                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


      ESTELLA MEDRANO, individually; LILLIANA VALENCIA,
           a minor child, individually, Plaintiffs/Appellants,

                                        v.

 CITY OF PHOENIX, an Arizona municipality and political subdivision of
the State of Arizona; JOE YAHNER, acting Chief of Police, and JANE DOE
     YAHNER, husband and wife; ROBERT DIVENTI and JANE DOE
 DIVENTI, husband and wife; DAVID HOUGH and JANE DOE HOUGH,
 husband and wife; AARON KRISS and JANE DOE KRISS, husband and
  wife; BENJAMIN DENHAM and JANE DOE DENHAM, husband and
   wife; PAMELA ZIELIN and JOHN DOE ZIELIN, wife and husband;
     MYKEL MOLLER and JANE DOE MOLLER, husband and wife,
                           Defendants/Appellees.

                             No. 1 CA-CV 13-0484
                               FILED 10-30-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-009943
               The Honorable Arthur T. Anderson, Judge

      AFFIRMED IN PART; REVERSED IN PART; REMANDED


                                   COUNSEL

Aiken Schenk Hawkins & Ricciardi, PC, Phoenix
By Alfred W. Ricciardi, James M. Cool, Stephanie McCoy Loquvam
Counsel for Plaintiffs/Appellants
Berke Law Firm, PLLC, Phoenix
By Lori V. Berke, Jody C. Corbett
Counsel for Defendants/Appellees Phoenix Police Department, Yahner, Hough,
Kriss, Denham, Sielin, and Moller




                       MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Andrew W. Gould
joined.


T H U M M A, Judge:

¶1             Plaintiffs Estella Medrano and her minor daughter Lilliana
Valencia appeal from the dismissal of their tort claims as time barred and
for failure to state a claim. As explained below, the dismissal is affirmed in
part and reversed in part and this matter is remanded for further
proceedings.

                              BACKGROUND1

¶2            A man and woman robbed a Phoenix Circle K store at
gunpoint after sunset on May 18, 2011. They fired no shots, took $35 from
the cash register and fled on foot. A Phoenix police officer unsuccessfully
pursued two suspects near the store. An hour later, officers located and
arrested Medrano’s former husband Miguel Hernandez. Hernandez’
fingerprint matched a print found on the store’s cash drawer.

¶3             After comparing the store’s surveillance tape and a four year
old driver’s license photo of Medrano, a police officer identified Medrano
as the woman involved in the robbery. Using a photo line-up, another
officer identified Medrano as the woman involved. When shown the same
photo line-up, the store clerk did not identify Medrano.



1 In reviewing the grant of a motion to dismiss for failure to state a claim,
this court assumes the truth of all well-pleaded facts alleged in the
complaint. Fidelity Sec. Life Ins. Co. v. State, 191 Ariz. 222, 224 ¶ 4, 954 P.2d
580, 582 (1998).



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                  MEDRANO et al. v. MARICOPA, et al.
                       Decision of the Court

¶4            On May 21, 2011, two other officers arrested Medrano.
Medrano claimed innocence and provided fingerprint and DNA samples.
Medrano also told police that she believed Hernandez’ girlfriend, who she
named, was the woman involved in the robbery. At the time of Medrano’s
arrest, her daughter Lilliana was about six weeks old.

¶5            Within hours of her arrest, Medrano made her initial
appearance before a judicial officer on a charge of armed robbery in
violation of Arizona Revised Statutes (A.R.S.) section 13-1904(A) (2014).2
Medrano alleges she remained in the Maricopa County Jail until August
10, 2011, when she was “released from jail and placed on” house arrest.
Medrano alleges she “was released from custody and cleared of all
charges” on November 3, 2011.

¶6             On February 6, 2012, Medrano and Lilliana served on
defendants (police officers alleged to be involved) a notice of claim
pursuant to A.R.S. § 12-821.01. On July 13, 2012, Medrano and Lilliana
filed their complaint, alleging malicious prosecution (Count One), loss of
consortium (Count Two), false arrest and imprisonment (Count Three),
intentional infliction of emotional distress (Count Four), negligent
infliction of emotional distress (Count Five), negligence (Count Six), and
negligence per se (Count Seven).

