Busker Alley, Inc. v. Kasperbauer

Opinion

IN THE SUPERIOR COURT OF GUAM

2 BUSKER ALLEY, INC. and JAE JI, ) 3 CIVIL CASE NO.CV1081-i2 ) 4 Plaintiffs, . ) ) 5 vs. ) DECISION AND ORDER ) 6 LAWRENCE KASPERBAUER and DOES ) 7 1-50, ) ) 8

9 __________________________ Defendants. ) )

) 10 LAWRENCE KASPERBAUER, ) ) 11 Counter-claimant, ) ) 12 vs. ) 13 ) BUSKER ALLEY, INC., JAE JI, VANESSA ) 14 JI, THE LAW OFFICE OF VANESSA JI, ) 15 P.C. and DOE ONE through DOE TEN, ) ) 16 Counter-claim Defendants.) ) 17 --------------------------------- 18 INTRODUCTION 19 This matter came before the Honorable Jame:; L. Canto II on Defendant's motion to 20 dismiss, filed October 2, 2012. Oral arguments were heard on June 14, 2013. Attorney George 21 N. Valdes represented Plaintiffs and Attorneys James M. Maher and Mitchell F. Thompson 22 appeared on behalf of Defendant. Having considered the parties' briefs, oral arguments, and the 23 applicable law, the Court now issues the following Decision and Order. 24 BACKGROUND 25 In this land development dispute, Plaintiffs are the tenants of beach property adjacent to 26 Defendant's condominium residence. Plaintiffs sought to develop the beach property into a bar. 27 Defendant opposed this development as a resident and president of the condominium 28 homeowner's association.

Page 1 of9 On October 1, 2012, Plaintiffs filed a first amended complaint to allege that Defendant 2 committed numerous tortious acts regarding the beach development project. (First Am. Compl.,

3 Oct. 1, 2012.) The general allegations against Defendant can be summarized as follows: 1) 4 Defendant repeatedly stated his belief in various illegal or immoral aspects of the beach i

5 development project to neighbors, government agencies, government officials, the Legislature,

6 members of the press, landlords, landowners and business partners of the project; 2) Defendant

7 repeate,dly trespassed and interfered with the beach property when he blocked access to the 8 property, dumped trash and debris on the property, took photographs on the property, tampered

9 with utility meters on the property, and called local authorities to the property; 3) Defendant 10 filed suit to enjoin the beach development project; 4) Defendant organized his neighbors against

11 the beach development project; and 5) Defendant publicly mocked, ridiculed and disparaged

12 Plaintiff Jae Ji and further stalked and harassed him at his place of business. !d. at 3-10. 13 On the basis of these general allegations, Plaintiffs assert the following causes of action:

14 1) civil conspiracy; 2) nuisance; 3) trespass; 4) interference with public access to the ocean

15 shore; 5) trade libel relating to the Marianas Variety Statements; 6) trade libel relating to the

16 KUAM Statements; 7) slander relating to statements made to Plaintiffs' landlord; 8) slander 17 relating to statements made to the owners of Plaintiffs' property; 9) intentional interference with

18 contract; 10) negligent interference with contract; 11) interference with prospective economic 1 19 advantage; 12) harassment; 14) intentional infliction of emotional distress ; and 15) negligent

20 infliction of emotional distress. !d. at 10-25. 21 On October 2, 2012, Defendant moved to dismiss the first amended complaint on the

22 grounds that his actions are immune from liability under the Citizen's Participation in

23 Government Act (hereinafter "CPGA"). Defendant further asserts that any remaining claims are

24 without merit. Plaintiffs argue that Defendant's actions were not genuinely aimed at procuring

25 favorable government action.

26 Ill 27

28 1 Plaintiffs failed to state a thirteenth cause of action in the First Amended Complaint. (First Am. Compl., Oct. I, 2012.)

