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IN THE SUPERIOR COURT OF GUAM 55
BUSKER ALLEY, INC. and JAE JI, 1�� 'rjT C IV IL CASE NO. CV11081-12 Plaintiffs,
vs. DECI SI O N AND O RDER
LAWRENC E KASPER BAUER a nd DOES 1-50,
Defendants.
10 LAWRENCE KASPERBAUER,
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 I NTRO D UCTI O N 19 Thi s matter ca me before the Honorable James L. Cant o II o n Defendant/Counter- 20 Claimant Lawrence Kasperbauer's submission of three affidavits as evidence to substantiate his 21 cla im for damages pursuant to the Citizen Participation in Government Act ("CPGA"), filed 22 December 6, 2013. On March 12, 2014, the Court issued an order finding that the resolution of 23 t he i ssu e o f damages pu rsu ant t o CP GA was premat u re and no t yet ri pe fo r co nsi derat i o n when 24 there was a pending trial on the remaining claims. On March 24, 2014, the parties agreed to 25 settle the remaining claims in this matter and the trial was vacated. The i ssu e of da ma ge s 26 purs ua nt to the C PGA is no w ri pe for consideration by this Court. Having co nsidered the 27 parties' briefs and the applicable law, the Court now issues the following Decision and Order. 28
Page 1 of 11 BACKGROUND In this land development dispute, Plaintiffs are the tenants of beach property adjacent to
Defendant's condominium residence. Plaintiffs sought to develop the beach property into a bar.
Defendant o ppo sed this devel o pment as a resident and president o f the co ndo m i ni u m
ho meo wner' s asso ci at i o n.
On Oct o ber 1 , 2 0 1 2 , P l ai nt i ffs fi l ed a fi rst amended co mpl ai nt t o al l ege t hat Defendant
committed numerous tortious acts regarding the beach development project. (First Am. Compl.,
Oct . 1, 2012.) The general allegations against Defendant can be summarized as follows: 1)
9 Defendant repeatedly stated hi s belief in various ille gal or i mmo ral aspect s o f th e beach
10 devel o pment pro j ect t o nei ghbo rs, go vernment agenci es, go vernment o ffi ci al s, t he Legi sl at u re,
11 members of the press, landlords, landowners and business partners of the project; 2) Defendant
12 repeatedly trespassed and interfered with the beach property when he blocked access to the 13 pro pert y, du mped t rash and debri s o n t he pro pert y, t o o k pho t o graphs o n t he pro pert y, t ampered
14 with utility meters on the property, and called local authorities to the property; 3) Defendant 15 filed suit to enjoin the beach development project; 4) Defendant organized his neighbors against
16 the beach development project; and 5) Defendant publicly mocked, ridiculed and disparaged 17 Plaintiff Jae Ji and further stalked and harassed him at his place of business. Id . at 3-10.
18 On the basis of these general allegations, Plaintiffs assert the following causes of action:
19 1) civil conspiracy; 2) nuisance; 3) trespass; 4) interference with public access to the ocean 20 shore; 5) trade libel relating to the Marianas Variety Statements; 6) trade libel relating to the 21 KUAM Sta te me nts ; 7) slander relating to statements made to Plaintiffs' landlord; 8 ) sl ander
22 relating to statements made to the owners of Plaintiffs' property; 9) intentional interference with
23 contract; 10) negligent interference with contract; 1 1 ) i nt erference wi t h pro spect i ve eco no mi c
24 advan t age; 1 2 ) harassment ; 14) intentional infliction of emotional distress'; and 15) negligent
25 infliction of emotional distress. Id. at 10-25.
26 On October 2, 2012, Defendant moved to dismiss the first amended complaint on the 27
28 1 Plaintiffs failed to state a thirteenth cause of action in the First Amended Complaint. (First Am. Compl., Oct. 1, 2012.)
Page 2 of 11 grounds that hi s actions are i mmu ne from liability u nder the Ci t i zen' s Participation in
Government Act (hereinafter "CPGA"). Defendant further asserts that any remaining claims are
without merit. Plaintiffs argue that Defendant's actions were not genuinely aimed at procuring
favorable government action.
