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1 202~ HAY 28211 PH·tt: -1-7PH HAY 1;:26 26 2 £8!.ERi'<, CLEm, ufi? &Sii§*iT GfJU.RT 3 IN THE SUPERIOR COURT OF GU U-~ Y : : : ~ 4
5 5 LISA MARIE MARIE BORJA-ATALIG, 6 Plaintiff, Civil Civil Case Case No. No. CV0692-22 7
8 vs. DECISION AND ORDER RE: 9 MOTION FOR KIRBY VERSARIO, DEFAULT JUDGMENT 10 10 JOHN DOE JOHN DOEINSURANCE INSURANCE CARRIERS CARRIERS NO. no. 1-5, 1-5, and DOES 6-15 11 11 Defendant. 12
13 INTRODUCTION INTRODUCTION 14 his matter This er came beforee the he Honorable Honor a ble John J ohn C.. Terlaje la je on February a r y 26, 2024, for an 15
16 evidentiary hearing regarding a Verified Verified Complaint Complaint for Damages Damages made by Lisa Marie Marie Boil Borja-Atalig
17 ("Plaintiff'). ("Plaintiff'). Attorney Attorney Vanessa Vanessa Williams Williams ("Williams") ("Williams")appeared appearedon on behalf behalf of Plaintiff Defendants of Plaintiff. Defendants 18 Kirby Versario ("Vesario"), John Doe Doe IInsurance Can'iers No. 1-5, and Does No. 6-15 did not Carriers No. not 19 appear, and neither did any counsel on their behalf. 20
21 STIPULATED FACTS
22 1. Plaintiff Plaintifftestified testifiedthat that on on or or about December 18, about December 18, 2021, Plaintiff Plaintiff and Versario 23 allegedly allegedly entered entered into into aa contract contract for for the construction and installation of a home 24 extension extension for Plaintiff by by Versario (the "Contract"). "Contract"). Since Since Versario Versario had already 25 installed installed the two prefab container container units units for for Plaintiff Plaintiff constituting her her then current 26
27 residence, they agreed agreed that that Versaio Versaio would would construct construct and and install the extension.
28 Page l1 of of 113 2. Plaintiff Plaintifftestified testifiedthat thathe theagreement agreementincluded included$29,500 $29,500 as as aa fee fee plus plus an an estimate estimate for 1
2 cost of materials which which was $49,500 $49,500 but was then increased increased to $59,500 (the
3 "Contract Price"). The Contract Price was informally recorded in documents. 4 3. Plaintiff Plaintifftestified testifiedthat thatthe theparties parties allegedly allegedlyagreed agreed that that the the construction construction work under 5 the Contract shall be completed by January 17, 2021, which was later promised by 6
7 January 22, 2021.
8 4. Plaintiff Plaintifftestified testifiedthat thatthe thescope scope of ofthe the work work included included constructing a kitchen, living
9 room, outside bathroom, septic tank, and storage shed. Some of these came in prefab 10 units that had to be installed and connected to to the the existing existing home of Plaintiff Plaintiff in a 11 secure, attractive, and waterproof manner. manner. The The plans, plans, specifications and instructions 12
13 that came with the units became part of their agreement. The parties agreed orally as
14 to specific materials such as tiles and other discretionary materials. In sum, 15 according to Plaintiff, the contract was, partly in writing, partly oral and can be 16 implied implied partly by conduct. conduct. This is due to the informality of of the arrangement and the 17 fact that Versario did not adhere to the customs and practices for documenting 18
19 projects as well as those required by law.
20 5. Plaintiff Plaintifftestified that, testified that,atatthe theoutset, outset,Versario Versariodemanded demanded aa deposit deposit of of $10,000. 21 21 Allegedly, Allegedly, he he also also demanded demanded $2,000 $2,000 for a blueprint that would be needed for 22 recording purposes. 23 6. Plaintiff Plaintifftestified testifiedthat thataalitany litanyof ofworkers workers appeared appeared at at the the construction site 24
25 demanding money. The The plaintiff plaintiff explained explained to them that she pays Versario, and he
26 pays the subcontractors. The workers complained that Versario Versario was was not not paying paying them. 27
28 Page 2 of of 13 13 In sum, according to Plaintiff, Versario kept demanding more money or he would 1
22 not work.
