Ortiz v. Rambo

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE MARIA ORTIZ, Plaintiff/Appellant,

v.

RENATE RAMBO, a sole proprietor, d/b/a RED’S BIRD CAGE
SALOON, Defendant/Appellee.

No. 1 CA-CV 23-0077
FILED 01-18-2024

Appeal from the Superior Court in Yuma County
No. S1400CV201900291
The Honorable Mark W. Reeves, Judge

AFFIRMED

COUNSEL

Mick Levin, P.L.C., Phoenix
By Mick Levin, John P. Robertson
Co-Counsel for Plaintiff/Appellant

Cornelius Candy Camarena, P.C., Yuma
By C. Candy Camarena
Co-Counsel for Plaintiff/Appellant

Moyes Sellers & Hendricks Ltd., Phoenix
By Lawrence Palles, Joshua T. Greer, Natalya Ter-Grigoryan
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which Vice
Chief Judge Randall M. Howe and Judge Daniel J. Kiley joined.

P E R K I N S, Judge:

¶1 Jose Maria Ortiz appeals the superior court’s grant of
summary judgment to Renate Rambo, a sole proprietor doing business as
Red’s Bird Cage (“Red’s”). Ortiz also appeals the court’s denial of his
motion for new trial. For the following reasons, we affirm.

STATEMENT OF FACTS AND BACKGROUND

¶2 On April 27, 2017, at 4:19 p.m., Ortiz was walking on a
sidewalk when Barry Webster ran his vehicle into a brick wall and then
struck and seriously injured Ortiz. A responding police officer, Carillo,
observed in a police report that Webster had slow, slurred speech and blood
shot eyes.

¶3 Webster was transported to a hospital where Carillo spoke
with Webster. Carillo observed in his police report that Webster smelled of
alcohol and continued to have slurred speech and glossy red eyes. Webster
told Carillo that he drank two beers at “Red’s Bird Cage,” arriving around
12:30 pm and leaving around 2:30 pm. Blood drawn at the time of these
statements established Webster had a blood-alcohol content of 0.13.

¶4 In 2019, Ortiz sued Red’s alleging statutory liability for
overserving Webster, which is known as dram-shop liability. Ortiz also
alleged common law negligence. During a discovery deposition, Webster
asserted his Fifth Amendment rights and refused to answer any questions
regarding his alleged presence and alcohol consumption at Red’s. Red’s
asked Ortiz to admit whether he had independent evidence, other than the
police report, that Red’s served Webster any alcohol on April 17, 2017. Ortiz
responded that, after reasonable inquiry, he lacked sufficient knowledge or
information to enable him to admit or deny.

¶5 Red’s moved for summary judgment based on Ortiz’s failure
to identify admissible evidence that Webster was present, obviously
intoxicated, or served alcohol at Red’s on April 17, 2017. Red’s included an
employee affidavit with the motion, stating that, although Webster would

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frequent Red’s a couple times a month, Red’s has no record of Webster on
April 17, and Webster was never obviously intoxicated at Red’s. The
employee also stated that Red’s did not learn of the accident until two
weeks later, when Webster informed Red’s and stated that the accident was
caused by a medical condition.

¶6 The superior court granted Red’s motion for summary
judgment and denied Ortiz’s subsequent motion for new trial. The court
concluded “there is no evidence that anyone at Red’s Bird Cage served
alcohol to Webster or that anyone reported that Webster was intoxicated
while at Red’s Bird Cage.”

¶7 Ortiz timely appealed, and we have jurisdiction. A.R.S. § 12-
2101(A)(1).

DISCUSSION

¶8 As an initial matter, we note that the enactment of statutory
dram-shop liability eliminated common law negligence claims for dram
shop liability. Torres v. JAI Dining Servs. (Phx.), Inc., ___ Ariz. ___, ¶ 28, 536
P.3d 790, 798 (2023). We thus do not address Ortiz’s negligence claim. With
regard to his statutory claim, we review the court’s grant of summary
judgment de novo, “viewing the evidence and reasonable inferences in the
light most favorable to the party opposing the motion.” Zambrano v. M &
RC II LLC, 254 Ariz. 53, 58, ¶ 9 (2022) (cleaned up). We affirm if there are no
genuine disputes of material fact and the moving party is entitled to
judgment as a matter of law. See Ariz. R. Civ. P. 56(a); Williamson v. PVOrbit,
Inc., 228 Ariz. 69, 71, ¶ 11 (App. 2011).

