Jeannine Liberti v. City of Scottsdale

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

JEANNINE LIBERTI,
AN ARIZONA CITIZEN AND RESIDENT,
Plaintiff/Appellant,

v.

THE CITY OF SCOTTSDALE, A PUBLIC ENTITY,
Defendant/Appellee.

No. 2 CA-CV 2024-0082
Filed October 25, 2024

Appeal from the Superior Court in Maricopa County
No. CV2022002189
The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

Ahwatukee Legal Office P.C., Phoenix
By David L. Abney
Counsel for Plaintiff/Appellant

Sherry R. Scott, Scottsdale City Attorney
By Lori S. Davis, Deputy City Attorney, Scottsdale
Counsel for Defendant/Appellee
 LIBERTI v. CITY OF SCOTTSDALE
Opinion of the Court

OPINION

Presiding Judge Sklar authored the opinion of the Court, in which Vice
Chief Judge Eppich and Judge Brearcliffe concurred.

S K L A R, Presiding Judge:

¶1 We address in this case whether an abuse-of-process claim
against a public entity can accrue before the alleged onset of the plaintiff’s
emotional distress. As alleged by Jeannine Liberti, her emotional distress
did not begin until the United States Supreme Court denied certiorari in her
federal litigation against the City of Scottsdale, which underlies her
abuse-of-process claim. She seeks no damages other than for emotional
distress. Thus, she alleges that her cause of action accrued on the date
certiorari was denied. This was fewer than 180 days before she served the
notice of claim required by A.R.S. § 12-821.01(A). She therefore argues that
the superior court erred in granting the City’s motion to dismiss for failure
to submit a timely notice of claim.

¶2 The accrual date is governed by A.R.S. § 12-821.01(B). Under
that statute, a cause of action against a public entity accrues when the
plaintiff “realizes he or she has been damaged and knows or reasonably
should know” the cause of the damage. § 12-821.01(A), (B). But even
though Liberti seeks only emotional-distress damages, those are not the
only damages available for abuse of process. Assuming, as we must, that
the well-pleaded facts of Liberti’s complaint are true, she should have
known of other damages no later than the conclusion of the trial-court
proceedings in the federal case. This occurred years before she served the
City with her notice of claim. We therefore conclude that the superior court
properly dismissed Liberti’s complaint, and we affirm that dismissal.

BACKGROUND

¶3 Because we are reviewing the grant of a motion to dismiss, we
assume the truth of all the complaint’s well-pleaded facts. Coleman v. City
of Mesa, 230 Ariz. 352, ¶¶ 7, 9 (2012). This case follows an earlier federal
lawsuit that Liberti filed in 2017 against the City of Scottsdale. See Liberti v.
City of Scottsdale, No. CV-17-02813-PHX-DLR, 2018 WL 4335442 (D. Ariz.
Sept. 11, 2018), aff’d, 816 F. App’x 89 (9th Cir. 2020), cert. denied, 141 S. Ct.
1387 (2021). The complaint alleged wrongful death and a violation of

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Opinion of the Court

federal constitutional and civil rights arising from the death of her son. Id.
The United States District Court granted the City’s motion for summary
judgment. Id. at *6. Liberti appealed to the Ninth Circuit Court of Appeals,
which affirmed the district court’s ruling. Liberti v. City of Scottsdale, 816 F.
App’x 89, 90 (9th Cir. 2020) (mem.). She sought review from the United
States Supreme Court, which denied certiorari on February 22, 2021. Liberti
v. City of Scottsdale, 141 S. Ct. 1387 (2021).

¶4 On or about June 16, 2021, Liberti filed with the City a notice
of claim that detailed the allegations of this case. She then filed her
complaint on February 22, 2022. It alleged that the City committed several
torts, including abuse of process, during the federal litigation. The alleged
abuse of process occurred during discovery, when the City “concealed” and
otherwise “tampered” with body-camera evidence and caused Liberti to
lose her case. Liberti alleged that she “suffered extreme and lasting
emotional anxiety, upset, and distress.” As noted, the complaint alleged no
other damages. The City moved to dismiss, arguing that the complaint was
an improper attack on the federal judgment and presented causes of action
Arizona does not recognize. The superior court granted the motion and
dismissed the case.

