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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSE MARIA ORTIZ, Plaintiff/Appellant,

v.

RENATE RAMBO, a sole proprietor, d/b/a RED’S BIRD CAGE 

SALOON, Defendant/Appellee.

No. 1 CA-CV 23-0077 

Appeal from the Superior Court in Yuma County

No. S1400CV201900291

The Honorable Mark W. Reeves, Judge

AFFIRMED

COUNSEL

Mick Levin, P.L.C., Phoenix

By Mick Levin, John P. Robertson

Co-Counsel for Plaintiff/Appellant

Cornelius Candy Camarena, P.C., Yuma

By C. Candy Camarena

Co-Counsel for Plaintiff/Appellant

Moyes Sellers & Hendricks Ltd., Phoenix

By Lawrence Palles, Joshua T. Greer, Natalya Ter-Grigoryan

Counsel for Defendant/Appellee

FILED 01-18-2024
ORTIZ v. RAMBO

Decision of the Court

2

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which Vice 

Chief Judge Randall M. Howe and Judge Daniel J. Kiley joined.

P E R K I N S, Judge:

¶1 Jose Maria Ortiz appeals the superior court’s grant of 

summary judgment to Renate Rambo, a sole proprietor doing business as

Red’s Bird Cage (“Red’s”). Ortiz also appeals the court’s denial of his

motion for new trial. For the following reasons, we affirm.

STATEMENT OF FACTS AND BACKGROUND

¶2 On April 27, 2017, at 4:19 p.m., Ortiz was walking on a 

sidewalk when Barry Webster ran his vehicle into a brick wall and then

struck and seriously injured Ortiz. A responding police officer, Carillo,

observed in a police report that Webster had slow, slurred speech and blood 

shot eyes. 

¶3 Webster was transported to a hospital where Carillo spoke 

with Webster. Carillo observed in his police report that Webster smelled of 

alcohol and continued to have slurred speech and glossy red eyes. Webster 

told Carillo that he drank two beers at “Red’s Bird Cage,” arriving around 

12:30 pm and leaving around 2:30 pm. Blood drawn at the time of these 

statements established Webster had a blood-alcohol content of 0.13.

¶4 In 2019, Ortiz sued Red’s alleging statutory liability for 

overserving Webster, which is known as dram-shop liability. Ortiz also 

alleged common law negligence. During a discovery deposition, Webster 

asserted his Fifth Amendment rights and refused to answer any questions 

regarding his alleged presence and alcohol consumption at Red’s. Red’s 

asked Ortiz to admit whether he had independent evidence, other than the 

police report, that Red’s served Webster any alcohol on April 17, 2017. Ortiz 

responded that, after reasonable inquiry, he lacked sufficient knowledge or 

information to enable him to admit or deny.

¶5 Red’s moved for summary judgment based on Ortiz’s failure 

to identify admissible evidence that Webster was present, obviously 

intoxicated, or served alcohol at Red’s on April 17, 2017. Red’s included an 

employee affidavit with the motion, stating that, although Webster would 
ORTIZ v. RAMBO

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3

frequent Red’s a couple times a month, Red’s has no record of Webster on 

April 17, and Webster was never obviously intoxicated at Red’s. The 

employee also stated that Red’s did not learn of the accident until two 

weeks later, when Webster informed Red’s and stated that the accident was 

caused by a medical condition.

¶6 The superior court granted Red’s motion for summary 

judgment and denied Ortiz’s subsequent motion for new trial. The court 

concluded “there is no evidence that anyone at Red’s Bird Cage served 

alcohol to Webster or that anyone reported that Webster was intoxicated 

while at Red’s Bird Cage.” 

¶7 Ortiz timely appealed, and we have jurisdiction. A.R.S. § 12-

2101(A)(1).

DISCUSSION

¶8 As an initial matter, we note that the enactment of statutory 

dram-shop liability eliminated common law negligence claims for dram 

shop liability. Torres v. JAI Dining Servs. (Phx.), Inc., ___ Ariz. ___, ¶ 28, 536 

P.3d 790, 798 (2023). We thus do not address Ortiz’s negligence claim. With 

regard to his statutory claim, we review the court’s grant of summary 

judgment de novo, “viewing the evidence and reasonable inferences in the 

light most favorable to the party opposing the motion.” Zambrano v. M & 

RC II LLC, 254 Ariz. 53, 58, ¶ 9 (2022) (cleaned up). We affirm if there are no 

genuine disputes of material fact and the moving party is entitled to 

judgment as a matter of law. See Ariz. R. Civ. P. 56(a); Williamson v. PVOrbit, 

Inc., 228 Ariz. 69, 71, ¶ 11 (App. 2011). 