3 7. Plaintiff Plaintifftestified testifiedthat thatthe theconstruction constructionwork work was was not not prosecuted prosecuted to conclusion. On 4 many days, allegedly, allegedly, no no workers workers appeared. appeared. On others, no work was done until 2:00 5 or 3:00 P.M. Plaintiff Plaintiff is informed, believes and thereupon alleges that one 6
7 subcontractor used the residence residence for for housing housing for for himself himself and and his his family. family. By the time
8 Plaintiff Plaintiff terminated terminated the the contract, contract, the the work work had had been been abandoned abandoned by by Versario Versario.
9 8. Plaintiff Plaintifftestified testifiedthat thatthe thequality qualityof ofthe the work work attempted attempted by by Versario Versario was was substandard, substandard, 10 defective, unsafe, in violation violation of of building building codes and and beneath the standard standard of of care 11 exhibited by building building contractors in Guam including home improvement improvement contractors. 12
13 9. Plaintiff Plaintifftestified testifiedthat, that,atatthe thetime, time, Plaintiff Plaintiffterminated terminated the the contract contract there were no
14 doors or front walk, the front side of the extension was wide open, the electric wiring 15 was defective, the tile work was cracking and lacked lacked grout, the bathroom was 16 incomplete in many many respects, respects, the the bathroom door was inoperable, the gate had been 17 paid for but was not completed, the floor floor was was wavy wavy and defective, the walls had 18
19 numerous defects and have to be ripped out. out. Versario had nailed through the butler
20 tiles on the roof creating numerous leaks. They were all ruined and damage had 21 resulted. Several items of personal property property belonging belonging to Plaintiff Plaintiff have been 22 damaged by Versario, his workers and the defective work. 23 10. Plaintiff Plaintiff testified that Versario was notified of each and every problem and was 24
25 asked to repair them and to complete the the work. work. He He allegedly allegedly refused. refused. Accordingly, Accordingly,
26 Plaintiff Plaintiffterminated terminated the the contract contract on on or or about about February February2021 2021. 27
228 Page 3 of of 13 11. Plaintiff 11. Plaintiff testified that, on or about January 29, 29, 2021, 2021, the the lease lease for for alternate alternate living 1
2 space arranged for by the Plaintiff expired expired and and she she moved moved her family back into the
3 construction site. 4 12. Plaintiff testified testified that the work that the work was was supposed supposed to to have have been been completed completed by Versario, 5 but it was not. The work site was allegedly left full of of debris that was dangerous to 6 the children children and and Plaintiff Plaintiff One of of Plaintiff' Plaintiff s children cut their foot on a jagged jagged piece 7
8 of tile. Additionally, the quiet enjoyment of of Plaintiff enjoyment of Plaintiff and her children was
9 compromised due compromised due to to the the condition condition in in which which Versario Versario left the residence. 10 13. On December 16, 2022, Plaintiff filed a Verified December 16, Verified Complaint for Damages and a 11 Demand Demand for for Jury Jury Trial Trial with six causes of action: (1) Breach of Contract Against 12
13 Defendants, (2) Negligence Negligence by Defendants, (3) Rescission and Restitution Against
14 Versario and Does 6-15, (4) Unjust Enrichment, (5) Fraud and Deceit by Versario, 15 and (6) Direct Action (Negligence) (Negligence) Against Against John John Doe Doe Insurance Insurance Carriers Carriers No. 1-5. 1-5. 16 Verified Con Verified Compl. for Damages; Damages, Demand Demand for for Jury Trial (December (December 16, 16, 2022). 17 14. On April 20, 2023, Plaintiff filed a Motion for Default Judgment. Mot. Mot. for for Default Default J. J. 18
19 (April 20, 2023). Defendant Defendant did not not file an answer answer or or an opposition. opposition. At At aa status
20 hearing on February 5, 2024, the the Court asked asked Plaintiff Plaintiff to to present present more more evidence evidence of of 21 21 damages for default. damages for default. CV0692-22, CV0692-22, Lisa Lisa Marie Marie Bolja-Atalig Borja-Ataligv. v. Kirby Kirby Versario, Versario, John John 22 Doe Doe Insurance Carriers Carriers No. No. 1-5, 1-5, and and Does Does 6-15 (minutes of hearing on February 5, 23
24 2024). 2024).
