AUTO JUNCTION v. KALUZHIN

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

AUTO JUNCTION, INC., Plaintiff/Appellant,

v.

SERGEI KALUZHIN, et al., Defendants/Appellees.

No. 1 CA-CV 25-0091
FILED 02-26-2026

Appeal from the Superior Court in Maricopa County
No. CV2021-054244
The Honorable Melissa Iyer Julian, Judge

AFFIRMED

COUNSEL

Ortega & Ortega PLLC, Phoenix
By Alane M. Ortega
Counsel for Plaintiff/Appellant

Zwillinger Wulkan PLC, Phoenix
By Scott H. Zwillinger, Jennifer L. Allen, Robert T. Weeks
Counsel for Defendants/Appellees
 AUTO JUNCTION v. KALUZHIN, et al.
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MEMORANDUM DECISION

Judge Anni Hill Foster delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Veronika Fabian joined.

F O S T E R, Judge:

¶1 Plaintiff Auto Junction challenges the superior court’s order
dismissing Auto Junction’s complaint against Defendant Sergei Kaluzhin.
Auto Junction’s complaint arose from a video posted by Kaluzhin
encouraging his subscribers to take action because Auto Junction failed to
pay in full for work he performed for it. Soon after, Auto Junction received
online criticism and negative ratings. Auto Junction filed suit alleging
defamation. The superior court dismissed the suit on statute of limitations
grounds. On appeal, this Court affirms because the one-year statute of
limitation barred Auto Junction’s claims.

FACTS AND PROCEDURAL HISTORY

¶2 Auto Junction contracted with Kaluzhin to deliver a vehicle
in October 2019. Upon delivery, Auto Junction paid Kaluzhin less than the
agreed-upon claiming he did not fulfill the contract terms.

¶3 In response, Kaluzhin posted a video on YouTube in
November 20191 (“2019 video”) about his interaction with Auto Junction.
The video showed a verbal altercation between Kaluzhin and an Auto
Junction representative. At the time, Kaluzhin had about 150,000 YouTube
followers.2 To support its claims, Auto Junction highlighted a portion of the
2019 video where Kaluzhin addressed his followers and stated:

Hey, gang, they don’t give me my money. Here is the name
of the dealership center: Auto Junction Benz & Beemers. The
huge appeal… huge appeal to you, guys… Phoenix,
dealership center… they don’t give my bucks. How is it
possible to screw people like this?!

1 The court noted the 2019 video was dated October 28, 2019 in earlier

proceedings and reported as published in November 2019 in later
proceedings. Regardless, either supports this Court’s decision.
2 As of 2024, Kaluzhin had about 1 million YouTube followers.

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...

You must show what crazy subscriber you are, who stand…
stand for the truth. This is the very case to stand for truth. Go
ahead, my… my crazy ones. Nobody can take money from an
average driver. Nobody can…

¶4 Auto Junction experienced negative “advertising presence”
around the time of the 2019 video. The record shows that reviews began on
or about November 1, 2019, from various sources. Some reviews included
only a rating while other reviews included comments. The following are
some of the comments Auto Junction received:

You will delete reviews for a long time. Until you return to
the driver his earned money.

...

Awful customer service. Rude people. Don’t buy anything
here!

...

Scammers!

...

the owner rude pig. He dont wanna pay for delivery
everytime. stay away!

There is no dispute that the negative reviews occurred after Kaluzhin
posted his 2019 video.

¶5 Two years later, on December 7, 2021, Auto Junction filed its
complaint alleging (1) defamation and (2) aiding and abetting. Auto
Junction also filed a temporary restraining order and requested a
preliminary injunction. On February 8, 2022, the court granted Auto
Junction’s preliminary injunction request against Kaluzhin, which required
Kaluzhin to refrain from posting any further reviews and to remove the
2019 video, but the video remained on YouTube. Around October 2022,
Kaluzhin posted another YouTube video (“2022 video”) referencing his
interaction with Auto Junction and the current lawsuit. Auto Junction did

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not seek enforcement of the preliminary injunction regarding the 2022
video.

¶6 After several procedural issues, Auto Junction amended its
complaint in January 2024 again alleging (1) defamation and (2) aiding and
abetting. The amended complaint did not reference the 2022 video.
Kaluzhin answered, asserting that the one-year statute of limitations time-
barred Auto Junction’s claims. Kaluzhin moved to dismiss the case about a
month later and again asserted the statute of limitations. Auto Junction
responded and argued Kaluzhin’s concealment of the video tolled his
statute of limitations defense. After briefing and oral argument, the court
granted Kaluzhin’s motion to dismiss, treating it as one for summary
judgment and determining no concealment occurred. The court found Auto
Junction’s claims time-barred.

¶7 Auto Junction timely appealed, and this Court has
jurisdiction pursuant to Article 6, § 9 of the Arizona Constitution and
3

A.R.S. §§ 12-2101(A)(1) and -120.21(A)(1).

DISCUSSION

¶8 Auto Junction asserts the court erred in dismissing its
complaint for violating the statute of limitations because (1) Kaluzhin’s 2022
video constituted a republication of his 2019 video and (2) Kaluzhin’s
concealment of his 2019 video tolled the statute of limitations. Auto
Junction also asserted the court erred when it failed to conduct an
evidentiary hearing concerning its republication and concealment claims.