I. Motion for Summary Judgment

¶9 A party moving for summary judgment has the initial burden
of establishing there are no genuine issues of material fact and summary
judgment is appropriate as a matter of law. Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 114–15, ¶ 12 (App. 2008). To meet this burden, the moving
party must “point out by specific reference to the relevant discovery that no
evidence exists to support an essential element of the claim.” Hydroculture,
Inc. v. Coopers & Lybrand, 174 Ariz. 277, 283 (App. 1992) (cleaned up). Once
satisfied, the burden shifts to the non-moving party to “show that evidence
is available which justifies going to trial, and that evidence must be based
on personal knowledge and must be admissible at trial.” Portonova v.
Wilkinson, 128 Ariz. 501, 502 (1981) (cleaned up).

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¶10 In Arizona, a dram shop licensee is liable for personal injuries
when (1) the licensee served alcohol to a patron who was “obviously
intoxicated,” (2) the patron consumed the alcohol sold by the licensee, and
(3) the patron’s consumption of the alcohol was the proximate cause of the
injury. A.R.S. § 4-311(A). The statute defines “obviously intoxicated” as
being “inebriated to such an extent that a person’s physical faculties are
substantially impaired and the impairment is shown by significantly
uncoordinated physical action or significant physical dysfunction that
would have been obvious to a reasonable person.” A.R.S. § 4-311(D).

¶11 Red’s pointed out that “no evidence exist[s] to support an
essential” element of a dram shop claim. Specifically, Ortiz did not present
any admissible evidence that Webster was present, or purchased alcohol, at
Red’s because he relied entirely on Webster’s presumptively inadmissible
hearsay statements in the police report. See Ariz. R. Evid. 802 (rule against
the use of hearsay). And Ortiz never disclosed any evidence other than the
police report. Red’s met its initial burden for summary judgment.

¶12 In response, Ortiz argues that Webster’s admissions in the
police report are either present sense impressions or statements against
interest, both exceptions to the hearsay rule. Ariz. R. Evid. 803(1) (present
sense impression); Ariz. R. Evid. 804(b)(3) (statements against interest). In
granting summary judgment, the superior court concluded Ortiz had not
offered evidence establishing the elements of a dram shop claim, impliedly
concluding that his proffered evidence was not admissible. We review the
court’s evidentiary rulings in summary judgment proceedings for an abuse
of discretion. Mohave Elec. Coop., Inc. v. Byers, 189 Ariz. 292, 301 (App. 1997).

¶13 A present sense impression is a statement “describing or
explaining an event or condition, made while or immediately after the
declarant perceived it.” Ariz. R. Evid. 803(1). Webster’s statement that he
was present and consumed alcohol at Red’s on the day of the accident is not
a description of an event or condition. See State v. Wright, 239 Ariz. 284, 286,
¶ 12 (App. 2016) (finding exhibit described “events” when it described the
suspects’ activities and movements and “conditions” when it described
people and vehicles and their relative locations). Nor was his statement
contemporaneous, given he made it to Carillo multiple hours after he
allegedly was at Red’s. See State v. Thompson, 146 Ariz. 552, 557 (App. 1985)
(present sense impression requires “immediacy”). Webster’s statements
were not present sense impressions.

¶14 Neither were they statements against interest. A statement
against interest is a statement that “a reasonable person in the declarant’s

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position would have made only if the person believed it to be true because,
when made, it . . . had so great a tendency . . . to expose the declarant to civil
or criminal liability.” Ariz. R. Evid. 804(b)(3)(A). The statement “must be
individually self-inculpatory to fall within this exception.” State v.
Dominguez, 236 Ariz. 226, 230, ¶ 10 (App. 2014).