28 Page 4 of of 13 DISCUSSION 1
2 2 "Default and default judgment "Default are distinct and must be treated separately." Adams v. judgment are
3 3 Duenas, Due 1998 Guam 15 fas, 1998 ,r 2. Under 15 1]2. requires "a GRCP Rule 55 requires law,GRCP Guamlaw, Under Guam "a 'two-step 'two-step process' process' for
4 the entry of judgment against a party who fails to defend: first, judgment against first, the entry of default, and second, 5 the entry ofaa default judgment." City of default judgment." of New Yorkv. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 6 7 129 (ad (2d Cir. 2011)- Cir.2011). 7
8 A. The TheCourt CourtEntered EnteredDefault DefaultAgainst Against Defendant Defendant 9 10 10 The Court must enter default when "a party against whom whom a judgment relief judgment for affirmative relief
11 11 is sought has failed to plead or otherwise defend defend as as provided provided by by these these rules, rules, and and that that failure is 12 shown shown by an affidavit or otherwise." GRCP Rule 55(a). To plead or defend, "[a] defendant shall 13 serve an answer within 20 days after the the service service of the the summons summons and complaint complaint upon that 14 14 15 12(a). "It is well settled that when defendant." GRCP Rule 12(a). when a default judgment judgment is entered 15 16 without void." Pineda v. without proper service, such default is void." v. Pineda, Pineda, 2005 2005 Guam Guam10 ,r 10. 1011
17 17 Defendant Defendant was properly served with a Summons, Complaint Complaint for Damages, Demand Demand for for Jury 18 19 Trial on February 6'*', 6th, 2023. 2023.Deel. Decl.in inSupport Supportof ofRequest Request for for Entry Entry of of Default Default Against Against Kirby 19 20 Versario (February 6, 2023). More than twenty twenty days days later, later, on on March 2nd 2023, Plaintiff March 2"d, Plaintiff filed a
21 21 Request Request for for Entry of of Default. PTs Pl's Request for Entry of of Default Default (March 2, 2023). On March 8, 22 2023, the Clerk of Court entered entered default against Defendant, Defendant, finding that Defendant failed to plea 23 or otherwise respond to Plaintiffs Plaintiff's Complaint. Complaint. Entry of of Default Default Against Against Def. Kirby Versario 24 25 25 (March 8, 2023).
28 Page 5 of of 13 TheCourt B. The CourtIsIsPrepared Preparedto toEnter Enter aa Default Default Judgment Judgment 11
2 "The "Thesecond second step, step, entry entry of ofaa default default judgment, judgment, converts converts the the defendant's admission of of 3 4 liability liability into into aa final final judgment judgment that that terminates the litigation terminates the litigation and and awards awardsthe theplaintiff plaintiff any any relief relief to 4 5 which the court decides decides it it is entitled, entitled, to to the theextent extentpermitted permittedby byRule Rule54(c)." City of 54(c)." City ofNew York York v. v. 5 6 6 Mickalis Pawn Shop, Mickalis Shop, LLC, 645 F.3d 114, 114, 129 (2d (Zd Cir. 2011) (Federal Rule Rule 54 54 referred referred to to in in the
7 7 district case case is is codified codified in Guam Guam as as "GRCP Rule 54"). "GRCP Rule 54").After Afterdefault defaultisisentered, entered, aa party party must must 8 request for the Court Could to to enter enter default defaultjudgment judgmentif if the the amount amountowed owedisisnot notfor for a "sum "sum certain." certain." 9 GRCP GRCP Rule Rule 55(b)(2). 55(b)(2). Forty Fortyfour four days days later, later, on April 20, 2023, 2023,Plaintiff Plaintiff filed filed a Motion Motion for 10 10 Default Default Judgment. Mot. For Default J. Judgment. Mot. J. (April (April 20, 20, 2023). As As of ofthis this Order, Order, Defendants Defendants have 11 11 12 12 failed failed to to answer answer or or defend defend in in this this matter. matter. Thus, the Court is prepared to enter a Default
13 13 Judgmentagainst Judgment againstDefendant. Defendant. 14 14 C. Although AlthoughDefendant DefendantAdmitted Admitted Liability Liability by by Failing Failing to to Respond, Plaintiff Must Must Still 15 15 16 16 Prove Prove Damages Damages to Recover