¶5 Liberti appealed that dismissal to this court. See Liberti v. City
of Scottsdale, No. 1 CA-CV 22-0599, 2023 WL 4078539 (Ariz. App. June 20,
2023) (mem. decision). We affirmed the dismissal of three unrecognized
causes of action. Id. ¶¶ 15-16. But we remanded the abuse-of-process claim
for the superior court to decide “on its merits.” Id. ¶¶ 18-19, 22. We did not
consider the City’s assertion that the notice of claim was untimely under
Section 12-821.01(A)’s 180-day time limit. Id. ¶¶ 19-20. The City had not
raised that issue in its motion to dismiss. Id.

¶6 On remand, the City again moved to dismiss. Liberti then
filed an amended complaint, which the City again moved to dismiss, this
time asserting that the notice of claim was untimely. The superior court
granted the City’s motion. This appeal followed.

PRELIMINARY PROCEDURAL ISSUES

¶7 Liberti makes two procedural arguments that, in her view,
preclude the City from asserting the timeliness defense under Section
12-821.01(A). First, she argues that the City waived that defense. Second,
she argues that by dismissing the claim based on that defense, the superior
court violated this court’s mandate to consider the case “on its merits.”

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Opinion of the Court

I. Whether the City waived the timeliness defense

¶8 Liberti argues that the City waived the timeliness defense by
waiting to raise it until her first appeal to this court. The City’s first motion
to dismiss did not raise that defense, but it did contain a footnote “expressly
preserving” the related statute-of-limitations defense. See A.R.S. § 12-821
(one-year limitations period for “[a]ll actions against any public entity or
public employee”). In general, as Liberti notes, a defendant must assert
affirmative defenses or they are waived on appeal. Ariz. R. Civ. P.
8(d)(1)(P); Osuna v. Wal-Mart Stores, Inc., 214 Ariz. 286, n.4 (App. 2007)
(assuming that defendant who fails to plead statute of limitations “does not
desire its protection” (quoting Trujillo v. Trujillo, 75 Ariz. 146, 148 (1953))).

¶9 But Liberti incorrectly applies this rule. The requirement that
a party assert affirmative defenses to avoid waiver applies to pleadings. See
Ariz. R. Civ. P. 8(d)(1). Motions to dismiss under Rule 12(b)(6) are not
pleadings. Ariz. R. Civ. P. 7; Balestrieri v. Balestrieri, 232 Ariz. 25, ¶ 4 (App.
2013) (pleadings are limited to “a complaint, an answer, a reply to a
counterclaim, an answer to a cross-claim, a third-party complaint and an
answer to a third-party complaint”). Liberti has pointed to no authority
suggesting that a party waives an affirmative defense by not raising it in a
motion to dismiss. Instead, she inaccurately cites City of Phoenix v. Fields, 219 Ariz. 568, ¶ 27 (2009), for the proposition that “[d]efenses omitted from
a Rule 12 motion are ‘waived.’” But Fields actually states, “Defenses
omitted from an answer or a Rule 12 motion are . . . waived.” Id. (emphasis
added). And the City has not yet filed an answer, so it cannot have waived
the timeliness defense.

¶10 Nor would it make sense to require that all affirmative
defenses be raised in a Rule 12 motion. Complaints are not required to
plead facts to negate motions to dismiss. Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, ¶ 15 (2021). Thus, requiring defendants to assert all
affirmative defenses in a motion to dismiss would force defendants to file
frivolous motions to avoid waiver. See Valerie M. v. Ariz. Dep’t of Econ. Sec.,
219 Ariz. 155, ¶ 19 (App. 2008) (stating that we construe rules in accordance
with their plain meaning absent ambiguous language or construction that
would create absurd result).

