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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


               JORGE C. JUAREZ JIMENEZ, a married man,
                           Plaintiff/Appellant,

                                        v.

   YUMA COUNTY, a political subdivision of the State of Arizona;
RALPH E. OGDEN, Sheriff of Yuma County; TODD SUTTON and JANE
              DOE SUTTON, a married couple,
                      Defendants/Appellees.

                             No. 1 CA-CV 14-0724
                               FILED 1-12-2016


             Appeal from the Superior Court in Yuma County
                        No. S1400CV201000801
              The Honorable Lawrence C. Kenworthy, Judge

                                  AFFIRMED


                                   COUNSEL

John MacMullin, Phoenix
Counsel for Appellant

Yuma County Attorney’s Office, Yuma
By Edward P. Feheley
Counsel for Appellees
                   JIMENEZ v. YUMA COUNTY et al.
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.


T H U M M A, Judge:

¶1           Plaintiff Jorge C. Juarez Jimenez appeals from the dismissal of
his complaint for failure to state a claim upon which relief can be granted
and the denial of his subsequent motion to amend the complaint. Because
Jimenez has shown no error, the superior court’s orders are affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2            At about 8 p.m. on October 21, 2009, Maria Mora De Amaya
reported to Yuma County Deputy Sherriff Sutton that Jimenez had
committed “an aggravated assault upon her person” earlier that night.
While listening to her report, Deputy Sutton noticed a one-inch red mark
on De Amaya’s neck. De Amaya also showed Deputy Sutton paperwork
from her unsuccessful attempt to secure an order prohibiting harassment
against Jimenez’ wife. When asked about the order, De Amaya “said the
judge had canceled it and it was against Mr. [Jimenez’] wife.”

¶3             Deputy Sutton arrested Jimenez later that night, transported
him to the jail and interviewed him. During that interview, Jimenez stated
he was at a grocery store at the time of the alleged assault. On October 23,
2009, Jimenez’ wife gave a receipt to Deputy Sutton to show both were at
the grocery store at the time of the assault. Later that day, Deputy Sutton
went to the grocery store, interviewed the manager, looked at the security
video and obtained pictures of Jimenez and his wife in the store at the time
of the assault reported by De Amaya. Deputy Sutton then went to Jimenez’
house, where Jimenez’ wife showed Deputy Sutton the clothes Jimenez was
wearing in the video.

¶4           The next day, Deputy Sutton forwarded his report (attaching
witness statements) to the Yuma County Attorney’s office, which declined


1 In reviewing a motion to dismiss, this court assumes as true the facts
alleged in Jimenez’ complaint viewed in the light most favorable to him.
Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550, 552 (App. 1995).

                                     2
                    JIMENEZ v. YUMA COUNTY et al.
                         Decision of the Court

to prosecute Jimenez. On October 26, 2009, because of the Yuma County
Attorney’s decision, the superior court ordered Jimenez released. By the
time of his release, Jimenez had spent five days in jail. Formal criminal
charges were never filed against Jimenez for the alleged assault.

¶5            In July 2010, Jimenez filed this case, asserting malicious
prosecution and false arrest/imprisonment counts against De Amaya and
Deputy Sutton (and their spouses for community property purposes) and
Yuma County. In November 2010, the superior court granted a motion to
dismiss for failure to state a claim filed by Yuma County and Deputy
Sutton. The court determined the counts failed because, based on the
allegations in the complaint, Deputy Sutton had probable cause to arrest
Jimenez. Almost four years later, Jimenez unsuccessfully moved to amend
the complaint. The parties then stipulated to the entry of a partial judgment
as to all claims against Yuma County and Deputy Sutton, which the
superior court entered in September 2014. See Ariz. R. Civ. P. 54(b) (2015).2

¶6           This court has jurisdiction over Jimenez’ timely appeal under
the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes
§§ 12-2101(A)(1) and -120.21(A)(1).

                               DISCUSSION

I.     The Superior Court Properly Granted The Motion to Dismiss.

¶7            To prevail on a motion to dismiss for failure to state a claim,
the defendant must establish that the plaintiff is not entitled to relief under
any set of facts susceptible of proof. Fidelity Sec. Life Ins. Co. v. State, 191
Ariz. 222, 224 ¶ 4 (1998). This court reviews de novo an order dismissing a
complaint for failure to state a claim. Coleman v. City of Mesa, 230 Ariz. 352,
355 ¶ 7 (2012).