17 17 The Supreme of Guam Supreme Court of held that Guam had held that"as "as aageneral general rule, rule, when whenaaparty partyfails fails to to file file an an 18 18 19 answer and and aadefault defaultjudgment judgmentisis entered, entered,only only the the factual factual allegations allegations of the complaint as to 19 20 liability liability are are deemed deemed admitted admitted and not not the the allegations allegations relating relating to to damages." damages." Mariano v. v. Surly, la,
21 2010 Guam Guam2, 2 1]39. 39.AAplaintiff plaintiffisisstill still required, required,"to "to prove all damages sought sought in in aa complaint." complaint." Id. Id. 22 Guam Rule Rule of Civil Civil Procedure Procedure 8(d) 8(d)also also supports this: "[a]verments supports this: "[a]verments in in aa pleading to which which a 23 responsive pleading is required, other than than those those as to the the amount of ofdamage, damage, are are admitted 24 25 25 denied in when not denied inthe theresponsive responsivepleading." pleading." GRCP GRCP Rule 8(d) (emphasis (emphasis added). added). Thus, by
26 failing failing to to respond respond upon upon default, Defendant has admitted their their liability liability in in this this matter, matter, but the die
27 27 Plaintiff Plaintiffmust must still prove prove damages, if they wish to recover monetarily. damages, if 28 28 Page 6 of of 13 13 During Duringthe thecourse course of ofthis thismatter, matter,the theCourt Courthas hasrequested requested evidence evidence of ofdamages damages on several several 11
2 2 different occasions. See CV0692-22, Lisa Marie Borja-Atalig v. Kirby Versario, Versario, John Doe
33 Insurance Carriers No. 1-5, and Does 6~15 No. 1-5, 6-15 (minutes (minutes of of hearing hearing on October 30, 2023), (minutes 4 4 for hearing on February 5, 2024), and (minutes of of hearing on February 26, 2024). Despite 5 ; multiple requests, the Court continues to find the evidence presented Plaintiff to be presented by Plaintiff 6 7 insufficient. Plaintiff requests requests several several different different types types of of damages damages as as recovery: recovery: ((l) 1) compensatory 7 8 damages, (2) consequential damages, and (3) punitive damages.
9 1. Compensatory CompensatoryDamages Damages 10
ll 11 "for the breach of In Guam, "for of an obligation arising from contract, the measure of of 12 12 damages, except except where where otherwise otherwise expressly expressly provided providedininTitles Titles 13, 13, 14, 14, 18, 18, 19, 19, 20 and 21 of of this 13 14 Code, is the amount which will compensate compensate the the party aggrieved for all the detriment 14 15 proximately caused thereby, or which, in the ordinary course of things, would be likely to result 15 16 16 there°om." 20 therefrom." 20 G.C.A. G.C.A. §§ 2201. 2201. Generally, Generally, aa "plaintiff "plaintiff may may recover recover compensatory compensatory damages damages only only
17 17 for those injuries caused by the event event made made the the basis basis of of the the suit suit and must be anchored anchored to a 18 18 rational basis on rational basis on which which to to ensure ensure that that the award is the award is not not merely merely speculative." speculative." C.J.S. Damages §23. C.J.S. Damages §23. 19 19 Further, "compensatory damages are the measure of of a loss" and "should be precisely 20
21 commensurate with the injury- injury nothing more, nor less." Id Id
22 Plaintiff Plaintiff claims that she paid Defendant Defendant $56,980.00. Deel. Deal. of Lisa Marie Borja-Atalig 23 24 (February 23, 2024). In her complaint, complaint, Plaintiff Plaintiff claims compensatory damages from from "the 24 25 breaches of Versario Versario in inthat that the the cost cost to complete complete plus plus the the amount amount paid minus the value of the 25 26 work performed performed leaves leaves a balance due to Plaintiff Plaintiff in an amount exceeding exceeding $75,000, according to
27 27 proof proof at trial." trial." Verified Verified Comp!. Con pl. for for Damages; Damages, Demand Demand for for Jury Jury Trial Trial (December (December 16, 16, 2022). 2022). "As 28 28 Page 7 of of 13 13 a direct and and proximate resultof proximate result ofthe thenegligence negligenceof of [the [the Defendant]," Defendant]," Plaintiff Plaintiff also claims, 11
