5 IN THE SUPERIOR COURT OF GUAM 6
7 RUSTICO Q. CALMA, ) CIVIL CASE NO. CV300-20 8 ) Plaintiff, ) 9 ) 10 vs. ) DECISION AND ORDER RE. ) DEFENDANT'S MOTION TO 11 DIANA J. CALMA, ) DISMISS PURSUANT TO GRCP ) RULES 12(b)(6), 9 AND 8 12 Defendant. ) 13 ___________________________) 14 I. INTRODUCTION 15 This matter came before the Honorable Judge Maria T. Cenzon on October 26, 2020 as a 16 Motion Hearing for Defendant Diana J. Calma's ("Defendant") Motion to Dismiss Pursuant 17 to Guam Rules of Civil Procedure ("GRCP") Rules 12(b)(6), Rule 9 and Rule 8. Defendant 18 was represented by Attorney Darleen E. Hiton. Attorney Gary Wayne Francis Gumataotao 19
20 represents the Plaintiff, Rustico Q. Calma (the "Plaintiff'). All parties were present at the
21 hearing via Zoom platform. 22 Following the hearing on the Motion, the court took the matter under advisement pursuant 23 to Supreme Court of Guam Administrative Rule 06-001 and CVR 7.1(e)(6)(A) of the Local 24 Rules of the Superior Court of Guam. After reviewing the Parties' written briefs and the 25
26 record on file with the court, the arguments presented at the Motion Hearing, and the
27 applicable statutes and case law, the court now issues this Decision and Order ruling on the 28 Motion and DENYING DEFENDANT'S MOTION TO DISMISS, for the reasons set forth herein. II. BACKGROUND 2 Plaintiff filed a Verified Complaint on March 16, 2020, alleging that Defendant acted 3 fraudulently by using her confidential relationship with the Plaintiff to cause him to execute 4 deeds for five different parcels of land in which Defendant was the purported grantee, without 5 consideration. Compl. <]I 7-9. On July 7, 2020, Defendant filed a Motion to Dismiss 6
7 ("Motion") Pursuant to GRCP Rules 12(b)(6), Rule 9, and Rule 8. Defendant argues, in
8 pertinent part, that Plaintiffs Verified Complaint fails to state a claim for which relief can be 9 granted and must be dismissed. Mot. at p. 2. Plaintiff filed an Opposition to Defendant's 10 Motion on July 23, 2020 and Defendant filed her Reply on October 19, 2020. 11
12 III. LAW AND ANALYSIS 13 Defendant argues that Plaintiff has not sufficiently plead his claim for fraud with 14 particularity as required by GRCP Rule 9, that he has not shown that the Defendant intended 15 to defraud generally under GRCP Rule 8, and that because he has not sufficiently plead his 16
17 claims, he has not stated a claim upon which relief may be granted and that his Complaint
18 must be dismissed under GRCP Rule 12(b)(6).
19 The elements of fraud are: "(1) a misrepresentation; (2) knowledge of falsity (or 20 scienter); (3) intent to defraud to induce reliance; (4) justifiable reliance; and (5) resulting 21 damages. Ukau v. Wang, 2016 Guam 26, <]I 36 (Guam Aug. 31, 2016). In order to sufficiently 22
23 plead a claim for fraud the Plaintiff must articulate their claims with particularity under
24 GRCP Rule 9. In relevant part, Rule 9 states: 25 In all averments of fraud or mistake, the circumstances constituting fraud or 26 mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally. 27 The Ukau analysis is twofold: first, we must determine whether the Plaintiff stated the 28
circumstances surrounding the fraud with particularity under GRCP Rule 9; second, we must 2 determine whether the Plaintiff averred the Defendant's intent to defraud generally under 2 GRCP Rule 8. Ukau v. Wang, 2016 Guam 26, «j[ 43. Defendant argues that Plaintiff's 3 Complaint fails under both parts of the analysis. Mot. at p. 2-4. 4
5 a. Failure to Plead Fraud with Specificity under GRCP Rule 9
6 Rule 9(b) does not require a plaintiff to prove a claim of fraud at the pleading 7 stage. Ukau v. Wang, 2016 Guam 26, «j[ 47; quoting Taitano I, 2008 Guam 12 «j[ 16. Rather, 8 what is required is that a plaintiff set forth his claim with sufficient detail to provide notice to 9 defendants as to what particular fraudulent action is being alleged. This standard has been 10
11 described as a "who, what, when, where, and how" requirement. !d.