¶7            Defendants moved to dismiss the claims for failure to state a
claim arguing (1) all claims (other than the malicious prosecution claim)
were time-barred under A.R.S. §§ 12-821 and 12-821.01, and (2) many
claims failed to state a claim. Following briefing and oral argument, the
superior court granted the motion and entered a judgment reflecting that
ruling.3



2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

3 The notice of claim and complaint also made allegations against other
individuals and entities collectively referred to here as the County
Defendants. The superior court granted the County Defendants’ motion
for judgment on the pleadings; the judgment dismissed the action in its
entirety and Plaintiffs did not appeal that portion of the judgment in favor
of the County Defendants. Accordingly, the County Defendants are not
parties to this appeal and, as to them, the judgment is final.




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                   MEDRANO et al. v. MARICOPA, et al.
                        Decision of the Court

¶8           From plaintiffs’ timely appeal this court has jurisdiction
pursuant to A.R.S. § 12-2101(A)(1).4

                                DISCUSSION

I.     Medrano’s False Arrest And Imprisonment Claims (Count Three)
       Are Time-Barred As A Matter Of Law.

¶9            A person with a claim against a public entity or employee
must file a notice of claim within 180 days of accrual. A.R.S. § 12-
821.01(A). Failure to comply with this requirement means the claim is
time-barred. Jones v. Cochise County, 218 Ariz. 372, 375 ¶ 6, 187 P.3d 97, 100
(App. 2008). Accrual occurs “when the damaged party 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). This provision creates a discovery
rule for a notice of claim. See Little v. State, 225 Ariz. 466, 469 ¶ 9, 240 P.3d
861, 864 (App. 2010). Medrano argues that her false arrest and false
imprisonment claims are not time-barred, an issue this court reviews de
novo. See Coleman v. City of Mesa, 230 Ariz. 352, 355 ¶ 7, 284 P.3d 863, 866
(2012).

¶10            Because her notice of claim was filed on February 6, 2012,
Medrano’s false arrest and imprisonment claims are time-barred unless
they accrued on or after August 10, 2011. False arrest and imprisonment
consist of non-consensual detention of a person “without lawful
authority.” Slade v. City of Phoenix, 112 Ariz. 298, 300, 541 P.2d 550, 552
(1975). Claims for false arrest and imprisonment accrue on the date of the
arrest. See Hansen v. Stoll, 130 Ariz. 454, 460, 636 P.2d 1236, 1242 (App.
1981); Rondelli v. Pima County, 120 Ariz. 483, 485, 586 P.2d 1295, 1297 (App.
1978). More precisely, “[r]eflective of the fact that false imprisonment
consists of detention without legal process, a false imprisonment ends
once the victim becomes held pursuant to such process—when, for example,
he [or she] is bound over by a magistrate or arraigned on charges.” Wallace


4 Because it is a non-jural entity that cannot be sued, the Phoenix Police
Department was dismissed as a putative party and, as to the parties
involved in this appeal, the superior court also dismissed claims for
punitive damages and attorneys’ fees. Those determinations are not
challenged in this appeal, meaning plaintiffs have waived the right to
challenge them. See Dawson v. Withycombe, 216 Ariz. 84, 111 ¶ 91, 163 P.3d
1034, 1061 (App. 2007).



                                       4
                  MEDRANO et al. v. MARICOPA, et al.
                       Decision of the Court

v. Kato, 549 U.S. 384, 389 (2007) (citing authority). Here, Medrano was
arrested on May 21, 2011 and had her initial appearance hours after her
arrest.5 Her February 6, 2012 notice of claim was not filed within 180 days
of May 21, 2011 as required by A.R.S. § 12-821.01(A).