2 2 "economic and "economic and emotional emotional distress distress damages." [of ,i 6. The at 116. Id. at The economic economic damages allegedly allegedly
3 $75,000. Id. exceed $75,000. Id. Finally, Plaintiff Plaintiffclaims claims damages damages from from Defendant's Defendant'sUnjust UnjustEnrichment, Enrichment, as as 4 well as as the Defendant's Fraud Fraud and andDeceit. Deceit.Id. at ,i117, Id at 7, 8.8.The Thefraud laud damages allegedly arise from 5 Defendant lying to Plaintiff Plaintiff"that "thathe he was was licensed and hiding his lack of any contractor's license licensed and 6 7 7 or business or business license." ,i at119. license." Id. at
8 a. Plaintiff PlaintiffDid DidNot NotProvide ProvideSufficient Sufficient Evidence Evidence of of Compensatory Compensatory Damages Damages 9 Regarding Breach of Contract and Unjust Enrichment Regarding 10 10
11 11 Plaintiffprovided Plaintiff provided "correct "correct and and true true copies copies of of [Plaintiff and Defendant's] initial [Plaintiff and initial 12 12 agreement and and [Defendant's] [Defendant's] notes about about the the costs," costs," as aswell well as as aa"true "true copy copy of of a breakdown of of 13 13 expenses paid expenses paid to to [Defendant]," but did [Defendant]," but did not not demonstrate demonstrate that the the Defendant Defendant actually actually received the 14 14 payment. Deel. payment. Decl. of Lisa Lisa Marie Marie Borja-Atalig Borja-Atalig(February (February23, 23,2024). 2024).In Infact, fact, the the Court Court still still does does not 15 15 16 16 know if Plaintiffpaid ifPlaintiff paidDefendant Defendantby bycheck checkororinincash. cash.The TheCourt Courtwould wouldthink thinkthat that there there should should
17 17 be some sort ofreceipt of receipt given given that Plaintiff claims that she that Plaintiff she paid paid$56,980.00. $56,980.00.Deel. Decl.of of Lisa Lisa Marie Marie 18 18 Borja-Atalig Borja-Atalig(February (February23, 23,2024). 2024).Without Withoutsome somesort sortof ofdocumentation, documentation, damages damages cannot cannot be 19 19 "anchored "anchored to a rational basis on which to ensure that that the the award award is is not not merely merely speculative." 25 20
21 C.J.S. C.J.S. Damages Damages §23. §23.
22 Further, Plaintiff Plaintiff claims she "sought "sought the opinion of another contractor, contractor, Mr. Mr. Victor 23 Ungacta." Decl. ofLisa Deel. of LisaMarie Borja-Atalig1],i33(February MarieBorja-Atalig (February23, 23, 2024). 2024). She She says says that that "he 24
25 thatthere mentioned that therewere wereaalot lotof ofmistakes, mistakes,and and[her] [her]home homewould wouldhave havetotobe befixed." fixed."Id. Id She
26 claims she would have to pay more expenses and and "start "start all all over Id at over again." Id ,i For at 1]4. For the the Court
27 27 to anchor any any damages to a rational rational basis, basis, we we would would need need to to have have heard heard from from Mr. Mr. Ungacta Ungava 28 28 Page 8 of of 13 himself or at least aa signed himself signed declaration. declaration. Further, Further, we we would would need need an expert to to backup backup Ungacta's Ungacta's 11
2 2 assertions. assertions.
3 PlaintiffDid b. Plaintiff DidNot Not Provide Provide Sufficient Sufficient Evidence of Compensatory Damages 4 Regarding Negligence or Fraud 5
6 Regarding the negligence negligence claim, claim, Plaintiff Plaintiff provided provided "true and correct copies of of 7 photographs depicting [conditions created by Defendant's allegedly faulty Defendant's allegedly faulty construction]," construction]," but 8 , 9 provide before-photos, did not provide before-photos, or orevidence evidencethat that the the conditions conditions were were aa direct direct and and proximate proximate result result 9 10 10 ofthe of the Defendant's negligence. negligence. Deel. Decl. of of Lisa Marie Borja-Atalig Borja-Atalig with with Photos Photos (March (March 19, 19, 2024).
