                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 GABRIELLA VALENZUELA, Plaintiff/Appellant,

                                         v.

                      JEREMY WEST, Defendant/Appellee.

                              No. 1 CA-CV 15-0781
                                FILED 10-27-2016


            Appeal from the Superior Court in Maricopa County
                           No. CV2014-095051
                  The Honorable David K. Udall, Judge

                                   AFFIRMED


                                    COUNSEL

Melinda Gabriella Valenzuela, Buckeye
Plaintiff/Appellant

Grasso Law Firm, P.C., Chandler
By Terry Straughn, Robert Grasso, Jr.
Counsel for Defendant/Appellee
                         VALENZUELA v. WEST
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge John C. Gemmill1 joined.


W I N T H R O P, Judge:

¶1              Melinda Gabriella Valenzuela appeals the trial court’s order
granting Jeremy West’s2 motion for summary judgment. Valenzuela argues
that the trial court abused its discretion in granting summary judgment to
West because Valenzuela never received West’s request for admissions. For
the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2              In December 2014, Valenzuela, then incarcerated at the state
prison complex in Florence, filed a complaint alleging that she had been
sexually assaulted by staff at Transitional Living Communities (“TLC”).3
Valenzuela alleged that the abuse caused physical injuries, including a
broken arm and paralysis, and emotional and mental anguish. Valenzuela
also claimed that TLC staff refused to return certain personal items to her
after she left the facility.



1      The Honorable John C. Gemmill, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3, of the Arizona Constitution.

2    West is also referred to as Jeremy Bloeman and Jeremy West
Bloeman throughout the trial court record.

3      Although Valenzuela’s complaint did not reveal the names of the
individuals against whom her allegations were made, the summons
identified Maricopa County (“County”), Jeremy Bloeman, Mark Ross, Mike
Owens, and Joseph Still as defendants. Similarly, Valenzuela’s complaint
did not identify the facility where the alleged events took place; however,
West’s first answer clarifies that Valenzuela was a resident at TLC in
August 2012 and worked in the TLC office as a staff member.




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                         VALENZUELA v. WEST
                          Decision of the Court

¶3            At the time Valenzuela filed her complaint, she was subject to
a vexatious litigant administrative order that required her to obtain
permission from the presiding judge in Maricopa County prior to filing any
lawsuit there. The record is unclear as to whether Valenzuela was granted
prior approval from the presiding judge as it pertains to her claims against
West.4 Nevertheless, West was served with the lawsuit in January 2015 and
filed an answer shortly thereafter. In his answer, West stated that he had
not seen or heard from Valenzuela since August 2012 and he had “no
knowledge” of the alleged sexual assault. West later filed an amended
answer through counsel, in which he denied “each and every” allegation in
Valenzuela’s complaint.

¶4            On May 5, 2015, pursuant to Arizona Rule of Civil Procedure
(“Rule”) 36(a),5 West served a request for admissions on Valenzuela at the
Florence prison. West asked Valenzuela to admit, among other things, that
West never abused her, that West never assaulted her, and that Valenzuela
had no evidence to support her claims against West. Valenzuela did not
respond to the request within the time frame required by Rule 36.6 In June
2015, West moved for summary judgment, contending that, because
Valenzuela failed to respond to his request for admissions, the requests
were by operation of law deemed admitted, thereby eliminating any




4     After this appeal was filed, the County moved to dismiss the
complaint based on Valenzuela’s failure to comply with the administrative
order. Valenzuela subsequently informed the trial court that she did not
oppose the County’s motion, and the court dismissed the matter as to the
County without prejudice.

5      “A party may serve upon any other party a written request for the
admission, for purposes of the pending action only, of the truth of any
matters within the scope of Rule 26(b) set forth in the request that relate to
statements or opinions of fact or of the application of law to fact, including
the genuineness of any documents described in the request.” Ariz. R. Civ.
P. 36(a).

6      Valenzuela later notified the court, with copy to West, that, on May
27, 2015, she would be transferred from Florence to Buckeye, Arizona.




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                          VALENZUELA v. WEST
                           Decision of the Court

genuine issue of fact and demonstrating that West was entitled to judgment
as a matter of law.7

¶5             In August 2015, Valenzuela advised the court that she never
received West’s request for admissions. She later provided the court with
a copy of inter-facility correspondence between herself and the mail officer
at the Buckeye prison complex. Valenzuela contended that the mail
officer’s statement, confirming that certain legal mail had been delivered to
Valenzuela on three occasions in June and July 2015, was proof that she had
not received West’s request for admissions.

¶6          Almost two months after West moved for summary
judgment, Valenzuela requested the court grant her an extension of time up
to September 21, 2015 to respond. The court granted the motion, and
extended the deadline for Valenzuela’s response to West’s motion for
summary judgment to September 21, 2015.8

¶7             Valenzuela did not timely respond to the motion, and on
September 30, 2015, the trial court granted West’s motion for summary
disposition of his motion for summary judgment.9 The formal judgment
signed by the court contained Rule 54(b) certification. Valenzuela filed a
timely notice of appeal. We have jurisdiction pursuant to Arizona Revised
Statutes section 12-2101 (2003).

