Sie sind auf Seite 1von 28

1

1 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

2 IN AND FOR THE COUNTY OF PIMA

4 ROY WARDEN )
)
5 Plaintiff, )
)
6 vs. )
) CASE NO. C20153232
7 PHYLLIS RUSSELL, ANDREA )
MCCAMMON, and ESPERANZA EN )
8 ESCALANTE )
)
9 Defendants

10
BEFORE THE HONORABLE GUS
11 ARAGON

12
OFFICIAL COURT REPORTER'S TRANSCRIPT OF PROCEEDINGS
13 PLAINTIFF'S NOTICE OF COMPLIANCE
SEPTEMBER 19, 2016
14 TUCSON, ARIZONA

15

16

17

18 ORDERED BY: ROY WARDEN

19

20

21

22

23

24
REPORTED BY: Maria Lourdes Geare
25 Official Court Reporter, RPR,
Certified #50555
2

1 A P E A R A N C E S:

2
ROY WARDEN In Proper Person
3
CHRISTOPHER M PASTORE, ESQ. Counsel for Phyllis Russell,
4 Andrea McCammon, and Esperanza En Escalante

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
3

1 I N D E X

2
WITNESS
3
None
4

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
4

1 EXHIBITS

2
None
3

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
5

1 P R O C E E D I N G S

2 THE COURT: We'll go on the record right now on

3 C20153232. Roy Warden versus Phyllis Russel.

4 Are you Mr. Warden, sir?

5 MR. WARDEN: Yes, I apologize. I was

6 waiting for a passenger on a wheelchair.

7 THE COURT: Oh, are you on a wheelchair?

8 MR. WARDEN: No, not me. But someone else.

9 THE COURT: Well, be aware, it's a good

10 thing you called and we may or may not be able to wait

11 in the future if that kind of thing were to come up and

12 you have to make sure you ensure your timely appearance.

13 Make sure your phone is off.

14 Show that Roy Warden is appearing on his own

15 behalf.

16 MR. PASTORE: Chris Pastore appearing for

17 the defendants.

18 THE COURT: You spoke a little rapidly, but

19 I think you're here for Ms. McCammon and for the

20 nonprofit entity and Phyllis Russell?

21 MR. PASTORE: That's correct, Your Honor.

22 THE COURT: And the record should reflect

23 that those are the only remaining defendants in this

24 matter.

25 The hearing today is to address the issue of


6

1 promissory estoppel. There had been dispositive motions

2 with respect to promissory estoppel. And during the

3 process, the Court was unclear as to who the claim of

4 promissory estoppel applied to.

5 The Court ordered Mr. Warden to supply

6 clarification, which he did, clarifying that the

7 promissory estoppel claim is only applicable to Phyllis

8 Russell. And I'll refer to them as Elizabeth E.

9 Esperanza and Esperanza Escalante.

10 Is that right so far, Mr. Warden?

11 MR. WARDEN: That's correct, Your Honor.

12 THE COURT: All right. And the reason you

13 included Elizabeth E in that theory is because you

14 believe Ms. Russell works for Elizabeth E and she was

15 acting within the scope of the employment?

16 MR. WARDEN: She certainly was and she sits

17 on the board of directors.

18 THE COURT: I will be asking various

19 questions today. Typically they'll be yes or no

20 questions. And so when it's a yes or no question, I'm

21 looking for a yes or no answer. If I need elaboration

22 or debate, I'll let you both know that.

23 So we'll address the promissory estoppel

24 issue. And I think that Mr. Pastore had filed some

25 additional argument; am I correct, sir?


7

1 MR. PASTORE: Yes, Your Honor.

2 THE COURT: And I reviewed the argument and

3 I think that Mr. Warden filed an, I'll call it a reply

4 argument; is that correct?

5 MR. WARDEN: That's correct.

6 THE COURT: So I reviewed the written

7 arguments and I'm happy to hear the oral comments.