¶9 A motion to dismiss must be treated as a motion for summary
judgment when evidence beyond the pleadings is presented and
considered. See Ariz. R. Civ. P. 12(d) (“If, on a motion under Rule
12(b)(6) . . . matters outside the pleadings are presented to, and not
excluded by, the court, the motion must be treated as one for summary
judgment under Rule 56.”); see also BLK III, LLC v. Skelton, 252 Ariz. 583, 586,
¶ 6 (App. 2022). Because Kaluzhin presented matters beyond the pleading,
the court properly treated the motion to dismiss as a motion for summary
judgment.

3 Jurisdiction is not an issue in this case, but this Court notes that Auto

Junction asserts this Court has jurisdiction under Article 6, § 9 of the
Arizona Constitution and under A.R.S. §§ 13-4031 and -4033. Because this
is a civil matter, this Court does not have jurisdiction under Title 13.

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¶10 This Court reviews summary judgment de novo and upholds
it “when no genuine issue of material fact exists.” Read v. Phoenix
Newspapers, Inc., 169 Ariz. 353, 356 (1991). “In determining whether any
genuine issue of material fact exists, we examine the facts in a light most
favorable to the non-moving party.” Id. This Court will affirm dismissal if
“the moving party shows that 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). Once the moving party has established that no genuine
issue of material fact exists, the burden shifts to the non-moving party “to
produce sufficient competent evidence” to overcome dismissal. Kelly v.
NationsBanc Mortg. Corp., 199 Ariz. 284, 287, ¶ 14 (App. 2000).

I. Auto Junction failed to assert its claims within the statute of
limitations.

¶11 A defamation claim accrues, and the statute of limitations
begins to run, upon publication of the alleged defamatory statement. Larue
v. Brown, 235 Ariz. 440, 444, ¶ 19 (App. 2014); see Satamian v. Great Divide
Ins. Co., 257 Ariz. 163, 170, ¶ 13 (2024). In cases involving Internet
publications, the statute of limitations begins at the time the alleged
defamatory statement was “first made available to the public by posting it
on a website.” Larue, 235 Ariz. at 445, ¶ 23. At that point, a party has one
year to bring a defamation claim. A.R.S. § 12-541(1); id. at 443, ¶ 15. Auto
Junction’s appeal rests on whether the statute of limitations was tolled or
suspended.

A. Auto Junction waived its republication theory.

¶12 Auto Junction argues on appeal that Kaluzhin’s 2022 video
constituted a republication of the 2019 video. It argues that as a result, the
2022 posting effectively restarted the statute of limitations. See Larue, 235
Ariz. at 445, ¶ 25 (when material is republished such that it is published in
a new manner, this form of separate publication results in a separate cause
of action). It further asserts the court erred when it did not hold an
evidentiary hearing to discuss its republication argument.

¶13 But for this Court to consider Auto Junction’s republication
argument and review the court’s failure to hold an evidentiary hearing,
Auto Junction must have raised these issues with the superior court. See Doe
v. Roman Cath. Church of Diocese of Phoenix, 255 Ariz. 483, 490, ¶ 28 (App.
2023) (waiving appellant’s theory on appeal because appellant failed to
properly raise the theory in superior court); Lansford v. Harris, 174 Ariz. 413,
419 (App. 1992) (“On appeal from summary judgment, the appellant may

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not advance new theories or raise new issues to secure a reversal.”). It did
not.

¶14 Auto Junction failed to raise its theory of republication in its
response to the motion to dismiss and failed to request an evidentiary
hearing. Consequently, the court did not err by not addressing the issue or
holding an evidentiary hearing. See Sereno v. Lumbermens Mut. Cas. Co., 132
Ariz. 546, 549 (1982) (as it relates to summary judgment, a court must have
a chance to rule on a particular issue raised before it is asserted on appeal).
By failing to raise the issue, Auto Junction waived it.

¶15 Auto Junction argues that it did not waive the republication
issue because the “2022 video was referenced, [and] attached in video and
transcription form to Appellant’s filings.” It relies on several cases to argue
that this Court can consider its argument because the issue presents a
question of law, relevant facts are undisputed and consideration is
necessary to prevent manifest injustice. See Town of S. Tucson v. Bd. of
Supervisors of Pima Cnty., 52 Ariz. 575, 582 (1938); Rubens v. Costello, 75 Ariz.
5, 8–9 (1952); Home Builders Ass’n of Cent. Ariz. v. City of Maricopa, 215 Ariz.
146, 152–53, ¶ 23 n.3 (App. 2007); In re MH 2008-000028, 221 Ariz. 277, 280
(App. 2009). But this Court does not find the facts of this case compelling to
support review without an adequate record. Though Auto Junction did
include exhibits that referenced the 2022 video by date, it is not enough that
the 2022 video was part of the record. See Crowe v. Hickman’s Egg Ranch, Inc.,
202 Ariz. 113, 116, ¶ 16 (App. 2002) (legal theory not preserved on appeal
when party failed to raise it with the trial court even though the record
contained evidence to support the theory). Auto Junction’s attempt to
overcome waiver of its republication argument is unpersuasive.