¶11 Such a requirement would also conflict with both our rules
and our case law. The rules require a party to file an answer—the
defendant’s first pleading—after a motion to dismiss is denied. Ariz. R.
Civ. P. 12(a)(2)(A). That is where the defendant would be required to assert
the timeliness defense. Ariz. R. Civ. P. 12(b). A defendant may also seek

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leave to amend an answer to assert a new defense at any time before trial.
Ariz. R. Civ. P. 15(a)(1), (2); see also Sirek v. Fairfield Snowbowl, Inc., 166 Ariz.
183, 186 (App. 1990) (“A court may properly allow a defendant to amend
an answer to include an omitted defense as long as the plaintiff is not
surprised or prejudiced thereby.”). Consistent with this rule, our court
concluded that waiver of a statute-of-limitations defense is effective only
“if not asserted prior to judgment.” Romo v. Reyes, 26 Ariz. App. 374, 376
(1976).

¶12 Liberti’s waiver argument also relies on Rule 12(g)(2). That
rule provides that once a party moves to dismiss under Rule 12(b), it “must
not make another motion under this rule raising a defense or objection that
was available to the party but omitted from its earlier motion.” Although
the City elected not to assert a timeliness defense in its first motion to
dismiss, we conclude that Rule 12(g)(2) does not apply here. The City
asserted that defense only after an amended complaint, to which it was
required to respond. See Ariz. R. Civ. P. 15(a)(5) (requiring opposing party
to “answer or otherwise respond to an amended pleading” if the pleading
requires response).

¶13 Even if Rule 12(g)(2) barred the motion, the City was free to
raise a substantively identical motion for judgment on the pleadings under
Rule 12(c). See Ariz. R. Civ. P. 12(h)(2); see also Ray & Lindsay - 11, LLC v.
Town of Gilbert, 252 Ariz. 147, ¶ 3 (App. 2021) (applying motion-to-dismiss
standard to motion for judgment on pleadings). It could have done so at
the same time it moved to dismiss the amended complaint. Ariz. R. Civ. P.
12(c). At best, then, the City made a nomenclature mistake. We will not
reverse due to technical errors in pleadings. Ariz. Const. art. VI, § 27. We
instead conclude that the City did not waive the timeliness defense.

II. Whether the superior court complied with this court’s mandate to
adjudicate the abuse-of-process claim on the merits

¶14 We next address Liberti’s argument that the superior court’s
dismissal violated this court’s mandate to adjudicate the abuse-of-process
claim “on its merits.” We see no such violation. Nothing in this court’s
prior decision substantively addressed timeliness or the statute of
limitations, nor did that decision preclude the City from raising those
defenses. Our decision noted only that the City’s original motion had not
raised them. Liberti, No. 1 CA-CV 22-0599 at *3.

¶15 In this context, we see no contradiction between this court’s
“on its merits” language and a dismissal for failure to timely file a notice of

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claim. Although our case law does not clearly state whether a dismissal on
this ground is an adjudication on the merits, it does not preclude that
conclusion. See, e.g., Gatecliff v. Great Republic Life Ins. Co., 154 Ariz. 502, 506
(App. 1987) (noting dismissal under Rule 12(b)(6) is dismissal on the merits
and has “res judicata effect”); Montaño v. Browning, 202 Ariz. 544, ¶ 4 (App.
2002) (“claims that are clearly brought outside the relevant limitations
period are conclusively barred”). We therefore will not interpret this
court’s mandate as depriving the City of a defense that it had not otherwise
waived.

ABUSE-OF-PROCESS CLAIM ACCRUAL UNDER
A.R.S. § 12-821.01(B)

¶16 Turning to the substance of Liberti’s accrual argument, she
argues that her abuse-of-process claim did not accrue until the Supreme
Court denied certiorari in February 2021. She points to that date as the
onset of her emotional distress, when she learned that her case against the
City was definitively over.

¶17 We review the superior court’s Rule 12(b)(6) dismissal for
failure state a claim de novo. Coleman, 230 Ariz. 352, ¶ 7. We apply that
same standard to questions of law concerning a cause of action’s accrual
and statutes of limitations. Satamian v. Great Divide Ins. Co., 257 Ariz. 136,
¶ 11 (2024). Under Rule 12(b)(6), dismissal is appropriate if a plaintiff
“would not be entitled to relief under any interpretation of the facts
susceptible of proof.” Coleman, 230 Ariz. 352, ¶ 8 (quoting Fid. Sec. Life Ins.
Co. v. State Dep’t of Ins., 191 Ariz. 222, ¶ 4 (1998)). We assume the truth of
all well-pleaded factual allegations and consider all such reasonable
inferences. Id. ¶ 9.

