Olivas v. Yavapai

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

EILEEN OLIVAS, individually and on behalf of the statutory beneficiaries
of THOMAS OLIVAS, deceased, Plaintiffs/Appellants,

v.

YAVAPAI COUNTY, a political subdivision of the State of Arizona;
DAVID RHODES, Yavapai County Sheriff, Defendants/Appellees.

No. 1 CA-CV 23-0637
FILED 09-10-2024

Appeal from the Superior Court in Yavapai County
No. P1300CV202200589
The Honorable John D. Napper, Judge

AFFIRMED IN PART AND REVERSED IN PART

COUNSEL

Robbins Curtin Millea & Showalter, LLC, Phoenix
By Anne E. Findling, Lauren E. Channell
Counsel for Plaintiffs/Appellants

Struck Love Bojanowski & Acedo, PLC, Chandler
By Nicholas D. Acedo, Ashlee B. Hesman
Counsel for Defendants/Appellees
 OLIVAS, et al. v. YAVAPAI, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael J. Brown and Judge D. Steven Williams joined.

K I L E Y, Judge:

¶1 After Thomas Olivas (“Thomas”) died in jail, his mother
Eileen Olivas (“Eileen”) brought a wrongful death suit against Yavapai
County and the Yavapai County Sheriff (collectively, the “County”) on
behalf of herself and Thomas’s minor children (the “Minor Beneficiaries”)
(Eileen and the Minor Beneficiaries collectively, “Plaintiffs”).1 Determining
that Plaintiffs did not serve a statutorily-compliant notice of claim (“NOC”)
prior to filing suit, the superior court granted summary judgment in favor
of the County and dismissed all claims with prejudice. For the following
reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL BACKGROUND

¶2 Viewed in the light most favorable to Plaintiffs as the parties
against whom summary judgment was granted, see Estate of Brady v. Tempe
Life Care Village, Inc., 254 Ariz. 122, 127, ¶ 21 (App. 2022), the record shows
that on the afternoon of August 20, 2021, Thomas self-surrendered to the
Yavapai County Detention Center to begin serving an eight-day sentence.
During the intake process, Thomas was found to be intoxicated, with a
blood alcohol content (“BAC”) of 0.365. Intake officials admitted Thomas to
the jail and, because his high BAC “put him at risk for acute alcohol
withdrawal,” “housed [him] in an infirmary cell” where he was “placed on
an alcohol withdrawal protocol.”

¶3 At some point between intake on August 20 and the following
evening, Thomas “apparently ingested . . . fentanyl.” He was pronounced
dead at 8:04 p.m. on August 21.

¶4 In September 2021, Eileen requested Thomas’s autopsy and
toxicology reports from the Yavapai County Medical Examiner’s Office. She
received both reports on October 6, 2021. The autopsy report concluded that

1 For the sake of clarity, we respectfully refer to persons who share a last

name by their first names.

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Thomas died due to “fentanyl intoxication” while the medical examiner’s
findings were consistent with “fentanyl ingestion within hours of his
death.”

¶5 On February 2, 2022, Eileen served a notice of claim (the
“February 2022 NOC”) alleging that Thomas’s “cause of death includes
alcohol intoxication, a condition requiring medical attention” that County
officials neglected to provide. The February 2022 NOC set forth the
underlying facts as follows:

At or near the time of booking, [Thomas] was determined to
have a BAC of 0.365%. Despite this alarming alcohol level,
[he] was booked into the jail. Medical screeners, who were
responsible for assessing [his] medical eligibility for
incarceration, failed to refer [him] for medical clearance prior
to his admission to the jail . . . [Thomas] was at risk for fatal
alcohol withdrawal. In addition, despite obvious evidence of
[intravenous] drug use, the screener also indicated that
[Thomas] did not use drugs and was not in detox. [Thomas]
also presented with hypertension . . . [and] was tachycardic
during his admission, but no medical care was provided.

Rather than referral to the appropriate specialty care,
[Thomas] was housed in the infirmary. The medical record is
devoid of any actual treatment by the medical provider.