On September 27, 2013, the Court issued a Decision & Order dismissing Plaintiffs' first,
fifth, sixth, seventh, eighth, ninth, tenth, and eleventh (1, 5-11) claims for relief and finding that
7 Defendant i s ent i t l ed t o su bst ant i ve rel i ef mandat ed by t he CP GA. (Dec. & Order, 9 , Sept . 2 7 ,
8 2013).
9 On November 22, 2013, the Court ordered Defendant to provide evidence to substantiate
10 any claim for damages pursuant to the CPGA. On December 6, 2013, Defendant submitted 11 affi davi t s fro m (1 ) Defendant ; (2 ) Carmen A. Kasperbau er, Defendant ' s wi fe; and (3 ) James M.
12 Maher, Defendant's attorney, in support of his claim for damages.
13 On Dece mber 13, 2013, Plaintiffs fil ed an objec tion an d response to Defend ant's
14 evidence of damages. Plaintiffs argue that: (1) damages under section 17106 (g) are limited to
15 attorney's fees and costs incurred by Defendant only; (2) the purported amount of attorney's
16 fees and costs submitted by Defendant are inappropriate and unreasonable; (3) Defendant has 17 not incurred any attorney's fees or costs in connection with the motion to dismiss when the 18 Aga na Beach Co ndo mi ni u m Home owne r's Acco u nt is payi ng all expenses related to hi s
19 litigation; (4) sanctions are not warrant ed; and (5 ) the issue of damages is not ri pe for
20 consideration. (Objection & Response to Evidence of Damages, 2-11, Dec. 13, 2013).
21 On December 20, 2013, Defendant fi l ed a re ply to Plaintiffs' objection. Defendant
22 argues that (1) there is no requirement in section 17106 of the CPGA that requires that pending
23 cl ai ms o r mo t i o ns mu st be reso l ved as a co ndi t i o n precedent t o rel i ef u nder sect i o n 1 7 1 0 6 ; (2 )
24 sanctions are mandat o ry u nder Gua m's ant i - SLAP P statute; (3 ) Defend ant's requested
25 at t o r ney' s fees and costs is reasonable; and (4) co mpensat o ry da ma ge award to Defen dant
26 necessarily entails the impact on Defendant's wife. (Reply, 2-11, Dec. 20, 2013).
27 On March 12, 2014, the Court issued an order finding that the resolution of the issue of
28 damages pursuant to CPGA was premature and not yet ripe for consideration when there was a
Page 3 of I I pending trial on the remaining claims.
On March 24, 2014, the parties agreed to settle the remaining claims in this matter and the trial was vacated.
D IS C U S S IO N
Under Guam law, a motion to dispose of a claim on the grounds of immunity under the
CPGA is governed by Title 7 GCA § 171 06. On a plain reading of the CPGA, section 17106 7 (g)(1) expressly states that the court shall "award a moving party who is dismissed... costs of 8 litigation, including reasonable attorney and expert witness fees, incurred in connection with the
9 motion. " 7 GC A § 17106(g)(1). Section 17106(g)(2) further states that a court may impose
10 "such additional sanctions upon the responding party, its attorneys or law firms as it determines
11 will be sufficient to deter repetition of such conduct and comparable conduct by others similarly
12 situa ted." 7 GCA § 17106(g)(2). In addition to attorney's fees and sanctions, section 17106(h)
13 allows a person who has been damaged or injured as a result o f a vi o l at i o n o f t hei r i mmu ni t y 14 from liability in furtherance of the Constitutional right to petition under section 17104 to "seek
15 relief in the form of a claim of actual or compensatory damages, as well as punitive damages,
16 attorney's fees and costs, from the person or persons responsible." 7 GCA § 17106(h).