8 Since it started out as a dispositive motion, I'll start

9 with Mr. Pastore first and then Mr. Warden. And then

10 only if I think it's necessary, I'll allow reply.

11 So, Mr. Pastore, why don't you come up to

12 the lectern and share your thoughts with us.

13 And Mr. Warden, I don't recall if you have

14 any hearing impairments, so if you have trouble hearing

15 him, let us know.

16 MR. WARDEN: I will. Thank you, Your Honor.

17 MR. PASTORE: Thank you, Your Honor.

18 So in the request submitted is the

19 additional briefing method, just to sort of reframe or

20 not reframe, but put it in the frame, again the issue

21 that we're not changing our argument or anything. But I

22 think the situation, the allegations in the complaint

23 with what we have to deal with and not additional

24 allegations made in oral argument or in any further

25 motions or replies, so the allegations in the complaint


8

1 with respect to this promissory paragraphs 8, 9 and 35.

2 Eight alleges that Ms. Russell and Mr. Warden came into

3 an agreement whereby he would refurbish the abandoned

4 area, recruit other residents to assist with the garden

5 area and then create a surplus of food by doing this to

6 provide the VA and other veteran agencies.

7 Paragraph 9 identified the consideration for

8 this agreement, and that's Ms. Russell agreed with

9 plaintiff to permit to create and establish and direct

10 the ongoing EEE located veteran program, which I think

11 is the important part. Plaintiff would continue to

12 organize, promote and direct after completing his

13 two-year residency.

14 Then the other relevant paragraph is 35,

15 this is the April 13, 2015 letter from Ms. Russell to

16 Mr. Warden. Your Honor, that's the document that's been

17 submitted as an attachment to Defendant's Motion to

18 Dismiss, and Mr. Warden attached to his reply. There

19 are some disagreements I suppose as to what's in the

20 letter, but from the case of the letter it's clear that

21 Ms. Russell acknowledges that that exists. She states

22 that the EEE garden is a therapeutic garden to all

23 residents that reside in that residence and they may

24 determine how they may use the garden. And that she

25 will decide that EEE, Ms. Russell, any disputes about


9

1 the use of the garden.

2 There is nothing in the Amended Complaint

3 which alleges --

4 THE COURT: Mr. Pastore, do you happen to

5 have an extra copy of that?

6 MR. WARDEN: I do, Your Honor.

7 MR. PASTORE: I do.

8 THE COURT: Mr. Warden, do you have one?

9 MR. WARDEN: I have six or seven here.

10 THE COURT: I just need one. For the sake

11 of the record here, I'm going to have this marked as an

12 exhibit for the purpose of the hearing today and we

13 should call it exhibit?

14 THE CLERK: Court's 1.

15 THE COURT: Okay. So we'll call it Court's

16 1. And you said it's the April letter?

17 MR. PASTORE: April 7th, 2015.

18 THE COURT: Mr. Warden, do you have that

19 from that date? This is the May 5th date.

20 MR. WARDEN: I apologize, here it is.

21 MR. PASTORE: I've got one.

22 THE COURT: I've got one here.

23 MR. PASTORE: Then I'll take one.

24 THE COURT: April 13, 2015, letter is what

25 we'll call Court's 1.


10

1 MR. PASTORE: Much apologies for not coming

2 prepared with an extra exhibit, Your Honor.

3 So then to continue where I left off, the

4 complaint, the First Amended Complaint alleges that he

5 was promised that he could use the garden during and

6 after his residency. And there's nothing in the

7 complaint that actually alleges that that promise has

8 been breached. It doesn't allege that he's not allowed

9 to use it anymore or can't be the director.

10 There are allegations that Ms. Russell has

11 said he can't use EEE as the business address and that

12 he can use the garden whenever he would please. But

13 there's nothing in there indicating he cannot garden any

14 more before the EEE or that he's not the director like

15 was said in the last oral argument.