12 Here, by alleging that the Defendant, Diana Calma, has acted fraudulently by causing 13 her attorney to draft and execute deeds granting her title to five different parcels of land, 14 Plaintiff has described "who" committed the fraudulent action upon which he makes his 15 claim. Compl. at «j[ 7. Next, Plaintiff alleges that Defendant committed the fraudulent action 16
17 because (1) she had her attorney execute deeds granting her five parcels of land from the
18 Plaintiff, (2) Defendant did not pay consideration for the parcels, (3) the Plaintiff and 19 Defendant maintained a confidential relationship, and (4) Plaintiff was not independently 20 advised regarding the subject land transfer. Compl. at «JJ«JJ 7-9. These facts Plaintiff has 21
alleged provide the "what" under the factors setforth in Ukau v. Wang. 22
23 Plaintiff has also described "when" the Defendant had her attorney draft the deeds
24 granting her the parcels, "on or about August 12, 2016," and has alleged that he has only 25 "recently" discovered facts that form his good faith belief that Defendant acted fraudulently, 26 under Ukau v. Wang. Compl. at «JJ«j[ 7 andlO. Plaintiff described "where" the fraudulent action 27
28 took place by providing the parcel descriptions within the Complaint and stating that
3 Defendant's attorney drafted the deeds and had them executed andfiled at the Department of 2 Land Management. Compl. at
5 transfer, that the Defendant had her attorney draft the deeds, that she did not pay any
6 consideration for the transfer, and that she used her confidential relationship with the Plaintiff, 7 an elderly person, to influence him to execute the Deeds. Compl. at
11 notice of the fraudulent action being alleged.
12 a. Failure to Plead Intent to Defraud generally under GRCP Rule 8 13 Defendant argues that Plaintiff has failed to meet the general pleading requirements 14 under GRCP Rule 8 to show that Defendant intended to defraud the Plaintiff. In particular, 15 Defendant asserts that Plaintiffs allegations do not amount to fraud, fraudulent action, or an 16
17 intent to defraud plaintiff. Mot. at p. 4 (emphasis added).
18 When interpreting the plain language of Rule 8(a), the Supreme Court of Guam has 19 held that "Guam law requires only notice pleading, not fact pleading." Ukau v. Wang, 2016 20 Guam 26,
22 the claim showing entitlement to relief. !d. at
23 13; Guam Election Comm'n, 2007 Guam 20
4 (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and 2 (3) a demand for judgment for the relief to which the pleader seeks.
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5 IN THE SUPERIOR COURT OF GUAM 6
7 RUSTICO Q. CALMA, ) CIVIL CASE NO. CV300-20 8 ) Plaintiff, ) 9 ) 10 vs. ) DECISION AND ORDER RE. ) DEFENDANT'S MOTION TO 11 DIANA J. CALMA, ) DISMISS PURSUANT TO GRCP ) RULES 12(b)(6), 9 AND 8 12 Defendant. ) 13 ___________________________) 14 I. INTRODUCTION 15 This matter came before the Honorable Judge Maria T. Cenzon on October 26, 2020 as a 16 Motion Hearing for Defendant Diana J. Calma's ("Defendant") Motion to Dismiss Pursuant 17 to Guam Rules of Civil Procedure ("GRCP") Rules 12(b)(6), Rule 9 and Rule 8. Defendant 18 was represented by Attorney Darleen E. Hiton. Attorney Gary Wayne Francis Gumataotao 19
20 represents the Plaintiff, Rustico Q. Calma (the "Plaintiff'). All parties were present at the
21 hearing via Zoom platform. 22 Following the hearing on the Motion, the court took the matter under advisement pursuant 23 to Supreme Court of Guam Administrative Rule 06-001 and CVR 7.1(e)(6)(A) of the Local 24 Rules of the Superior Court of Guam. After reviewing the Parties' written briefs and the 25
26 record on file with the court, the arguments presented at the Motion Hearing, and the
27 applicable statutes and case law, the court now issues this Decision and Order ruling on the 28 Motion and DENYING DEFENDANT'S MOTION TO DISMISS, for the reasons set forth herein. II. BACKGROUND 2 Plaintiff filed a Verified Complaint on March 16, 2020, alleging that Defendant acted 3 fraudulently by using her confidential relationship with the Plaintiff to cause him to execute 4 deeds for five different parcels of land in which Defendant was the purported grantee, without 5 consideration. Compl. <]I 7-9. On July 7, 2020, Defendant filed a Motion to Dismiss 6
7 ("Motion") Pursuant to GRCP Rules 12(b)(6), Rule 9, and Rule 8. Defendant argues, in
8 pertinent part, that Plaintiffs Verified Complaint fails to state a claim for which relief can be 9 granted and must be dismissed. Mot. at p. 2. Plaintiff filed an Opposition to Defendant's 10 Motion on July 23, 2020 and Defendant filed her Reply on October 19, 2020. 11
12 III. LAW AND ANALYSIS 13 Defendant argues that Plaintiff has not sufficiently plead his claim for fraud with 14 particularity as required by GRCP Rule 9, that he has not shown that the Defendant intended 15 to defraud generally under GRCP Rule 8, and that because he has not sufficiently plead his 16
17 claims, he has not stated a claim upon which relief may be granted and that his Complaint
18 must be dismissed under GRCP Rule 12(b)(6).
