                               NOTICE: NOT FOR PUBLICATION.
     UNDER ARIZ. R. SUP. CT. 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


                   HEATHER COOPER, Plaintiff/Appellant,

                                          v.

     ROSS STORES, INC., dba ROSS DRESS FOR LESS, a Delaware
                  corporation, Defendant/Appellee.

                              No. 1 CA-CV 13-0223
                               FILED 2-27-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2012-051118
            The Honorable Michael R. McVey, Judge (Retired)
           The Honorable Colleen L. French, Judge Pro Tempore


                                    AFFIRMED


                                    COUNSEL

Hymson Goldstein & Pantiliat, PLLC, Scottsdale
By Eddie A. Pantiliat, Ruth K. Khalsa
Counsel for Plaintiff/Appellant

Holloway Odegard & Kelly, P.C., Phoenix
By Leslie Rakestraw, Sally A. Odegard
Counsel for Defendant/Appellee
                           COOPER v. ROSS
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.


D O W N I E, Judge:

¶1            Heather Cooper appeals the dismissal of her claims against
Ross Stores, Inc. (“Ross”). For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2          On May 8, 2010, Cooper was at Nicole Mitchell’s residence
when a wrought iron chair she was sitting on collapsed. A piece of
wrought iron approximately five inches long impaled Cooper’s thigh.

¶3           Cooper filed a complaint on January 12, 2012, naming
Mitchell and various fictitious entities as defendants. On July 3, 2012,
Cooper filed a motion for leave to amend her complaint to add Ross as a
defendant. According to the motion, Cooper learned in April 2012 that
Ross distributed the chair at issue. Mitchell did not object, and the
superior court granted the motion to amend.

¶4            Cooper filed her amended complaint on July 13, 2012. She
asserted claims against Ross for negligence, strict liability for defective
manufacture, strict liability for distribution of a defective product, and
failure to warn. The amended complaint alleged that Mitchell purchased
the chair from Ross approximately 11 days before the incident.

¶5            Ross moved to dismiss, arguing the amended complaint was
filed after the statute of limitations had expired. See Ariz. Rev. Stat.
(“A.R.S.”) § 12-542(1), -551 (setting two-year statute of limitations for
personal injury and product liability claims). According to Ross, the
amended complaint did not relate back to the original complaint under
Rule 15(c), Arizona Rules of Civil Procedure (“Rule”), because Cooper had
not shown that the failure to name Ross was due to a mistake as to the
identity of the appropriate party or that Ross had received notice of the
action within the limitations period.

¶6           In opposing Ross’s motion, Cooper contended the discovery
rule applied and delayed accrual of her cause of action. Cooper asserted


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                             COOPER v. ROSS
                            Decision of the Court

that she first learned of Ross’s involvement on April 17, 2012, when
Mitchell served a supplemental disclosure statement naming Ross as the
seller. According to Cooper, her cause of action therefore accrued on
April 17, 2012. She also argued that Ross’s Rule 15(c) argument was moot
because the court had already granted her motion to amend.

¶7            The superior court granted Ross’s motion to dismiss. It
ruled that the amended complaint did not relate back to the original
complaint because “Ross had no notice of this case until more than two (2)
years after Plaintiff’s injury on May 8, 2010.” The court also concluded the
discovery rule was inapplicable because Cooper’s injury was open and
obvious and because, with reasonable diligence, Cooper could have
discovered who sold the chair.

¶8            Cooper filed a motion for reconsideration, asserting for the
first time that Ross knew of the lawsuit within the limitations period
because Mitchell had issued a subpoena to Ross in April 2012 seeking
documents related to the chair. Cooper claimed it was not a lack of
diligence that caused her inability to identify Ross, but Mitchell’s initial
statement that she could not recall where she bought the chair and her
later claim that she bought it at Pier 1 Imports. Cooper also argued that
Ross thwarted attempts to identify it as the seller when it responded to
Mitchell’s subpoena by stating that it could not track Mitchell’s purchase
and that its buyers did not recall the chair. Cooper attached various
documents to her motion for reconsideration, as well as a declaration
attesting to her “diligent inquiries” into the seller’s identity.

¶9           The superior court denied Cooper’s motion for
reconsideration without requesting a response. It entered a judgment
containing Rule 54(b) language that dismissed Cooper’s claims against
Ross. Cooper timely appealed. We have jurisdiction pursuant to A.R.S.
§ 12-2101(A)(1).

                               DISCUSSION

¶10             We review de novo the dismissal of a complaint for failure to
state a claim under Rule 12(b)(6). Coleman v. City of Mesa, 230 Ariz. 352,
356, ¶ 8, 284 P.3d 863, 867 (2012). We review the denial of a motion for
reconsideration for an abuse of discretion. Tilley v. Delci, 220 Ariz. 233,
238, 204 P.3d 1082, 1087 (App. 2009). We will affirm the superior court’s
decision if it is correct for any reason. Ariz. Bd. of Regents ex rel. Univ. of
Ariz. v. State ex rel. Ariz. Pub. Safety Ret. Fund Manager Adm’r, 160 Ariz. 150,
154, 771 P.2d 880, 884 (App. 1989).