16 Mr. Warden said he goes there regularly to

17 work on the garden. So I don't see nothing in the

18 complaint that alleges as breach of the purported

19 promises described in the complaint.

20 So it appears from Mr. Warden's reply

21 briefing that was filed that he is alleging, again, that

22 he was promised exclusive use of the EEE garden

23 essentially into perpetuity, so he can use it as part of

24 the vegetating program however you want it, without

25 interfering through his residency until thereafter or


11

1 until he decided not to.

2 Setting aside, I think, the absurdity of

3 that argument that EEE would grant a resident exclusive

4 use of their property in the perpetuity for any reason,

5 he's not alleged again any -- one of the elements is

6 that he has to allege the breach of that promise and

7 that enforcing that promise can only be -- is the only

8 means of remedying some manifested justice. And there

9 just isn't any of those situations here, there's no

10 injustice he's incurred by relying to his alleged

11 detriment.

12 He alleges that he would like a stop by

13 working in the garden itself, recruiting on it, posting

14 on Facebook and ultimately by showing an apartment

15 complex that's near the garden so he can use the work on

16 the garden, but since he's still allowed in the garden

17 and he does not see any determent while working in the

18 garden. He's gotten what he's bargained for by working

19 with EEE. And since he can still work on the garden

20 there's no detriment that he chose an apartment nearby

21 EEE so that he can still work there.

22 If this was a situation where he alleged in

23 the complaint that he was no longer allowed to work at

24 EEE, at the EEE garden or prohibited to work on the

25 premises or that EEE had reached out to this party and


12

1 is not the director of this program.

2 THE COURT: I'm going to ask you to slow

3 down.

4 MR. PASTORE: Sorry. And doesn't have any

5 control of this eating program then there might be some

6 reliance to his detriment and that he might be out of

7 the apartment that he selected due to the proximity that

8 he cannot go, but that's not the situation. He can

9 still go or that he's had some problem running the

10 program or funding the program because EEE had

11 disclaimed him as the director, but there's no

12 allegations of that.

13 So enforcing this promise won't remedy any

14 injustice. He's not suffered an injustice or remedy one

15 or neglecting those promises, he's still allowed to work

16 in the garden, he doesn't allege in the contrary.

17 Does Your Honor have any questions?

18 THE COURT: Not at the moment, Thank you.

19 And Mr. Pastore, I have marked as Court's Exhibit 1,

20 this letter that you made reference to or that Mr.

21 Warden makes reference to, are you asking that it be

22 admitted too for the purpose of the Court's

23 consideration, for the issue of the estoppel issue?

24 MR. PASTORE: Yes, Your Honor.

25 THE COURT: Mr. Warden, any objection to


13

1 that letter?

2 MR. WARDEN: No, Your Honor, I attached it

3 to my motion.

4 THE COURT: Then Court's Exhibit 1 is

5 admitted. Thank you.

6 Mr. Warden, do you want to make any

7 comments?

8 MR. WARDEN: Thank you, Your Honor. And

9 based on what Mr. Pastore was saying, I recollect

10 another fact that fits in this assuming complaint that I

11 did not put into my reply. And the breach began when

12 Michael Garcia created disruption in the garden and I

13 went to the cabin and said this guy is causing problems

14 and he came in and talked to him and the next thing I

15 know is they said you have to leave the program or

16 you're no longer here. She would not enforce the fact

17 that I has was the director or had the authority.

18 THE COURT: You say that's in your

19 complaint?

20 MR. WARDEN: I state that in the complaint

21 and I state what Mr. Garcia had done. He appropriated

22 space in my area.

23 THE COURT: See, I'm not too concerned about

24 Mr. Garcia here, he's out of the case. I know you're

25 offering some context in this but I already ruled on it.


14

1 I think you and the parties acknowledged that he and you

2 didn't get along and you didn't like the way he was

3 running the program. So I think you also said he's no

4 longer involved; am I correct?