17 As recognized by the Supreme Court of Guam, the state of the law in our jurisdiction 18 relative to the CPGA has not been extensively developed. Enriquez v. Smith, 2 0 1 2 Gu am 1 5 ¶
19 14. Furthermore, the relevant Guam statute and precedent do not provide a clear answer as to
20 the a mount of a ttorne y's fees, costs, and sanctions awarded to a Defendant prevailing on a
21 motion for summary judgment under the CPGA. Taking into account the similarity between
22 Gua m's C P G A an d California's anti- SLAPP (strategic laws uit against public participation)
23 st at u t e, as wel l as t he l ack o f precedent i al au t ho ri t y i n t he j u ri sdi ct i o n, t he Co u rt i s persu aded
24 that the holdings of the California courts with respect to their citizen practice statute provide 25 guidance in this case.2 See People v. Quenga, 1997 Guam 6 ¶ 8.
27 2 The Supreme Court of Guam considered the holdings of California and Illinois courts regarding their citizen participation statutes, stating they are similar to Guam's CPGA. See Enr i quez, 2012 Guam 1 5 IT 14-16. 28 California's case law history on this issue is far broader than that of Illinois, which is more nascent and does not extend much beyond Sandholm v. Kuecker, 962 N.E.2d 418 (111.2012), which is not instructive here.
Page 4 of 11 1. Tri a l Co u r t ' s Discretion to Award Attorney's Fees
The determination of an award of attorney's fees of a prevailing party on an anti-SLAPP
motion li es within the broad discretion of a trial court. See L i n v. City of Pleasanton, 96
Cal.Rptr.3d 73 0 (Ct.App.2009); Christian Research Institute v. Alnor, 81 Cal.Rptr.3d 86 6
(Ct.App.2008); Russell v. Foglio, 73 Cal.Rptr.3d 87 (Ct.App.2008).
Following a successful special motion to strike under the anti-SLAPP (Strategic Lawsuit
Against Public Participation) statute, the trial court must award moving parties "reasonable
8 attorney fees ... that adequately compensate them for the expense of responding to a baseless 9 lawsuit." Jackson v. Yarbray, 101 Cal.Rptr.3d 303, 317 (Ct.App.2009). Al t ho u gh t he award o f
10 attorney fees is mandatory under the anti-SLAPP statute, the amount of the fee is discretionary.
11 Kearn ey v. Foley and Lardner, 553 F.Supp.2d 1178, 1184 (S.D.Cal.2008). Therefo re, t he
12 Court has the discretion to award the Defendant attorney's fees and costs as the Court deems
13 reasonable and appropriate.
14 2. Recoverable Attorney's Fees
15 As the mo vi ng party, a defendant seeking fees and costs bears "t he bu rden o f
16 establishing entitlement to an award and of documenting the appropriate hours expended and 17 hourly rates." Christian Research Institute, 81 Cal.Rptr.3d 866 at 87 0 (quoting
18 ComputerXpress, Inc. v. Jackson, 113 Cal.Rptr.2d 625, 649 (Ct.App.2001)). A trial court must
19 have "substantial evidence" to support an award of attorney fees under California's anti-SLAPP
20 statute. Kea rn ey v. Foley a n d L a rd n er, 553 F.Supp.2d 1178, 1185 (S.D.Cal.2008) (citing
21 Macias v. Hartwell, 64 Ca1.Rptr.2d 222, 22 6 (Ct.App.1997); Church o f S ci e n t o l o g y of
22 Calif ornia v. Wollersheim, 49 Cal.Rptr.2d 620, 638-39 (Ct.App.1996)); see al so
23 Co mp u t erX p ress, 113 Cal.Rptr.2d at 649 ("the court may require defendants to produce records
24 sufficient to provide a proper basis for determining how much time was spent on particular 25 claims.").
26 In t his case, Defend ant's attorney submitted copies of invoices in this matter from
27 September 26, 2012 through December 20, 2013 with a description of the work performed by 28 Defendant's attorney. (Decl . James M. Maher, E xhi bi t 1 , Dec. 2 0 , 2 0 1 3 ). However, Plaintiffs
Page 5 of l I argue that Defendant's at t o r ney' s fees request includes matters not related to the C P G A.
(Objection & Response to Evidence of Damages, 3-5, Dec. 13, 2013). Thus, Plaintiffs argue that the amount requested for attorney's fees is vague and unreasonable when Defend ant's
submissions do not include the time spent on non-CPGA related matters. Id . at 3-5. Defendant
opposes this notion by arguing that the causes of actions in this case involve common issues of
law and fact, and in such a case, Defendant is entitled to an award of all attorney's fees incurred
in the matter and the fees need not be apportioned. (Reply, 5-7, Dec. 20, 2013).