***

[Thomas] died without any meaningful medical care despite
presenting with conditions requiring a higher standard of
care (hospital) than available at the jail (no care).

The February 2022 NOC asserted that the County violated its “non-
delegable duty to provide for the care, custody, and control of the inmates
in its jails, . . . [which] includes refusing to incarcerate individuals who, by
virtue of their medical conditions, need a higher level of medical care than
available at the jail.” (emphasis added).

¶6 The County evidently did not respond to the February 2022
NOC and Eileen filed suit, “individually and on behalf of [Thomas’s]
statutory beneficiaries,” for wrongful death and negligence. Unlike the
February 2022 NOC, however, the complaint did not allege that medical
screeners breached a duty to Thomas at the time of intake by admitting him
to the jail despite his “alarming [blood] alcohol level” and the consequent

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risk of “fatal alcohol withdrawal.” Instead, the complaint alleged that
“[s]ometime prior to 7:30 p.m. on August 21, 2021,” Thomas “ingested the
narcotic fentanyl” which, upon information and belief, “was given to [him]
by someone at the jail.” Thereafter, Thomas “developed, and began to
show, symptoms of opiate ingestion.” Although “corrections officers
employed by [the County]” were required to “conduct security and welfare
checks” to “assess [inmates’] health and safety,” the complaint alleged, the
corrections officers failed to do so. Because “timely welfare checks were not
being conducted, resuscitation and life-saving measures were delayed”
after Thomas “became unresponsive.” As a result, the complaint
concluded, Thomas “died” of “fentanyl intoxication.”

¶7 In April 2023, the County filed a motion for summary
judgment arguing that Plaintiffs “fail[ed] to serve a valid notice of claim.”
The County asserted that the February 2022 NOC alleged that the County
was negligent because its officials “did not recognize [Thomas’s] alcohol
intoxication” at “intake” and so improperly “assigned him to the Jail’s
infirmary instead of sending him to the hospital.” Her complaint, by
contrast, was “premised on allegations that [the County’s] corrections
officers did not conduct adequate welfare checks” after he was admitted to
the jail, “which resulted in him taking and overdosing on fentanyl.”
Because the allegations in the February 2022 NOC materially differed from
those in the complaint, the County asserted, the February 2022 NOC failed
to comply with A.R.S. § 12-821.01(A). The County further asserted that the
statutory 180-day deadline for filing a timely notice of claim had expired,
explaining that Plaintiffs’ claims accrued, at the latest, on “October 6, 2021,
when [Eileen] received a copy of the . . . autopsy and toxicology reports
indicating that [Thomas] died of a fentanyl overdose.” Plaintiffs’
opportunity to cure the deficiencies in the February 2022 NOC expired on
April 4, 2022, the County maintained, and so their claims should be
dismissed with prejudice.

¶8 In response, Plaintiffs insisted that the February 2022 NOC
satisfied statutory requirements because it set forth “facts sufficient to
permit [the County] to understand the basis on which liability [was]
claimed.” Both the February 2022 NOC and the complaint, they asserted,
alleged that the County breached its “non-delegable duty of care” for jail
inmates by failing to provide “appropriate treatment” for Thomas’s
“emergent medical need,” which “ultimately [led] to his death.” Plaintiffs
further argued that under no circumstances could the Minor Beneficiaries’
claims properly be dismissed because A.R.S. § 12-502 tolled the time for
serving a NOC during their minority.

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¶9 After a hearing, the superior court granted summary
judgment in the County’s favor as to all claims and all parties. The February
2022 NOC did not provide sufficient facts to enable the County to
understand the basis of the claim, the court held, because it set forth “an
entirely different theory of liability” from the allegations in the complaint.
Without expressly addressing Plaintiffs’ alternative argument that the
Minor Beneficiaries’ claims had not yet accrued, the court found that “any
time for Plaintiff [sic] to file an accurate [NOC] has expired” and so
dismissed all claims with prejudice.

¶10 The court entered final judgment shortly thereafter, and
Plaintiffs timely appealed. We have jurisdiction. See A.R.S. § 12-2101(A)(1).

