NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

LISA and ANTHONY (“A.J.”) DEMAREE, wife and husband, on behalf of 

themselves, LISA and ANTHONY (“A.J.”) DEMAREE, as the natural 

guardians and guardians ad litem for their three minor children, J., M., 

and S.; JEANNE K. STUMP and LARRY STUMP, wife and husband,

Plaintiffs/Appellants/Cross-Appellees,

1

v.

STATE OF ARIZONA, a body politic, ARIZONA ATTORNEY GENERAL,

Defendants/Appellees/Cross-Appellants.

No. 1 CA-CV 13-0064

Appeal from the Superior Court in Maricopa County

Nos. CV2009-028094 and CV2009-029574 (Consolidated)

The Honorable Dean M. Fink, Judge

AFFIRMED

COUNSEL

Treon & Aguirre, PLLC, Phoenix

By Richard T. Treon 

Co-Counsel for Plaintiffs/Appellants/Cross-Appellees

 

1 We amend the caption by using the Children’s first initials to ensure the 

confidentiality of the Children. We also delete the City of Peoria for reasons 

stated within this decision. All future pleadings shall use the amended 

caption.
2

Treon & Shook, P.L.L.C., Phoenix

By Stephen E. Silverman

Co-Counsel for Plaintiffs/Appellants/Cross-Appellees

Arizona Attorney General’s Office, Phoenix

By Michael G. Gaughan

Counsel for Defendants/Appellees/Cross-Appellants

MEMORANDUM DECISION

Presiding Judge Donn Kessler delivered the decision of the Court, in which 

Judge Patricia K. Norris and Judge Maurice Portley joined.

K E S S L E R, Presiding Judge: 

¶1 Lisa and Anthony Demaree (“Parents”) and Jeanne K. and 

Larry Stump (“Grandparents”) (collectively “Appellants”) appeal from the 

dismissal of their eleven-count amended complaint against the State of 

Arizona, the Arizona Attorney General (collectively the “State”), and the 

City of Peoria (collectively “Defendants”). The Appellants and the City of 

Peoria have stipulated to and this Court has dismissed the city from the 

appeal. The State argues that we should dismiss the appeal for lack of 

jurisdiction. For the reasons that follow, we conclude we have jurisdiction 

of the appeal and affirm the judgment dismissing the amended complaint.

FACTUAL AND PROCEDURAL HISTORY2

¶2 Anthony Demaree took a memory stick containing digital 

photographs to Wal-Mart and ordered prints on August 29, 2008. Some of 

the photographs contained nude images of minors. After viewing the 

photographs, a Wal-Mart employee contacted the Peoria Police 

Department.

¶3 Peoria Police Detective John Krause responded, viewed the 

photos, and initiated a child welfare and criminal investigation. During his 

 

2 When reviewing a judgment dismissing a complaint for failure to state a 

claim, we assume the truth of all well-pleaded facts and indulge in all 

reasonable inferences from them, but mere conclusory statements are 

insufficient under that test. Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9, 

284 P.3d 863, 867 (2012). 
DEMAREE v. STATE

Decision of the Court

3

interview with Parents on August 30, 2008, Krause learned that the photos 

depicted Parents’ children (“the Children”), who were five, four, and oneand-a-half years old. 

¶4 The Peoria police took the Children to a child-advocacy center 

that day for medical examinations and forensic interviews, then returned 

them to Parents for several hours. While the Children were being 

examined, the Peoria police executed a search warrant on Parents’ home, 

where they found more pictures of the Children, either nude or partially 

clothed. Child Protective Services (“CPS”), previously contacted by 

Krause, then removed the Children and placed them with foster families. 

Two–and-a-half days later, after Parents’ attorney contacted the Arizona 

Governor’s Office, CPS placed the Children with Grandparents. 

