Vallejo v. Arena Park
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NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
DEREK XAVIER VALLEJO,
individually; and on behalf of
his minor children, TIMOTHY
AARON VALLEJO and ABIGAIL EMILY
VALLEJO,
)
)
)
)
)
)
Plaintiffs/Appellants, )
)
v.
)
)
ARENA PARK PLACE LIMITED, an
)
Arizona corporation,
)
)
Defendant/Appellee. )
__________________________________)
1 CA-CV 10-0379
DEPARTMENT A
MEMORANDUM DECISION
(Not for Publication Rule 111, Rules of the
Arizona Supreme Court)
FILED 6/7/11
Appeal from the Superior Court of Maricopa County
Cause No. CV 2009-053698
The Honorable Stephen Kupiszewski, Judge Pro Tem
AFFIRMED
Coben & Associates
By
Larry E. Coben
Attorneys for Plaintiffs/Appellants
O’Connor & Campbell
By
J. Daniel Campbell
And Anne Hutchinson
And Susanne Luse
Attorneys for Defendant/Appellee
T H O M P S O N, Judge
Scottsdale
Phoenix
¶1
Plaintiffs Derek Xavier Vallejo and his minor children
(collectively Vallejo) appeal the grant of summary judgment in
favor of defendant Arena Park Place Limited (Arena).
For the
reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2
In November 2008, Derek Vallejo went out with friends
to a bar on Jackson street in Phoenix.
The bar’s parking lot
was full, so Vallejo paid to park in a nearby parking lot owned
by Arena.
After leaving the bar at around 2:00 a.m., Vallejo
walked out to the parking lot and, as he stood talking to a
friend, was shot in the head and permanently injured by a driveby shooter.
¶3
Police never found the shooter.
Vallejo
filed
a
lawsuit
against
Arena
and
other corporate defendants alleging claims of negligence.
several
Arena
filed a motion to dismiss pursuant to Arizona Rule of Civil
Procedure 12(b)(6) on the basis that there was no evidence that
it
breached
control
a
duty
measures,
or
to
to
provide
warn
of
increased
security,
traffic
criminal
activity.
Arena
attached an affidavit from Richard Kotarski (Kotarski) stating,
among other things, that Kotarski was not aware of any drive-by
shootings or similar crimes at or near the Arena parking lot.
After the parties filed a response and reply, the trial court
set the matter for oral argument, informing the parties that it
2
would consider Arena’s motion to dismiss as a motion for summary
judgment.
Around the same time he filed his response, Vallejo
filed a motion for leave to conduct discovery, but did not,
pursuant to Arizona Rule of Civil Procedure 56(f) (Rule 56(f))
or otherwise, file any affidavits to support the request.
¶4
At oral argument, Vallejo’s counsel did not object to
the court treating the motion as a motion for summary judgment,
but assented to the court doing so.
The court found that no
issues of material fact existed and granted summary judgment to
Arena.
without
Vallejo
an
filed
affidavit,
reconsideration.
a
motion
and
the
for
court
reconsideration,
denied
the
again
motion
for
Vallejo timely appealed.
DISCUSSION
¶5
Summary
judgment
is
appropriate
when
there
is
no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.
56(c)(1).
Ariz. R. Civ. P.
We review the grant of summary judgment de novo to
determine whether any genuine issue of material fact exists, and
we view the evidence and all reasonable inferences in favor of
the nonmoving party.
Chalpin v. Synder, 220 Ariz. 413, 418, ¶
17, 207 P.3d 666, 671 (App. 2008) (citation omitted).
Summary
judgment should be granted “if the facts produced in support of
[a]
claim
.
.
.
have
so
little
probative
value,
given
the
quantum of evidence required, that reasonable people could not
3
agree
with
the
claim. . . .”
conclusion
advanced
by
the
proponent
of
the
Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d
1000, 1008 (1990).
¶6
In
this
case,
business
invitee.
See
(1965).
The relevant question is not whether Arena had a duty,
but
rather
what
was
breached its duty.
the
Arena
had
Restatement
standard
a
duty
to
(Second)
of
care
Vallejo
of
and
Torts
as
§
whether
a
344
Arena
See Grafitti-Valenzuela v. City of Phoenix,
216 Ariz. 454, 458, ¶ 12, 167 P.3d 711, 715 (2007).
In this
case, Arena presented Richard Kotarski’s affidavit which stated
that Arena was unaware of drive-by shootings or similar crimes
in the vicinity of the parking lot.
Vallejo had the burden to
rebut the affidavit factually, but failed to do so.
¶7
Vallejo
cites
Portland
Retail
Druggists
Ass’n
v.
Kaiser Found. Health Plan, 662 F.2d 641, 645 (9th Cir. 1981),
and argues that he was surprised that the trial court treated
the motion to dismiss as a summary judgment and therefore did
not attach any extrinsic evidence or affidavits to his motion
for
leave
to
conduct
discovery.
The
record
indicates
that
Vallejo was not surprised by the court’s treatment of the motion
as one for summary judgment, however, having been explicitly
advised before argument that the court would do so.
At oral
argument, Vallejo’s counsel assented to the court’s treating the
motion as a motion for summary judgment, indicating that such
4
treatment was acceptable:
MR. COBEN: Very briefly, Your Honor. Since
the Court’s –in the Court’s minute entry
order, you indicated you would be treating
this as a summary judgment motion.
THE COURT:
That’s what it is.
MR. COBEN: And that’s fine. I don’t think
the –I don’t think that procedural question
leads to a different outcome because there
are certainly fact questions regarding the
exercise of duty and whether or not the duty
was properly exercised.
Subsequently, Vallejo filed a motion for reconsideration, but
still did not submit an affidavit meeting the requirements of
Rule 56(f), which allows a party to request additional time to
respond to a motion for summary judgment in order to undertake
needed
additional
discovery.
A
motion
seeking
time
for
discovery before responding to summary judgment requires such an
affidavit.
Lewis v. Oliver, 178 Ariz. 330, 338, 873 P.2d 668,
676 (App. 1993) (“To succeed under Rule 56(f), the moving party
must
present
an
affidavit
informing
the
court
of:
(1)
the
particular evidence beyond the party’s control; (2) the location
of the evidence; (3) what the party believes the evidence will
reveal; (4) the methods to be used to obtain it; and (5) an
estimate of the amount of time the additional discovery will
require.”).
Because Vallejo had the burden to rebut Arena’s
affidavit but failed to do so, the trial court did not abuse its
discretion in granting summary judgment to Arena.
5
¶8
For
the
foregoing
reasons,
we
affirm
the
grant
of
summary judgment in favor of Arena.
/s/
______________________________
JON W. THOMPSON, Judge
CONCURRING:
/s/
___________________________________
PHILIP HALL, Presiding Judge
/s/
___________________________________
LAWRENCE F. WINTHROP, Judge
6
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