Liberti v. City of Scottsdale, No. 2 CA-CV 2024-0082 (App. Div. II, October 25, 2024) (J. Sklar) https://www.appeals2.az.gov/decisions/CV20240082releasedasOpinion.pdf

ABUSE OF PROCESS CLAIM ACCRUES AGAINST PUBLIC ENTITY WHEN PLAINTIFF “REALIZES” OR “RESONABLY SHOULD KNOW” SHE HAS BEEN DAMAGED REGARDLESS OF WHETHER OR NOT SHE SEEKS RECOVERY FOR THOSE DAMAGES THAT FIRST OCCUR/REQUIREMENT THAT ALL AFFIRMATIVE DEFENSES BE PLEADED DOES NOT APPLY TO A MOTION TO DISMISS

Plaintiff sued the City of Scottsdale in federal court in 2017 for the wrongful death and violation of constitutional and civil rights of her son. The Federal District Court granted the defendant's motion for summary judgment. This judgment was affirmed by the Ninth Circuit Court of Appeals and the United States Supreme Court denied certiorari. 

Thereafter, on June 16, 2021, she filed a notice of claim against the city and then filed suit on February 22, 2022.  Among other things, the suit alleged the city abused process in the federal court litigation when it “concealed” and “tampered” with body-camera evidence. The only damages pled were emotional distress damages which plaintiff claimed she did not suffer until she learned federal case was completely over upon denial of certiorari. The Superior Court of Arizona dismissed the case and the Arizona Court of Appeals affirmed as to three other causes of action, but remanded on the abuse of process claim. The timeliness issue regarding the notice of claim under A.R.S. § 12-821.01(B) was then raised for the first time. The trial court granted the city's motion to dismiss finding the notice of claim was not filed within 180 days of when plaintiff “knew or reasonably should have known” she had been damaged. The Arizona Court of Appeals affirmed the trial court.

The court of appeals found that “assuming the well-pleaded facts of the complaint are true, she should have known of other damages no later than the conclusion of the trial court proceedings in the federal case.” 

The plaintiff's argument that the city waived this defense was rejected. While Ariz. R. Civ. P. 8(d)(1) requires a defendant assert all affirmative defenses in the pleadings to avoid waiver this requirement does not apply to a Rule 12 (b)(6) motion to dismiss. A motion to dismiss is not a pleading. Because the defense was raised in the Answer to an Amended Complaint, Rule 12(g)(2)'s requirement that a party “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,” does not apply. Even if this rule applied, raising the timeliness defense in Answer to the Amended Complaint would be proper under Rule 12(c) had the city raised this in a subsequent motion to dismiss the Amended Complaint. Raising it in the Answer instead was a mere “nomenclature mistake” and the court of appeals refused to reverse based upon a “technical error” in the pleadings.

The plaintiff's argument that dismissing on the issue of timeliness violated the court of appeals order to the trial court to decide the abuse of process claim on the merits was rejected because the issue of timeliness was not at issue when the court of appeals first remanded the case.

The accrual of the abuse of process claim occurs when the plaintiff first “realizes or should have realized” she was damaged. While here the plaintiff only sued for emotional distress damages which she claimed she did not suffer until certiorari was denied, she suffered other damages such as expenses in the federal action long before then. The abuse of process action accrued when any damages were known or should have been known whether she ultimately sought recovery for those damages.

Accrual does not depend on a party's pleading decisions. See

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. .  .  . 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.

Finally, plaintiffs' argument that the abuse of process claim was a “continuing tort” fails as she alleged only one act in support of the tort—concealing the body-camera footage.