5 MR. WARDEN: Yes, Your Honor.

6 THE COURT: So he's sort of a non-issue now.

7 MR. WARDEN: He is a non-issue because he

8 basically said I'm no longer interested or a part of the

9 garden, I've got to leave EEE. Two months before he

10 left EEE when the first issue with Mr. Garcia came up.

11 THE COURT: Where in your complaint will I

12 find that where it came to your mind as you were

13 listening?

14 MR. WARDEN: Okay. I don't have down here

15 the specific allegation that I brought it to her

16 attention, but in paragraph 26 of the complaint, it said

17 she failed to take action after I informed her that

18 defendant Garcia was not cooperating with the written

19 policies of the garden area.

20 I informed her on March 16th, and

21 subsequently right after that, she said well, there's

22 issues that have come up with the agreement and

23 basically you don't have any authority to tell people

24 what they can or can't do in the court area.

25 THE COURT: Did she say that?


15

1 MR. WARDEN: Yes.

2 THE COURT: Where did she say that?

3 MR. WARDEN: She said that in the meeting.

4 THE COURT: Oh, well, here's the thing, if

5 it's not in an affidavit or it's not in your complaint

6 and you have not asked to convert this matter to another

7 type of motion, such as a summary judgment motion, then

8 you might be stuck with what's on paper at this point.

9 MR. WARDEN: And that's fine.

10 THE COURT: So whatever she said in the

11 meeting, I can't really take anybody's word on it. I do

12 have the letter that people have agreed to come into

13 evidence, I will look at that.

14 MR. WARDEN: I accept, Your Honor.

15 THE COURT: So to the extent that that

16 letter is attached to both pleadings of that, the Court

17 will consider the contents of that letter.

18 MR. WARDEN: And in paragraph two and three

19 directly on the face of what Mr. Pastore has said, she

20 said I will make all decisions.

21 THE COURT: Wait, when you say paragraph two

22 and three?

23 MR. WARDEN: A letter from Phyllis Russell.

24 THE COURT: Oh, okay.

25 MR. WARDEN: And again paragraph two and


16

1 three say absolutely clearly. Okay, now what you have

2 to understand is this place was entirely -- she refers

3 to a therapeutic program and asking that there as it was

4 nothing before people and I put work in to it before

5 anything. It was a terrible place, we had a hard time

6 refurbishing the soil. So there was no garden program.

7 And the issue for the agreement was for me to begin a

8 garden program, using the three guidelines and to

9 organize people to work on them and then to work it.

10 Would be a permanent ongoing veteran, directed veteran

11 managed program, independent of Ms. Russell, who has

12 authority to make individual decisions on who can do

13 what and when they can do them.

14 And then basically in their letter she said

15 she will allocate on a first come first resident and in

16 deciding freely to determine how the garden is --

17 THE COURT: Slow down, sir.

18 MR. WARDEN: And all of that. So basically

19 she says you don't have a program, you don't have no

20 authority under these three spaces. And now that she's

21 moved out she want's somebody to take one-third of the

22 whole area, where I personally grow things. If they

23 want to take that, they can.

24 THE COURT: So, sir, you're saying that,

25 this is my understanding, that she had allowed you to


17

1 have a third of the garden space?

2 MR. WARDEN: No. I took a third and I

3 allocated to the other two, three thirds to Mr. Garcia

4 and Mr. Fisher.

5 THE COURT: So you're saying that the

6 interpretation of the agreement is that you had a right

7 to take a third of the space yourself?

8 MR. WARDEN: Which I've given up --

9 THE COURT: I'm just asking you, that's a

10 pretty simple question.

11 MR. WARDEN: Yes, Your Honor, yes.

12 THE COURT: Okay.

13 MR. WARDEN: And whatever I grew always was

14 in absorbance of whatever veteran was serving in the

15 program. I took some of it whether they worked in the

16 garden, anybody that did not. Anybody that came that

17 said during the time I live there, I'd like to do some

18 gardening, I gave them a third of my area, because I

19 didn't have to control one-third of the entire garden

20 area for me. The whole purpose was to get other

21 veterans involved in gardening and being involved in a

22 project, which they would be producing something of

23 value and giving it away to their fellow veterans. That

24 was my purpose and my purpose was having an agreement

25 going on to that program once I left because all of the


18

1 sweat that goes into refurbishing soil goes to waste if

2 you leave a year later and it turns right back to the

3 hard ground that it was 10 years before my occupying.