11 Compensatory Compensatory damages need need not not be be immediate, immediate, but they need but they need to to be be so so near near to to the the cause cause that 12 only only they they may may be be reasonably reasonably traced traced to to the the event." event." C.J.S. C.J.S. Damages Damages §25. §25. Further, "the Plaintiff Further, "the Plaintiff 13 13 preponderance of the evidence that its damages were bears the burden of proving by a preponderance 14 14 proximately caused by the defendant's wrongful conduct." Id. the defendant's 15 15
16 16 Plaintiff also claims Plaintiff also claims emotional emotional distress distress damages, damages, which which include include "suffering, emotional 17 17 distress, trauma, loss loss of of sleep, loss of appetite, anxiety, and distress." Deel. Decl. of of Lisa Marie Borja- 18 18 19 19 Atalig ,r 33 (February Atalig 1] (February 23, 23, 2024). 2024). Plaintiff claims she Plaintiff claims she witnessed the the suffering of of her her children,
20 including her her ill son. "Plaintiff "Plaintiff lost sleep, lost weight, weight, suffered anxiety and nervousness and was
21 consumed consumed with with anxiety anxiety and and fear fear for the well-being well-being of of her her children." children." Id. Plaintiff Plaintiff is not claiming 22 Negligent Negligent Intentional Intentional Infliction Infliction of of Emotional Emotional Distress, Distress, but general Negligence, and Plaintiff Plaintiff 23 cites no law favor. Verified htw in her favor. Verified Compl. Comal. for Damages, Damages; Demand Demand for for Jury Jury Trial ii 9 (December Trial ,i (December 24
25 16, 16, 2022). In general, general, "plaintiffs "plaintiffs claiming claiming emotional distress bear the the burden burden of demonstrating demonstrating
26 the need for the need for compensatory compensatory damages damages beyond beyond nominal nominal damages." damages." C.J.S. C.J.S. Damages Damages §292. §292. 27
28 Page 9 of Page of 13 13 Regarding negligence, "unless the defendant has assumed a duty to the the plaintiff plaintiff in which l1 2 2 the emotional condition of the plaintiff plaintiff is an object, recovery of emotional distress damages for
3 negligence is available only if if the emotional distress distress arises out of the defendant's breach of 4 duty and the emotional distress some other legal duty distress is proximately caused by that breach of of duty, 5 and even then, with rare exceptions, a breach of the the duty duty must threaten threaten physical physical injury, not 6 7 simply damage to to property property or orfinancial financialinterests." interests."CA CAJUR OURNEGLIGENCE§ NEGLIGENCE 86. 86. This This Court Court 7 8 infers that the "breach of some other duty" in the "breach in this this case would be the breach of contract.
9 9 "there can Generally, "there can be no recovery recovery for formental mental or or emotional emotional distress distress suffered suffered as as a result of 10 breach of contract breach of contract unaccompanied unaccompanied by by physical physical injury." injury." MTLLL MTLLL§§31 31.2 ((citing Rubin v. v. 11 Matthus MatthewsIntern. Intern. Corp. Corp. 503 A.2d A.2d 694 694 (Me. (Me. 1986) 1986) and and Restatement (Second) (Second) of of Contracts 12
13 §353). In aa similar §353). In similar case, case, plaintiffs plaintiffs sought sought emotional emotional distress damages for distress damages for the the negligence negligence breach breach
14 of of a contract to construct aa house house and and the the Court Court held held that that "recovery "recovery for emotional distress in
15 15 such cases will will be be excluded excluded Lmless the breach unless the breach of of the the contract contract caused bodily bodily harm, or the breach 16 16 is of such a kind of such land that serious serious emotional emotional disturbance disturbancewas was aaparticularly particularly likely likely result." See Erlich result." See Erlich 17 17 18 v. Menezes, v. 4 th 543, Menezes, 21 Cal. 4th 543,87 87Cal. Cal. Rptr. Rptr. 2d ad 886, 886, 981 981 P.2d P.2d 978 978 (1999) (1999) (citing Restatement Restatement 18 19 19 (Second) of (Second) ofContracts § 353). Contracts§ 353).Therefore, Therefore,the thedamages damagesininthis this case case hang hang on on the the existence existence of aa
20 only such physical injury. The only such injury claimed by Plaintiff Plaintiffisisthat that aa cracked cracked tile tile cut cut her son "and 21 the bleeding wouldn't stop since the cut was was deep." deep." Deel. Deal. of of Lisa Lisa Marie Marie Borja-Atalig ,r Bolja-Atalig1]3 22 Plaintiff,testified (February 23, 2024). Plaintiff, testifiedtotothis this but but has has not provided documentation of her son's 23 24 expenses or the medical expenses the extent extent of of the the injury. injury. The The Court would need to to see see evidence of these these 24 25 damages. damages.