¶5 According to the amended complaint, on September 3, 2008, 

CPS held a team decision meeting (“TDM”), with Krause and an Assistant 

Attorney General, Jennifer Hunter. It is unclear whether Parents were 

present. During the meeting, Hunter allegedly stated that Parents had

“sexually abused” the Children. 

¶6 The State filed a dependency action in Maricopa County 

Superior Court the following day. On September 26, 2008, the State filed 

allegations concerning Parents’ sexual abuse in a “Central Registry.” 

¶7 On October 3, 2008, the superior court found that that Parents’ 

testimony was “credible” and the Wal-Mart photos depicted the Children 

at bath time. The superior court ruled that, based upon the totality of

circumstances, the Children were not at risk for abuse or neglect and 

accordingly ordered their return to Parents, but the court did not dismiss 

the action. 

¶8 Prior to an October 24, 2008 hearing, Hunter (1) submitted ex 

parte additional photos identified by Krause, and (2) moved to transfer 

physical custody of the Children to the State. The superior court then set 

the matter for trial. On May 21, 2009, the court ruled that the State had not 

met its evidentiary burden, dismissed the dependency action, and required 

the State to remove from the Central Registry the finding that the Demarees 

had sexually abused the Children. 

¶9 Parents—in their individual capacities and as guardians of 

the Children—and Grandparents served a Notice of Claim on Defendants

on August 28, 2009, and an amended notice thereafter. Five days after filing 
DEMAREE v. STATE

Decision of the Court

4

the initial notice of claim, the Appellants filed a complaint in superior 

court, which they later amended.3

¶10 In the amended complaint, Appellants, acting for themselves 

and in some counts the Parents acting as guardians of the Children, asserted 

eleven claims against the Defendants. In most of the counts, the Appellants

did not allege what facts supported the claim, but only incorporated by 

reference the general factual allegations in the complaint. The State and the 

City filed Rule 12(b)(6) motions to dismiss, asserting inter alia that the notice 

of claim statute, statute of limitations, and the prosecutorial immunity 

doctrine barred the claims. The Appellants responded that waiver, 

equitable tolling, and equitable estoppel precluded these defenses. The 

superior court denied the motions based on the notice of claim statute and 

statute of limitations as they applied to three of the counts brought by and 

on behalf of the Children. The court granted the motions on most of the 

counts brought by the Parents and Grandparents as time-barred. Since the 

first notice of claim was filed August 28, 2009 and Arizona Revised Statutes 

(“A.R.S.”) section 12-821.01 (Supp. 2014) requires a notice of claim to be 

filed not later than 180 days after a cause accrues, the court reasoned that 

any claims based on facts occurring before March 1, 2009, were time-barred. 

The court found that all alleged acts occurred before March 1, 2009 except 

for acts continuing prosecution of the dependency action and possibly 

statements made by Krause to Lisa Demaree’s employer. The court 

rejected both the waiver and equitable tolling arguments. As to continuing 

to prosecute the dependency, the court found that claims based on such 

conduct were barred by absolute prosecutorial immunity. It also denied 

the motions as to the City on three counts to the extent they were based on 

Krause’s alleged comments to Lisa Demaree’s employer because the court 

could not determine when the statements were made. 

¶11 Thus, following the court’s ruling on the motion to dismiss, 

the only counts which remained were Counts 2, 3, and 4 brought by the 

Children and Counts 5, 7 and 8 against the City based on Krause’s alleged 

comments to Lisa Demaree’s employer. 

 

3 According to Appellants, the original complaint was a damage action filed 

on September 2, 2009. Appellants then filed a statutory special action 

seeking the production of public documents. The “amended complaint” 

was an action for civil damages and was filed in the superior court after the 

court consolidated it and the statutory special action. The superior court 

later dismissed the statutory special action upon the Appellants’ motion. 
DEMAREE v. STATE

Decision of the Court

5

¶12 Parents and Grandparents moved to dismiss Counts 5, 7, and 

8 against Krause without prejudice, and Counts 2, 3, and 4 as brought by 

the Children without prejudice. The superior court entered a signed 

judgment, without Rule 54(b) language, taking the requested action and

entering judgment in favor of Defendants on the remaining counts. 