I. Standard for accrual of claims against public entities

¶18 In general, a limitations period begins running when a cause
of action accrues. Sato v. Van Denburgh, 123 Ariz. 225, 227 (1979). As noted
above, under Section 12-821.01(B), a claim against public entities 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.” Under this statute,
“[a] plaintiff need not know all the facts underlying a cause of action to
trigger accrual. But the plaintiff must at least possess a minimum requisite
of knowledge sufficient to identify that a wrong occurred and caused
injury.” Thompson v. Pima County, 226 Ariz. 42, ¶ 12 (App. 2010) (quoting
Doe v. Roe, 191 Ariz. 313, ¶ 32 (1998)). This inquiry turns on when the

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plaintiff’s “knowledge, understanding, and acceptance in the aggregate
provide[] sufficient facts to constitute a cause of action.” Little v. State, 225
Ariz. 466, ¶ 9 (App. 2010) (quoting Walk v. Ring, 202 Ariz. 310, ¶ 23 (2002)).

¶19 Accrual triggers the 180-day limitation for serving a notice of
claim. § 12-821.01(A). We strictly construe this time limitation. See City of
Mesa v. Ryan, No. CV-23-0284-PR, ¶ 2, 2024 WL 4509603 (Ariz. Oct. 17, 2024)
(stating plaintiff must “timely file a statutorily compliant notice of claim”
to sue under § 12-821.01). The accrual date marks the beginning of both a
notice of claim’s limitations period and the complaint’s one-year statute of
limitations. Boyd v. State, 256 Ariz. 414, ¶ 10 (App. 2023); A.R.S. §§ 12-821,
12-821.01(A), (B).

¶20 As applied to abuse-of-process claims, this court concluded in
Cruz v. City of Tucson, 243 Ariz. 69, ¶ 9 (App. 2017), that accrual occurs when
two elements are met. First, the plaintiff was “aware she had been injured
by the City’s action.” Id. Second, the plaintiff “was put on notice to
investigate these issues.” Id. Accrual may occur before the underlying
litigation proceeds to final judgment. Id. ¶ 22.

II. Date that Liberti had notice to investigate

¶21 We start with the second element, as its application here is
straightforward. Construing the well-pleaded facts in the light most
favorable to Liberti, that element was satisfied no later than September 11,
2018, when the district-court litigation concluded.

¶22 By that point, Liberti was necessarily on notice of any
problems with the body-camera’s footage. All the complaint’s allegations
about that footage concern its disclosure—or lack thereof—in the district
court. No disclosure or discovery would have occurred after that point,
when the case was on appeal. And the complaint contains no allegations
that Liberti failed to recognize the problems with the footage after the
district-court litigation concluded.

III. Date that Liberti became aware of the injury

¶23 Liberti’s appeal focuses primarily on the first element
imposed by Cruz—the date she became aware she had been injured. She
argues that this did not occur until the Supreme Court denied certiorari in
February 2021, when she suffered the “‘terrible, wrenching, shocking
realization’ of the City’s final success in its perfidy.” In her view, the cause
of action could not have accrued until she sustained these

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emotional-distress damages because damages are a necessary element of an
abuse-of-process claim.

¶24 To support this argument, Liberti points to case law holding
that damages are an element of a tort claim and that a cause of action does
not accrue until all of a claim’s elements exist. See, e.g., Hazine v. Montgomery
Elevator Co., 176 Ariz. 340 (1993) (recognizing strict liability and negligence
as causes of action to recover damages); Piner v. Superior Court, 192 Ariz.
182, ¶ 11 (1998) (requiring damages to sustain negligence claim); Glaze v.
Larsen, 207 Ariz. 26, ¶ 13 (2004) (requiring damages as element in
attorney-malpractice claim).

