Plaintiff’s decedent, an apartment manager, was shot by a member of the Mexican Mafia when he happened to walk into an empty apartment where the shooter was hiding. The shooter was awaiting trial for multiple felonies but had taken off his ankle bracelet, gotten a sawed-off shotgun, and gone back to working with the gang. It turned out that various organs of government, mentioned below, knew all this but had done nothing about it, so his wife sued them. The trial court dismissed, concluding that there was no duty.

The Court of Appeals affirms.

Most of the opinion deals with the claim against an employee of the Legal Defender’s office — a “mitigation specialist” — who, at the request of the jailed Mexican Mafia member with whom she was having an affair, had bailed the shooter out of jail and who was helping to coordinate his mission, which was to be a gang enforcer. Plaintiff argued, and the court agrees, that the various statutes against gangs announce a public policy against them. But she only pled guilty to one of those statutes and the court says that the ones she didn’t violate can’t create a duty for her. The one she did violate prohibits promoting or furthering the “criminal objectives of a criminal street gang.” But this murder wasn’t a criminal objective of the gang since it was just a “tragic random act of violence,” not something directed against a gang enemy. So, the shooter’s job was to shoot people but the person he shot was not a person who’s job his was to shoot so the statute announces no policy against the shooting. Because the legislature wanted to protect innocents caught in the crossfire of gang hits but not innocent but intended non-gang victims of gang enforcers.

Plaintiff also argued that a duty was created by the code of ethics of something called the National Alliance of Sentencing Advocates and Mitigation Specialists. But Arizona apparently hasn’t adopted the code and the court says it creates no duty to third parties anyway. (One of the advantages of the civil practice is unfamiliarity with the pseudo-professional bureaucrats who have attached themselves like barnacles to the criminal side of the profession. Apparently mere defense lawyers can’t be trusted to advocate for sentences or know about mitigation. In fairness to the bureaucrats, though, the court mentions in passing their advantage — other than saving money on lawyers’ salaries — to the prosecutorial apparatus: the lawyers’ rules of ethics don’t apply to them.)

Plaintiff argued that Restatement (Third) §7 created a duty. So the court stayed this appeal pending the Supreme Court’s opinion in Quiroz, which “plainly reject[ed] the approach to duty represented by §7.” And the relationship between the bureaucrat and the shooter was not the type of “special relationship” — e.g., parent-child, employer-employee — to trigger liability under Restatement (Third) §41.

So much for the employee. Plaintiff argued that the Legal Defender’s office itself owed a duty based on various ERs. But no “ethical rule supports imposition of a duty of care owed by a law firm to a non-client. Moreover, the supreme court’s preamble to the Rules of Professional Conduct specifically instructs against imposition of a duty based on the rules.”

The Sheriff’s office and the Police Department were also defendants because they also knew about the shooter’s activities before the murder. Plaintiff cited Austin (1984), in which a 911 caller had warned that a particular man at a particular place might be murdered; he was, and the Supreme Court reversed a directed verdict against his estate. But no case establishes a duty “to prevent a random act of violence such as that which happened here.” The “random act” language may seem to conflate the gang-statute analysis with the Austin analysis but the court’s point is that detailed knowledge of a victim can create a duty to him but detailed knowledge of a criminal can’t create a duty to any one person.

Finally, the court affirms the trial court’s denial of leave to file a third amended complaint, on the grounds that the amendment wouldn’t have made a difference. §12-820.05 provides that government isn’t liable for its employees’ felonies unless it knew of the employee’s “propensity for that action.” Plaintiff wanted to allege that a supervisor knew of the employee’s affair with the jailed Mexican Mafia member. The court says that the statute does not establish a duty but instead carves out an exception to the rule of governmental immunity.

(Opinion: Stair v. Maricopa County)

On the requirement of timeliness when challenging an arbitration award.

Claimants in a UIM arbitration suggested an arbitrator but apparently discovered after the carrier agreed to him than he also did arbitrations for another law firm that represented that carrier. But they raised no objection, went to arbitration, and lost. Following unsuccessful post-hearing motions with the arbitrator, they filed in court to vacate the award and to obtain discovery on the arbitrator’s alleged conflict of interest. The trial court denied the motions. (We have condensed the facts a bit, omitting an intriguing but irrelevant disagreement between the claimants and their original lawyer and making a small guess about what and when the claimants actually filed in court, the description of which lacks clarity and consistency.)