The California courts have found that "[a]ll expenses incurred on common issues of fact
9 and law qualify for an award of attorneys' fees under the anti-SLAPP statute and those fees need
10 not be apportioned." Kearney, 553 F.Supp.2d at 1184. However, "mere common issues of fact
11 are insufficient to award all fees when legal theories do not overlap or are not inextricably
12 i nt ert wi ned." Id . Although Plaintiffs incorporate and re-plead the "Nature of the Action" and
13 "General Allegations" in every cause of action, this only supports the proposition that there 14 were common issues of fact. Furthermore, the Cou rt previously found t hat t he cl ai ms o f
15 nuisance, trespass, interference with public access to the o cean shore, harassment , an d
16 intentional and negligent infliction of emotional distress shall not be dismissed pursuant to the
17 CPGA. (Dec. & Order, 4-5, Sept. 27, 2013). The legal theories of these non-CPGA claims are 18 not inextricably intertwined with the CPGA claims and require a separate analysis on varying 19 l egal gro u nds. Because there are only common issues of fact with the CPGA and non-CPGA
20 claims, the Court finds that Defendants should only recover all of the fees associated with their
21 motion to dismiss the CPGA claims. Id.
22 Furthermore, the recoverable amount shall include the fees associated with the "Ex Parte
23 Application of Plaintiffs for Temporary Restraining Order" because the CPGA claims in the 24 veri fi ed co mpl ai nt were part o f t he basi s fo r P l ai nt i ffs' appl i cat i o n fo r a t empo rary rest rai ni ng
25 order. (Ex Pa r te App. TRO, 1, Sept. 21, 201 2). Inclusion of the fees associated wi t h t he 26 temporary restraining order is in spirit of the CPGA, insofar as it allows a defendant to recover
27 at t o r ney' s fees fo r act s whic h a re designed to free oneself from the oppressive yoke o f a
28 basel ess lawsuit. Ho wever, this amount shall not include at t o rney' s fees associated wi t h
Page 6 of 11 Defend ant's counterclaim fil ed o n Dece mber 21, 20 12 because the prayed relief i n the
counterclaim overlaps with the CPGA relief sought in Defendant's motion to dismiss filed on October 2, 2012. (Answer & Co u nt ercl ai m, 8 , Dec. 2 1 , 2 0 1 2 ); (Defendant ' s Mo t . Di smi ss, 1 4 ,
Oct. 2, 2012). Permitting Defendant to recover attorney's fees related to the counterclaim will
result in double recovery for Defendant.
3. Amount of Fees and Costs
7 Defendant seeks attorney's fees in the amount of $25,280.00, based on 126.40 hours 8 incurred in working on this matter at the rate of $200.00 per hour. (Decl. James M. Maher, 3,
9 Dec. 20, 2013). Defendant also seeks costs in the amount of $671.00. (Aff. James M. Maher, 3 ,
10 Dec. 6, 2013).
11 The court is not constrained by the amount sought by the successful moving party, but is
12 obligated to award reasonable attorney fees that adequ at el y co mpensat e the part y for the
13 expense of responding to a baseless lawsuit. Ja ck so n v. Yarbray, 101 Cal.Rptr.3d 303, 31 7 14 (Ct.App.2009). The anti-SLAPP statute "is broadly construed so as to effectuate the legislative
15 purpose of reimbursing the prevailing defendant for expenses incurred in extricating herself
16 from a baseless lawsuit." Wilkerson v. Sullivan, 121 Cal.Rptr.2d 275, 277 Ct.App.2002). As 17 stated earlier, the trial court must award successful moving parties "reasonable attorney fees ...
18 that adequately compensate them for the expense of responding to a baseless lawsuit." Jackson,
19 101 Cal.Rptr.3d at 317. "`Padding' in the form of inefficient or duplicative efforts is not subject
20 to compen sation." P remi er M ed i ca l M a n a g emen t S yst ems, In c. v. California Ins. Guarantee 21 Ass ' n , 77 Cal.Rptr.3d 695, 700 (Ct.App.2008). An award shall include "compensation for all
22 hours reaso nabl y spe nt, including those necessary to establish and def end the fee cl ai m."