DISCUSSION

¶11 Plaintiffs challenge the grant of summary judgment on their
wrongful death and negligence claims. An appellate court “reviews the
entry of summary judgment de novo, viewing the evidence and reasonable
inferences in the light most favorable to” the non-moving party. Estate of
Brady, 254 Ariz. at 127, ¶ 21 (citation omitted).

¶12 A wrongful death action may be brought, inter alia, by the
deceased person’s surviving spouse, child, or parent “for and on behalf of
the surviving [spouse], children, or parents.” A.R.S. § 12-612(A). Only a
single wrongful death action may be brought, and the amount recovered in
such a suit must be distributed among the survivors. A.R.S. § 12-612(C); see
also Nunez v. Nunez, 25 Ariz. App. 558, 562 (1976) (stating that “there is ‘one
action’ for damages occasioned by a wrongful death,” and “one plaintiff,
one of the persons designated by statute”).

¶13 As a prerequisite to filing suit against a public entity, a
claimant must serve a NOC on the entity in compliance with A.R.S.
§ 12-821.01(A).

The [NOC] shall contain facts sufficient to permit the public
entity . . . to understand the basis on which liability is claimed.
The [NOC] shall also contain a specific amount for which the
claim can be settled and the facts supporting that amount.

A.R.S. § 12-821.01(A). A statutorily-compliant NOC serves “to provide the
government entity with an opportunity to investigate the claim, assess its
potential liability, reach a settlement prior to litigation, budget and plan.”
Havasupai Tribe of Havasupai Reservation v. Ariz. Bd. of Regents, 220 Ariz. 214,
223, ¶ 30 (App. 2008). “Claims that do not comply with A.R.S. § 12-

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821.01(A) are statutorily barred.” Deer Valley Unified Sch. Dist. No. 97 v.
Houser, 214 Ariz. 293, 295, ¶ 6 (2007). But if “a genuine issue of material fact
exists as to whether the requirements of [Section 12-821.01(A)] have been
complied with, the issue shall be resolved before a trial on the merits and at
the earliest possible time.” A.R.S. § 12-821.01(G).

I. The February 2022 NOC Did Not Satisfy Statutory Requirements.

¶14 Plaintiffs argue that the superior court erred by finding that
the February 2022 NOC failed to comply with Section 12-821.01(A). The
February 2022 NOC, they assert, stated that Thomas “died a little over one
day after his admission to the jail” because the County’s “employees” and
“their contractor denied or delayed emergent medical care.” Accordingly,
they maintain, it “contained facts sufficient to allow [the County] to
investigate and to understand” that its claimed liability “was based on
negligence resulting in” Thomas’s death. In response, the County asserts
that the February 2022 NOC “[did] not comply with” Section 12-821.01(A)
because it “include[d] a set of facts” that was “different from the allegations
in the complaint.” “We review de novo a trial court’s determination that a
party’s notice of claim failed to comply with § 12-821.01.” Jones v. Cochise
Cnty., 218 Ariz. 372, 375, ¶ 7 (App. 2008).

¶15 Another panel of this Court recently addressed an issue like
that presented here in Sanchez-Ravuelta v. Yavapai Cnty., __, __, 548 P.3d 347,
354-55, ¶¶ 20-21 (App. 2024). In that case, the plaintiffs were injured in a
multi-vehicle collision at an intersection caused by an intoxicated motorist
leaving a bar. Id. at 351, 353, ¶¶ 2, 13. The plaintiffs brought negligence-
based claims against the State of Arizona, Yavapai County, and the Town
of Dewey-Humboldt for failing to warn of the “unreasonably dangerous”
intersection, failing to enforce the intoxicated motorist’s prior DUI-related
license suspension, and issuing a liquor license to a bar known for
“overserving its customers.” Id. at ¶¶ 2-3. Because their NOCs alleged
specific facts relating only to the issuance of the liquor license, the superior
court dismissed all claims against all defendants except the negligent-
issuance claim against the state. This Court affirmed on appeal, rejecting
the plaintiffs’ argument that Section 12-821.01(A) requires merely that a
NOC “provide[] some facts forming the basis of liability.” Id. at 354, ¶ 17
(emphasis added). On the contrary, the Sanchez-Ravuelta court held, the
plain language of Section 12-821.01(A) requires that a NOC contain “facts
sufficient” to enable the public entity “to understand the basis on which
liability is claimed.” Id. at ¶ 19 (emphasis in original). “Because the [NOCs]
contained only facts sufficient for the state to understand the basis of the
plaintiffs’ negligent issuance of a liquor license claim,” the Court held, the

