Doe v. Iglesia

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JANE DOE, Plaintiff/Appellant,

v.

IGLESIA BAUTISTA CENTRAL, Defendant/Appellee.

No. 1 CA-CV 23-0681
FILED 06-04-2024

Appeal from the Superior Court in Maricopa County
No. CV2020-017482
The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Mick Levin, PLC, Phoenix
By Mick Levin
Counsel for Plaintiff/Appellant

Righi Fitch Law Group, PLLC, Phoenix
By Elizabeth Savoini Fitch, Melissa Lin
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Angela K. Paton delivered the decision of the Court, in
which Judge Michael S. Catlett and Judge James B. Morse Jr. joined.

P A T O N, Judge:

¶1 Jane Doe appeals the superior court’s grant of summary
judgment in favor of defendant Iglesia Bautista Central church (“IBC”).
Doe argues the court erred in finding no triable issue of fact regarding IBC’s
knowledge of sexual abuse by her stepfather. For the following reasons, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts and reasonable inferences in the light most
favorable to Doe as the party opposing summary judgment. See Doe v.
Roman Catholic Church of Diocese of Phoenix, 255 Ariz. 483, 486, ¶ 2 (App.
2023). In December 2020, Doe sued IBC asserting, inter alia, negligence and
negligence per se claims, pursuant to House Bill 2466 Section 3(C), for
failure to report sexual abuse by her stepfather, Elias Serrano. See 2019 Ariz.
Law, ch. 259, § 3(C) (H.B. 2466) (codified at Arizona Revised Statutes
(“A.R.S.”) § 12-514).

¶3 Doe alleged that Serrano abused her from ages 13 to 17. In
her deposition, Doe stated that her husband found a journal in which she
had written about Serrano’s abuse, and asked Doe whether her mother
(“Mother”) knew about the abuse. Doe responded: “No, my mom doesn’t
know. Nobody knows. I was going to take it to the grave and not tell
anybody.” Doe confirmed in her deposition that it was only after her
husband read her journal years after the abuse that they confronted Serrano
and told Mother about Serrano abusing Doe when she was a child. Doe
also confirmed in her deposition that she “told nobody from the church.”

¶4 When asked how IBC members would have known about the
abuse, Doe described one occasion where Mother walked in on Serrano
sexually abusing Doe. Serrano came into Doe’s room while Doe was lying
down, laid on top of her, and tried to rub her stomach. Doe stated that
Serrano groped her breasts, side, and thighs, and that Mother appeared in
the doorway, loudly asking, “What are you doing?” Doe stated that

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Serrano quickly got up and Mother grabbed Doe’s arm, took her out of the
room, and ushered Doe and her sisters to the car. Mother then drove to the
home of IBC founding member, Patsy Carr, and her husband, Paul. During
the drive, Mother observed Doe smiling at her sister in an attempt to
comfort her, at which time Mother slapped Doe on the cheek and asked,
“Do you like what he is doing to you?”

¶5 Doe stated the unannounced visit to the Carrs’ house was
“unusual,” and that the Carrs were having lunch with Pastor Hernandez,
IBC’s pastor and also a founding member, when they arrived. Mr. Carr
answered the door, and Mother asked whether they could come in, stating
that she needed to tell them something. After entering the Carrs’ house,
Mother directed Doe and her sisters to the living room. Mother, the Carrs,
and Pastor Hernandez then went into another room and closed the door.
Doe stated that she and her sisters could not hear the adults’ discussion.
After the approximately one-hour long meeting, Mother drove the children
home.

¶6 About a week after Mother’s visit to the Carrs’ house, Mother
told Doe that she was sending Doe to see a counselor. Doe believes that
Pastor Hernandez and the Carrs recommended this counselor, who focused
on trauma, abuse, and sexual abuse. Doe also stated that after this visit, she
noticed a change in her relationship with the Carrs—specifically, that they
had assumed a “grandparent role of checking” in with her. Doe believes
that these newfound check-ins meant the Carrs and Pastor Hernandez
knew that Serrano had abused her, thereby establishing a duty to report the
abuse to authorities. See 2019 Ariz. Law, ch. 259, § 3(C) (H.B. 2466) (“A
cause of action . . . may be brought against a person who was not the
perpetrator of the sexual conduct or sexual contact if that person knew or
otherwise had actual notice of any misconduct that creates an unreasonable
risk of sexual conduct or sexual contact with a minor by an employee, a
volunteer, a representative or an agent.”).

¶7 In Mother’s sworn statement, she provided a different
recollection of the incident in Doe’s bedroom—which Doe states was the
only occasion Mother would have witnessed Serrano’s abuse. Mother said
that when she walked into the bedroom, she saw Doe sitting on the bed and
Serrano standing next to the bed. And when Mother asked what they were
doing, Serrano responded that “[n]othing is happening,” and then Doe
started crying. Mother said the incident concerned her because she did not
know why Doe was crying if nothing had happened. Mother stated she
then went to the Carrs’ house with Doe and her sisters, and that she told
the Carrs and Pastor Hernandez she needed help for a family matter, and

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asked if they could recommend a counselor. Mother avowed that there was
no discussion between her and the Carrs about what happened with Doe,
stating, “What could I tell them if I hadn’t seen anything?”

¶8 After two years of discovery and pretrial proceedings, IBC
moved for summary judgment on the basis that there was no evidence in
the record establishing that IBC knew Serrano was sexually abusing Doe,
and thus Doe’s negligence and negligence per se claims fail as a matter of
law. IBC asserted that no one from its community was notified of Serrano’s
abuse, citing Doe’s deposition statements that she told no one from IBC
about the abuse and that she was “going to take it to the grave and not tell
anybody,” and also Mother’s sworn statement that she did not know about
Serrano’s abuse at the time.