Page 2 of9 DISCUSSION 2 1. CPGA Immunity 3 Under Guam law, a motion to dispose of a claim on the grounds of immunity under the 4 CPGA is treated as a motion fQr summary judgment. 7 GCA § 17106(a). The burden shifts to 5 the responding party to produce, "clear and convincing evidence that the acts of the ~oving 6 party are not immunized from liability." 7 GCA § 17106(c), (e) (emphasis in original). An act 7 is imntunized under the CPGA pursuant to "an objective test of whether a reasonable person 8 would conclude from looking at the acts that the acts involved petitioning the government." 9 Guam Greyhound, Inc. v. Brizill, 2008 Guam 13 ~~ 34, 42. "[I]n order for the responding party 10 to remove the acts in question from the protection of... [the CPGA], the responding party must 11 carry its burden of producing evidence such that a reasonable person would conclude by clear 12 and convincing evidence that the acts did not involve petitioning the government." !d. (citing 7 13 GCA § 17106(c), (e)). 14 In this case, Plaintiffs carry the burden to prove by clear and convincing evidence that 15 Defendant's actions did not reasonably involve petitioning the government. Plaintiffs present 16 evidence of the following: 1) Defendant's letters, complaints, and testimony to government 17 agencies and officials; and 2) local press articles about the dispute that contain statements from 18 Defendant and Plaintiff. (Motion for Leave to File Declaration of Jae Ji, Exhibit "A", May 16, 19 2013.) These acts are not so extraordinarily persuasive as to enable a clear conviction that . 20 Defendant did not reasonably petition the government. See Brizill, 2008 Guam 13 at ~ 41. 21 Plaintiffs do not present clear, direct, weighty, and convincing evidence to give the Court a clear 22 conviction that Defendant's actions were not genuinely aimed at procuring favorable 23 government action or that he was using the government process itself as a weapon. See id. at ~ 24 44 (quoting City ofColumbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380, 111 S.Ct. 25 1344, 1354, 113 L.Ed.2d 382 (1991) (classic sham petition is one lodged in order to impose 26 expense and delay with no expectation of success)). 27 Defendant admits that he sent letters to government agencies and spoke to the press 28 because he opposes Plaintiffs' proposed bar in a residential neighborhood. (Declaration of

Page 3 of9 Lawrence F. Kasperbauer, Oct. 2, 2012.) A reasonable person could conclude that his 2 complaints were petitioning activity even though he spoke to the press about the dispute. There 3 is no clear and convincing evidence that Defendant used the process as a weapon to impose 4 expense and delay with no e>Q>ectation of success or that he did not genuinely aim for~ the 5 government to prohibit the proposed bar. For these reasons, Plaintiffs fail to carry their "burden 6 to receive summary judgment under the CPGA and Defendant's actions are entitled to its

7 protection. 8 Furthermore, Plaintiffs present no evidence of the following acts alleged in the 9 complaint: 1) speaking against the project to neighbors, landlords, landowners and business 10 partners; 2) organizing neighbors against the project; and 3) filing suit against the project. 11 Absent any evidence that these alleged acts do not involve petitioning the government, Plaintiffs 12 cannot receive summary judgment under the CPGA and Defendant's actions are entitled to its

13 protection. 14 Finally, Plaintiffs present no evidence of the alleged acts of nuisance, trespass, and the 15 intentional infliction of emotional distress. However, the CPGA may not protect petitioning 16 activity that is carried out via an intentional tort like trespass. See Sandholm v. Kuecker, 962 11 N.E.2d 418,432 (Ill. 2012) ("We simply do not believe that, in enacting the anti-SLAPP statute, 18 the legislature intended to abolish an individual's right to seek redress for defamation or other 19 intentional torts, whenever the tortious acts are in furtherance of the tortfeasor's rights of 20 petition, speech, association, or participation in go~ernment.").2 The acts of trespass or 21 nuisance on private property and the intentional infliction of emotional distress upon a private 22 individual do not reasonably involve petitioning the government or otherwise comprise 23 participation in the process of government. In a similar manner, the acts of interference with 24 public access to the ocean shore, harassment, and negligent infliction of emotional distress upon 25 a private individual neither reasonably involve petitioning the government nor comprise 26 participation in the process of government. For these reasons, the claims of nuisance, trespass,

28 2 Illinois' version of the CPGA is very similar to Guam's and Illinois cases have been used as persuasive authorit

on the CPGA. See Enriquez v. Smith, 2012 Guam 1511 15-17.

Page 4 of9 interference with public access to the ocean shore, harassment, and intentional and negligent 2 infliction of emotional distress shall not be dismissed pursuant to the CPGA. 3 2. Lack of Merit 4 Defendant asserts that .the remaining claims of nuisance, trespass, interference with $

5 public access to the ocean shore, harassment, and intentional and negligent infliction of 6 emotional distress are without merit. Viewing the remaining claims in the light most favorable 7 to PlaiQtiffs as the non-movant, the Court does not agree that Plaintiffs can prove no set of facts 8 to support their claims for relief and a majority of their claims are plausible on their face. See, 9 e.g., Core Tech Intn 'l Corp. v. Hanil Engineering & Canst. Co., Ltd., 2010 Guam 13 ~ 52 10 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Ashcroft v. Iqbal, 556 U.S. 3 11 662, 129 S.Ct. 1937, 1949-50 (2009). 12 a. Nuisance 13 Under Guam law, "[a]nything which is injurious to health, or is indecent or offensive to 14 the senses, or an obstruction to the free use of property, so as to interfere with the comfortable 15 enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary 16 manner, of any river, bay, stream, canal, or basin, or any public park, square, street, or highway,