23 Ket ch u m v. M o ses, 104 Cal.Rptr.2d 377, 391 (Cal.2001).
24 The Court will calculate the amount of attorney fees award under the anti-SLAPP statute
25 in accordance with the "lodestar" method. Ket ch u m, 104 Cal.Rptr.2d at 386-87. Unde r the
26 "lodestar" method, a court calculates "the attorney fee touchstone, or lodestar, by multiplying 27 the nu m ber of hours reasonably expe nded by the reasonable hourly rate prevailing in the
28 community for similar work." Cabral v. Martins, 99 Cal.Rptr.3d 394, 411 (Ct.App.2009); see
Page 7 of 11 also Christian Research Institute, 81 Cal.Rptr.3d at 870 (when computing an attorney award to
a defendant prevai l i ng o n a speci al mo t i o n t o st ri ke u nder t he ant i -SLAP P st at u t e, a t ri al co u rt
"begins with a touchstone or lodestar figure, based on careful compilation of the time spent and
reasonable hourly compensation of each attorney involved in the presentation of the case."). The calculation of the lodestar may be adjusted by the court based on the following factors: (1)
6 the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them,
7 (3) the extent to which the nature of the litigation precluded other employment by the attorneys,
8 (4) the contingent nature of the fee award. Ket ch u m, 104 Cal.Rptr.2d at 384. See Russell, 73
9 Cal.Rptr. at 93 (in determining a reasonable award of attorney's fees for the prevailing party, 10 courts have considered the following factors: the nature of the litigation, the complexity of the
11 issues, the experience and expertise of counsel, and the amount of time involved.); Wilkerson v.
12 Sullivan, 121 Cal.Rptr.2d 27 5, 27 9 (Ct.App.2002) (courts consider whet her the amo u nt
13 requested is based upon unnecessary or duplicative work).
14 In support of his claim for attorney's fees and costs, Defendant provides the affidavit 15 and declaration of James M. Maher, the Defendant's attorney in this matter. Defendant has also
16 submitted evidence to show that other attorneys on Guam, with differing level of experience and
17 hourly rate than Defendant's attorney, would charge a client $275.00 per hour to $350.00 per 18 hour for this type of case. (Decl. Rawleen Mantanona, 2, Dec. 20, 2013); (Decl. David J. Lujan,
19 2 , Dec. 2 0 , 2 0 1 3 ). Taking into account the considerations discussed in the section above, the
20 Co u rt fi nds t hat Defendant i s ent i t l ed t o at t o rne y' s fee fo r 9 5 ho u rs, at t he rat e o f $ 2 0 0 .0 0 per
21 hour, which equals $19,000.00. In addition, Defendant is entitled to $671.00 in costs. 22 4. S a nc tio ns
23 Ne ithe r the California ant i - SLAP P stat ute no r the Illinois Citizen Participation Act
24 employs the te rm "sanct i o ns." See C AL. C IV PRO.CODE 425 .16 (West 2011); 73 5
25 ILL.COMP.STAT.ANN. 110/25 (West 2007). This absence of additional sanctions implies the 26 California an d Illinois legislatures intended the award of attorney's fees and costs to be a
27 su ffi ci ent pu ni t i ve and det errent measu re. However, Guam's anti-SLAPP statute differs from
28 those of California and Illinois in this respect. In Guam's CPGA, "the court shall a wa rd a
Page 8 of 11 moving party who is dismissed, without regards to a ny limit unde r Gua m la w: .. . (2 ) such
additional sanctions upon the responding party, its attorneys or law firms as it determines will
be sufficient to deter repetition of such conduct and comparable conduct by others similarly situated." 7 GCA § 17106(g)(2).