28 Page 10 of 13 of13 Plaintiff claims compensatory damages from Finally, Plaintiff fraud and firm fraud and deceit. "A party who 1 22 willfully deceives willfully deceives another another with with intent intent to to induce induce the the other other to to alter his or her position to his or her
3 injury or risk is liable for any damage that person suffers as a result of the deceit." CAJUR 4 4 FRAUD§ 114. FRAUD 114. The The Court Court assumes assumes that that the damages suffered the damages suffered from the fraud from the fraud and deceit would and deceit would 5 ; stem from the damage caused by the breach of of contract or negligence. Thus, the Court requires 6 7 that the damages above be proven, to also prove damages from the fraud and deceit. 7
8 PlaintiffDid 2. Plaintiff DidNot NotProvide ProvideSufficient Sufficient Evidence Evidence of of Consequential Consequential Damages 9
10 Plaintiff claims consequential damages from the "breach of Plaintiff of contract including medical
11l care for her son, lodging, storage, etc." Verified Comal. Compl. for for Damages, Damages; Demand Demandfor for Jury Jury Trial ,r Trial'll 12 12 5 (December 16, 2022). 2022). "Special, "Special, or consequential damages, in breach of of contract actions are 13 ii extraordinary in that they do not directly flow from the breach and are recoverable only upon a 14 15 showing that they were foreseeable and within the the contemplation contemplation of of parties at the time the 15 16 contract was made." made." Spears Speirs v.v. BlueFire BlueFire Ethanol Fuels, Fuels, Inc. 243 Cal.App.4th 969 (2015). 243 CaLApp.4'h
17 17 Plaintiff Plaintiff has not established foreseeability or sufficiently established compensatory damages 18 above, so consequential damages cannot be established either. 19
20 Plaintiff Plaintiff also claims consequential damages from their negligence claim regarding
21 21 "expenses "expenses for for alternative alternative shelter, shelter, medical care care for for her her son, storage charges, and other 22 consequential damages according to proof at trial." trial." Verified Comp I. for Damages; Con l. Damages, Demand for 23 ,r (December 16, Jury Trial 1]6 16, 2022). 2022). Consequential Consequential damages stem from contract claims, not 24 25 25 negligence, however. however.See LewisJorge See Leris JorgeConstruction Construction Management, Management, Inc. v. v. Pomona Pomona UnQ'ied Unified
26 School School Dist. 34 Cal.4th Cal.4th 960 (2004) (Contractual (Contractual damages damages are of two two types types - general general damages damages 27 27 (sometimes called directed damages) and special damages (sometimes called consequential 28 28 Page 11 11 of 13 damages). Therefore, regarding damages). Therefore, Plaintiffs negligence regarding Plaintiffs negligenceclaim, claim,consequential consequential damages damages don't 11
2 apply.
3 Finally, Plaintiff Finally, Plaintiffasserts assertsthat that they they incurred incurred consequential consequential damages damages from from their their recession recission 4
5 and restitution restitutionclaim. claim.Verified Verified Compl. Comal. for for Damages, Damages; Demandfor for Jury ,r 7 (December Trial1]6, Jury Trial (December
6 16, 2022). "A claim 16, 2022). claim for fordamages damages is is not not inconsistent inconsistent with a claim for relief reliefbased based on on rescission.