17 is a nuisance." 20 GCA § 10101. 18 In support of its nuisance claim, Plaintiffs allege that Defendants' actions and omissions 19 have intentionally obstructed Plaintiffs' free use of property such that it interferes with 20 Plaintiffs' comfortable enjoyment of property and that the obstruction was substantial and 21 umeasonable. (First Am. Compl., 11, Oct. 1, 2012.) Specifically, Plaintiffs allege that over a 22 two year period, from approximately September 2010 to September 2012, Defendants left dirty 23 diapers containing human feces on Plaintiffs' property and entered Plaintiffs' property to harass 24 and intimidate Plaintiffs. !d. at 7. Plaintiffs further allege that Defendants dumped construction 25 and landscaping debris onto Plaintiffs' property and continually blocked access to Plaintiffs'

27 3 Plaintiffs previously failed to provide a sufficient factual basis to receive temporary restraining orders. (Recor 28 Log at 2:20, Sept. 27, 2012.) However, the evidence presented does not render the pleadings meritless when viewe in the light most favorable to Plaintiffs.

Page 5 of9 property by parking cars over Plaintiffs' access easement during this time period,. !d. In 2 addition, Plaintiffs allege that on or about September 13, 2012 and September 14, 2012, 3 Defendants entered onto Plaintiffs' property to harass and intimidate Plaintiffs by taking 4 pictures and tampering with the utility meters. !d. at 9. Taking these allegations as true, 5 Plaintiffs have set forth the kind of factual allegations that "raise a right to relief above the 6 speculative level." Core Tech, 2010 Guam 13 at~ 53 (quoting Twombly, 550 U.S. at 555). For 7 this rea_son, Plaintiffs have set forth sufficient facts showing that they are entitled to relief under

8 their claim of nuisance and the claim is plausible on its face.

9 b. Trespass 10 Under Guam law, "[a] party claiming trespass must prove the following elements: a) the

11 tortfeasor intentional! y; b) enters land in possession of another, or causes a thing or a third 12 person to do so; or c) remains on the land; or d) fails to remove from the land a thing which he

13 is under a duty to remove." Guerrero v. DLB Canst. Co., 1999 Guam 9 ~ 16 (citing

14 RESTATEMENT(SECOND)OFTORTS § 158 (1988)).

15 In support of its trespass claim, Plaintiffs allege that Defendants intentionally entered

16 Plaintiffs' property without Plaintiffs' consent. (First Am. Compl., 11, Oct. 1, 2012.) 17 Specifically, Plaintiffs allege that over a two year period, from approximately September 2010 18 to September 2012, Defendants left dirty diapers containing human feces on Plaintiffs' property

19 and entered Plaintiffs' property to harass and intimidate Plaintiffs. !d. at 7. Plaintiffs also 20 allege that over this two year period, Defendants dumped construction and landscaping debris

21 onto Plaintiffs' property. !d. Plaintiffs further allege that Defendants have stalked, harassed,

22 terrorized, and intimidated Plaintiff by following him at his place of business and entering

23 Plaintiffs property. !d. at 8. In addition, Plaintiffs allege that on or about September 13, 2012 24 and September 14, 2012, Defendants entered onto Plaintiffs' property to harass and intimidate

25 Plaintiffs by taking pictures and tampering with the utility meters. !d. at 9. Taking these

26 allegations as true, Plaintiffs have set forth the kind of factual allegations that "raise a right to

27 relief above the speculative level." Core Tech, 2010 Guam 13 at~ 53 (quoting Twombly, 550

Page 6 of9 U.S. at 555). For this reason, Plaintiffs have set forth sufficient facts showing that they are 2 entitled to relief under their claim of trespass and the claim is plausible on its face. 3 c. Interference with Public Access to the Ocean Shore 4 Under Guam law, "[i]t .shall be unlawful for the owner, lessee, or tenant of any lands 5 adjacent to or abutting the ocean shore to block, impede, or interfere with the public use of any 6 traditional right-of-way." 21 GCA § 65105 (a). 7 Jn support of its interference with public access to the ocean shore claim, Plaintiffs 8 allege that by obstructing Plaintiffs' easement access to Plaintiffs' property, Defendants 9 infringed on the right of public access to the ocean shore and limited Plaintiffs' lawful 10 acquisition of a right-of-way to the ocean shore. (First Am. Compl., 13, Oct. 1, 2012.) 11 Specifically, Plaintiffs allege that for over two years, from approximately September 2010 to 12 September 2012, Defendants continually blocked access to Plaintiffs' property by parking cars 13 over Plaintiffs' access easement. /d. at 7. Taking these allegations as true, Plaintiffs have set 14 forth the kind of factual allegations that "raise a right to relief above the speculative level." 15 Core Tech, 2010 Guam 13 at ~ 53 (quoting Twombly, 550 U.S. at 555). For this reason, 16 Plaintiffs have set forth sufficient facts showing that they are entitled to relief under their claim 17 of interference with public access to the ocean shore and the claim is plausible on its face. 18 d. Harassment 19 Under Rule 12(b)(6) of the Guam Rules of Civil Procedure, conclusory allegations of 20 law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state 21 a claim. Taitano v. Calvo Finance Corp., 2009 Guam ~6. Title 9 GCA § 61.20 provides the 22 definition of criminal harassment, but civil harassment has not been defined under the Guam 23 codes. Furthermore, the Plaintiffs fail to cite any relevant legal authority in support of its claim 24 of harassment. (First Am. Compl., 23, Oct. 1, 2012; Opp'n Mot. to Dismiss, 17, Apr. 19, 2013) 25 Upon further review, this Court finds no evidence of the Guam Supreme Court's recognition of 26 a civil action for harassment. Because Plaintiffs are unable to set forth facts to show that they 27 are entitled to relief under a claim not recognized in Guam, the claim of harassment is not 28 plausible on its face and the claim shall be dismissed.