¶13 Parents and Grandparents appealed. Reasoning that a 

dismissal without prejudice is not generally appealable and the judgment 

contained no Rule 54(b) language, we dismissed the appeal. Parents and 

Grandparents moved for a judgment containing Rule 54(b) language and a 

dismissal with prejudice of Counts 5, 7, and 8.

¶14 The superior court entered an amended judgment again 

dismissing without prejudice Counts 2 through 4 as to the Children,

dismissing Counts 5, 7, and 8 with prejudice, and containing Rule 54(b) 

language. Parents and Grandparents filed a notice of appeal, and 

Defendants cross-appealed and moved to dismiss on jurisdictional 

grounds. We denied the motion to dismiss the appeal without prejudice to 

the Defendants, who again raised their jurisdictional arguments in their 

appellate brief.

DISCUSSION

I. Jurisdiction

¶15 The State argues that the superior court lacked jurisdiction to 

enter the amended judgment because the original judgment had dismissed 

all claims and, thus, Rule 54(b) did not apply because that rule only allows 

certification for appeal of interlocutory orders dismissing claims. 

According to the State, if the superior court lacked jurisdiction, then this 

Court has no jurisdiction over this appeal except to dismiss it. See McHazlett 

v. Otis Eng’g Corp., 133 Ariz. 530, 533, 652 P.2d 1377, 1380 (1982) (“If a lower 

court has no jurisdiction to issue an order an appeal from that order gives 

the appellate court no jurisdiction except to dismiss the appeal.”). We 

review de novo a challenge to the superior court’s jurisdiction. State v. 

Donahoe ex rel. County of Maricopa, 220 Ariz. 126, 127 n.1, ¶ 1, 203 P.3d 1186, 

1187 n.1 (App. 2009).

¶16 We disagree with the State. When the superior court includes 

no Rule 54(b) determination of finality, “any order or other form of 

decision, however designated, which adjudicates fewer than all the claims 

or the rights and liabilities of fewer than all the parties shall not terminate 

the action as to any of the claims or parties, and the order or other form of 

decision is subject to revision at any time before the entry of judgment 
DEMAREE v. STATE

Decision of the Court

6

adjudicating all the claims and the rights and liabilities of all the parties.” 

Ariz. R. Civ. P. 54(b). 

¶17 The original judgment addressed all claims, but dismissed six 

of them without prejudice. Dismissals without prejudice do not resolve 

claims on the merits. See Union Interchange, Inc. v. Van Aalsburg, 102 Ariz. 

461, 464, 432 P.2d 589, 592 (1967) (“A dismissal without prejudice does not 

go to the merits of the plaintiff’s cause and does not bar plaintiff from later 

filing on the same cause of action.”); see also State v. Boehringer, 16 Ariz. 48, 

51, 141 P. 126, 127 (1914) (“An order of dismissal without prejudice is not a 

final determination of the controversy on its merits, and is no bar to the 

prosecution of another suit timely commenced, founded upon the same 

cause of action.”). Moreover, since the original judgment did not contain 

Rule 54(b) certification, it was “subject to [the court’s] own modification at 

any time before the final adjudication of all the claims.” Stevens v. 

Mehagian’s Home Furnishings, Inc., 90 Ariz. 42, 45, 365 P.2d 208, 210 (1961). 

Thus, the original judgment consequently was not final. See Canyon 

Ambulatory Surgery Ctr. v. SCF Ariz., 225 Ariz. 414, 418-19, ¶ 14, 239 P.3d 

733, 737-38 (App. 2010) (“A dismissal without prejudice is not a final 

judgment and is therefore generally not appealable.”). Accordingly, the 

superior court had jurisdiction to enter the amended judgment so as to 

dismiss the claims against the City of Peoria with prejudice, the three 

remaining claims as brought by the Children without prejudice and certify 

the judgment under Rule 54(b). See Stevens, 90 Ariz. at 45, 365 P.2d at 210. 