4 That's why I insisted it has to be an ongoing agreement

5 for an ongoing program subsequent to my leaving the

6 program, that's alleged in my complaint and it's set

7 forth with great clarity there.

8 And now on the basis of her April 13th

9 letter, she's saying she will make all determinations on

10 what stays and what the plant -- I will decide the

11 outcome. As a former resident you are allowed to use

12 the place recognizing that residents have more

13 authority, regarding that others may use the garden.

14 The last sentence is fine enough, but

15 basically what she's saying is I don't have any

16 authority to manage the vegetating veteran program and

17 to allocate space and to determine what's going to go in

18 the garden. She says it right there. There it is.

19 THE COURT: Let me ask a question about

20 that. Mr. Pastore in his argument has said Judge, he's

21 still running the program, he still can run the program,

22 do you dispute that statement?

23 MR. WARDEN: Absolutely. Absolutely.

24 THE COURT: Okay. You answered my question.

25 MR. WARDEN: And --


19

1 THE COURT: Hang on. Have you been deposed

2 in this case here?

3 MR. WARDEN: No, I have not.

4 THE COURT: Okay. Go ahead.

5 MR. WARDEN: We don't have one scheduled yet

6 so there's no discovery.

7 THE COURT: Go ahead.

8 MR. WARDEN: Basically in the prelude to my

9 reply, I set forth additional things that have happened

10 since this complaint has been filed, acts of retribution

11 between people who have attempted to work on the garden

12 by EEE. And I will submit a complaint based on the new

13 events which have happened subsequent to the filing of

14 this lawsuit.

15 THE COURT: And where would I find those

16 allegations?

17 MR. WARDEN: In the -- my reply brief that

18 you have. On the first page it says case overview.

19 THE COURT: And that's the reply that you

20 filed with respect to the promissory estoppel?

21 MR. WARDEN: Yes. With respect to his

22 brief, and I frankly didn't think we needed a brief. I

23 didn't realize that an initial brief was needed, but

24 since he filed one I thought I better file one to so

25 that the Judge doesn't get confused about what the facts
20

1 are here.

2 THE COURT: All right. Anything else, sir?

3 MR. WARDEN: No, but I'm willing to answer

4 any question you have regarding the management goals,

5 what has happened, I'd be very happy to.

6 THE COURT: Well, it's been argued in the

7 written statement that was prepared for the defense for

8 this hearing today that you still go over and garden; is

9 that much true?

10 MR. WARDEN: Can I put a context on it?

11 It's certainly true. The problem is I don't go over and

12 garden for pleasure. I go over and garden --

13 THE COURT: I understand all that. Some

14 people get pleasure out of the garden. My question was,

15 do you still go over and garden --

16 MR. WARDEN: I still go over on a limited

17 basis.

18 THE COURT: Remember what I said about yes

19 or no answers?

20 MR. WARDEN: Yes, Your Honor.

21 THE COURT: So that's a yes?

22 MR. WARDEN: Yes.

23 THE COURT: So your position is that in your

24 complaint you said that you're no longer treated as a

25 director? Is thank a yes?


21

1 MR. WARDEN: Yes.

2 THE COURT: And your position is that in

3 your complaint you said that you relied on statements by

4 Ms. Russell that you would be the director?

5 MR. WARDEN: That's correct. That was the

6 original agreement.

7 THE COURT: Okay. I got it.

8 Mr. Pastore, I'll going to go ahead and hear

9 some reply comments from you. I'm concerned about a lot

10 of back and forth here. And this is a Motion to

11 Dismiss. So I'm really inclined to treat it as a

12 discovery motion and let the parties do their discovery

13 and direct to factual issues, if there are any that are

14 material and that would preclude a dispositive motion.

