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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LAWRENCE PEREZ, Plaintiff/Appellant,

v.

SAINT JOHN’S UNIFIED SCHOOL DISTRICT, et al., Defendants/Appellees.

No. 1 CA-CV 23-0079

Appeal from the Superior Court in Apache County

No. S0100CV202200117

The Honorable Michael D. Latham, Judge

AFFIRMED IN PART, VACATED AND REMANDED IN PART

COUNSEL

Gregory Law Group, Gilbert 

By Robert M. Gregory

Counsel for Plaintiff/Appellant

Wright Welker & Pauole PLC, Phoenix

By Christopher S. Welker, M. Brent Peugnet, Richard Carpenter 

Counsel for Defendants/Appellees

FILED 10-31-2023
PEREZ v. SAINT JOHN’S, et al.

Decision of the Court

2

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in 

which Judge Jennifer M. Perkins and Judge Daniel J. Kiley joined.

H O W E, Judge:

¶1 Lawrence Perez challenges the superior court’s dismissal of 

his negligence claim against St. John’s Unified School District and the 

District Superintendent Kyle Patterson for failing to file a notice of claim 

under A.R.S. § 12–821.01(A). We affirm the court’s dismissal of the 

complaint against the District, but we vacate the dismissal of the complaint 

against Patterson and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 On August 27, 2021, Perez arrived at St. John’s High School to 

watch a football game with his grandson and a friend. On his way to the 

bleachers, he noticed water on the walkway. He attempted to step over the 

puddle, but he slipped and fell to the ground, injuring his shoulder.

¶3 Through counsel, Perez hired a process server to serve the 

District’s governing board and Patterson with a notice of claim. On 

February 7, 2022, the process server attempted unsuccessfully to serve the 

governing board at the office building it shared with Patterson. The process 

server returned the next day and served Patterson with the notice of claim, 

but once again failed to serve the governing board. The process server later 

told Perez’s counsel that he had served the governing board on March 3, 

2022. 

¶4 In June 2022, Perez filed a negligence complaint against the 

District and Patterson. In August 2022, Perez’s counsel learned that the

process server had not served the governing board, despite claiming that it 

had done so. The District then moved to dismiss the complaint for failure 

to file a timely notice of claim. The District also argued that punitive 

damages were not permitted in suits against public entities or public 

employees under A.R.S. § 12–820.04. It did not, however, ask the court to 

dismiss the complaint against Patterson.

¶5 After full briefing and oral argument, the superior court 

dismissed the entire complaint based on Perez’s failure to serve the District 
PEREZ v. SAINT JOHN’S, et al.

Decision of the Court

3

with a notice of claim. The court did not address the District’s argument on

punitive damages. Perez timely appealed. This court has jurisdiction under 

A.R.S. § 12–2101(A)(1).

DISCUSSION

¶6 This court reviews de novo the superior court’s dismissal of a 

complaint under Arizona Rule of Civil Procedure (“Rule”) 12(b)(6). Coleman 

v. City of Mesa, 230 Ariz. 352, 355 ¶ 7 (2012). In reviewing the dismissal, we 

“assume the truth of all well-pleaded factual allegations and indulge all 

reasonable inferences from those facts,” although we do not accept as true 

mere conclusory statements. Id. at 356 ¶ 9. This court will affirm the 

dismissal if, as a matter of law, Perez would not be entitled to relief on any 

interpretation of those facts. Chalpin v. Snyder, 220 Ariz. 413, 418 ¶ 18 (App. 

2008). 

I. The Superior Court Did Not Err in Dismissing the Complaint 

Against the District.

¶7 When a person asserts claims against a public entity and a 

public employee, a notice of the claim must be served on “both the 

employee individually and to his employer” within 180 days after the cause 

of action accrues. A.R.S. § 12–821.01(A); Harris v. Cochise Health Sys., 215 

Ariz. 344, 351 ¶ 25 (App. 2007) (citations omitted). When bringing a claim 

against a school district, the notice of claim must be served on each member 

of the school district’s governing board. Batty v. Glendale Union High Sch. 

Dist. No. 205, 221 Ariz. 592, 594–95 ¶¶ 7–11 (App. 2009). If a plaintiff does 

not comply with the notice-of-claim statute, the claim is barred. A.R.S. 

§ 12–821.01(A) (“Any claim that is not filed within one hundred eighty days 

after the cause of action accrues is barred and no action may be maintained 

thereon.”). The notice-of-claim statute, however, is “subject to waiver, 

estoppel and equitable tolling.” Jones v. Cochise Cnty., 218 Ariz. 372, 379 ¶ 

22 (App. 2008) (citation omitted).