19 The elements of fraud are: "(1) a misrepresentation; (2) knowledge of falsity (or 20 scienter); (3) intent to defraud to induce reliance; (4) justifiable reliance; and (5) resulting 21 damages. Ukau v. Wang, 2016 Guam 26, <]I 36 (Guam Aug. 31, 2016). In order to sufficiently 22
23 plead a claim for fraud the Plaintiff must articulate their claims with particularity under
24 GRCP Rule 9. In relevant part, Rule 9 states: 25 In all averments of fraud or mistake, the circumstances constituting fraud or 26 mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally. 27 The Ukau analysis is twofold: first, we must determine whether the Plaintiff stated the 28
circumstances surrounding the fraud with particularity under GRCP Rule 9; second, we must 2 determine whether the Plaintiff averred the Defendant's intent to defraud generally under 2 GRCP Rule 8. Ukau v. Wang, 2016 Guam 26, «j[ 43. Defendant argues that Plaintiff's 3 Complaint fails under both parts of the analysis. Mot. at p. 2-4. 4
5 a. Failure to Plead Fraud with Specificity under GRCP Rule 9
6 Rule 9(b) does not require a plaintiff to prove a claim of fraud at the pleading 7 stage. Ukau v. Wang, 2016 Guam 26, «j[ 47; quoting Taitano I, 2008 Guam 12 «j[ 16. Rather, 8 what is required is that a plaintiff set forth his claim with sufficient detail to provide notice to 9 defendants as to what particular fraudulent action is being alleged. This standard has been 10
11 described as a "who, what, when, where, and how" requirement. !d.
12 Here, by alleging that the Defendant, Diana Calma, has acted fraudulently by causing 13 her attorney to draft and execute deeds granting her title to five different parcels of land, 14 Plaintiff has described "who" committed the fraudulent action upon which he makes his 15 claim. Compl. at «j[ 7. Next, Plaintiff alleges that Defendant committed the fraudulent action 16
17 because (1) she had her attorney execute deeds granting her five parcels of land from the
18 Plaintiff, (2) Defendant did not pay consideration for the parcels, (3) the Plaintiff and 19 Defendant maintained a confidential relationship, and (4) Plaintiff was not independently 20 advised regarding the subject land transfer. Compl. at «JJ«JJ 7-9. These facts Plaintiff has 21
alleged provide the "what" under the factors setforth in Ukau v. Wang. 22
23 Plaintiff has also described "when" the Defendant had her attorney draft the deeds
24 granting her the parcels, "on or about August 12, 2016," and has alleged that he has only 25 "recently" discovered facts that form his good faith belief that Defendant acted fraudulently, 26 under Ukau v. Wang. Compl. at «JJ«j[ 7 andlO. Plaintiff described "where" the fraudulent action 27
28 took place by providing the parcel descriptions within the Complaint and stating that
3 Defendant's attorney drafted the deeds and had them executed andfiled at the Department of 2 Land Management. Compl. at
5 transfer, that the Defendant had her attorney draft the deeds, that she did not pay any
6 consideration for the transfer, and that she used her confidential relationship with the Plaintiff, 7 an elderly person, to influence him to execute the Deeds. Compl. at
11 notice of the fraudulent action being alleged.
12 a. Failure to Plead Intent to Defraud generally under GRCP Rule 8 13 Defendant argues that Plaintiff has failed to meet the general pleading requirements 14 under GRCP Rule 8 to show that Defendant intended to defraud the Plaintiff. In particular, 15 Defendant asserts that Plaintiffs allegations do not amount to fraud, fraudulent action, or an 16
17 intent to defraud plaintiff. Mot. at p. 4 (emphasis added).