7 7 The rescinding party is entitled to to complete relief, including including not only only restitution restitution of benefits 8 conferred conferred under thecontract, under the contract,but butalso alsoany anyconsequential consequentialdamages." damages."CCPREALPROP CCPREALPROP §1:49. §1 9 Plaintiffhas Plaintiff has not sufficiently sufficiently proven proven the the compensatory damages damages above, above, however, so 10 10 consequential damages cannot be established either. 11 11
12 12 3. Plaintiff 3. PlaintiffDid DidNot NotProvide ProvideSufficient SufficientEvidence Evidence of of Punitive Punitive Damages 13 13
14 14 Plaintiffclaims Plaintiff claims that that Defendant Defendant "acted "acted with with malice, malice, oppression, oppression, fraud fraud and and disregard for for the the
15 15 known legal rights of Plaintiff Plaintiffin indoing doingor oromitting omittingto todo dothe the things things alleged alleged in in this this cause of 16 16 action. Accordingly, Plaintiff action. Accordingly, Plaintiffisisentitled entitled to to punitive punitive damages damages pursuant pursuant totoproof proof at attrial." trial." Verified Verified 17 17 Con Compl. for for Damages; Damages; Demand Demand for for Jury Trial ,r 9 (December Jury Trial119 (December16, 16, 2022). 2022). Guam Guam Courts have held 18 18 19 that, "in general, actual that, "in or compensatory actual or compensatory damages are are required required for for an an award award of of punitive 19 20 20 damages."See DF HANNAI-L damages." See May D.F. HANNAH,Plaint#Appellee/Cross-Appellant, Plaintiff-Appellee/Cross-Appellant, v. v. Lucille Lucille Flores Flores Leon Leon
21 GUERRERO, Ignacio R. GUERRERO, Ignacio R. Leon LeonGuerrero, Guerrero,Alfred Awed F. F Leon Leon Guerrero, Mark D. Guerrero, Mark D. Leon Leon Guerrero, Guerrero, 22 Brian Brian FF.Leon LeonGuerrero Guerreroand andDoes Does I-IX I-IX,Defendants-Appellants/Cross-Appellees, Defendants-Appellants/Cross-Appellees, 2020 WL WL 23 4938408 (Guam Terr. 4938408 (Guam Terr. 2020) 2020) (citing (citing Concerto Contento v. v. Mitchell, Mitchell, 104 104 Cal. Cal. Rptr. Rptr. 591, 591, 592 (Ct. App. 24
25 1972), 1972); Compactor's Contractor's Safety Ass'n Ass'n v.v. Cal. Cal. Comp. Comp. Ins. Ins. Co., 307 P.2d 626, 629 (Cal. 1957)). Thus,
26 the Court cannot award award punitive punitive damages until until compensatory compensatory damages damages have have been been proven. proven. As
27 27 in this case require explained above, compensatory damages in require more more evidence. 28 28 Page 12 Page 12 of of 13 13 CONCLUSION 11
2 The Court is prepared to to enter enter aa default defaultjudgment, judgment,but butininorder ordertotocarry can'ythe thejudgement judgment into
3 effect, "it "it is is necessary necessary to to take an account or to determine the amount of of damages." damages." GRCP Rule 4 4 55(b)(2).In 55(b)(2). Inorder orderto to prove provedamages, damages, however, however,Plaintiff Plaintiffmust mustprovide provideaabank bankstatement statement or or a 5 ; oftransaction receipt of transaction demonstrating that that the the Defendant Defendant was was indeed indeed paid. paid. Further, Further,Plaintiff Plaintiff 6 7 should demonstrate demonstrate more more evidence evidence regarding the prior state state of of the property, the likely expenses expenses 7
8 involved in finishing finishing the the project, project, and the medical injuries incurred, as described above.
9 Accordingly, the Court ORDERS Plaintiff Plaintiff to provide more evidence, particularly that 10 10 Defendant received payment for his services, within 30 days or the Court will enter a Default 11 12 12 Judgment Judgment against against Defendant Defendant without without recovery. recovery.
13 13 SO ORDERED, this 7th th day day of of May, 2024. 14 14
15 15
16 16 Q(./» 17 17 Fm. 0 gray.TERLAJE 18 18 Judge, u _error Court of Guam
l9 19
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