Barreras v. State

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ADRIAN BARRERAS, Plaintiff/Appellant,

v.

STATE OF ARIZONA, Defendant/Appellee.

No. 1 CA-CV 23-0453
FILED 4-9-2024

Appeal from the Superior Court in Maricopa County
Nos. CV2021-013380 and CV2021-094278
The Honorable Joan M. Sinclair, Judge

AFFIRMED IN PART, REVERSED IN PART AND REMANDED

COUNSEL

Napier Baillie Wilson Bacon & Tallone, PC, Phoenix
By Michael Napier, Juliana Betina Tallone
Co-Counsel for Plaintiff/Appellant

The Leader Law Firm, PC, Tucson
By John P. Leader
Co-Counsel for Plaintiff/Appellant

Wieneke Law Group, PLC, Tempe
By Kathleen L. Wieneke, Tara Zoellner, Brendan F. Porter
Counsel for Defendant/Appellee
 BARRERAS v. STATE
Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Andrew M. Jacobs and Judge Jennifer M. Perkins joined.

W E I N Z W E I G, Judge:

¶1 Adrian Barreras appeals the superior court’s grant of
summary judgment in favor of the State. We affirm in part and reverse in
part, remanding for further proceedings consistent with this decision.

FACTS AND PROCEDURAL BACKGROUND

¶2 On the evening of September 13, 2020, Adrian Barreras
crashed into two elk while driving on Interstate 10. She then swerved off
the elevated southbound lanes, crossed the median and crashed into
another vehicle. She has no memory of the accident.

¶3 Barreras was rushed to the hospital, where she was diagnosed
with a concussion, a collapsed lung and a liver laceration, along with
multiple fractures in her ribs, back and lower body. In all, Barreras had
surgeries on her lower back, pelvis, left arm and left leg.

¶4 Two weeks after the crash, Barreras signed a healthcare
power of attorney form, authorizing her relatives to help her make medical
decisions moving forward.

¶5 Eight months after the crash, Barreras’ doctor concluded that
her “medical concerns and medications made it difficult to focus on
anything beyond her recovery and other immediate needs of herself and
her family.”

¶6 Two hundred and twenty-two days after the crash, Barreras
filed a notice of claim against the State dated April 23, 2021. During
discovery, Barreras attempted to depose two government employees. The
State moved for a protective order, arguing that testimony from the
government employees was privileged under 23 U.S.C. § 407. The superior
court granted the protective order and partially blocked the depositions.

¶7 Both parties later moved for summary judgment on whether
Barreras timely filed a notice of claim. The superior court entered summary

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Decision of the Court

judgment in favor of the State, finding that Barreras filed an untimely notice
of claim under A.R.S. § 12-821.01(A). Barreras timely appealed. We have
jurisdiction. A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶8 Barreras argues the superior court erroneously granted the
State’s motion for summary judgment and motion for protective order. We
address each argument in turn.

I. Summary Judgment

¶9 We review the grant of summary judgment de novo, viewing
the facts and making all reasonable inferences in the light most favorable to
the non-moving party. See, e.g., Espinoza v. Schulenburg, 212 Ariz. 215, 216,
¶ 6 (2006). Summary judgment is appropriate if “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).

¶10 A party opposing summary judgment must show specific
facts that create a genuine issue for trial. MacConnell v. Mitten, 131 Ariz. 22,
25 (1981). We will not reverse summary judgment “simply on the
speculation that some slight doubt (and few cases have complete certainty),
some scintilla of evidence, or some dispute over irrelevant or immaterial
facts might blossom into a real controversy in the midst of trial.” Orme Sch.
v. Reeves, 166 Ariz. 301, 311 (1990). Also, we may affirm summary judgment
on any basis supported by the record. Mutschler v. City of Phoenix, 212 Ariz.
160, 162, ¶ 8 (App. 2006).

A. Accrual

¶11 Barreras first challenges the superior court’s determination of
when her cause of action accrued.

¶12 An aggrieved party must file a notice of claim against a public
entity within 180 days of the claim’s accrual. A.R.S. § 12-821.01(A). A claim
accrues “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).