A. The Superior Court Did Not Err by Ruling on Perez’s 

Waiver Argument.

¶8 Perez argues that whether the District waived its notice-ofclaim defense was a question of fact for the jury, not the judge, to decide.

Not so. The superior court should determine whether a defendant waived 

the notice-of-claim defense when the facts relating to waiver are 

uncontested and only legal questions are in dispute. Jones, 218 Ariz. at 

380–81 ¶¶ 28–29; see also City of Phoenix v. Fields, 219 Ariz. 568, 575 ¶ 30 

(2009) (“Any defense a public entity may have as to the sufficiency of a 
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Decision of the Court

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notice of claim is apparent on the face of the notice. This is a matter that 

courts can quickly and easily adjudicate early in the litigation.”).

¶9 Perez raised two waiver arguments in response to the 

District’s motion to dismiss. He first alleged that the District most likely had 

actual notice of his claim because he served Patterson with the notice and 

“it is credible that, at a minimum,” Patterson shared the contents of the 

notice with the governing board. But even if this were true, actual notice 

does not excuse the failure to comply with the notice-of-claim statute. Falcon 

ex rel. Sandoval v. Maricopa Cnty., 213 Ariz. 525, 527 ¶ 10 (2006) (“Actual 

notice and substantial compliance do not excuse failure to comply with the 

statutory requirements of A.R.S. § 12–821.01(A).” (citation omitted)).

¶10 Perez next argued that the District “may have conducted 

some minimal investigation into the cause of his injuries” sufficient to 

waive the notice-of-claim defense. But again, this is mere conjecture on 

Perez’s part and is therefore insufficient as a matter of law to establish a 

question of fact about waiver. See Jones, 218 Ariz. at 379 ¶ 23 (“Waiver by 

conduct must be established by evidence of acts inconsistent with an intent 

to assert the right.” (citation omitted)). Waiver is appropriate “when a 

governmental entity has taken substantial action to litigate the merits of the 

claim that would not have been necessary had the entity promptly raised 

the defense.” Id. at 380 ¶ 26. Here, the District raised its notice-of-claim 

defense in its first pleading. It had not answered the complaint or in any 

way litigated the merits of this case. Nor had it engaged in disclosure or 

discovery. Thus, on this record, the superior court did not err by rejecting

Perez’s arguments that the District waived its notice-of-claim defense as a 

matter of law.

B. Perez Was Not Entitled to Equitable Tolling of the 

Notice-of-Claim Statute.

¶11 Perez also challenges the superior court’s finding that he 

failed to show “extraordinary circumstances” justifying equitable tolling of 

the notice-of-claim statute. We review the court’s decision not to apply 

equitable tolling for an abuse of discretion. McCloud v. State, 217 Ariz. 82,

86–87 ¶ 10 (App. 2007).

¶12 A plaintiff may bring an action after expiration of the 

limitations period if he or she has been “prevented from filing in a timely

manner due to sufficiently inequitable circumstances.” Id. at 87 ¶ 11

(citation omitted). The plaintiff bears the burden of proving the statute has 

been equitably tolled. Anson v. Am. Motors Corp., 155 Ariz. 420, 421 (App. 
PEREZ v. SAINT JOHN’S, et al.

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1987). Equitable tolling is to be used sparingly but may be applied when 

“extraordinary circumstances beyond plaintiffs’ control made it impossible 

to file the claims on time.” See McCloud, at 87 ¶ 13 (citations omitted). 

¶13 Perez asserted as extraordinary circumstances his reasonable 

reliance on the process server’s assurance of service on the District’s 

governing board on March 3, 2022, and that affidavits of service were 

available. He also contends that the process server attempted to serve the 

governing board on February 7 and 8, 2022, but was unable to complete 

service on those dates because the governing board was unavailable, 

leaving him no choice but to wait until the next time they met, on March 3, 

2022.

¶14 For support, Perez relies on Kyles v. Contractors/Engineers

Supply, Inc., 190 Ariz. 403 (App. 1997). In Kyles, this court applied equitable 

tolling when the plaintiff failed to file his complaint within 90 days of 

receiving his right-to-sue notice from the Arizona Civil Rights Division 

(“ACRD”). Id. at 404–06. There, equitable tolling was appropriate because 

the ACRD’s right-to-sue notice erroneously stated that the plaintiff had a 

year to file his complaint, rather than 90 days, and he was “entitled to rely 

on the deadline in the notice from the [A]CRD.” Id. at 406. 