¶11            Medrano contends that this claim did not accrue on May 21,
2011 because she “was always held without the requisite probable cause.”
Even the absence of probable cause, however, does not delay the accrual
date for a false imprisonment or false arrest claim. See Wallace, 549 U.S. at
389–90. Moreover, Medrano has not supported with any relevant
authority her argument that finding the date of her arrest/initial
appearance as the date of accrual would be unconstitutionally inconsistent
with her right against self-incrimination. Accordingly, the superior court
properly dismissed as time-barred under A.R.S. § 12-821.01(A) Medrano’s
claim for false arrest and false imprisonment (Count Three).

II.    Medrano’s Negligence, Negligence Per Se, Intentional Infliction
       Of Emotional Distress And Negligent Infliction of Emotional
       Distress Claims (Counts Four Through Seven) Are Time-Barred
       In Part.

¶12           The superior court concluded that A.R.S. § 12-821.01 barred
Medrano’s negligence, negligence per se, and negligent and intentional
infliction of emotional distress claims (Counts Four through Seven)
because they accrued prior to August 10, 2011, when Medrano was
released from jail on house arrest. Medrano challenges this finding on four
grounds.

¶13           First, Medrano argues that the “continuing tort” rule should
apply to these claims. The “continuing tort” rule provides that, “under
certain conditions a tort is continuous, and in such cases the limitations
period does not commence until the date of the last tortious act.” Floyd v.
Donahue, 186 Ariz. 409, 413, 923 P.2d 875, 879 (App. 1996) (dicta; rejecting
application of rule to repeated sexual assault claims). Arizona’s
continuing tort rule, however, has been limited to continuing trespass and
continuing nuisance claims, neither of which are made in this case. See,
e.g., Garcia v. Sumrall, 58 Ariz. 526, 533, 121 P.2d 640, 643 (1942)
(continuing trespass to property); Fix v. Union Pacific R.R. Co., 982 F. Supp.


5 Without objection, in considering defendants’ motion to dismiss, the
superior court properly considered documents from Medrano’s initial
appearance. Coleman, 230 Ariz. at 356 ¶ 9, 284 P.3d at 867.



                                      5
                  MEDRANO et al. v. MARICOPA, et al.
                       Decision of the Court

2d 1052, 1056 (D. Ariz. 2013) (continuing nuisance claim under Arizona
law). Medrano cites no case applying the continuing tort rule to
negligence or emotional distress claims under Arizona law.

¶14           Second, Medrano argues that if her false arrest and
imprisonment claims are timely, her negligence and emotional distress
claims are timely because a contrary conclusion “would lead to an absurd
result.” Because Medrano’s false arrest and imprisonment claims are time-
barred, however, the factual predicate for this argument is lacking.

¶15            Third, Medrano claims that her confinement justifies
equitable tolling. When applicable, equitable tolling permits a plaintiff to
sue “after the statutory time period for filing a complaint has expired if
they have been prevented from filing in a timely manner due to
sufficiently inequitable circumstances.” McCloud v. State, 217 Ariz. 82, 87 ¶
11, 170 P.3d 691, 696 (App. 2007). Equitable tolling, however, applies only
in extraordinary circumstances, such as when a plaintiff receives
inadequate notice of the right to sue or is misled into believing she has
done everything required to preserve her claim. See id. at 87 ¶ 13, 170 P.3d
at 696. The fact of imprisonment alone does not suffice. See A.R.S. § 12-502,
Hist. & Stat. Notes (1996) (discussing amendment removing subpart (b) of
statute, which delayed accrual of cause of action for being “imprisoned”).
Accordingly, the superior court properly concluded that imprisonment is
not an extraordinary circumstance excusing Medrano’s failure to make a
timely notice of claim for allegations pre-dating August 10, 2011.