The Court of Appeals affirms, ruling that the claimants waived the objection. The statute (12-3001 et seq.) provides that an arbitrator must disclose conflicts and that an award can be set aside for failure to do so. But comments to the Revised Uniform Arbitration Act, on which our statute is based, say that objection must come “within a reasonable period after the person learns or should have learned of the undisclosed fact.” “We agree that parties who know or have reason to know of possible partiality must raise an objection with the arbitrator during the course of the arbitration proceeding.”

The claimants tried reverse the burden of proof by invoking a presumption of partiality. The statute provides for that if the arbitrator does not disclose a direct interest in the outcome of the case or a substantial relationship with a party. But no interest in the outcome was alleged and working as an arbitrator for another firm that represented a party is not a substantial relationship with that party. “When a party challenges an arbitration award, the burden is on the moving party to prove that grounds for vacating the award exist.”

Waiver of the claim having “extinguished the pending action connected to the discovery request,” the court expressly declines to rule on the denial of that request.

(Opinion: Fisher v. USAA)

The court discusses service of process in the context of the internet.

Plaintiff sued because of some allegedly defamatory posts by Defendant on Defendant’s web site. When his process server failed to make service he moved for alternative service by mail. The trial court denied the motion, spotting the fact that the process server — despite a return that seemed to show a lot of effort — hadn’t really tried very hard. Plaintiff made one more desultory try then served by publication and took default judgment. He knew defendant’s email address and phone number and knew she was active on social media. And he had been in internet contact with her before the suit. But he didn’t try to notify her in any of those ways nor ask to serve electronically.

Defendant moved to set aside the judgment. After an evidentiary hearing the trial court granted the motion, finding that Defendant was not evading service and that service attempts were insufficient. Defendant appealed.

The Court of Appeals affirms. Plaintiff argued that the court should review de novo, presumably to avoid the lower court’s findings. The court points out that it reviews Rule 60 motions for abuse of discretion and clearly-erroneous findings.

The rule on service by publication (4.1(l)) requires that the plaintiff be unable to find the address after diligent effort or that the defendant is evading service, and also that service by publication is “the best means practicable in the circumstances for providing the person with notice.” (Some of us remember when our rules were written in English rather than in semi-grammatical jargon.) For some reason the trial court made a finding on only one of those things — that Defendant wasn’t evading. But there were only three possible addresses, the process server admitted that she thought one of them was the right address, and Plaintiff had the means of contacting Defendant to confirm it but didn’t. “A reasonably diligent effort . . . would have included reaching out to [Plaintiff] via telephone, email, or even social media to verify her correct address.” You can find telephone cases that are years old but the email/social media aspects of this are somewhat novel.

The court uses them with the “best means practicable” requirement as well. It says that even if there had been diligent effort and/or evasion of service, “given our present society . . . modern methods of communication, especially email, were more likely to give . . . notice of a suit than publication.” (The telephone is an even better way but that’s not the point of the opinion.)

The court adds archly, in an unnecessary and ill-considered comment, that the newspaper used for publication was distributed in a rural area 70 miles from Defendant’s Scottsdale address. But what of the very next section of Rule 4.1(l), which specifically allows service “in a newspaper published in the county where the action is pending,” as it and its predecessors have for many years? Would using a “closer” paper have overcome the failure to make a phone call or send an email? Is “a newspaper published in the county” no longer good enough? If so, why does the rule still say that? If not, on what basis should defendent select a newspaper — by trying to read the plaintiff’s mind about which one (if any, nowadays) she’s most likely to read? (And if that’s the standard, why don’t we require publication to be done on the paper’s front page rather than rather than in parts that nobody reads anyway?) Granted, the Republic needs the income; but the niche papers that make a living printing legal notices will be sorely disappointed.

There’s not actually much new here except the reminder to pursue internet contacts. And the moral is the old one: you need to direct and assist your process servers actively, not just let them go through their comfortable motions. The dogged, clever, self-starting process servers you read stories about presumably exist but you will never find one.

(Opinion: Ruffino v. Lokosky)