This Court thus has jurisdiction over the timely appeal from that judgment.

See id.; A.R.S. § 12-2101(A)(1) (Supp. 2014).

4

II. The Superior Court Did Not Err in Dismissing the Amended 

Complaint.

A. Untimely Notice Of Claim

¶18 Only Parents’ and Grandparents’ claims are at issue in this 

appeal. With the exception of any claim based on the continued 

prosecution of the dependency action beyond March 1, 2009, the superior 

court found the amended complaint claims against the State time-barred 

under the notice of claim statute.

 

4 Our holding obviates the need to address other arguments in support of 

jurisdiction. 
DEMAREE v. STATE

Decision of the Court

7

¶19 We review de novo the dismissal of claims under Rule 12(b)(6). 

Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866 (2012); see 

also Harris v. Cochise Health Sys., 215 Ariz. 344, 351-52, ¶¶ 24-27, 160 P.3d 

223, 230-31 (App. 2007) (affirming dismissal for failure to comply with the 

notice of claim statute’s requirements).

5 A court may properly dismiss a 

complaint under Rule 12(b)(6) when the plaintiff “would not be entitled to 

relief under any interpretation of the facts susceptible of proof.” Coleman, 

230 Ariz. at 356, ¶ 8, 284 P.3d at 867 (citation omitted). Although we accept 

the complaint’s well-pleaded material allegations as true, conclusions of 

law or unwarranted deductions of fact are insufficient. Id. at ¶ 9; Aldabbagh 

v. Ariz. Dep’t of Liquor Licenses & Control, 162 Ariz. 415, 417, 783 P.2d 1207,

1209 (App. 1989). 

¶20 The notice of claim statute requires a plaintiff with “claims 

against a public entity or a public employee” to file a notice within 180 days 

of accrual. A.R.S. § 12-821.01(A).

6 A claim accrues once “the damaged 

party realizes he or she has been damaged and knows or reasonably should 

know” what caused or contributed to the damage. A.R.S. § 12-821.01(B).

Parents and Grandparents served their notice of claim on August 28, 2009. 

Consequently, any cause of action accruing prior to March 1, 2009 is barred. 

See A.R.S. § 12-821.01(A). 

¶21 It is undisputed that all of the acts upon which the amended 

complaint was based, except for Krause’s communications with Lisa 

Demaree’s employer and the State’s continued prosecution of the 

dependency action after March 1, 2009, occurred before March 1, 2009. As 

outlined in the amended complaint, the Children’s placement in foster care, 

the execution of the search warrant, and the TDM occurred by September 

4, 2008. Further, Krause testified at the dependency hearing, the State noted 

 

5 If “matters outside the pleading are presented to and not excluded by the 

court, the motion shall be treated as one for summary judgment.” Strategic 

Dev. & Constr., Inc. v. 7th & Roosevelt Partners, LLC, 224 Ariz. 60, 63, ¶ 7, 226 

P.3d 1046, 1049 (App. 2010) (citation omitted). However, attachment of 

matters of public record to a Rule 12(b)(6) motion does not convert the 

motion to one for summary judgment. Id. at 64, ¶ 13, 226 P.3d at 1050. The 

State’s motion to dismiss attached preliminary protective hearing 

transcripts, the dependency complaint, and Hunter’s motion for change of 

custody, which were central to the allegations in the amended complaint. 

Such documents were of public record and thus did not convert the motion 

from a motion to dismiss to a motion for summary judgment. 

6 Absent a material revision, we cite the most current version of the statutes.
DEMAREE v. STATE

Decision of the Court

8

this case in the Central Registry, and Hunter used the Demaree case as part 

of the judicial nominating commission’s interview on or before December 

2008. Accordingly, A.R.S. § 12-821.01(A) precludes Parents’ and 

Grandparents’ claims based on these facts and they are not entitled to relief 

under any set of facts susceptible of proof.