¶16           Finally, Medrano argues that her negligence and emotional
distress claims are timely to the extent that they arise out of actions and
omissions that occurred “on or after August 10, 2011.” The superior court
found that “[a]ll of the actions that formed the basis of these claims
occurred prior to [Medrano’s] release from jail.” More broadly, defendants
argue on appeal that “[a]ll of the alleged acts and omissions” by
defendants “occurred prior to August 10, 2011.” It may be that all of the
alleged actions pre-date August 10, 2011.6 As Medrano argued before the

6 The one exception may be the allegation that “[s]everal months” after her
arrest, “while she was still in police custody, the [Phoenix Police
Department]’s lead case agent told . . . Medrano’s defense counsel that the
[Phoenix Police Department] was ‘70% sure’ that Ms. Medrano was not
involved in the armed robbery.” Although it is unclear from the complaint
precisely when that statement was made, Medrano appears to take the
position that the alleged statement occurred before August 10, 2011.



                                     6
                  MEDRANO et al. v. MARICOPA, et al.
                       Decision of the Court

superior court and on appeal, however, the complaint alleges and
challenges omissions or the failure to act by defendants on or after August
10, 2011. Accordingly, as to those alleged omissions, these claims are not
time-barred.

¶17           Construing the facts in the light most favorable to Medrano,
the February 6, 2012 notice of claim was timely for the negligence and
emotional distress claims (Counts Four through Seven) to the extent those
claims are based on alleged actions or omissions that occurred on or after
August 10, 2011. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419 ¶ 7,
189 P.3d 344, 346 (2008) (holding court must “assume the truth of the well-
pled factual allegations and indulge all reasonable inferences therefrom”).
To the extent those claims are based on alleged actions or omissions that
occurred on or before August 9, 2011, however, those claims are time-
barred. Accordingly, the superior court’s dismissal of Counts Four, Five,
Six and Seven is affirmed in part and reversed in part.

III.   Medrano’s Malicious Prosecution Claim (Count One) Does Not
       Fail To State A Claim Upon Which Relief Can Be Granted.

¶18           “A malicious prosecution claim accrues when the prior
proceedings have terminated in the defendant’s favor. If such an action is
filed prior to favorable termination of the proceedings, the action is
premature and subject to dismissal.” Nataros v. Superior Court, 113 Ariz.
498, 500, 557 P.2d 1055, 1057 (1976); accord Moran v. Klatzke, 140 Ariz. 489,
490, 682 P.2d 1156, 1157 (App. 1984) (citing cases). Because the complaint
alleges the criminal case was not terminated in Medrano’s favor until
November 3, 2011, the February 6, 2012 notice of claim was timely as to
Medrano’s malicious prosecution claim (Count One). See A.R.S. § 12-
821.01(A).

¶19            Defendants argued, and the superior court found, that the
malicious prosecution claim failed as a matter of law because it did not
allege that the defendants “exercised any control over the prosecution
after the case was turned over to the Maricopa County Attorney’s Office.”
Medrano challenges this finding on appeal.

¶20            Under Arizona law, a malicious prosecution claim requires a
plaintiff to allege and prove “(1) that there was a prosecution, (2) that it
terminated in favor of plaintiff, (3) that defendants were prosecutors, (4)
that they were actuated by malice, (5) that there was want of probable
cause, and (6) the amount of damages sustained.” Overson v. Lynch, 83
Ariz. 158, 161, 317 P.2d 948, 949 (1957). In assessing whether a malicious



                                     7
                  MEDRANO et al. v. MARICOPA, et al.
                       Decision of the Court

prosecution claim is properly alleged, a person is a “prosecutor” if he or
she initiated the criminal prosecution without probable cause (including
through an indictment, complaint, arrest warrant or by actual arrest) or
continued proceedings without probable cause. See Lacey v. Maricopa
County, 649 F.3d 1118, 1133 n.7, 1134 (9th Cir. 2011) (citing authority);
Watzek v. Walker, 14 Ariz. App. 545, 549, 485 P.2d 3, 7 (1971); Walsh v.
Eberlein, 114 Ariz. 342, 345, 560 P.2d 1249, 1252 (App. 1976). “Where the
instigator of a proceeding loses control over the case once the prosecution
has been initiated, his participation in the prosecution thereafter is not such
as will subject him to liability.” Walsh, 114 Ariz. at 345, 560 P.2d at 1252
(emphasis added; citing authority).