15 So go ahead and make your reply comments in

16 light of all that.

17 MR. PASTORE: Thank you. I think the issue

18 here is there are factual issues coming up because facts

19 keep being argued outside the complaint. If we look at

20 just what's in the complaint.

21 THE COURT: Well, you came up here a little

22 bit ago and said, he's still the director. How would I

23 know that unless someone has been deposed or has an

24 affidavit or has a stipulation, how would I know that

25 he's still the director that you alleged that?


22

1 MR. PASTORE: That he can't direct the

2 program, it's not in the complaint.

3 THE COURT: That sounds like lawyer talk to

4 me. So go ahead and tell me why this couldn't be

5 conveyed into a summary judgment and the parties

6 shouldn't go out and find before we can resolve the

7 estoppel issue, if it can be resolved as a dispositive

8 issue.

9 MR. PASTORE: I think it can be resolved as

10 a dispositive issue. The first point I want to make

11 that is Mr. Warden made, started making his, that he

12 felt facts in his complaint relative to his issue is Ms.

13 McCammon had not addressed his concerns. Ms. McCammon

14 is not in this complaint. So the issue involving her or

15 Mr. Garcia, I think he's irrelevant, need clarified,

16 she's not a defendant.

17 Not withstanding the lawyer talk, whereby

18 and by four corners of the complaint and what's alleged

19 in the complaint. And he -- Mr. Warden alleged in the

20 complaint that the promise was he could use the garden

21 and be the director of the garden and continue to do so

22 after -- through his residency and thereafter. And

23 there are no allegations in the complaint which indicate

24 that he cannot use the garden afterwards and that he's

25 not allowed to direct the garden afterwards.


23

1 He indicates that in this letter Ms. Russell

2 has said if there's an issue that comes up in the

3 future, I will get to resolve it, but there's actually

4 no injuries he's alleging. He's not been told he can't

5 use it. There's not been someone whose come in and said

6 this is my -- I want to use and so Ms. Russell has said

7 Mr. Warden, I'm sorry but you don't get to use this

8 anymore. So there's actually no harm he's alleged with

9 respect to the directorship or the use of the garden.

10 He's not alleging he can't use it or he's in control of

11 it. So that's why it doesn't need to be converted.

12 Notwithstanding, if the Court disagrees, I

13 request the Court to deny the Motion to Dismiss and then

14 let the parties move on the discovery and then we can

15 move on from there.

16 THE COURT: So your preference is that if I

17 were either going to convert this to a summary motion or

18 deny it, your preference is that I just deny it; did I

19 get that right?

20 MR. PASTORE: Yes, Your Honor, because I

21 don't know what discovery -- so we might have to change

22 motions anyway, so, that's my position.

23 THE COURT: All right. So Mr. Warden, it's

24 been proposed that one of my options that I have is

25 simply deny the motion. Do you have any objection on


24

1 that?

2 MR. WARDEN: No, Your Honor, but may I be

3 heard?

4 THE COURT: No. The Court finds that under

5 the circumstances of this case and the arguments that

6 have been made and the issue about whether there's a

7 current directorship, whether Mr. Warden is currently

8 treated as the director of the garden, the Court finds

9 that the most appropriate resolution at this time is to

10 deny the Motion to Dismiss the promissory estoppel claim

11 as to Ms. Russell, and I'll call it EEE, so the motion

12 is denied. It's ordered that the parties meet and

13 confer and proceed with disclosure.

14 Mr. Pastore, will you refresh me, have you

15 already filed an answer?

16 MR. PASTORE: No.

17 THE COURT: So then is it appropriate to

18 address a deadline for your answer?

19 MR. PASTORE: Yes, Your Honor.

20 THE COURT: What do you suggest?

21 MR. PASTORE: Two weeks should be

22 sufficient.