B. Kaluzhin did not conceal the 2019 YouTube video.

¶16 Auto Junction next argues that Kaluzhin concealed the
discovery of his 2019 video and therefore suspended the statute of
limitations. It asserts Kaluzhin posted his 2019 video in Russian under a
nickname that Auto Junction could not have discovered. Additionally,
Auto Junction reasoned it could not have discovered the 2019 video because
Kaluzhin posted it in an undetectable manner on a website where Auto
Junction was not a subscriber.

¶17 A claim filed outside the statute of limitations is time-barred
if a plaintiff reasonably should have discovered the defamatory statement.
See Clark v. Airesearch Mfg. Co. of Ariz., Inc., 138 Ariz. 240, 241 (App. 1983).
But an exception to the one-year statute of limitations may apply when a

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party publishes the alleged defamatory material in a manner likely to be
concealed from the plaintiff. See id. at 242–43; Logerquist v. Danforth, 188
Ariz. 16, 20 (App. 1996). Concealment requires the defendant to act in such
a manner that purposely prevents the “detection of the cause of action.”
Logerquist, 188 Ariz. at 21 (citation omitted).

¶18 Here, even viewing the facts in Auto Junction’s favor, Auto
Junction did not establish that concealment occurred. See id. at 18. A
transcript of the 2019 video showed that Kaluzhin told Auto Junction he
was planning to post the video on YouTube in October 2019. Auto Junction
included negative reviews it received in November 2019 with its complaint
alleging Kaluzhin’s actions prompted them. Auto Junction, in its affidavit,
stated it began investigating the negative reviews from unknown sources
in 2020. The screenshot of various reviews, provided by Auto Junction,
referenced Kaluzhin via his first name and suggested Auto Junction give
Kaluzhin his money back as early as November 2019. Moreover, despite
Auto Junction’s assertion that the 2019 video was in Russian, it conceded at
the hearing that Kaluzhin referred to Auto Junction in English. Auto
Junction has not shown that Kaluzhin published his statements in a manner
that purposely prevented the detection of the cause of action. See Read, 169
Ariz. at 356–57 (summary judgment was appropriate when the plaintiff’s
evidence did not provide a “triable issue” for consideration). Thus, Auto
Junction presented no genuine issue of material fact to overcome dismissal.

¶19 Though Auto Junction waived its request for an evidentiary
hearing by not requesting one, see supra ¶¶ 12-14, the court received
evidence of its concealment argument in briefing and at oral argument. See
Doe, 255 Ariz. at 490, ¶ 28 (failure to address legal theories either in briefing
or oral argument results in waiver) (citing Lansford, 174 Ariz. at 419 (“On
appeal from summary judgment, the appellant may not advance new
theories or raise new issues to secure a reversal.”).

¶20 Auto Junction first presented its concealment argument in its
response to Kaluzhin’s motion to dismiss. In its brief, Auto Junction argued
Kaluzhin’s concealment tolled the statute of limitations and attached a
supporting affidavit from Auto Junction’s CEO. That affidavit discussed
the CEO’s attempt to investigate the source of negative reviews and his
decision to hire a private investigator in 2021. Auto Junction then presented
its concealment argument at oral argument. There, Auto Junction discussed
its concealment claim, and Auto Junction’s counsel invited the court to ask
any questions it had about Auto Junction’s arguments. The court clarified
Auto Junction’s concealment argument stating, “so the concealment, you’re
arguing, is that it was in a different language, and that nothing in the post

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itself was searchable by Auto Junction.” The court allowed Auto Junction’s
counsel to elaborate on its position and evidence. Moreover, the court
addressed the various exhibits attached to Auto Junction’s response to the
motion to dismiss, including screenshots of the negative reviews, the CEO’s
affidavit and a flash drive containing digital exhibits.

¶21 Because Auto Junction could not establish that a dispute
existed on whether concealment occurred, and because the court allowed
Auto Junction to present its concealment argument, this Court discerns no
error. See Doe, 255 Ariz. at 490, ¶ 28.

II. Attorneys’ fees.

¶22 Kaluzhin requests attorneys’ fees and costs under A.R.S.
§§ 12-341 and -751. Though the superior court cited the Anti-SLAPP statute
(A.R.S. § 12-751), the superior court’s action was based on a request to
dismiss on statute of limitations grounds, A.R.S. § 12-541(1), not a request
to dismiss the suit because it was “motivated by a desire to deter, retaliate
against or prevent” a constitutional right,” A.R.S. § 12-751(A), (B). The
court noted this distinction at oral argument and highlighted that the
statute of limitations argument was separate from the Anti-SLAPP statute.
Therefore, this Court will not award Kaluzhin his attorneys’ fees. But as the
prevailing party on appeal, this Court awards Kaluzhin his costs incurred
on appeal upon compliance with Arizona Rule of Civil Appellate Procedure
21. A.R.S. § 12-341; Ariz. R. Civ. App. P. 21.

CONCLUSION

¶23 Affirmed.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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