Opinion
1 CA-CV 22-0259
02-23-2023
GABRIEL NOGUEZ LOREDO, et al., Plaintiffs/Appellants, v. MARICOPA COUNTY, et al., Defendants/Appellees.
Ahwatukee Legal Office, P.C., Phoenix By David L. Abney Co-Counsel for Plaintiffs/Appellants Zapata Law PLLC, Chandler By Julio M. Zapata Co-Counsel for Plaintiffs/Appellants Law Offices of Gil Negrete, P.C., Phoenix By Gil Negrete Co-Counsel for Plaintiffs/Appellants Maricopa County Attorney's Office, Phoenix By Joseph J. Branco, Courtney R. Glynn Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2020-006926 No. CV2020-090132 The Honorable Rodrick J. Coffey, Judge
Ahwatukee Legal Office, P.C., Phoenix By David L. Abney Co-Counsel for Plaintiffs/Appellants
Zapata Law PLLC, Chandler By Julio M. Zapata Co-Counsel for Plaintiffs/Appellants
Law Offices of Gil Negrete, P.C., Phoenix By Gil Negrete Co-Counsel for Plaintiffs/Appellants
Maricopa County Attorney's Office, Phoenix By Joseph J. Branco, Courtney R. Glynn Counsel for Defendants/Appellees
Presiding Judge Brian Y. Furuya delivered the decision of the Court, in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
MEMORANDUM DECISION
FURUYA, JUDGE
¶1 Plaintiffs Gabriel Noguez Loredo, Madian L. Rubio, and Francisco Santillan challenge the superior court's summary judgment ruling that Maricopa County could not be held vicariously liable for the alleged negligence of a Maricopa County Sheriff's Office ("Sheriff's Office") employee. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 This lawsuit stems from a January 23, 2019, automobile accident. David Urena, a Sheriff's Office employee, was driving a Sheriff's Office vehicle transporting county jail inmates. Plaintiffs allege Urena ran a red light and struck their vehicle at the Buckeye Road and 59th Avenue intersection, causing injury.
¶3 Plaintiffs sued Maricopa County and the Sheriff's Office, who moved to dismiss in part, contending the Sheriff's Office is a non-jural entity that cannot be sued. Plaintiffs filed an amended complaint removing the Sheriff's Office as a defendant. Urena and his front-seat passenger then sued Plaintiffs, and the two cases were consolidated.
¶4 Maricopa County moved for summary judgment. The superior court granted the motion, concluding the county could not be held vicariously liable because it "lacks control over how [the Sheriff's Office] conducts its official duties." Plaintiffs timely appealed after the court entered a judgment under Arizona Rule of Civil Procedure ("Rule") 54(b). We have jurisdiction under Arizona Revised Statutes ("A.R.S.") § 12-2101(A)(1).
DISCUSSION
¶5 Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We review a grant of summary judgment de novo and view the evidence and reasonable inferences in a light most favorable to the non-moving parties. Zambrano v. M & RC II LLC, 254 Ariz. 53, 58 ¶ 9 (2022) (citation omitted). We also review questions of statutory interpretation de novo. TFLTC, LLC v. Ford, 253 Ariz. 413, 414 ¶ 6 (2022).
I. Maricopa County Is Not Vicariously Liable for Urena's Alleged Negligence.
¶6 Generally, counties are not vicariously liable for the acts of elected officials whose duties are imposed by statute or the Arizona constitution. Hernandez v. Maricopa Cnty., 138 Ariz. 143, 146 (App. 1983) (quoting Fridena v. Maricopa Cnty., 18 Ariz.App. 527, 530-31 (1972)). The Maricopa County Sheriff is elected, and the Legislature establishes his or her duties. See A.R.S. §§ 11-406(A), -441. Deputy sheriffs possess the same powers and may perform the same duties. A.R.S. § 38-462(A). Those duties include taking charge of and keeping the county jail and its prisoners. A.R.S. § 11-441(A)(5).
¶7 But Plaintiffs contend "personnel who work in the office of the county sheriff," including Urena, "are not the county sheriff's employees but are . . . employees of the county." Plaintiffs cite A.R.S. §§ 11-441 and -444(A) for the proposition that the sheriff is a "county officer" and that each county "bears the cost[s] of the . . . sheriff's conduct." They also cite three federal cases arising under 42 U.S.C. § 1983 for the proposition that a county's funding of a sheriff is "strong evidence" that the sheriff acts on the county's behalf.