7 See Coleman, 230 Ariz. at 356, ¶ 

8, 284 P.3d at 867.

1. Estoppel by Inducement

¶22 Notwithstanding their delay, Parents and Grandparents 

argue that estoppel by inducement bars the application of A.R.S. § 12-

821.01(A). See Pritchard v. State, 163 Ariz. 427, 432, 788 P.2d 1178, 1183 (1990)

(stating A.R.S. § 12-821.01 is subject to waiver, estoppel, and equitable 

tolling). They contend that their fear of losing custody prevented them 

from filing prior to February 26, 2009 and tolls the notice of claim statute. 

¶23 The elements of estoppel by inducement are: (1) “specific 

promises, threats or inducements” that prevented the plaintiff from filing 

suit; (2) the “promises, threats, or representations actually induced the 

plaintiff to forebear filing suit”; (3) the “conduct reasonably caused the 

plaintiff to forebear filing a timely action”; and (4) the plaintiff filed suit 

within a reasonable time after the estoppel-inducing conduct ended. Nolde 

v. Frankie, 192 Ariz. 276, 280, ¶¶ 16-19, 964 P.2d 477, 481 (1998).

¶24 Parents and Grandparents identify no specific threat that 

prevented them from filing a timely claim, and point only to generalized 

fears. Indeed, their attorney’s effort to involve the Governor in their case 

undercuts their claimed fear. See id. Parents’ and Grandparents’ failure to 

satisfy the first requirement is fatal to their estoppel by inducement 

argument. See id.; see also Knight v. Rice, 83 Ariz. 379, 381, 321 P.2d 1037, 

1038 (1958) (“Estoppel is an affirmative defense; the party relying thereon 

 

7 Appellants also contend that the superior court erred in finding that their 

claims were barred by the statute of limitations. As we understand their 

argument, if the filing of the notice of claim was tolled or extended under 

other arguments, then the statute of limitations would not have barred their 

complaint because the complaint was filed within one year of when their 

actions accrued after the dependency action had been dismissed and the 

time to appeal that ruling had expired. We need not address that argument 

because, as we hold infra, Appellants failed to show that the time for filing 

of the notice of claim as to all but claims based on malicious prosecution 

and Krause’s communications with Lisa Demaree’s employer, was tolled or 

extended under principles of estoppel by inducement or equitable tolling. 
DEMAREE v. STATE

Decision of the Court

9

must plead the same and has the burden of showing by clear and 

satisfactory proof that all the elements are present, and the acts relied upon 

to create it must be absolute and unequivocal.”). The failure to comply with 

the 180-day filing requirement consequently bars their claims. See A.R.S. § 

12-821.01(A); Haab v. County of Maricopa, 219 Ariz. 9, 13-14, ¶¶ 16-24, 191 

P.3d 1025, 1029-30 (App. 2008) (stating a party who has filed an A.R.S. § 12-

821.01(A) notice of claim must amend the notice or file a new one to 

preserve claims that were not included within the original notice). 

2. Equitable Tolling

¶25 Parents and Grandparents also argue that the notice of claim 

requirement should be deemed equitably tolled. We disagree. Under this 

doctrine, they bear the burden to establish that they were prevented from 

filing a timely claim due to inequitable circumstances. McCloud v. State, 217 

Ariz. 82, 85, 87, ¶¶ 8, 11, 170 P.3d 691, 694, 696 (App. 2007). To meet this 

standard, a plaintiff “must support his allegations with evidence; he cannot 

rely solely on personal conclusions or assessments.” Id. at 87, ¶ 13, 170 P.3d 

at 696 (citation omitted). We review for abuse of discretion the superior 

court’s decision not to apply equitable tolling. Flying Diamond Airpark, LLC 

v. Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007) (“We 

review a trial court’s decision not to apply estoppel for an abuse of 

discretion.”).