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NOCs “were insufficient as a matter of law as to all other claims.” Id. at ¶
20.

¶16 Sanchez-Ravuelta makes clear that a notice of claim fails to
satisfy statutory requirements if it sets forth facts different from those
alleged in the complaint as the factual basis of the defendant’s liability. This
Court reached similar conclusions in Haab v. Cnty. of Maricopa, 219 Ariz. 9
(App. 2008) and Barth v. Cochise Cnty., 213 Ariz. 59 (App. 2006). See Haab,
219 Ariz. at 9, ¶ 1 (holding that a NOC “that alleges one set of wrongs by a
public entity” does not provide notice of “subsequent related but different
wrongs by the same entity,” and so “does not comply with” Section 12-
821.01(A)); Barth, 213 Ariz. at 61, 63-64, ¶¶ 5, 17 (deputy sheriff served NOC
on his employer alleging “harassment” and “retaliation” by his
supervisors, then quit and sued for constructive discharge; affirming
summary judgment for noncompliance with Section 12-821.01(A), the
Court held that because the deputy was still employed when the NOC was
served, the NOC “did not and could not include sufficient facts for the
county to investigate and address the [constructive discharge] claim”).

¶17 Here, both the February 2022 NOC and the complaint alleged
that Thomas died in jail due to the failure of County officials to respond
appropriately to his medical needs. There, however, the similarities
between the February 2022 NOC and the complaint end. The February 2022
NOC alleged that Thomas’s “cause of death includes alcohol intoxication,”
and did not mention fentanyl. The complaint, by contrast, alleged that
Thomas died of “fentanyl intoxication.” The February 2022 NOC alleged
that Thomas “enter[ed] the jail with a high blood alcohol content” while the
complaint alleged that Thomas did not ingest the fatal intoxicant until after
he was admitted to the jail. The February 2022 NOC placed blame for
Thomas’s death on the negligence of “[m]edical screeners” who “were
responsible for assessing [his] medical eligibility for incarceration” at
intake, while the complaint identifies the negligent actors as the
“corrections officers” who failed to conduct periodic “security and welfare
checks.” Because the February 2022 NOC and the complaint identify
different causes of Thomas’s death, and cite different acts and omissions by
different individuals at different times as the basis for the County’s liability,
the February 2022 NOC failed to comply with the requirements of Section
12-821.01(A).

¶18 Insisting that the facts set forth in the February 2022 NOC
satisfied Section 12-821.01(A), Plaintiffs rely on Backus v. State, 220 Ariz. 101
(2009). In Backus, the widow of a deceased prison inmate served a NOC on
the State that calculated her damages at $507,400 and stated, without

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explanation, that she would settle her claim for “the amount of $500,000.”
220 Ariz. at 103, ¶ 2. The State argued that the widow’s NOC did not satisfy
Section 12-821.01(A) because it failed to “disclose[] facts that, viewed
objectively, are sufficient to allow the public entity to understand,” inter alia,
“how the claimant reached the specific amount demanded.” Id. at 105, 106,
¶¶ 13, 22. Rejecting the State’s argument, the Backus court held that a
claimant satisfies the statute’s “basis for settlement amount” requirement
merely by disclosing facts “that the claimant views as supporting the amount
claimed” in the settlement demand. Id. at 107, ¶ 24 (emphasis added).