¶8            Jimenez asserted two claims against Yuma County and
Deputy Sutton: malicious prosecution and “false arrest/imprisonment.”
“The essential elements of malicious prosecution are (1) a criminal
prosecution, (2) that terminates in favor of plaintiff, (3) with defendants as
prosecutors, (4) actuated by malice, (5) without probable cause, and (6)
causing damages.” Slade v. City of Phoenix, 112 Ariz. 298, 300 (1975). False

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated. Although the claim
against De Amaya was not resolved by motion, De Amaya is not a party to
this appeal.



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                    JIMENEZ v. YUMA COUNTY et al.
                         Decision of the Court

arrest/imprisonment “may be defined as the detention of a person without
his consent and without lawful authority.” Id. It is undisputed that neither
Yuma County nor Deputy Sutton are subject to liability for malicious
prosecution or false arrest/imprisonment if Deputy Sutton had probable
cause to arrest Jimenez. Hansen v. Garcia, Fletcher, Lund & McVean, 148 Ariz.
205, 207 (App. 1985).

¶9            Probable cause to arrest exists “when reasonably trustworthy
information and circumstances would lead a person of reasonable caution
to believe an offense has been committed by the suspect.” State v. Spears,
184 U.S. 277, 284 (1996). “Probable cause is something less than the proof
needed to convict and more than an unsupported suspicion.” Hansen, 148
Ariz. at 207. Probable cause is a “practical, nontechnical conception,”
Brinegar v. United States, 338 U.S. 160, 176 (1949), measured by the
information known at the time of the arrest, see English-Clark v. City of
Tucson, 142 Ariz. 522, 525 (App. 1984). Jimenez concedes that the
appropriate inquiry when reviewing the dismissal of a complaint is
whether probable cause existed at the time of the arrest, not subsequently.

¶10          Jimenez argues the superior court’s determination that
Deputy Sutton had probable cause to arrest was wrong, meaning the
motion to dismiss should have been denied. The superior court made that
determination based solely on the facts alleged in the complaint.3
Accordingly, in addressing Jimenez’ arguments on appeal, this court must
determine whether the facts alleged in the complaint support the finding of
probable cause.

¶11         As alleged in Jimenez’ verified complaint, De Amaya told
Deputy Sutton that she was attacked and identified Jimenez as the attacker.

3 The motion to dismiss included one statement not alleged in the
complaint: “On October 22, 2009, Defendant Deputy Sutton forwarded his
investigation to the Yuma County Attorney’s office for possible
prosecution.” Jimenez did not object to the superior court considering that
statement, which does not address probable cause. On appeal, Jimenez
claims the superior court “considered Deputy Sutton’s investigative
report,” which was not a part of the complaint. De Amaya filed that report
as an attachment in unrelated motion practice; there is no indication the
superior court considered that report in the dismissal order addressed here
and this court will not assume the superior court considered it, sua sponte,
in issuing the dismissal order but without stating it was doing so.




                                     4
                    JIMENEZ v. YUMA COUNTY et al.
                         Decision of the Court

Deputy Sutton saw a one-inch red mark on her neck (consistent with an
attack) and an unsuccessful order prohibiting harassment against Jimenez’
wife.4 That information provided Deputy Sutton probable cause to arrest
Jimenez. See Slade, 112 Ariz. at 301 (finding probable cause to arrest;
“[p]olice depend upon the information furnished by citizens, and, unless
the contrary appears, they should be able to depend upon the presumption
that men speak the truth”).

¶12            Jimenez points to his allegations that Deputy Sutton arrested
him “without more, without verification of [De Amaya’s] accusations,
without an eyewitness, and with inconsistencies in her story.” But Jimenez
has not shown that “more” was required for probable cause. Jimenez has
not shown that verification of a victim’s statement in these circumstances is
required before probable cause exists. Nor has he shown that an eyewitness
was required, or that any “inconsistencies in her story” somehow
precluded Deputy Sutton from having probable cause at the time of his
arrest. Tellingly, Jimenez cites no case law supporting such a position. As
noted decades ago, “police officers are not required to conduct a trial before
making an arrest.” Hansen, 148 Ariz. at 207. On this record, the superior
court did not err by finding probable cause existed at the time of Jimenez’
arrest and dismissing the malicious prosecution and false
arrest/imprisonment claims against Yuma County and Deputy Sutton.5

II.    The Superior Court Did Not Err By Denying Jimenez’ Motion For
       Leave To Amend The Complaint.

¶13          Jimenez claims the superior court abused its discretion in
denying his motion for leave to amend the complaint against Yuma County
and Deputy Sutton, filed nearly four years after the dismissal order.6 The
proposed amended complaint sought to add new facts and three new

4The parties dispute the significance of the unsuccessful attempt to seek an
order prohibiting harassment against Jimenez’ wife. Because the probable
cause analysis remains the same, this court need not address that dispute.

