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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ELDA N. RODRIGUEZ, Plaintiff/Appellant,

v.

MARIA GUADALUPE ORTEGA PLACIDO, Defendant/Appellee.

No. 1 CA-CV 23-0357 

Appeal from the Superior Court in Maricopa County

No. CV2020-009024

The Honorable Randall H. Warner, Judge

AFFIRMED

COUNSEL

Chaidez Law Firm, PLLC, Phoenix

By Jose L. Chaidez

Counsel for Plaintiff/Appellant

Zazueta Law, PLLC, Phoenix

By Fabian Zazueta, Garrett Respondek, Oscar Fimbres

Counsel for Defendant/Appellee

FILED 5-2-2024
RODRIGUEZ v. PLACIDO

Decision of the Court

2

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which 

Presiding Judge Angela K. Paton and Judge Michael S. Catlett joined.

M O R S E, Judge:

¶1 Elda N. Rodriguez appeals the superior court's grant of 

summary judgment to Maria Guadalupe Ortega Placido. For the following 

reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 On June 30, 2020, a fire started at Placido's home and spread 

to Rodriguez's home. Rodriguez filed suit and submitted a certificate of 

compulsory arbitration. 

¶3 In November 2020, the court determined the matter was 

subject to compulsory arbitration and transferred the case for the 

appointment of an arbitrator. The arbitrator held a hearing and filed a 

"Notice of Decision" in July 2021 and entered an award in favor of 

Rodriguez in August 2021. Placido appealed. The court set an initial 

conference for October 2021. 

¶4 At the October 2021 conference, the court scheduled a 

three-day jury trial and ordered the parties to participate in a mandatory 

settlement conference. The court set a settlement conference for March 28, 

2022, and the parties were required to submit memoranda no later than 

March 21. Rodriguez submitted a memorandum claiming negligence and 

trespass. Following the settlement conference, the parties moved to stay 

the action to allow Rodriguez an opportunity to pursue a claim under her 

homeowner's insurance policy. The court granted the parties' motion, 

staying the matter until July 14, 2022. 

¶5 In July 2022, the court reset the trial to January 2023 and set a 

final trial management conference for December 2022. In October 2022, 

Placido moved for summary judgment. Rodriguez did not respond, and 

Placido moved for a summary adjudication on her summary judgment 

motion. The court granted Placido's motion for summary judgment at the 

December 2022 conference and ordered Placido to submit a "form of 

judgment." The court entered that judgment, and Rodriguez timely 
RODRIGUEZ v. PLACIDO

Decision of the Court

3

appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 

12-2101(A)(1).

DISCUSSION

I. Summary Judgment Motion.

¶6 Rodriguez argues the court erred in granting summary 

judgment to Placido based on a lack of disclosure. Pursuant to Arizona 

Rule of Civil Procedure ("Rule") 56(a), summary judgment is appropriate 

only if no genuine dispute of material fact exists and the moving party is 

entitled to judgment as a matter of law. We review de novo the court's 

application of the law and its determination that no genuine disputes of 

material fact preclude summary judgment. Takieh v. O'Meara, 252 Ariz. 51, 

56, ¶ 11 (App. 2021). We view the evidence and all reasonable inferences in 

the light most favorable to the non-movant and will affirm "if the evidence 

produced in support of the defense or claim has so little probative value 

that no reasonable person could find for its proponent." Id. (quoting State 

Comp. Fund v. Yellow Cab Co. of Phx., 197 Ariz. 120, 122, ¶ 5 (App. 1999)).

¶7 To support her claim for negligence, Rodriguez must 

establish that (1) Placido breached a certain standard of care, (2) a causal 

connection exists between Placido's conduct and the resulting harm, and (3) 

Rodriguez suffered actual damages. See Gipson v. Kasey, 214 Ariz. 141, 143, 

¶ 9 (2007). As to her trespass claim, Rodriguez must show that Placido 

intentionally caused the fire to spread to her home. See Taft v. Ball, Ball & 

Brosamer, Inc., 169 Ariz. 173, 176 (App. 1991) (quoting Restatement (Second) 

of Torts § 158 (1965)). In her motion for summary judgment, Placido argued 

that Rodriguez's claims were unsupported by any evidence that (1) she

proximately and directly caused damages to Rodriguez's home, (2) would 

allow Rodriguez to calculate her damages with reasonable certainty, and 

(3) she intentionally caused the fire to spread to Rodriguez's home. 

