. We therefore find no abuse of discretion. See Double AA Builders,
Ltd. v. Grand State Constr. L.L.C., 210 Ariz. 503, 506 (App. 2005) (noting that,
where no reason is given by the trial court, we presume the decision is
supported and will affirm “if any reasonable construction of the evidence
justifies it”) (citing Garden Lakes Comty. Ass’n v. Madigan, 204 Ariz. 238, 240,
¶ 9 (App. 2003), and In re CVR 1997 Irrevocable Trust, 202 Ariz. 174, 177,
¶ 16 (App. 2002)).

                               CONCLUSION

¶12          The trial court’s orders dismissing the complaint and denying
Valenzuela’s request to disqualify opposing counsel are affirmed.




                                  :ama




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