Ramos v. Dinell

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


             ANTHONY ELADIO RAMOS, Plaintiff/Appellant,

                                        v.

                MARK DINELL, et al., Defendants/Appellees.

                             No. 1 CA-CV 20-0133
                               FILED 1-14-2021


           Appeal from the Superior Court in Maricopa County
                          No. CV2019-004608
                  The Honorable Connie Contes, Judge

                                  AFFIRMED


                                   COUNSEL

Anthony Eladio Ramos, Phoenix
Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Connie T. Gould, Lindsey Gilman
Counsel for Defendants/Appellees



                       MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Maria Elena Cruz joined.
                          RAMOS v. DINELL, et al.
                           Decision of the Court

H O W E, Judge:

¶1           Anthony Ramos appeals the trial court’s dismissal of his
first-amended complaint. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            In December 2018, the Arizona Corporation Commission
investigated Ramos’s securities activities and moved for a temporary order
to stop his activities. The Commission alleged that Ramos had engaged in
securities fraud by making false or misleading statements when offering
securities to an Arizona resident. The following month, Ramos filed an
answer, his affirmative defenses, and a third-party petition against the
Commission and three of its employees alleging several counts of fraud and
vicarious liability. His third-party petition was dismissed for failure to state
a claim upon which relief could be granted.

¶3            In July 2019, Ramos sued the Commission, the three
employees he identified in his third-party petition, added a fourth
employee to the lawsuit, and filed his first-amended complaint alleging
several counts of fraud. He also moved for an injunction against each
defendant. The Commission moved to dismiss the lawsuit because Ramos
did not serve its employees with a notice of claim before suing it and the
employees, the first-amended complaint failed to state a claim upon which
relief could be granted, and the complaint failed to state a claim for
injunctive relief. The Commission attached an affidavit from its executive
director and affidavits from each of its employees attesting that they had
not been served with a notice of claim A.R.S. § 12–821.01 required.

¶4           Ramos then moved to file a second-amended complaint and
attached five notices of claim with certificates that they were served in
September 2019. After oral argument—for which Ramos failed to appear
—the trial court granted the Commission’s motion to dismiss and denied
Ramos’s motion to file a second-amended complaint as futile. Ramos timely
appealed.

                               DISCUSSION

¶5             Ramos argues that the notice of claim statute does not apply
to the Commission and that the Commission never adopted the statute. He
further contends that even if the notice of claim statute does apply to the
Commission, it does not apply to special actions or injunctions. We review
the trial court’s granting of a motion to dismiss de novo. Cleckner v. Ariz.
Dep’t of Health Services, 

246 Ariz. 40

, 42 ¶ 6 (App. 2019). When the trial court


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                         RAMOS v. DINELL, et al.
                          Decision of the Court

considers evidence outside the complaint, we treat the motion to dismiss as
one for summary judgment, Ariz. R. Civ. P. 12(d), which we also review de
novo, Jackson v. Eagle KMC, L.L.C., 

245 Ariz. 544

, 545 ¶ 7 (2019).

¶6             Persons with claims against a public entity or public
employee must file claims with that public entity or public employee within
180 days after the cause of action accrues. A.R.S. § 12–821.01(A). A public
entity includes the Commission. See A.R.S. § 12–820(7) and (8) (defining
public entity to mean any state, commission, or department). Likewise, each
of the Commission’s employees are public employees. See A.R.S.
§ 12–820(1) and (6) (defining public employees as public entity employees,
officers, and directors). Because the Commission is a public entity and its
employees are public employees, A.R.S. § 12–821.01 applies and Ramos was
required to serve a notice of claim before suing the Commission and its
employees.

¶7            Ramos argues next that even if the notice of claim statute
applies, he did not discover the liable parties until April 2019, and took
corrective action within the required time. “[A] cause of action 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.” A.R.S. § 12–821.01.

¶8             Ramos knew who the potentially liable parties were in
January 2019. At that time, Ramos filed a third-party petition against the
Commission and three of the four Commission employees that he sued in
this action, alleging similar fraud claims. Ramos’s cause of action accrued
in January 2019, and he was required to serve a notice of claim on the
Commission and its employees by July 2019. See A.R.S. § 12–821.01(A).
Therefore, his September 2019 notice of claim was untimely and the trial
court properly granted the Commission’s motion to dismiss.

¶9            Ramos contends that the cause of action against the fourth
Commission employee—who was not listed in the third-party petition
—did not accrue until April 2019. Even if the notice of claim served on that
employee in September 2019 was timely, the notice was defective because
it did not demand a specific settlement amount other than stating that “the
amount is the amount that has already been demanded from you in said
matter.” See Yahweh v. City of Phoenix, 

243 Ariz. 21

, 23 ¶ 8 (App. 2017) (claim
is barred if notice of claim does not contain valid settlement offer and the
amount demanded in the complaint does not satisfy this requirement). By
October 2019, the notice of claim deadline passed. The trial court properly
granted the Commission’s motion to dismiss and denied Ramos’s motion


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                         RAMOS v. DINELL, et al.
                          Decision of the Court

to file a second-amended complaint as futile. See Stair v. Maricopa Cty., 

245 Ariz. 357

, 366 ¶ 37 (App. 2018) (amendment need not be granted if futile).

¶10            The trial court also properly dismissed Ramos’s claim for
injunctive relief. While a request for injunctive relief need not satisfy the
notice requirements of A.R.S. § 12–821.01(A), State v. Mabery Ranch, Co.,
L.L.C., 

216 Ariz. 233

, 245 ¶ 53 (App. 2007), the complaint must still set forth
well-pleaded facts and not mere conclusory statements, Cullen v. Auto-
Owners Ins. Co., 

218 Ariz. 417

, 419 ¶ 7 (2008). Ramos did not respond to the
injunctive relief section of the Commission’s motions to dismiss and he does
not argue on appeal that he stated a claim upon which relief could be
granted. And in his first-amended complaint Ramos did not specify the
harm that was caused by the Commission or its employees; he merely asked
that the trial court grant him relief enjoining the Commission and its
employees from “any further acts against Plaintiff.” Ramos therefore failed
to state a claim upon which relief could be granted and the trial court
properly granted the Commission’s motion.

                               CONCLUSION

¶11           For the foregoing reasons, we affirm.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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