¶8 The federal cases are distinguishable because 42 U.S.C. § 1983 does not impose vicarious liability on local governments for their employees' acts. Connick v. Thompson, 563 U.S. 51, 60 (2011); see also Flanders v. Maricopa Cnty., 203 Ariz. 368, 378 ¶ 61 (App. 2002) ("Liability [under 42 U.S.C. § 1983] is imposed, not on the grounds of respondeat superior, but because the agent's status cloaks him with the governmental body's authority."). Additionally, the primary case on which Plaintiffs rely, McMillian v. Monroe Cnty., 520 U.S. 781 (1997), states that "Alabama counties are not liable under a theory of respondeat superior for a sheriff's official acts that are tortious" even though Alabama counties were required by law to pay the sheriff's salary and provide the sheriff's office with equipment, supplies, and lodging and reimburse the sheriff's expenses. Id. at 789, 791-92 (emphasis added).
¶9 Plaintiffs also cite A.R.S. § 11-251(1), which grants a county board of supervisors authority to:
[supervise the official conduct of all county officers and officers of all districts and other subdivisions of the county charged with assessing, collecting, safekeeping, managing or disbursing the public revenues, see that the officers faithfully perform their duties and direct prosecutions for delinquencies, and, when necessary, require the officers to renew their official bonds, make reports and present their books and accounts for inspection.
Plaintiffs argue the phrase "[supervise the official conduct of all county officers" establishes a "broad, at-all-times right of control." But when read in context, this language does not grant plenary power to supervise county officers; it instead gives the board authority to supervise those who are "charged with assessing, collecting, safekeeping, managing or disbursing the public revenues." See State v. Jones, 196 Ariz. 306, 307 ¶ 7 (App. 1999) ("Every provision of a statute must be read in conjunction with the other provisions, giving meaning, if possible, to 'each word, clause or sentence, considered in the light of the entire act itself and the purpose for which it was enacted into law.'") (quoting Frye v. S. Phoenix Volunteer Fire Co., 71 Ariz. 163, 168 (1950)); cf. Hounshell v. White, 220 Ariz. 1, 5 ¶ 21 (App. 2008) (interpreting § 11-251(1) as granting the board authority to supervise county officers "in some limited circumstances"). Indeed, if § 11-251(1) conferred broad authority to supervise all county officer functions, the Legislature would have had no reason to enact other subsections of § 11-251 that authorize the board of supervisors to direct the prosecution and defense of all actions to which the county is a party, permit the sheriff to offer rewards, or direct the sheriff to transport insane persons to the state hospital. A.R.S. § 12-251(14), (25), (26).
¶ 10 Reading A.R.S. § 11-251(1) to confer only fiscal authority also is consistent with § 11409, which grants county officers the power to appoint deputies and other staff "necessary to conduct the affairs of their respective offices" and gives the board limited authority to consent to those appointments and fix salaries. A.R.S. § 11409; see also Hounshell, 220 Ariz. at 4 ¶ 14 ("The fact that the Board must consent to the appointment of a given employee does not make the Board a separate appointing authority."). It also is consistent with § 11-444, which obligates the sheriff to render a monthly accounting and provides that most of the sheriff's "actual and necessary expenses" are "a county charge." A.R.S. § 11-444(A), (C). These statutes also suggest that the board's authority to supervise county officers under § 11-251(1) is fiscal in nature. See State of the Neth. v. MD Helicopters, Inc., 250 Ariz. 235, 238 ¶ 8 (2020) ("[W]e interpret statutory language in view of the entire text, considering the context and related statutes on the same subject.") (quoting Molera v. Hobbs, 250 Ariz. 13, 24 ¶ 34 (2020)).
¶ 11 Our conclusion also is consistent with our prior decision in Fridena v. Maricopa County. There, we declined to impose vicarious liability on Maricopa County for the tortious acts of deputy sheriffs because the county had "no right of control over the Sheriff or his deputies" in serving a defective writ of restitution. Fridena, 18 Ariz.App. at 529-30. Plaintiffs contend we should not follow Fridena, again relying on their broad reading of § 11-251(1) discussed above. They also contend Fridena is distinguishable because service of a writ of restitution is a "judicial-related activity," but Fridena is not so narrow:
When duties are imposed upon . . . a board of county commissioners by law rather than by the county, the latter will not be responsible for their breach of duty or for their nonfeasance or misfeasance in relation to such duty.18 Ariz.App. at 530. While the sheriff's duty to keep the county jail and its prisoners is not judicial in nature, it is imposed by law. See A.R.S. § 11-441(A)(5).