The facts of this case fall precisely within the ambit of the CPGA. In t he i ns t ant case 6 Plaintiffs filed a complaint against Defendant in part because Defendant sent letters to
7 government agencies and spoke to the press because he opposed Plaintiffs' proposed bar in a 8 residential neighborhood. In enacting the CPGA, the Legislature declared that it recognized
9 citizens ' rights to petition their government as an inalienable right ; that it sought to secure that
10 ri ght t o petition the government for redress of grievances; a nd tha t it a ffirme d tha t claims,
it o pi ni o ns and i nfo rmat i o n pro vi ded by citizens to their go vernment s are ess ent i al to public
12 health. 7 GCA § 17102(a)( 1) & (2). Such was the case here, where Defendant sent letters to
13 government agencies and spoke to the press regarding Plaintiffs' proposed bar, and where that
14 complaint, its contents and its subject come under the purview of the CPGA pursuant to 10 15 GCA §§ 12417 through 12471, inclusive. Further, the Legislature found civil lawsuits are filed
16 against citizens based on their valid exercise of their right to seek relief, to influence action and
17 to inform a government body. 7 GCA § 17102(a)(3). This equally applies to the instant case,
18 where Plaintiffs filed an action against Defendant based, i n part, Defend ant's letters to
19 government agencies and Defendant's communications with the press.
20 The Legi sl at u re ackno wl edged t hat "whi l e so me ci t i zen co mmu ni cat i o ns t o go vernment
21 inevitably will be incorrect, unsound, self-interested or not in good faith, it is essential ... [for]
22 citizens to participate fully in the process of government". 7 G C A § 17102(a)(9). To t hese
23 ends, the Legislature held the purposes of the CPGA include "the protection and regulation of 24 public health, safety and welfare by protecting public participation in government programs, 25 pu bl i c po l i cy deci si o ns and o t her act i o ns". 7 GCA § 17102(b)(3). The Government of Guam
26 has an expressed, legitimate interest in protecting the public ' s ability to communicate with its
27 own agencies.
Page 9 of 11 The Court previously found Defendant's acts of sending letters to government agencies
and speaking to the press could reasonably be concluded as proper petitioning activity when Plaintiffs failed to carry their burden to show that the activities were not petitioning activity, and
that Plaintiffs' lawsuit was filed, in part, as a response to those activities falls squarely under the
5 definition of a SLAPP lawsuit. See 7 GCA § 17102(a)(3), (6) & (7). Given the aforementioned
6 legislative intent of the CPGA and the facts before the Court, the Court finds it necessary in the
7 context o f th e pres ent case to sanction Plaintiffs to det er repetition of his co ndu ct and
8 comparable conduct by others similarly situated. Thus the Court hereby impos es a sanction 9 upon Plaintiffs pu rsu ant t o 7 G C A § 17106(g)(2) i n t he amount o f F i ve Thousand Dollars
10 ($5,000.00). The Court finds this amount to be appropriate and necessary to prevent probable
recidivism and deter others similarly situated.
12 5. Compensatory Damages
13 Under Guam law, a person damaged or injured by reason of a claim filed in violation of
14 their immunity under the CPGA ma y seek relief in the form of a claim for compensatory 15 damages from the person or persons responsible. 7 GCA § 17106(h). However, th e award of
16 compensatory damages to a person damaged or injured by reason of a claim filed in violation of
17 their immunity under the CPGA is discretionary. Id. The Co u rt , in its discretion, finds that 18 compensatory damages are not appropriate in this case in light of the sanction on Plaintiffs. 19
Page 10 of 11 CONCLUSION Based upon the foregoing, Defendant is entitled to an attorney's fees and costs award of
Ni net een Tho u sand Si x Hu ndred Sevent y One Dollars ($19,671.00) pursuant to 7 G C A
§ 17106 (g)(1). Further, the Court i mpo ses a sanc tion u po n Plaintiff pursuant to 7 G C A
§ 17106(g)(2) in the amount of Five Thousand Dollars ($5,000.00). Both these amounts totaling
Twenty-Four Thousand Six Hundred Seventy-One Dollars ($24,671.00) shall be immediately due and owing to Defendant by Plaintiffs.
II S O O R D E R E D this day of May, 2014. 12
lION. JAMES L. CANTO II J udg e , S upe rio r Court of Guam
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