I. Motion for Summary Judgment

¶9 A party moving for summary judgment has the initial burden 

of establishing there are no genuine issues of material fact and summary 

judgment is appropriate as a matter of law. Nat’l Bank of Ariz. v. Thruston, 

218 Ariz. 112, 114–15, ¶ 12 (App. 2008). To meet this burden, the moving 

party must “point out by specific reference to the relevant discovery that no 

evidence exists to support an essential element of the claim.” Hydroculture, 

Inc. v. Coopers & Lybrand, 174 Ariz. 277, 283 (App. 1992) (cleaned up). Once 

satisfied, the burden shifts to the non-moving party to “show that evidence 

is available which justifies going to trial, and that evidence must be based 

on personal knowledge and must be admissible at trial.” Portonova v. 

Wilkinson, 128 Ariz. 501, 502 (1981) (cleaned up). 
ORTIZ v. RAMBO

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¶10 In Arizona, a dram shop licensee is liable for personal injuries 

when (1) the licensee served alcohol to a patron who was “obviously 

intoxicated,” (2) the patron consumed the alcohol sold by the licensee, and 

(3) the patron’s consumption of the alcohol was the proximate cause of the 

injury. A.R.S. § 4-311(A). The statute defines “obviously intoxicated” as 

being “inebriated to such an extent that a person’s physical faculties are 

substantially impaired and the impairment is shown by significantly 

uncoordinated physical action or significant physical dysfunction that 

would have been obvious to a reasonable person.” A.R.S. § 4-311(D). 

¶11 Red’s pointed out that “no evidence exist[s] to support an 

essential” element of a dram shop claim. Specifically, Ortiz did not present 

any admissible evidence that Webster was present, or purchased alcohol, at 

Red’s because he relied entirely on Webster’s presumptively inadmissible 

hearsay statements in the police report. See Ariz. R. Evid. 802 (rule against 

the use of hearsay). And Ortiz never disclosed any evidence other than the 

police report. Red’s met its initial burden for summary judgment.

¶12 In response, Ortiz argues that Webster’s admissions in the 

police report are either present sense impressions or statements against 

interest, both exceptions to the hearsay rule. Ariz. R. Evid. 803(1) (present 

sense impression); Ariz. R. Evid. 804(b)(3) (statements against interest). In 

granting summary judgment, the superior court concluded Ortiz had not 

offered evidence establishing the elements of a dram shop claim, impliedly 

concluding that his proffered evidence was not admissible. We review the 

court’s evidentiary rulings in summary judgment proceedings for an abuse 

of discretion. Mohave Elec. Coop., Inc. v. Byers, 189 Ariz. 292, 301 (App. 1997). 

¶13 A present sense impression is a statement “describing or 

explaining an event or condition, made while or immediately after the 

declarant perceived it.” Ariz. R. Evid. 803(1). Webster’s statement that he 

was present and consumed alcohol at Red’s on the day of the accident is not 

a description of an event or condition. See State v. Wright, 239 Ariz. 284, 286, 

¶ 12 (App. 2016) (finding exhibit described “events” when it described the 

suspects’ activities and movements and “conditions” when it described

people and vehicles and their relative locations). Nor was his statement 

contemporaneous, given he made it to Carillo multiple hours after he 

allegedly was at Red’s. See State v. Thompson, 146 Ariz. 552, 557 (App. 1985)

(present sense impression requires “immediacy”). Webster’s statements 

were not present sense impressions.

¶14 Neither were they statements against interest. A statement 

against interest is a statement that “a reasonable person in the declarant’s 
ORTIZ v. RAMBO

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position would have made only if the person believed it to be true because, 

when made, it . . . had so great a tendency . . . to expose the declarant to civil 

or criminal liability.” Ariz. R. Evid. 804(b)(3)(A). The statement “must be 

individually self-inculpatory to fall within this exception.” State v. 

Dominguez, 236 Ariz. 226, 230, ¶ 10 (App. 2014).