5Given this conclusion, this court need not address Jimenez’ argument that
the superior court erred by finding Deputy Sutton acted without malice.

6 Jimenez argues in his reply on appeal that Yuma County and Deputy
Sutton do not contest that he should have been allowed to amend his
complaint. Not so. Although the answering brief did not present a robust
argument on the issue, it noted a reliance on the superior court’s “plainly
stated justification in the [o]rder,” thereby preserving the issue.

                                      5
                     JIMENEZ v. YUMA COUNTY et al.
                          Decision of the Court

federal claims. The superior court denied the motion because the factual
allegations in the proposed amended complaint would not alter the original
probable cause analysis, would prejudice the defendants and appeared to
be an effort to delay trial against De Amaya. This court reviews “the denial
of a request to amend for an abuse of discretion.” Carranza v. Madrigal, 237
Ariz. 512, 515 ¶ 13 (2015). Although “[l]eave to amend shall be freely given
when justice requires,” Ariz. R. Civ. P. 15(a)(1)(B), the court “may deny
leave to amend if it finds undue delay, bad faith, dilatory motive . . . or
undue prejudice to the opposing party,” Carranza, 237 Ariz. at 515 ¶ 13
(citations omitted). “Prejudice is the inconvenience and delay suffered
when the amendment raises new issues or inserts new parties into the
litigation.” Owen v. Superior Court, 133 Ariz. 75, 79 (1982) (citations omitted).
For several reasons, Jimenez has not shown the superior court erred in
denying leave to amend.

¶14            First, amending the complaint to insert new facts and the
three new federal claims would have been futile. See In Re Tortstenson’s
Estate, 125 Ariz. 373, 376 (App. 1980) (noting “futility of amendment” is a
reason to deny a request to amend). The new facts Jimenez sought to allege
did not change the probable cause analysis. Jimenez sought to clarify and
amplify facts alleged in the original complaint, including adding specificity
about the allegations in the order prohibiting harassment, alleging
purported exculpatory information learned at or after Deputy Sutton’s
arrest of Jimenez and alleging Deputy Sutton should have undertaken
further investigation before the arrest. None of these allegations, however,
alter the basic facts alleged in the original complaint that properly support
a finding of probable cause: before Deputy Sutton arrested Jimenez, Deputy
Sutton heard De Amaya recount a physical attack, saw a one-inch red mark
on her neck, had a failed application for an order prohibiting harassment
and heard De Amaya accuse Jimenez of hurting her. Similarly, the new
federal counts Jimenez sought to add were premised on the proposition
that probable cause for the arrest was lacking, making them futile as well
because Deputy Sutton had probable cause.

¶15           Second, the motion for leave to amend did not purport to
claim that the additional factual allegations Jimenez sought to add were not
available at the time of the original complaint, nor did it claim any other
compelling justification for the delay. In Re Tortstenson’s Estate, 125 Ariz. at
377 (holding superior court did not abuse its discretion in denying motion
to amend because “[n]othing in the record indicates any compelling reason
for the delay”).




                                       6
                   JIMENEZ v. YUMA COUNTY et al.
                        Decision of the Court

¶16            Finally, allowing the amendment would have been
prejudicial to Yuma County and Deputy Sutton. A court properly may deny
leave to amend based on “undue delay” and “undue prejudice.” Owen, 133
Ariz. at 79. Jimenez sought to amend the complaint almost four years after
Yuma County and Deputy Sutton were dismissed from the case. Yuma
County and Deputy Sutton argued the claims Jimenez sought to add were
“serious, complex, and would require extensive discovery,” made more
difficult because Deputy Sutton had moved to Oregon by that time. They
also argued the amendment would result in significant delay in trial and
final resolution. The superior court denied the motion for leave to amend,
finding the delay would prejudice Yuma County and Deputy Sutton.
Among other things, neither Yuma County nor Deputy Sutton spent the
four years collecting relevant facts to defend themselves, meaning any
amendment would result in “additional delays and substantial added costs
to defend this case.” Thus, their ability to defend the case would have been
prejudiced if the motion for leave to amend was granted. Accordingly, the
court did not err in denying Jimenez’ motion for leave to amend.7

                             CONCLUSION

¶17           Because the superior court did not err, the dismissal and
denial of the motion for leave to amend are affirmed.




                                :ama




7Jimenez argued other issues in his opening brief, which were stricken
previously and need not be addressed here.

                                       7