¶8 Here, the court granted Placido's summary judgment motion 

because Rodriguez failed to respond to the motion and "never disclosed 

witnesses, exhibits, or a calculation of damages." The parties do not dispute 

that Rodriguez failed to respond to Placido's summary judgment motion. 

But a "failure to respond to a motion for summary judgment with a written 

memorandum or opposing affidavits cannot, by itself, entitle the moving 

party to summary judgment." Schwab v. Ames Constr., 207 Ariz. 56, 59, ¶ 15 

(App. 2004). Because the moving party carries both the burden of showing 

that no genuine dispute of material fact exists and that the uncontroverted 

evidence would entitle her to judgment as a matter of law, courts cannot 
RODRIGUEZ v. PLACIDO

Decision of the Court

4

grant summary judgment solely on the failure to file a timely response. Id.

at 60–61, ¶¶ 15–16, 20; see Zimmerman v. Shakman, 204 Ariz. 231, 237, ¶ 21 

(App. 2003) (stating that a summary adjudication under Rule 7.1(b), "is not 

mandatory, and the failure to respond does not in and of itself authorize a 

judgment against the nonmoving party if the motion fails to demonstrate 

the movant's entitlement to the requested relief").

¶9 As to the failure to disclose witnesses, exhibits, and damages 

calculations, Rodriguez argues that she filed a settlement conference 

memorandum that "outlined the facts, legal theories and provided the 

necessary disclosure to place Placido on notice of [her] case." Disclosures 

after an appeal from an arbitrator's award are governed by Rule 77(f). The 

party appealing the arbitrator's award may simultaneously serve a "List of 

Witnesses and Exhibits Intended to be Used at Trial" that complies with 

Rule 26.1. Ariz. R. Civ. P. 77(f)(2). The non-appealing party may also serve 

a "List of Witnesses and Exhibits Intended to be Used at Trial" that complies 

with Rule 26.1 no later than 20 days after the notice of appeal is served. 

Ariz. R. Civ. P. 77(f)(3). If any party fails to timely serve a "'List of Witnesses 

and Exhibits Intended to be Used at Trial,' that party's trial witnesses and 

exhibits will be deemed to be those set forth in any such list previously filed 

in the action or in the prehearing statement submitted under Rule 75(b)." 

Ariz. R. Civ. P. 77(f)(4); see Cosper v. Rea, 228 Ariz. 555, 557, ¶ 10 (2012) ("The 

rules governing non-arbitration civil cases cannot trump Rule 77 . . . , which 

specifically governs disclosure in appeals from arbitration awards.").

¶10 Rodriguez did not submit a Rule 26.1 disclosure statement 

before arbitration nor did she submit a "List of Witnesses and Exhibits 

Intended to be Used at Trial" following the appeal from arbitration. See

Ariz. R. Civ. P. 77(f)(3). Even if we were to assume the settlement 

conference memorandum constitutes a "List of Witnesses and Exhibits 

Intended to be Used at Trial," Rodriguez did not timely serve it under Rule 

77(f)(3). Nor did Rodriguez request permission from the court to file a 

supplemental list of witnesses and exhibits under Rule 77(f)(6). See Cosper, 

228 Ariz. at 555, ¶ 1 ("We hold that this list can only be supplemented for 

good cause under Rule 77 . . . ."). Rule 77(f)(4), however, provides that if 

"any party does not serve a timely 'List of Witnesses and Exhibits Intended 

to be Used at Trial,' that party's trial witnesses and exhibits will be deemed 

to be those set forth in any such list previously filed in the action or in the 

prehearing statement submitted under Rule 75(b)." Rodriguez did not file 

a prehearing statement before arbitration, but the arbitrator's "Notice of 

Decision" notes that Rodriguez submitted the "insurance policy for her 

home and the fire department report of the fire" and that he heard 

testimony from Rodriguez. But Rodriguez did not rely on this evidence 
RODRIGUEZ v. PLACIDO

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during the final trial management conference nor does she rely on this 

evidence in her opening brief to argue that genuine disputes of material fact 

exist regarding causation, damages, or trespass. Rodriguez only points out 

that "Placido was well aware of the cause of action as they had participated 

in the Arbitration and received the notice of arbitration decision." 

¶11 On this record, Rodriguez failed to provide any admissible 

evidence to prove Placido's alleged negligence or trespass. Though 

Rodriguez's complaint contains general allegations of her claims and the 

record shows Rodriguez produced responses to Placido's discovery 

requests to support her claims, she "may not rely merely on allegations or 

denials of [her] own pleading[s]." Ariz. R. Civ. P. 56(e). Additionally, at 

the final trial management conference, Rodriguez failed to "call the court's 

attention to evidence overlooked or ignored by" Placido or to explain why 

the motion should have otherwise been denied. Nat'l Bank of Ariz. v. 