¶26 According to Parents and Grandparents, their untimely notice 

of claim is justified by the “egregiously wrongful actions of the Defendants 

in the manner in which they investigated and prosecuted this matter.” This 

Court has held that “as a matter of equity, a defendant whose affirmative 

acts of fraud or concealment have misled a person from either recognizing 

a legal wrong or seeking timely legal redress may not be entitled to assert 

the protection of a statute of limitations.” Porter v. Spader, 225 Ariz. 424, 

428, ¶ 11, 239 P.3d 743, 747 (App. 2010).

8 

 

8 Equitable tolling can also apply when there are extraordinary 

circumstances beyond the client’s control, including when there is a lack of 

clarity in the law or an attorney affirmatively lied to a diligent client, which 

make timely filing of a complaint impossible. McCloud, 217 Ariz. at 87, ¶ 

13, 170 P.3d at 696. Appellants do not identify any such circumstances here, 

but just argue that they refrained from serving the notice of claim because 

they were afraid of the “reign of terror” caused by the Defendants’ actions 

related to the dependency case.
DEMAREE v. STATE

Decision of the Court

10

¶27 No such conduct is at issue here. Parents and Grandparents 

cite no cases in which courts have applied the doctrine in these 

circumstances. Their equitable tolling claim is a rehash of their estoppel by 

inducement argument, based on the same facts they allege as to estoppel by 

inducement. On this record, we find no basis to toll the filing period in 

A.R.S. § 12-821.01(A). See Porter, 225 Ariz. at 428, ¶¶ 11-12, 239 P.3d at 747

(declining to apply equitable tolling in the absence of extraordinary 

circumstances, fraud, or concealment that misled the party from

recognizing a legal wrong or seeking timely redress).9

B. Prosecutorial Immunity

¶28 The superior court also dismissed any claim which was based 

on the continued prosecution of the dependency action after March 1, 2009. 

The court held that absolute prosecutorial immunity applied to Hunter’s 

extension of the dependency proceedings. The existence of immunity is a 

question of law subject to de novo review. See Ochser v. Funk, 228 Ariz. 365, 

369, ¶ 11, 266 P.3d 1061, 1065 (2011) (“The de novo standard also applies to 

our review of the [party’s] entitlement to qualified immunity as a matter of 

law.”).

¶29 Common law prosecutorial immunity rests upon the same 

considerations applicable to judicial immunity. Imbler v. Pachtman, 424 U.S. 

409, 422-23 (1976). “These include concern that harassment by unfounded 

litigation would cause a deflection of the prosecutor’s energies from his 

public duties, and the possibility that he would shade his decisions instead 

of exercising the independence of judgment required by his public trust.” 

Id. at 423. “In determining whether a prosecutor enjoys absolute immunity 

from civil liability . . . courts must apply a functional analysis to determine 

whether the prosecutor’s acts fall within the bounds of ‘judicial’ as opposed 

to ‘investigative or administrative duties.’” Challenge, Inc. v. State ex rel. 

Corbin, 138 Ariz. 200, 204, 673 P.2d 944, 948 (App. 1983) (alteration in 

 

9 Appellants also argue that as it relates to their estoppel by inducement 

and equitable estoppel arguments, the superior court erred in denying their 

motion under Arizona Rule of Civil Procedure 56(f), seeking more time to 

conduct discovery about the Defendants’ motivation which would enable 

them to show the Defendants acted maliciously. We find no reversible 

error. Even assuming without deciding that the Defendants acted 

maliciously, Appellants could not prevail on their estoppel arguments 

because they could not show extraordinary circumstances beyond their 

control, including fraud or concealment, that misled them to recognizing a 

legal wrong or from filing the notices of claim on a timely basis. 
DEMAREE v. STATE

Decision of the Court

11

original) (quoting Iseley v. Bucks County, 549 F. Supp. 160, 166 (E.D. Pa. 

