Civil Procedure—Timeliness of Notice of Claim

Cruz v. City of Tucson, 770 Ariz. Adv. Rep. 8 (App. Div. II, August 1, 2017) (J. Vasquez)

NOTICE OF CLAIM MUST BE FILED WITHIN 180 DAYS OF WHEN PLAINTIFF KNOWS OR REASONABLY SHOULD KNOW SHE HAS BEEN DAMAGED AND THE CAUSE, SOURCE, ACT, EVENT, INSTRUMENTALITY OR CONDITION CAUSING OR CONTRIBUTING TO THE DAMAGE/ABUSE OF PROCESS CLAIM ACCRUES AT THE TIME OF THE ABUSE

 Plaintiff successfully prosecuted a statutory special action (A.R.S. §39-121.02(A)) against the City of Tucson [public records action] arising out of the City's failure to produce properly requested public records. On April 28, 2015 the court in the public records action issued its final order finding the City had intentionally obstructed the effort to obtain the records and made several false representations in the process.

 On October 6, 2015 plaintiff served a notice of claim  upon the City stating she had been damaged by the City's obstruction, fraud and abuse of process. The instant abuse of process action was then brought alleging damages caused by failure to produce the records. The city moved for summary judgment claiming the plaintiff had failed to timely serve a notice of claim pursuant to A.R.S. § 12-821.01(A) within 180 days of when she “realized she had been damaged and knew or reasonably should know the cause, source, act, event, instrumentality or condition that caused or contributed to the damage." The trial court granted summary judgment and the Arizona Court of Appeals affirmed.

 Abuse of process requires a showing that (1) a willful act in the use of judicial process; (2) for an ulterior purpose not proper in the regular conduct of the proceedings. Here the plaintiff knew as early as August 2013 when she filed a motion for new trial in the public records action asserting the City had “continue[d] to refuse to comply with the

[May 2013] public record request" and had not disclosed "public records known to exist." A week before filing this motion the City disclosed 170 pages of new records in the face of having previously attested that it had “fully responded” to plaintiff's request. Over the next two years a pattern of denial by the City followed by subsequent disclosures belying the prior denial occurred. Accordingly, the 180 days began to run in August of 2013 but no later than December 2014.

 The court of appeals found that an abuse of process claim accrues from the date of the abuse and not the final judgement, noting a notice of claim could have been timely filed during the pendency of the public records action and the complaint in that action could have been amended to include the abuse of process claim; there was no good reason for awaiting final judgement on the public records action before filing a notice claim.

 Plaintiff's claim that the City's conduct constituted an ongoing tort was of no help to her argument the notice of claim was timely in that there was no showing of any abuse by the City within 180 days before she filed her notice of claim. The record showed the City's last disclosure in the public records action to have been on June 4, 2014, over a year and 3 months before plaintiff filed her notice of claim.