¶15 According to the police report, Webster stated that he had
only two bottles of Bud Light over the course of 1.5 to 2 hours. He also
reported that he arrived at Red’s at approximately 12:30 p.m., nearly four
hours before the accident. These statements appear to be Webster’s attempt
to exculpate, or excuse, himself by explaining that he drank responsibly the
day of the accident. That Webster denied all Carillo’s questions that would
have exposed him to criminal liability only underscores this point. For
example, Webster denied drinking while driving, he denied having alcohol
in his vehicle, and he told the detective he did not think his blood-alcohol
level would be over the legal limit.

¶16 Finally, Ortiz argues the superior court abused its discretion
by failing to consider evidence of Webster’s invocation of his Fifth
Amendment rights and the resulting adverse inference it could draw
against Red’s. In a civil case, when a testifying party asserts his Fifth
Amendment rights against self-incrimination, the trial judge may draw a
negative inference against the testifying party based on the assertion.
Wohlstrom v. Buchanan, 180 Ariz. 389, 391 n.2 (1994). But our court has never
addressed whether the trial judge may consider evidence of a nonparty’s
assertion of his or her Fifth Amendment rights, and, if so, whether the court
may draw an adverse inference against a party from this evidence.

¶17 Other jurisdictions that have addressed this issue relied on a
non-exclusive list of factors identified in LiButti v. United States, 107 F.3d
110 (2d Cir. 1997). But we are limited in our review of the superior court’s
evidentiary rulings on this issue because Ortiz has not provided us with a
transcript from the oral argument on the motion for summary judgment.
Ortiz was responsible for ensuring that the record on appeal was complete
for our review. See ARCAP 11(c); Blair v. Burgener, 226 Ariz. 213, 217, ¶ 9
(App. 2010). Because we lack a record with which to conduct an inquiry
into the court’s reasoning, “we presume the evidence and arguments
presented at the hearing support the [superior] court’s ruling.” Id. We will
also affirm the court’s decision if “any reasonable view of the facts and law
might support the judgment.” BNCCORP, Inc. v. HUB Int’l Ltd., 243 Ariz. 1,
8, ¶ 29 (App. 2017). Ultimately, whether the court relied on the LiButti
factors or reached its conclusion for different reasons, the record supports
the court’s discretionary decision not to consider this evidence. See Tritschler

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v. Allstate Ins. Co., 213 Ariz. 505, 518, ¶ 41 (App. 2006) (“A trial court has
broad discretion in ruling on discovery issues, and we will not disturb its
ruling absent a clear abuse of discretion.”).

¶18 Given Ortiz’s lack of admissible evidence, the superior court
did not err in concluding there are no genuine issues of material fact and
entering summary judgment in Red’s favor.

II. Motion for a New Trial

¶19 Ortiz also challenges the order denying his motion for a new
trial. We review the denial of a motion for a new trial for abuse of discretion.
Health for Life Brands, Inc. v. Powley, 203 Ariz. 536, 542, ¶ 28 (App. 2002). The
burden is on the party seeking to overturn the judgment to show such an
abuse. Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, 355, ¶ 8 (App.
2014). We will not reverse a denial of a motion for new trial “unless the
record and circumstances show it was a manifest abuse of discretion.”
Larsen v. Decker, 196 Ariz. 239, 244, ¶ 27 (App. 2000).

¶20 Ortiz’s motion for new trial raised one new argument: the
court improperly relied on hearsay in a Red’s employee affidavit attached
to the summary judgment motion. The employee stated that Webster told
her approximately two weeks after the accident that “he had a medical
condition that caused the accident.” But Ortiz did not object to this
statement in his response to the motion for summary judgment. “If []
hearsay is admitted without an objection, it is competent evidence to be
considered for all purposes.” Navajo Nation v. Ariz. Dep’t of Econ. Sec., 230
Ariz. 339, 350, ¶ 42 (App. 2012). And a party waives issues by raising them
for the first time in a motion for new trial. See State v. Davis, 226 Ariz. 97,
100, ¶ 12 (App. 2010) (“[A]n untimely objection first raised in a motion for
a new trial does not preserve an issue for appeal.”). The superior court did
not abuse its discretion by denying the motion for new trial.

CONCLUSION

¶21 We affirm. The parties do not request their attorneys’ fees on
appeal. Red’s may recover its taxable costs upon compliance with ARCAP
21.

AMY M. WOOD • Clerk of the Court
FILED: TM 6