¶19 Backus’s interpretation of the “specific amount” requirement
of Section 12-821.01(A) was based on the text of the statute’s third sentence,
in which the word “sufficient” does not appear. See A.R.S. § 12-821.01(A)
(“The claim shall also contain a specific amount for which the claim can be
settled and the facts supporting that amount.”). The Backus court held that
had the legislature “intended to require that a notice contain facts
‘sufficient’ to support” the claimant’s settlement demand, “it would have
said so.” Backus, 220 Ariz. at 106, ¶ 22.

¶20 By contrast, the “basis of liability” requirement found in the
second sentence of Section 12-821.01(A) does require a NOC to “contain facts
sufficient to permit the public entity . . . to understand the basis on which liability
is claimed.” A.R.S. § 12-821.01(A) (emphasis added). Because the “basis of
liability” language of Section 12-821.01(A) expressly requires a showing of
“sufficiency” that is absent from the statute’s “specific amount” language,
the Backus court’s interpretation of the latter sheds no light on the proper
interpretation of the former.

¶21 In asserting that the deficiencies in their February 2022 NOC
should be excused, Plaintiffs cite “the informational disadvantage of
claimants.” A NOC must be served “within a short time after an incident,”
they argue, when “the claimant is unlikely to have all documents, expert
opinions, or other evidence which may ultimately be relevant.” To require
factual specificity “when a claimant is unlikely to have a complete
understanding of the facts” would, Plaintiffs maintain, contravene
legislative intent by creating an “obstacle to claimants’ actions against
public entities.”

¶22 Plaintiffs’ argument is unavailing. By its plain language,
Section 12-821.01(A) requires a NOC to contain facts sufficient to enable the
public entity to understand the basis of its claimed liability. Our obligation
to apply the words as written precludes us from adopting Plaintiffs’
suggestion that their failure to adhere to the statute’s mandate should be

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excused to accommodate a purported “informational disadvantage.” See
James v. City of Peoria, 253 Ariz. 301, 305, ¶ 21 (2022) (“We will not construe
the notice of claim statute . . . in a way that defeats the clear text of the
statute.”).

¶23 Moreover, while some claimants in other circumstances may
well be at an “informational disadvantage” when preparing their NOCs,
we perceive no such disadvantage here. Eileen served the February 2022
NOC after receiving the autopsy and toxicology reports reflecting that
Thomas died from fentanyl intoxication and had likely ingested the drug
within a few hours of his death. Plaintiffs cannot fairly blame an
“informational disadvantage” for Eileen’s failure to include those facts in
the February 2022 NOC.

¶24 Noting that allowing public entities to investigate and assess
their potential liability is one of the purposes of A.R.S. § 12-821.01(A),
Plaintiffs also argue that the February 2022 NOC must be deemed
statutorily-compliant absent a showing by the County that its deficiencies
“prevented [the County] from investigating the matter or evaluating the
potential for settlement.” Plaintiffs’ argument is contrary to case law
holding that claimants “must strictly comply with § 12-821.01,” Yahweh v.
City of Phoenix, 243 Ariz. 21, 23, ¶ 12 (App. 2017), and that “[a]ctual notice
and substantial compliance do not excuse failure to comply with the
statutory requirements of [Section] 12-821.01(A).” Falcon ex rel. Sandoval v.
Maricopa Cnty., 213 Ariz. 525, 527, ¶ 10 (2006).

¶25 Because the February 2022 NOC did not contain facts
sufficient to permit the County to understand the basis on which liability
was claimed with respect to the claims alleged in the complaint, it did not
comply with Section 12-821.01(A).

¶26 A notice of claim must be served within 180 days after the
cause of action accrues. A.R.S. § 12-821.01(A). As the superior court
correctly found, the cause of action accrued on October 6, 2021, when the
autopsy and toxicology reports were disclosed, revealing that Thomas died
from fentanyl ingested after he began his jail term.2 Eileen therefore had 180

2 We reject the County’s argument that the cause of action accrued on

August 21, 2021, the day Thomas died. Although Thomas’s family members
were (presumably) promptly notified of his death, they could not have
known that he died of fentanyl intoxication until the autopsy results were
disclosed. See Walk v. Ring, 202 Ariz. 310, 316, ¶ 22 (2002) (noting, in the

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days from that date, or until April 4, 2022, to either amend her deficient
NOC or serve a new one that met statutory requirements. She failed to do
so, and her 180-day deadline for serving a statutorily-compliant notice of
claim expired long before the County moved for summary judgment in
April 2023. Accordingly, the court did not err in granting summary
judgment in the County’s favor and dismissing Eileen’s wrongful death
and negligence claims with prejudice. See also Falcon, 213 Ariz. at 527, ¶ 10
(“If a notice of claim is not properly filed within the statutory time limit, a
plaintiff's claim is barred by statute.”).