¶21             The complaint here alleges that defendants initiated the
criminal prosecution without probable cause “[a]t all times relevant,”
including by arresting Medrano on May 21, 2011. Unlike the other claims
discussed above, given the nature of a malicious prosecution claim,
Medrano’s allegations, including the pre-August 10, 2011 allegations, are
timely and adequately allege actions by defendants. Accordingly, control
of the case after it was filed is not relevant to actions taken by defendants
in arresting Medrano. In this respect, the malicious prosecution claim does
not fail to state a claim upon which relief can be granted.

¶22           Although it may be that the defendants lost “any control
over the criminal prosecution of . . . Medrano after the case was turned
over to the Maricopa County Attorneys’ Office,” that does not immunize
defendants for their actions in arresting Medrano. Indeed, the case relied
upon by defendants discussed an argument where the party pressing a
malicious prosecution claim “urge[d] that even assuming there existed
sufficient probable cause to institute the prosecution, there was a lack of
probable cause for continuation once” certain facts became known. Walsh,
114 Ariz. at 345, 560 P.2d at 1152. Here, by contrast, Medrano argues that
there was never probable cause for her arrest or the criminal charge made
against her.

¶23           Construing the allegations in the light most favorable to
Medrano, the complaint sufficiently alleges that defendants “instituted
and/or continued the criminal prosecution of” Medrano and had
continuing involvement and control. See Cullen, 218 Ariz. at 419 ¶ 7, 189
P.3d at 346 (“The inclusion of conclusory statements does not invalidate a
complaint, but a complaint that states only legal conclusions, without any
supporting factual allegations, does not satisfy Arizona’s notice pleading
standard”). Accordingly, defendants have not shown that Medrano’s
malicious prosecution claim (Count One) fails as a matter of law.


                                      8
                  MEDRANO et al. v. MARICOPA, et al.
                       Decision of the Court

IV.   Lilliana’s Loss of Consortium Claim (Count Two) Is Not Barred
      As A Matter Of Law In Its Entirety.

¶24           The superior court dismissed Lilliana’s derivative loss of
consortium claim (Count Two) because Medrano’s claims had been
dismissed. As noted above, however, not all of Medrano’s claims are
barred as a matter of law in their entirety. Accordingly, although
affirming the dismissal of Lilliana’s loss of consortium claim to the extent
it is based on Medrano’s false arrest and imprisonment claims (Count
Three) and those portions of her negligence and emotional distress claims
(Counts Four, Five, Six and Seven) that are time-barred, to the extent that
Liliana’s loss of consortium claim is based on Medrano’s claims that
remain viable, the dismissal is vacated.

                                  *****

¶25          In vacating in part and remanding, this court expresses no
view on the factual merit of claims that remain to be resolved or
defendants’ defenses. In addition, the superior court was presented with
arguments that were not addressed and that this court, in turn, does not
address or resolve. Instead, recognizing the limited factual inquiry of a
motion to dismiss, the court vacates in part and remands because the
current record leaves unresolvable as a matter of law the issues discussed
above. This court leaves those factual issues for resolution on remand, be
it through subsequent motion practice or trial.




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                 MEDRANO et al. v. MARICOPA, et al.
                      Decision of the Court



                             CONCLUSION

¶26            The superior court’s dismissal of Medrano’s false arrest and
false imprisonment claims (Count Three) is affirmed. The dismissal of
Medrano’s negligence, negligence per se, intentional infliction of
emotional distress and negligent infliction of emotional distress claims
(Counts Four, Five, Six and Seven) is affirmed as to any portion of those
claims based on actions or omissions occurring on or before August 9,
2011. The remainder of the order dismissing the claims by Medrano
(including her malicious prosecution claim (Count One)), and Lilliana’s
derivative claims, against defendants is vacated as reflected above and
this matter is remanded for further proceedings not inconsistent with this
decision. Medrano and Lilliana are awarded their taxable costs on appeal
contingent upon their compliance with Rule 21 of the Arizona Rules of
Civil Appellate Procedure.




                                    :10/30/2014




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