                                 ANALYSIS

¶8             As an initial matter, we note that Valenzuela has failed to cite
to the record in her opening brief, which could constitute waiver as to the
issues raised. See ARCAP 13(a); Delmastro & Eells v. Taco Bell Corp., 228 Ariz.


7       West also argued that Valenzuela’s claims were barred by a two-year
statute of limitations for tort claims. Because the trial court did not abuse
its discretion in granting West’s motion for summary judgment based on
Valenzuela’s failure to timely respond to the motion, we do not address this
issue.

8      Several weeks later, Valenzuela filed an “emergency” request to
extend the response deadline. The court noted that an extension to
September 21 had already been granted; accordingly, the court took no
action concerning the latest request.

9    Valenzuela filed an untimely response to the motion for summary
judgment on the same day the court issued its order.


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                          VALENZUELA v. WEST
                           Decision of the Court

134, 137 n.2, ¶ 7, 263 P.3d 683, 686 n.2 (App. 2011). Nor does she cite
relevant legal authority. In the exercise of our discretion, however, we will
consider the merits of her arguments. See Delmastro, 228 Ariz. at 137 n.2,
¶ 7, 263 P.3d at 686 n.2 (stating the appellate court may entertain deficient
briefs on the merits).

¶9            We review de novo the trial court’s grant of summary
judgment. TWE Ret. Fund Trust v. Ream, 198 Ariz. 268, 271, ¶ 11, 8 P.3d 1182,
1185 (App. 2000). Summary judgment is proper where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment
as a matter of law. Ariz. R. Civ. P. 56(a); Orme Sch. v. Reeves, 166 Ariz. 301,
305, 802 P.2d 1000, 1004 (1990).

¶10          Valenzuela argues that the trial court abused its discretion in
granting West’s motion for summary judgment because she never received
West’s request for admissions; thus, in her view, the court erred in relying
upon the facts deemed admitted by her failure to respond.

¶11           To support her contention that she never received the Rule 36
requests, Valenzuela relies on a letter and mail log that lists her incoming
mail at the Buckeye facility. The record indicates, however, that at the time
the Rule 36 requests were served on Valenzuela, she was still incarcerated
at the Florence facility. Accordingly, the letter and mail log from Buckeye
are not relevant, nor do they create a genuine issue of fact as to whether
Valenzuela did or did not receive such requests while she was in the
Florence facility.

¶12            Moreover, Valenzuela failed to timely respond to West’s
motion for summary judgment. As such, the court was well within its
discretion in summarily granting the motion. See Ariz. R. Civ. P. 7.1(b) (“[I]f
the opposing party [to a motion] does not serve and file the required
answering memorandum, . . . such non-compliance may be deemed a
consent to the denial or granting of the motion . . . .”). Further, as it relates
to the merits of the motion, West had the initial burden to “point out by
specific reference to the relevant discovery that no evidence existed to
support an essential element of the claim.” See Orme, 166 Ariz. at 310, 802
P.2d at 1009. West met that burden by showing that Valenzuela conceded
the truth of specific facts by failing to respond to West’s request for
admissions within the required time frame. See Ariz. R. Civ. P. 36(a) (“[A]
matter is admitted unless, within (40) days after service of the request . . .
the party to whom the request is directed serves upon the party requesting
the admission a written answer or objection addressed to the matter, signed
by the party or by the party’s attorney.”).


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                          VALENZUELA v. WEST
                           Decision of the Court

¶13           After West established that summary judgment was proper,
the burden shifted to Valenzuela to show the existence of a genuine dispute
of material fact. See Nat’l Hous. Indus., Inc. v. E.L. Jones Dev. Co., 118 Ariz.
374, 377, 576 P.2d 1374, 1377 (App. 1978). The record demonstrates that,
even after receiving the specific extension of time she requested from the
trial court, Valenzuela failed to timely respond to West’s motion for
summary judgment.10 In short, Valenzuela did not timely proffer any
evidence showing that a genuine factual dispute existed. See Berry v.
Robotka, 9 Ariz. App. 461, 466, 453 P.2d 972, 977 (1969) (stating that the
opponent to a motion for summary judgment cannot simply rest on her
pleadings, but instead must “come forward with a showing that there is
competent evidence so as to create a factual issue for the trier of fact”).

¶14            Accordingly, on this record, the trial court did not abuse its
discretion in granting West’s motion for summary judgment. See Orme, 166
Ariz. at 310, 802 P.2d at 1009 (“If the party with the burden of proof on the
claim or defense cannot respond to the motion by showing that there is
evidence creating a genuine issue of fact on the element in question, then
the motion for summary judgment should be granted.”).

                                CONCLUSION

¶15        For the following reasons, we affirm the trial court’s grant of
summary judgment.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




10    We note that Valenzuela, having been a named party in over 100
lawsuits, is an experienced litigant.


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