23 THE COURT: All right. It's ordered then

24 that the defendants shall file -- any defendants that

25 have been properly served and have not answered, shall


25

1 file their answer or answers in this matter by no later

2 than October 7, 2016, that's October 7, 2016.

3 Mr. Pastore, I think that gives you a little

4 more than two weeks.

5 MR. PASTORE: Your Honor, if I may, Mr.

6 Warden says he'll be amending his complaint so maybe I

7 can do that first.

8 THE COURT: Mr. Warden, is that true, you're

9 considering amending your compliant?

10 MR. WARDEN: Based on the allegation --

11 THE COURT: That's a yes or no question.

12 MR. WARDEN: Yes.

13 THE COURT: How soon are you going to make

14 your decision on that?

15 MR. WARDEN: I would basically like to wait

16 until after discovery because then I'll have additional

17 information.

18 THE COURT: Mr. Warden, you're not going to

19 have carte blanche to keep amending your complaint

20 forever and ever. If you think that you're going to

21 amend your complaint in some fashion before the answers

22 are due, let us know that because it doesn't make sense

23 to get your answers in and get your requests to amend

24 and then have to deal with your answers again.

25 So if you're considering at least a


26

1 preliminary motion to amend, when might you make that

2 decision?

3 MR. WARDEN: I can make that right now. It

4 might take me two weeks to prepare the documents. I

5 have some issues in California that I have to deal with.

6 THE COURT: So no matter what, you want to

7 amend your complaint at least at this stage of the

8 proceedings and you want to add two weeks to get it

9 done?

10 MR. WARDEN: Yes.

11 THE COURT: Then it's ordered amending the

12 earlier order, it's ordered granting Mr. Warden until

13 September 7th this year to file his proposed amended

14 complaint, along with a motion to the amended complaint.

15 And that should be due October 7th, 2016, and any

16 responsive pleadings or papers with respect to the

17 motion to amend or the amended complaint, shall be due

18 no later than October 21, 2016.

19 And the Court is advising the parties at

20 this time that it's not likely that the Court will treat

21 another motion to dismiss differently than this motion

22 to dismiss.

23 The parties are encouraged to proceed with

24 discovery and set their sights on summary judgment

25 litigation, if they want to have litigation motion


27

1 practice.

2 Mr. Pastore, that's my way of telling you

3 that I don't think the motion to dismiss route is

4 getting us very far here because there seems to be too

5 much dispute about facts. And I think that the facts

6 should be nailed down more firmly before dispositive

7 motions is lauded out.

8 MR. PASTORE: Sure, Your Honor, I'd like to

9 see what's made in the dispositive motion before I say

10 anything.

11 THE COURT: Yes. Anything else for today?

12 MR. PASTORE: No.

13 THE COURT: Thank you very much.

14 I know I interrupted people from

15 time-to-time, it's not meant to be rude, but it's more

16 to have the focus that I need applied in the case so

17 that I don't get lost and confused. So thank you for

18 your patience, have a nice afternoon. We'll adjourn the

19 proceedings at this time.

20 MR. PASTORE: Thank you.

21 MR. WARDEN: Thank you, Your Honor.

22

23

24

25
28

1 STATE OF ARIZONA )
) SS.
2 COUNTY OF PIMA )

8 I, MARIA LOURDES GEARE, Certified Reporter #50555,

9 Official Court Reporter for the Superior Court, in and

10 for the County of Pima, do hereby certify that I took

11 the shorthand notes in the foregoing matter; that the

12 same was transcribed under my direction; that the

13 preceding pages of typewritten matter are a true,

14 accurate and complete transcript of all the matters

15 adduced, to the best of my skill and ability.

16

17

18 ____________________________________________

19 MARIA LOURDES GEARE, Certified Reporter


CR-505555,
20 Official Court Reporter,
Pima County Superior Court
21

22

23

24

25 DATED: JANUARY 08, 2019