1982)).

¶30 The Amended Complaint alleges: “At the time the State filed 

the Dependency Action, it knew or should have known that Det. Krause’s 

descriptions of the photographs were false, and it knew or should have 

known that there was no probable cause” and the State “should have 

dismissed” the action at different junctures. Even assuming that these 

allegations are true, “state prosecutors have absolute immunity from 

liability for their actions in initiating prosecutions.” Challenge, 138 Ariz. at

204, 673 P.2d at 948 (citation omitted); see State v. Superior Court (Ford), 186 

Ariz. 294, 298, 921 P.2d 697, 701 (App. 1996) (finding that absolute 

immunity bars malicious prosecution and abuse of process claims); accord 

Gray v. Poole, 243 F.3d 572, 577-78 (D.C. Cir. 2001) (holding that District of 

Columbia attorneys are shielded by absolute immunity from liability in 

“initiating a prosecution” and ”presenting the State’s case” (citation 

omitted)). Absolute immunity applies irrespective of the prosecutor’s 

intent and even if the prosecution was baseless. See Ford, 186 Ariz. at 297,

298, 921 P.2d at 700, 701. 

¶31 Based upon the amended complaint’s allegations, Parents 

and Grandparents would not be entitled to relief under any set of facts 

susceptible to proof. Because the above acts are protected by prosecutorial 

immunity, the superior court did not err in dismissing any of the counts to 

the extent the counts were based on conduct in prosecuting the dependency 

action beyond March 1, 2009.

10

¶32 Appellants argue that since the malicious prosecution claim 

(Count 1) did not accrue until the dependency action was dismissed in May 

2009 or June 2009, the notice of claim as to that count was timely and the 

court erred in extending absolute prosecutorial immunity to the 

investigative acts by Krause and CPS as well as to the extra-judicial conduct 

of the Assistant Attorney General. We reject that argument for several 

 

10 Technically, the court did not limit its dismissal on prosecutorial 

immunity to just Count 1. Thus, its ruling could apply to any count based 

on the prosecution of the dependency action. That could include Count 2 

(negligence), Count 4 (emotional distress), Count 6 (negligent 

employment), and Count 9 (damages from agreement to cause harm). The 

simplest way to handle this is simply to say that immunity applied to any 

claim to the extent the claim was premised on Hunter prosecuting the 

action beyond March 1, 2009. 
DEMAREE v. STATE

Decision of the Court

12

reasons. First, Appellants’ claim on Count 1 was limited to the initiation 

and prosecution of the dependency action, not acts outside of that judicial 

proceeding. Second, as to all the counts, the court only applied 

prosecutorial immunity to the Attorney General’s continued prosecution of 

the dependency action, not to CPS or Peoria or to acts occurring prior to 

March 1, 2009.

11 

CONCLUSION

¶33 For the reasons stated above, we affirm the superior court’s 

dismissal of the amended complaint and do not address the State’s 

alternative arguments to affirm the amended judgment. The State is 

entitled to costs on appeal contingent upon compliance with Arizona Rule 

of Civil Appellate Procedure 21.

 

11 We note that Appellants also claimed in the first amended complaint that 

another extra-judicial act was Krause’s attempt to have the Demarees

indicted. We have found no reference to that alleged attempt in Appellants’ 

responses to the motions to dismiss as a basis to deny the motions based on 

prosecutorial immunity. As such we will not consider any argument by 

Appellants on appeal that the alleged attempt to obtain an indictment 

somehow requires reversal of the superior court’s order based on 

prosecutorial immunity, especially since the court only applied 

prosecutorial immunity to the Attorney General’s continued prosecution of 

the dependency action after March 1, 2009. Cullum v. Cullum, 215 Ariz. 352, 

355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App. 2007) (stating we will not consider 

arguments on appeal not raised in the superior court).