¶15 Unlike the plaintiff in Kyles, Perez here did not establish that 

equitable tolling was appropriate. Perez did not allege that the District

misrepresented the notice-of-claim deadline or misled him in any way. See 

Porter v. Spader, 225 Ariz. 424, 428 ¶ 11 (App. 2010) (recognizing that, as a 

matter of equity, a limitations period may be tolled when a defendant 

affirmatively defrauded or misled the plaintiff). He missed the deadline 

because he accepted the process server’s assurances that service was 

complete on March 3, 2022, which was over a week past the deadline, and 

he then went another five months without reviewing the process server’s 

affidavits or otherwise confirming service.

¶16 The governing board’s meeting schedule also did not place 

Perez in an untenable or inequitable situation. Perez asserted that the 

governing board’s unavailability and infrequent meeting schedule

constituted extraordinary circumstances sufficient for equitable tolling to 

apply. But Perez provided no support for this contention, and the superior 

court was not required to infer that the governing board’s unavailability on 

February 7 and 8, 2022, meant that it was unavailable for the rest of the 

month. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 n. 10 (9th 

Cir. 2002) (the superior court “need not draw all possible inferences in [the 

non-moving party’s] favor, but only all reasonable ones”; inferences are not 
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reasonable if they are based on “mere speculation, conjecture, or fantasy”

(citation omitted)). The superior court therefore did not abuse its discretion 

in finding that “extraordinary circumstances” that justified the application 

of equitable tolling did not exist.

II. The Superior Court Erred by Dismissing Perez’s Claim Against 

Patterson.

¶17 Perez next argues the superior court erred by sua sponte

dismissing the complaint against Patterson. He asserts he timely served 

Patterson with the notice of claim and he did not address Patterson’s status 

as a defendant in his response to the motion to dismiss, or at oral argument, 

because the District did not move to dismiss his claim against Patterson.

¶18 Rule 12(b)(6) dismissals on a court’s own motion are

discouraged in Arizona because the process (1) “eliminates the traditional 

adversarial relationship”; (2) “causes inefficiencies in the judicial process as 

a whole”; and (3) “may give the appearance that the judiciary is a proponent 

rather than an independent entity.” See Acker v. CSO Chevira, 188 Ariz. 252, 

256 (App. 1997) (citing Franklin v. Oregon State Welfare Division, 662 F.2d 

1337, 1341–42 (9th Cir. 1981)). When appropriate, a court may dismiss an 

action on its own motion for failure to state a claim “but only after the court 

takes the proper procedural steps.” Id. (quoting Franklin, 662 F.2d at

1341–42). These procedural steps include: 

[T]he court must notify the plaintiff of the proposed action 

and afford him an opportunity to submit written argument in 

opposition. In addition, the court must give a statement of the 

reasons for the dismissal, and an opportunity to amend unless 

the complaint is clearly deficient.

Id. Here, the record shows that the court failed to take any of these 

procedural steps before dismissing the complaint against Patterson. The 

court thus erred in dismissing Perez’s claim against Patterson.

III. Punitive Damages

¶19 Perez argues that the superior court acted prematurely in 

dismissing his request for punitive damages because he did not have the 

opportunity to investigate whether Patterson, the District, or any other 

individually named defendant, was acting within the scope of employment. 

Perez also argues, for the first time on appeal, that the court should not have 

dismissed his request for punitive damages against the District because the 
PEREZ v. SAINT JOHN’S, et al.

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District is vicariously liable for the negligent or tortious acts of its 

employees, including Patterson. 

¶20 Perez’s argument has no merit because the superior court 

dismissed the complaint on notice-of-claim grounds and needed not—and 

therefore did not—resolve the District’s assertion that A.R.S. § 12–820.04 

barred an award of punitive damages. Perez has also waived any argument 

about the District’s vicarious liability for punitive damages by not raising it 

in the superior court. See Odom v. Farmers Ins. Co. of Arizona, 216 Ariz. 530,

535 ¶ 18 (App. 2007) (finding that “arguments raised for the first time on

appeal are untimely and deemed waived”). Even if not waived, Perez’s 

argument that the court erred by dismissing the punitive damages request 

against the District is moot because we affirm the court’s dismissal of his 

claim against the District. See Bd. of Supervisors v. Robinson, 105 Ariz. 280, 

281 (1970) (finding courts do not decide moot issues).

¶21 Finally, because the court erred by dismissing the claim

against Patterson, and we remand for that reason, we do not decide

whether A.R.S. § 12–820.04 bars Perez’s punitive damages request against 

Patterson. On remand, the superior court may make findings on this issue 

as it deems appropriate.

CONCLUSION

¶22 We affirm the superior court’s order dismissing the complaint 

against the District. We vacate the portion of the order dismissing the 

complaint against Patterson and remand for further proceedings.