¶13 Although accrual is typically a question of fact for the jury, “it
may be decided as a matter of law if the record shows when the plaintiff
unquestionably was aware of the necessary facts underlying his or her

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cause of action.” Cruz v. City of Tucson, 243 Ariz. 69, 71–72, ¶ 7 (App. 2017)
(internal quotations omitted). The question is “when a reasonable person
would have been on notice to investigate,” rather than “when the plaintiff
was conclusively aware she had a cause of action.” Id. at 72, ¶ 8; see also
Little v. State, 225 Ariz. 466, 469, ¶ 9 (App. 2010).

¶14 On this record, we discern no error. Barreras knew the
necessary facts of her cause of action by October 12, 2020. On that date,
Barreras sent text messages to a former colleague at the Flagstaff Police
Department describing the collision, asking about the investigation and
expressing concern over possible liability. The evidence demonstrated that
Barreras knew the circumstances of the collision and enough facts to create
a duty to investigate her potential claims by October 12, 2020.

B. Tolling

¶15 Barreras next argues that the accrual date for her cause of
action should have been tolled under A.R.S. §§ 12-502 and 12-821.01(D)
because she had an unsound mind after the accident.

¶16 Although Barreras raised the tolling issue in the superior
court and the parties briefed the issue in dueling motions for summary
judgment, it appears the superior court never reached or decided the issue.
Indeed, the court’s decision never used the phrases “tolling” or “statute of
limitations,” and the court never addressed the tolling statute or tolling case
law. We decline to tackle the issue in the first instance. See State v. Vera, 235
Ariz. 571, 573, ¶ 8 (App. 2014) (“[W]e ordinarily do not consider issues on
review that have not been considered and decided by the trial court.”); see
also Ariz. R. Crim. P. 32.21(d)(1)(A)”.

¶17 But even if we interpret the superior court’s reference to
mental incapacity as an implicit ruling on both accrual and tolling, the court
committed legal error by conflating the issues. Accrual and tolling are
separate legal doctrines with distinct requirements. Compare Little v. State, 225 Ariz. 466, 469, ¶ 13 (App. 2010) (holding that a claim accrues when “a
reasonable person would have been on notice to investigate”) (citation
omitted); with Logerquist v. Danforth, 188 Ariz. 16, 19 (App. 1996) (holding
that a claim tolls when a person is “unable to manage his affairs or to
understand his legal rights or liabilities.”). Mental incapacity is not relevant
to the date of accrual analysis.

¶18 We therefore reverse the grant of summary judgment and
remand for the court to rule on tolling.

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Decision of the Court

II. 23 U.S.C. § 407

¶19 Barreras next argues the superior court erroneously granted
the State’s motion for protective order under 23 U.S.C. § 407. We lack
jurisdiction to address this claim.

¶20 Pretrial discovery orders are generally not separately
appealable. See Hine v. Super. Ct. In & For Yuma Cnty., 18 Ariz. App. 568,
569 (1972). Once there is a final judgment, however, such orders become
appealable under A.R.S. § 12-2102(A). See Bogard v. Cannon & Wendt Elec.
Co., 221 Ariz. 325, 333, ¶ 25, n.10 (App. 2009) (citing Pepsi-Cola Metro. Bottling
Co., Inc. v. Romley, 118 Ariz. 565, 568 (App. 1978) (appellant’s timely appeal
from a final judgment of the trial court “properly placed before [this court]
the propriety of all prior non-appealable orders.”).

¶21 Because we remand the summary judgment order, there is no
longer a final judgment, and we no longer have jurisdiction under § 12-
2102(A). And although we have discretion to accept special action
jurisdiction, we decline to do so here because special action jurisdiction is
most appropriate when, in the middle of case, a court denies a privilege and
compels discovery. See, e.g., Sun Health Corp. v. Myers, 205 Ariz. 315, 317, ¶
2 (App. 2003) (“Because an appeal offers no adequate remedy for the prior
disclosure of privileged information, special action jurisdiction is proper.”).
Barreras remains free to raise the issue on remand and we express no view
on the merits or whether special action review might later be appropriate.

CONCLUSION

¶22 We affirm in part as to the accrual date, and reverse and
remand in part as to tolling.

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

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