¶15 According to the police report, Webster stated that he had 

only two bottles of Bud Light over the course of 1.5 to 2 hours. He also 

reported that he arrived at Red’s at approximately 12:30 p.m., nearly four 

hours before the accident. These statements appear to be Webster’s attempt 

to exculpate, or excuse, himself by explaining that he drank responsibly the 

day of the accident. That Webster denied all Carillo’s questions that would 

have exposed him to criminal liability only underscores this point. For 

example, Webster denied drinking while driving, he denied having alcohol 

in his vehicle, and he told the detective he did not think his blood-alcohol 

level would be over the legal limit. 

¶16 Finally, Ortiz argues the superior court abused its discretion 

by failing to consider evidence of Webster’s invocation of his Fifth 

Amendment rights and the resulting adverse inference it could draw 

against Red’s. In a civil case, when a testifying party asserts his Fifth 

Amendment rights against self-incrimination, the trial judge may draw a 

negative inference against the testifying party based on the assertion. 

Wohlstrom v. Buchanan, 180 Ariz. 389, 391 n.2 (1994). But our court has never 

addressed whether the trial judge may consider evidence of a nonparty’s

assertion of his or her Fifth Amendment rights, and, if so, whether the court 

may draw an adverse inference against a party from this evidence.

¶17 Other jurisdictions that have addressed this issue relied on a 

non-exclusive list of factors identified in LiButti v. United States, 107 F.3d 

110 (2d Cir. 1997). But we are limited in our review of the superior court’s 

evidentiary rulings on this issue because Ortiz has not provided us with a 

transcript from the oral argument on the motion for summary judgment.

Ortiz was responsible for ensuring that the record on appeal was complete 

for our review. See ARCAP 11(c); Blair v. Burgener, 226 Ariz. 213, 217, ¶ 9 

(App. 2010). Because we lack a record with which to conduct an inquiry 

into the court’s reasoning, “we presume the evidence and arguments 

presented at the hearing support the [superior] court’s ruling.” Id. We will 

also affirm the court’s decision if “any reasonable view of the facts and law 

might support the judgment.” BNCCORP, Inc. v. HUB Int’l Ltd., 243 Ariz. 1, 

8, ¶ 29 (App. 2017). Ultimately, whether the court relied on the LiButti

factors or reached its conclusion for different reasons, the record supports 

the court’s discretionary decision not to consider this evidence. See Tritschler
ORTIZ v. RAMBO

Decision of the Court

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v. Allstate Ins. Co., 213 Ariz. 505, 518, ¶ 41 (App. 2006) (“A trial court has 

broad discretion in ruling on discovery issues, and we will not disturb its 

ruling absent a clear abuse of discretion.”).

¶18 Given Ortiz’s lack of admissible evidence, the superior court 

did not err in concluding there are no genuine issues of material fact and 

entering summary judgment in Red’s favor.

II. Motion for a New Trial

¶19 Ortiz also challenges the order denying his motion for a new 

trial. We review the denial of a motion for a new trial for abuse of discretion. 

Health for Life Brands, Inc. v. Powley, 203 Ariz. 536, 542, ¶ 28 (App. 2002). The 

burden is on the party seeking to overturn the judgment to show such an 

abuse. Sandretto v. Payson Healthcare Mgmt., Inc., 234 Ariz. 351, 355, ¶ 8 (App. 

2014). We will not reverse a denial of a motion for new trial “unless the 

record and circumstances show it was a manifest abuse of discretion.” 

Larsen v. Decker, 196 Ariz. 239, 244, ¶ 27 (App. 2000).

¶20 Ortiz’s motion for new trial raised one new argument: the

court improperly relied on hearsay in a Red’s employee affidavit attached 

to the summary judgment motion. The employee stated that Webster told 

her approximately two weeks after the accident that “he had a medical 

condition that caused the accident.” But Ortiz did not object to this 

statement in his response to the motion for summary judgment. “If []

hearsay is admitted without an objection, it is competent evidence to be 

considered for all purposes.” Navajo Nation v. Ariz. Dep’t of Econ. Sec., 230 

Ariz. 339, 350, ¶ 42 (App. 2012). And a party waives issues by raising them

for the first time in a motion for new trial. See State v. Davis, 226 Ariz. 97, 

100, ¶ 12 (App. 2010) (“[A]n untimely objection first raised in a motion for 

a new trial does not preserve an issue for appeal.”). The superior court did 

not abuse its discretion by denying the motion for new trial. 

CONCLUSION

¶21 We affirm. The parties do not request their attorneys’ fees on 

appeal. Red’s may recover its taxable costs upon compliance with ARCAP

21.