Thruston, 218 Ariz. 112, 119, ¶ 26 (App. 2008); see Tilley v. Delci, 220 Ariz. 

233, 237, ¶ 10 n.4 (App. 2009) ("There are differing views expressed in the 

case law as to whether an appellate court or a trial court must perform an 

independent search of the record for facts not presented by a party 

opposing summary judgment.") (collecting cases). Moreover, though 

Rodriguez's discovery responses disclosed the fire department's report of 

the incident, the court "had no ability to discern" what the evidence at 

arbitration disclosed or whether it raised factual issues sufficient to defeat 

summary judgment. See Tilley, 220 Ariz. at 237, ¶ 10 ("This is not a case 

where the trial judge could have independently searched the record and 

discovered evidence that placed factual matters in dispute, to the extent that 

such a search was required."). Thus, Rodriguez failed to establish a genuine

dispute of material fact as to her negligence and trespass claims, and 

Placido is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a).

II. Motion to Continue. 

¶12 Rodriguez argues the court abused its discretion by denying 

her motion to continue. We review the court's denial of a motion to 

continue for an abuse of discretion, Nordale v. Fisher, 93 Ariz. 342, 345 (1963), 

and "affirm where any reasonable view of the facts and law might support 

the judgment," City of Phoenix v. Geyler, 144 Ariz. 323, 330 (1985). The court 

may grant a motion to continue if the moving party establishes good cause. 

Nordale, 93 Ariz. at 345.

¶13 Rodriguez specifically argues that "under the facts in the 

instant case" the court abused its discretion when it denied her oral motion 

to continue. At the final trial management conference, the court asked 
RODRIGUEZ v. PLACIDO

Decision of the Court

6

Rodriguez's counsel ("Counsel") to explain "why" he did not respond to 

Placido's motion for summary judgment. In response, Counsel requested 

to go off-the-record to discuss the matter. The court told Counsel to "refer 

to it in general terms," and that it wanted the discussion "to be had on the 

record." Counsel noted that he had been "dealing" with some family issues 

that "caused a number of delays," including responding to the motion for 

summary judgment and requesting a "continuance of the actual trial date." 

The court then asked Counsel several follow-up questions. 

Court: "You did not file a pretrial statement, correct?"

Counsel: "Correct, Your Honor."

Court: "You have not provided a disclosure statement ever in 

this case, am I correct?" 

Counsel: "I believe so. Yes, Your Honor." 

Court: "You believe that I'm correct?" 

Counsel: "Yes."

Court: "[I]s the reason you never provided [Placido's counsel] 

a disclosure statement, because you were dealing with those 

personal matters?"

Counsel: "No, Your Honor, no."

Court: "I take it because you never provided a disclosure 

statement, you've never told him your witnesses, your 

exhibits, correct? Or is that not correct?"

Counsel: "I believe the Court is correct."

Court: "You've never provided a calculation of damages like 

Rule 26.1 requires?"

Counsel: "No, Your Honor."

Court: "When the motion for summary judgment was filed, 

did you receive that motion?"

Counsel: "I did receive that motion."
RODRIGUEZ v. PLACIDO

Decision of the Court

7

Court: "Why didn't you ask for a continuance at that time? 

Why have you waited until now to orally request a 

continuance and not file a written request, either to extend the 

time for summary judgment or to continue the trial?"

Counsel: "Your Honor, I didn't file anything because I felt it was 

more appropriate to address it at this particular hearing . . . ."

¶14 Under these facts, the court could reasonably find Counsel

could not establish good cause to continue the case based on his failure to 

move to extend the time to respond to Placido's motions, make the proper 

disclosures, and submit a pretrial statement as required by the court. See, 

e.g., Ace Auto. Prods., Inc. v. Van Duyne, 156 Ariz. 140, 144–45 (App. 1987) 

(denying the defendants' motion for relief for failing to file a witness and 

exhibit list and making untimely objections to the plaintiffs' certificate of 

readiness); Flynn v. Cornoyer-Hedrick Architects & Planners, Inc., 160 Ariz. 

187, 191 (App. 1988) (concluding the court did not abuse its discretion by 

denying the motion to continue based on a lack of prosecution and failing 

to act promptly in seeking a continuance). Thus, the court did not abuse its 

discretion in denying Rodriguez's motion to continue.

CONCLUSION

¶15 We affirm.