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                             COOPER v. ROSS
                            Decision of the Court

¶11           In reviewing the grant of Ross’s motion to dismiss, we
consider only the record that was before the superior court when it ruled
on the motion. See Cella Barr Assoc., Inc. v. Cohen, 177 Ariz. 480, 487 n.1,
868 P.2d 1063, 1070 n.1 (App. 1994) (refusing to consider transcripts
attached to motion for reconsideration because they were not before the
trial court when it ruled on the underlying motion); GM Dev. Corp. v.
Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App. 1990)
(“[U]nless the deposition transcripts were part of the record before the
trial court at the time it considered the motion for partial summary
judgment, we cannot consider them on appeal.”).

¶12           When a plaintiff seeks leave to amend a complaint to add a
defendant, the amended complaint will relate back to the original
complaint if the claims asserted in the amended pleading arise out of the
same conduct or incident as the claims in the original pleading and if,
during the limitations period plus the time allowed for service, the newly
named defendant: (1) received notice of the lawsuit such that it would not
be prejudiced in defending against the claim; and (2) knew or should have
known that, but for a mistake as to the identity of the proper party, it
would have been sued earlier. Ariz. R. Civ. P. 15(c). The plaintiff bears
the burden of establishing the elements required by Rule 15(c). Pargman v.
Vickers, 208 Ariz. 573, 578, ¶¶ 24-27, 96 P.3d 571, 576 (App. 2004).

¶13           Cooper did not carry her burden of demonstrating that the
amended complaint related back to the original complaint. At the time
the superior court granted the motion to dismiss, nothing in the record
suggested, let alone established, that Ross had notice of the lawsuit within
the limitations period or that Ross knew or should have known it would
have been sued but for a mistake in identifying the proper defendant.
Indeed, in opposing Ross’s motion, Cooper’s only argument regarding
Rule 15(c) was that the issue was moot because the court had already
granted her leave to amend. Not until the motion for reconsideration did
Cooper argue that Ross had notice of the lawsuit within the limitations
period. But as previously noted, we do not consider that argument when
determining whether the superior court properly granted the motion to
dismiss in the first instance. See Cella Barr, 177 Ariz. at 487 n.1, 868 P.2d at
1070 n.1.

¶14          Cooper also contends the court improperly focused on the
date of her injury and failed to consider purported obstacles she
encountered in ascertaining the chair’s origins. She contends the statute of
limitations was tolled until she knew or reasonably should have known
who manufactured or distributed the chair.


                                       4
                            COOPER v. ROSS
                           Decision of the Court

¶15           Under the discovery rule, “a cause of action does not accrue
until the plaintiff knows or with reasonable diligence should know the
facts underlying the cause.” Doe v. Roe, 191 Ariz. 313, 322, ¶ 29, 955 P.2d
951, 960 (1998). When the face of the complaint reflects that a claim is
barred by the statute of limitations, the burden is on the plaintiff to
establish that the discovery rule applies to forestall accrual of the cause of
action. See Cooney v. Phx. Newspapers, Inc., 160 Ariz. 139, 141, 770 P.2d
1185, 1187 (App. 1989).

¶16           The dates set forth in the amended complaint reflect that the
claims against Ross are time-barred. The amended complaint was filed on
July 13, 2012, and the complaint alleged an injury occurring more than
two years earlier. The burden was therefore on Cooper to establish that
the discovery rule applied. See id.

¶17          In opposing Ross’s motion, Cooper identified no efforts she
had undertaken to ascertain the seller’s identity. She stated simply that
she did not know of Ross’s involvement until Mitchell told her about it.
Cooper failed to carry her burden of demonstrating that, in the exercise of
reasonable diligence, she had been unable to discover Ross’s identity
sooner. The superior court thus did not err in granting Ross’s motion to
dismiss.

¶18           We also find no abuse of discretion in denying Cooper’s
motion for reconsideration. The superior court was not required to
consider evidence presented to it for the first time in connection with a
motion for reconsideration. Tilley, 220 Ariz. at 238, ¶ 17, 204 P.3d at 1087;
cf. Phil W. Morris Co. v. Schwartz, 138 Ariz. 90, 94, 673 P.2d 28, 32 (App.
1983) (calling it the “better policy” to disallow affidavits submitted after a
decision on a motion for summary judgment where they do not include
newly discovered material and could have been produced earlier through
reasonable diligence). Because the court was not required to consider
Cooper’s newly proffered evidence, it did not abuse its discretion in




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                          COOPER v. ROSS
                         Decision of the Court



denying her motion for reconsideration.

                            CONCLUSION

¶19          For the reasons stated, we affirm the dismissal of Cooper’s
claims against Ross.




                                       :mjt




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