¶ 12 Plaintiffs also cite Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 527 ¶ 15 (2006), but the Arizona Supreme Court did not interpret § 11-251(1) in Falcon. Falcon instead considered who could accept service of a notice of claim against the county under A.R.S. § 12-821.01(A) and Rule 4.1. Id. at 528 ¶¶ 16-18.
¶ 13 Plaintiffs also rely on Board of Supervisors of Maricopa County v. Woodall, 120 Ariz. 391, 394 (App. 1978), affd in part, rev'd in part, 120 Ariz. 379 (1978), to contend the board of supervisors "is given direct power to supervise all officers of the county and its subdivisions." In Woodall, we addressed whether the board of supervisors could retain counsel other than the county attorney to provide legal advice. Id. at 395. We held that the board could do so. Id. at 396. Still, we noted that the county attorney's office, "as with other county offices under the constitution, is assigned express powers and duties which are separately exercised." Id.; see also A.R.S. § 11-532. The same is true of the sheriff tasked with keeping the county jail. A.R.S. § 11441(A)(5). Thus, Maricopa County is not vicariously liable for the negligent conduct of the Maricopa County Sheriff's employees because the county does not control or supervise these employees in any sense sufficient to give rise to a principal-agent relationship between them.
II. Plaintiffs' Subagent Theory Fails.
¶ 14 Plaintiffs contend Urena was a subagent of Maricopa County because the Sheriff is an agent of Maricopa County. They cite Restatement (Second) of Agency § 255 (1958) to argue that principals can be subject to vicarious liability for a subagent's tortious acts.
¶ 15 Assuming Arizona would adopt Restatement (Second) of Agency § 255-a question we do not reach-Plaintiffs cite no authority or evidence to show the Sheriff agreed to be subject to county control while fulfilling his statutory duties. See Restatement (Second) of Agency § 1(1) (defining agency as "the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act."). As discussed, the duties in this case arise from law, not county control.
III. Plaintiffs Did Not Lack a Remedy.
¶ 16 Plaintiffs also contend they would be left without a remedy if Maricopa County cannot be held vicariously liable because they cannot sue the Sheriff's Office. See Braillard v. Maricopa Cnty., 224 Ariz. 481, 487 ¶ 13 (App. 2010) (stating that the Sheriff's Office is a non-jural entity that cannot be sued). But other plaintiffs have sought relief for the tortious acts of sheriff's deputies and county jail employees by suing the sheriff. See, e.g., Zupancic v. Penzone, 1 CA-CV 20-0288, 2021 WL 2435643 (App. June 15, 2021) (mem. decision); Novak v. Penzone, 1 CA-CV 19-0129, 2019 WL 6712310 (App. Dec. 10, 2019) (mem. decision); Dulin v. Penzone, 1 CA-CV 19-0162, 2019 WL 5457775 (App. Oct. 24, 2019) (mem. decision); Ibeabuchi v. Penzone, 1 CA-CV 18-0131, 2018 WL 4500768 (App. Sept. 18, 2018) (mem. decision). We express no opinion as to whether any such claim would be timely under applicable limitations statutes. See A.R.S. §§ 12-821, -821.01.
¶ 17 Plaintiffs finally point to Melendres v. Maricopa County, 815 F.3d 645 (9th Cir. 2016), contending that Maricopa County conceded it would bear the financial costs of any judgment against the sheriff or against any employees of his office. Melendres is a 42 U.S.C. § 1983 case that did not address vicarious liability. Id. at 650-51 (quoting Flanders, 203 Ariz. at 378 ¶ 61). The Melendres court also did not determine whether Maricopa County supervised the Sheriff or his employees in fulfilling their statutory duties. It instead stated that the county could "rely on the degree to which it can control [the sheriff's] behavior to potentially avoid . . . adverse consequences" if the sheriff chose not to comply with an already-entered injunction. Melendres, 815 F.3d at 651.
CONCLUSION
¶ 18 We affirm.