Page 7 of9 e. Intentional and Negligent Infliction of Emotional Distress 2 Under Guam law, the elements of a claim for intentional infliction of emotional distress 3 are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless 4 disregard of the probability of causing emotional distress; (3) severe emotional distress, on the 5 plaintiffs part; and (4) actual and proximate causation of that emotional distress. See Cruz 6 Reyes v. US., Civil Action No. 08-0005, Opinion and Order Re: Motion to Dismiss; 2010 WL 7 52075&3 (D. Ct. Guam Dec. 1, 2010) (citing RESTATEMENT (SECOND) OF TORTS §46 (1965)). 8 Alternatively, under Guam law, "[t]o recover for negligent infliction of emotional

9 distress, a complainant must show; a) the tortfeasor acts in a manner that is extreme and 10 outrageous; and b) that the tortfeasor should have realized that his conduct posed an 11 unreasonable risk of causing distress that might result in illness or bodily harm." Guerrero v.

12 DLB Canst. Co., 1999 Guam 9 'If 17 (citing RESTATEMENT (SECOND) OF TORTS§§ 46 and 313

13 (1988)). 14 In support of its intentional and negligent infliction of emotional distress claims, the

15 Plaintiffs allege the "Defendants' conduct was intentional and malicious and done for the

16 purpose of causing Plaintiffs to suffer humiliation, mental anguish, and emotional and physical 17 distress." (First Am. Compl., 24, Oct. 1, 2012.) At a meeting with Plaintiff Jae Ji at the 18 Tamuning Mayor's Office on or about May 18, 2011, Defendants allegedly mocked, ridiculed,

19 and disparaged Plaintiffs in an effort to embarrass, humiliate, and publicly scorn Plaintiffs. !d. 20 at 4. In addition, Defendants allegedly stalked, harassed, terrorized and intimidated Plaintiff Jae 21 Ji by following him at his place of business. !d. at 8. Plaintiffs further allege that Plaintiffs

22 have suffered "humiliation, mental anguish, emotional physical distress, and have suffered

23 damages as a result of Defendants actions." !d. at 24. Taking these allegations as true, 24 Plaintiffs have set forth the kind of factual allegations that "raise a right to relief above the

25 speculative level." Core Tech, 2010 Guam 13 at 'If 53 (quoting Twombly, 550 U.S. at 555). For 26 this reason, Plaintiffs have set forth sufficient facts showing that they are entitled to relief under 27 their claims of intentional and negligent infliction of emotional distress, and the claims are

28 plausible on their face.

Page 8 of9 For all of these reasons, the remaining claims of nuisance, trespass, interference with

2 public access to the ocean shore, and intentional and negligent infliction of emotional distress

3 shall not be dismissed for a general lack of merit. Furthermore, the claim of harassment shall be ,

4 dismissed for a general lack of merit. 5 Ill 6 Ill 7 j/1

8 CONCLUSION

9 Based upon the foregoing, Plaintiffs' first, fifth, sixth, seventh, eighth, ninth, tenth, and

10 eleventh (1, S-11) claims for relief are hereby DISMISSED and Defendant is entitled to the

11 substantive relief mandated by the Citizen Participation in Government Act. Pursuant to 7 GCA

12 § 171 06, the Court shall hear eviden~e and argument on the matter of costs, fees and other OC1 ~L ~ 10U 13 sanctions or damages on at - - - 1 - - - - - · 14 Furthermore, Plaintiffs' twelfth (12) claim for relief is hereby DISMISSED.

16 SO ORDERED this .:J.:7-n1.day of September, 2013.

19 HON. JAMES L. CANTO II 20 Judge, Superior Court of Guam 21

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