¶9 The superior court concluded that Doe had not presented
sufficient evidence to create a triable issue of fact regarding whether IBC
knew of Serrano’s sexual abuse of Doe. The court noted that the meeting at
the Carrs’ house was the only alleged basis for IBC and Pastor Hernandez
to know about the abuse. It also noted that Mother swore she did not have
a conversation about Serrano’s abuse or what she saw in the bedroom, and
that she only asked the Carrs and Pastor Hernandez for the name of a
church counselor who helps with family matters; the court found it
significant that Doe did not dispute this part of IBC’s statement of facts.

¶10 Citing Doe’s concession that there was no direct evidence that
Mother told Pastor Hernandez or the Carrs about the sexual abuse, the
superior court concluded Doe’s proffered evidence did not give a
reasonable inference that Mother told IBC members about Serrano’s abuse.
The court determined “the evidence would invite the jury to engage in mere
speculation on this issue,” and “there is insufficient evidence from which a
jury reasonably could determine that IBC had notice of Serrano’s sexual
abuse of [Doe], and therefore, had a duty to report such abuse to
authorities.” The court then granted IBC’s motion for summary judgment.

¶11 Doe timely appealed, and we have jurisdiction pursuant to
Sections 12-2101(A)(1) and -120.21(A)(1).

DISCUSSION

¶12 Doe argues that she presented evidence from which a jury
could reasonably infer Mother told the Carrs and Pastor Hernandez she had
seen Serrano abusing Doe. Doe cites her deposition statements as
evidence—specifically, that Mother met with the Carrs and Pastor
Hernandez for more than an hour immediately after seeing Serrano and

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Doe in the bedroom, and that upon the IBC members’ recommendation,
Mother took Doe to see a counselor who focused on trauma, abuse, and
sexual abuse.

¶13 We review the superior court’s grant of summary judgment
de novo, viewing the facts and reasonable inferences in the light most
favorable to the party opposing the motion. Andrews v. Blake, 205 Ariz. 236,
240, ¶ 12 (2003) (citation omitted). Summary judgment is proper when no
genuine issue of material fact exists and the moving party is entitled to
judgment as a matter of law. Ariz. R. Civ. P. 56(a). We will affirm the entry
of summary judgment if it is appropriate for any reason. ADP, LLC v. Ariz.
Dep’t of Revenue, 254 Ariz. 417, 421, ¶ 5 (App. 2023) (citation omitted).

¶14 “When a moving party meets its initial burden of production
by showing that the non-moving party does not have enough evidence to
carry its ultimate burden of proof at trial,” the non-moving party must then
“present sufficient evidence demonstrating the existence of a genuine
factual dispute as to a material fact.” Nat’l Bank of Ariz. v. Thruston, 218 Ariz.
112, 119, ¶ 26 (App. 2008) (citation omitted). If the non-moving party
“cannot respond to the motion by showing that there is evidence creating a
genuine issue of fact on the element in question, then the motion for
summary judgment should be granted.” Orme Sch. v. Reeves, 166 Ariz. 301,
310 (1990). A genuine factual dispute “is one that a reasonable trier of fact
could decide in favor of the party adverse to summary judgment on the
available evidentiary record.” Modular Mining Sys., Inc. v. Jigsaw Techs., Inc.,
221 Ariz. 515, 520, ¶ 15 (App. 2009) (quoting Martin v. Schroeder, 209 Ariz.
531, 534, ¶ 15 (App. 2005)).

¶15 The non-moving party may support its opposition by
affidavit, depositions, answers to interrogatories, or admissions, see Ariz. R.
Civ. P. 56(c)(5), (6), but “unsworn and unproven assertions of facts are
insufficient,” see McCleary v. Tripodi, 243 Ariz. 197, 201, ¶ 21 (App. 2017)
(citation omitted). The non-moving party does “not raise a genuine issue
of fact by merely stating in the record that such an issue exists. Rather, [the
non-moving party] must show that competent evidence is available which
will justify a trial on the issue.” Flowers v. K-Mart Corp., 126 Ariz. 495, 499
(App. 1980) (citations omitted).

¶16 Doe conceded in her deposition that nobody from IBC knew
of Serrano’s abuse, stating that she was planning to “take it to the grave and
not tell anybody.” When asked about the incident with Mother—which
Doe cites as the only occasion that would have alerted Mother and IBC
members to the abuse—Doe stated she “never talked to [her] mom about

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. . . that occasion,” and never talked to the Carrs or Pastor Hernandez about
their meeting with Mother. Doe confirmed in her deposition there was
nothing else that would have put IBC on notice of Serrano’s abuse. And
when asked whether she ever told Mother about Serrano’s abuse while it
was happening or whether she was generally uncomfortable around
Serrano during her childhood years, Doe said she did not talk to Mother
about Serrano.

¶17 Doe solely relies on the speculation that Mother told IBC
about Serrano’s abuse. Such speculation is insufficient to defeat summary
judgment. See Desert Palm Surgical Grp., P.L.C. v. Petta, 236 Ariz. 568, 583,
¶ 42 (App. 2015) (plaintiffs’ testimony and conclusory statements regarding
damages, “unsupported by any documentary evidence,” were speculative);
Modular Mining Sys., Inc., 221 Ariz. at 520, ¶ 19 (“Sheer speculation is
insufficient . . . to defeat summary judgment.”) (quoting Badia v. City of Casa
Grande, 195 Ariz. 349, 357, ¶ 29 (App. 1999)). On this record, the superior
court correctly granted summary judgment.

CONCLUSION

¶18 We affirm.

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

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