¶25 Our abuse-of-process case law has never explicitly identified
damages as an element. Rather, it defines the elements as: “(1) a willful act
in the use of judicial process; (2) for an ulterior purpose not proper in the
regular conduct of the proceedings.” Crackel v. Allstate Ins. Co., 208 Ariz.
252, ¶ 11 (App. 2004) (quoting Nienstedt v. Wetzel, 133 Ariz. 348, 353 (App.
1982)). But see id. ¶ 42 (referring to “damage element of the tort”). Liberti,
however, asks us to conclude that damages are an element. She notes that
the Revised Arizona Jury Instructions provide that they are. Revised
Arizona Jury Instructions (RAJI) (Civil) Intentional Torts 21 (Abuse of
Process—Elements of Liability) (7th ed. 2013). In her view, it follows that
the claim did not accrue until it caused her emotional damages.

¶26 We need not decide whether damages are an element of abuse
of process. Regardless of whether they are, Section 12-821.01(B) provides
that when the defendant is a public entity, as is the case here, accrual cannot
occur until the plaintiff becomes aware that she has sustained damages.
Thus, the existence of damages is a statutory prerequisite for accrual.

¶27 As to when Liberti became aware of her damages, her
argument relies on the unstated premise that accrual did not occur until she
sustained the specific damages alleged in the complaint—emotional
distress. But emotional-distress damages are not the only type of damages
recoverable for abuse of process. See, e.g., Crackel, 208 Ariz. 252, ¶¶ 2, 25-26;
Nienstedt, 133 Ariz. at 350-52, 357. A party may also recover expenses
incurred in the underlying litigation due to the alleged abuse. Nienstedt,
133 Ariz. at 350-52, 357. A plaintiff’s awareness that she will incur any such
damages triggers accrual under Section 12-821.01(B). That statute looks
only to the existence of “damages,” not any particular category of damages.
Id.; cf. Com. Union Ins. Co. v. Lewis & Roca, 183 Ariz. 250, 255 (App. 1995) (in
malpractice context, accrual begins “before the client sustains all, or even

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the greater part, of the damages” (quoting Ariz. Mgmt. Corp. v. Kallof, 142
Ariz. 64, 68 (App. 1984))).

¶28 Here, the complaint references damages of which Liberti
became aware no later than the conclusion of the district-court litigation. It
alleges that Liberti “was unable to convince the federal district court that
there were genuine issues of material fact” in the wrongful-death case. That
in turn necessitated an appeal, which involved expense and delay.

¶29 It is of no consequence that Liberti’s complaint seeks only
emotional-distress damages and not those expenses or other potential
damages. Accrual does not depend on a party’s pleading decisions. See
Hall v. Romero, 141 Ariz. 120, 123-25 (App. 1984) (holding statute of
limitations accrued when plaintiffs first learned of injuries, not after
defendant failed to comply with attorney-general settlement or when
plaintiffs sought leave to include fraud claim). If it did, a plaintiff could
circumvent a timeliness or statute-of-limitations defense simply by
pleading only the damages that had occurred within the relevant period
before the notice of claim or complaint was filed. Liberti points to no case
in which our courts have adopted this view. Indeed, her position is
inconsistent with our case law explaining that a plaintiff need not know all
applicable facts to trigger accrual but simply that a wrong occurred and
caused injury. Thompson, 226 Ariz. 42, ¶ 12. To the extent Liberti is inviting
us to modify this case law, we see no basis for doing so.

IV. Applicability of continuing-tort doctrine

¶30 Finally, Liberti argues that we should apply the
continuing-tort doctrine. That doctrine provides that where a tort is
ongoing, the cause of action does not accrue until the last tortious act. Id.
¶ 20. We rejected an identical argument in Cruz, where the alleged abuse
of process involved an ongoing failure to disclose documents. Id. ¶¶ 2-5,
20. There, we looked to the date of the last wrongful act to determine the
point of accrual. Id. ¶¶ 9, 20.

¶31 Unlike the plaintiff in Cruz, Liberti only alleged the City had
committed one act of wrongdoing—providing altered evidence in the
district-court litigation. We therefore need not address Liberti’s arguments
concerning whether her allegations otherwise stated a claim for abuse of
process.

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DISPOSITION

¶32 We affirm the court’s dismissal of the abuse-of-process claim.

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