II. The Minor Beneficiaries’ Claims Should Not Have Been
Dismissed With Prejudice.

¶27 Plaintiffs also argue that the superior court erred “in
dismissing the claims of [the Minor Beneficiaries],” asserting, first, that their
“claims have not yet accrued.”

¶28 Arizona statute provides that “a cause of action 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).
Nothing in the statute suggests that a cause of action’s accrual date varies
depending on whether the injured party is a minor or an adult. Likewise,
A.R.S. § 12-502, which tolls the running of limitations periods for minors,
does not indicate that an injured party’s minority delays a claim’s accrual
date. Plaintiffs’ argument that the Minor Beneficiaries’ claims will not
accrue until they turn eighteen conflates the accrual of a cause of action with
the tolling of the applicable limitations period. Accrual and tolling are
distinct concepts. See Holland v. Florida, 560 U.S. 631, 647 (2010) (citing case
law recognizing distinction “between the accrual of the plaintiff’s claim and
the tolling of the statute of limitations”) (emphasis in original). We hold that
the Minor Beneficiaries’ claims, like Eileen’s, accrued on October 6, 2021.

¶29 Plaintiffs next argue that the Minor Beneficiaries’ claims
should not have been dismissed with prejudice because they still have time
to cure the deficiencies in the February 2022 NOC. Pointing out that Section
12-821.01(D) extends the deadline for a minor to serve a NOC until “180
days after reaching the age of majority,” Plaintiffs assert that the Minor

context of accrual, that “it is not enough that a plaintiff comprehends a
‘what’; there must also be reason to connect the ‘what’ to a particular ‘who’
in such a way that a reasonable person would be on notice to investigate
whether the injury might result from fault”).

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Beneficiaries should be allowed “to serve an amended notice of claim
within the time specified in that provision.”

¶30 A claimant who serves a deficient NOC may cure the
deficiency by serving a new or amended NOC, provided that the claimant
does so within the time limit set by Section 12-821.01. See Turner v. City of
Flagstaff, 226 Ariz. 341, 344, ¶ 15 (App. 2011) (noting there is “no reason why
a claimant may not amend a notice of claim . . . to cure a defect in the notice,”
as long as the amendment is timely), abrogated on other grounds as recognized
by Fields v. Oates, 230 Ariz. 411, 415, ¶ 16 (App. 2012); cf. Pinal Cnty. v. Fuller, 245 Ariz. 337, 343, ¶ 21 (App. 2018) (holding that a statutorily-compliant
NOC “did not cure the defect” in the earlier, deficient NOC because the
second NOC was “untimely”). Although the Minor Beneficiaries’ claims
accrued on October 6, 2021, their 180-day deadline for serving a NOC will
not begin to run until they each turn eighteen years old. A.R.S. § 12-
821.01(D) (“Notwithstanding [Section 12-821.01(A)], a minor . . . may file a
[NOC] within [180] days after the disability ceases.”). The Minor
Beneficiaries therefore still have time to cure the deficiency in the February
2022 NOC by amending it, or serving a new one, as long as they do so
within the extended deadline set forth in Section 12-821.01(D).

¶31 The County argues that although the Minor Beneficiaries
were not statutorily required to serve a NOC until 180 days after they turn
eighteen, the 180-day deadline set forth in A.R.S. § 12-821.01(A) applies to
bar their claims here because they “did serve” a NOC in February 2022.

¶32 The County’s argument is unavailing. Eileen’s inability to
cure the deficiencies in the NOC she served does not prevent other
statutory beneficiaries from serving their own, statutorily-compliant NOCs.
See Neff v. Risen, 1 CA-CV 21-0236, 2021 WL 6139733, at *2, ¶ 11 (Ariz. Ct.
App. Dec. 30, 2021) (mem. decision) (noting “[t]here is no requirement in
A.R.S. § 12-821.01 that there be only one NOC on behalf of all statutory
beneficiaries”). To hold that the Minor Beneficiaries’ claims are time-barred
simply because Eileen’s claim is time-barred would be to enforce the
deadline set forth in Section 12-821.01(A) while ignoring the exception
created by Section 12-821.01(D). We will not, of course, apply one
subsection of the statute while ignoring another. See Boyd v. State, 256 Ariz.
414, __, 540 P.3d 1228, 1231-32, ¶ 9 (App. 2023) (“We interpret . . . statutory
language in view of the entire text,” and “[s]tatutes addressing the same
subject matter should be harmonized when possible.”).

¶33 In support of its position, the County cites Wostrel v. Arizona,
No. CV-22-00312-PHX-DLR, 2023 WL 2308417, at *6 (D. Ariz. Mar. 1, 2023),

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on reconsideration 2023 WL 3022471 (D. Ariz. Apr. 20, 2023). In Wostrel, a
father brought state law claims, on his own behalf and on behalf of his
minor children, against certain child welfare officials based on their actions
in juvenile dependency proceedings. In dismissing the father’s claims for
failure to serve a NOC, the federal district court rejected the minor
children’s argument that their claims should not be dismissed because their
claims would not accrue until they reached majority. The Wostrel court held
that because the minor children had filed claims, those claims had
necessarily accrued notwithstanding the children’s continued minority.
2023 WL 2308417 at *6. Because the children’s claims had accrued, the Court
concluded, their failure to serve a NOC required the dismissal of their
claims. Id.

¶34 Wostrel is inapposite because it addressed an issue different
from that presented here. In Wostrel, the court addressed the question of
whether a minor plaintiff’s cause of action had accrued. Here, by contrast,
the question is not when a cause of action accrues, but how much time a
minor plaintiff has after accrual to serve a statutorily-compliant NOC. We
reject the County’s argument that Section 12-821.01(A)’s 180-day limit sets
the deadline for a minor plaintiff to cure or amend a deficient NOC, and
hold, instead, that Section 12-821.01(D) extends, until 180 days after
reaching majority, a minor plaintiff’s deadline to cure or amend a deficient
NOC. Such a holding is not only consistent with the statutory text, but with
the principle that “if there is doubt as to which of two limitations periods
should apply, courts generally apply the longer.” State v. Ariz. Bd. of Regents,
253 Ariz. 6, 13-14, ¶ 29 (2022) (citation omitted).

¶35 Although Eileen is not able to cure her deficient notice of
claim via timely amendment, the Minor Beneficiaries’ deadline for doing so
under Section 12-821.01(D) has not yet expired. Accordingly, although
Eileen’s claims were properly dismissed with prejudice, we see no reason
why the Minor Beneficiaries’ claims must also be dismissed with prejudice.
See also Falcon, 213 Ariz. at 527, ¶ 10 (noting that a claim against a
government entity is barred “[i]f a notice of claim is not properly filed within
the statutory time limit”) (emphasis added). Instead, their claims should have
been dismissed without prejudice, allowing them to serve a statutorily-
compliant NOC within the time limit set forth in Section 12-821.01(D).

CONCLUSION

¶36 Because the February 2022 NOC did not satisfy the
requirements of A.R.S. § 12-821.01(A), we affirm summary judgment in
favor of the County and the dismissal of Plaintiffs’ complaint. We affirm

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 OLIVAS, et al. v. YAVAPAI, et al.
Decision of the Court

the dismissal with prejudice of Plaintiff Eileen Olivas’s wrongful death and
negligence claims, but reverse the dismissal with prejudice of the Minor
Beneficiaries’ claims and remand with directions that their claims be
dismissed without prejudice.

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

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