18 When interpreting the plain language of Rule 8(a), the Supreme Court of Guam has 19 held that "Guam law requires only notice pleading, not fact pleading." Ukau v. Wang, 2016 20 Guam 26,
22 the claim showing entitlement to relief. !d. at
23 13; Guam Election Comm'n, 2007 Guam 20
4 (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and 2 (3) a demand for judgment for the relief to which the pleader seeks. 3 Relief in the alternative or of several different types may be demanded.
4 The Supreme Court restated in Ukau v. Wang, their holding from Taitano I, where 5 they interpreted Rule 8( a) consistent with the Conley v. Gibson standard and our historical 6 approach, requiring only notice pleading. 2008 Guam 12 !][ 13 ("Rule 8 requires only a 'short 7
8 and plain statement of the claim.' " (emphasis added) (quoting GRCP 8(a) (2007)). Ukau and
9 Taitano I, like the present case, involved dismissal of a complaint under Rule 12(b)(6) as well 10 as a challenge to the sufficiency of the pleadings under the fraud standard provided by GRCP 11 9(b). 12 Here, Plaintiff has alleged that Defendant intended to defraud the Plaintiff because 13
14 while she was in a confidential relationship with the Plaintiff, an elderly and dependent
15 person, she took the subject parcels out of their natural course and had her attorney draft 16 deeds transferring the parcels from the Plaintiff to her. Plaintiff also alleges that the transfers 17 took place without Defendant paying any kind of consideration for them and without Plaintiff 18 having the benefit of independent counsel. Plaintiff also alleges that the Defendant may have 19
20 since encumbered the parcels with mortgages without permission from the Plaintiff. Compl. at
21 !][!][ 4, 6, 7-9, and 15. 22 Plaintiff is not required to allege the Defendant's intent to defraud with particularity as 23 is required to describe the circumstances regarding the fraudulent action, but Defendant 24
25 argues that Plaintiff has not sufficiently alleged her intent to defraud because he has not
26 shown that Defendant was in a confidential relationship with the Plaintiff. Mot. at p. 4-5.
27 Plaintiff and Defendant are father and daughter and Defendant argues that a confidential 28 relationship exists between a guardian and ward. Mot. at p. 5.
5 When a confidential relationship is being alleged between parties engaged in a transfer 2 of land and it is shown by clear and convincing evidence that one exists, then there is a 3 rebuttable presumption that undue influence has occurred regarding the transfer of land and 4
5 the burden will shift to the Defendant to show that undue influence has not occurred. Hannah
6 v. Guerrero, 2020 Guam 15, <][«)[ 28-29 (Guam Aug. 19, 2020). However, a lineal or familial 7 relationship between two parties, such as parent-child, does not solely establish that 8 a confidential relationship may exist between two parties. Rather the existence of 9 a confidential relationship is an issue of fact, and is not presumed as a matter of law and the 10
11 mere existence of a familial relationship is not indicative of a confidential relationship. The
12 existence of such a relationship may warrant an inference of a confidential relationship, but 13 the relation alone will not, in and of itself, suffice to initiate and support the presumption of 14 undue influence. !d. at<][ 27 (emphasis added). 15 Plaintiff has alleged in the Complaint that a confidential relationship existed between 16
17 the Defendant and Plaintiff and whether or not a confidential relationship existed is an issue
18 of fact that should be decided at trial. The allegation that a confidential relationship existed 19 and Defendant violated fiduciary duties associated with such a relationship does place the 20 Defendant on notice of the facts regarding the Defendant's intent to defraud. 21
22 b. Dismissal for Failure to State a Claim under GRCP 12(b)(6)
23 Dismissal of a complaint is appropriate only when the non-moving party "can prove
24 no set of facts in support of his claim which would entitle him to relief." Ukau v. Wang, 2016 25 Guam 26, <][<][51-52 (Guam Aug. 31, 2016) quoting Taitano v. Calvo Fin. Corp., 2008 Guam 26 12 <][ 9. Additionally, in determining whether the 12(b)(6) motion should be granted, the 27
28 pleadings must be viewed in the light most favorable to the non-moving party. To survive,
6 they must contain allegations respecting all the material elements necessary to the claims. The 2 elements of fraud are: (1) a misrepresentation; (2) knowledge of falsity (or scienter); (3) intent 3 to defraud to induce reliance; (4) justifiable reliance; and (5) resulting damages. Ukau v. 4 Wang, 2016 Guam 26,
6 As described above, Plaintiff has alleged his claims for fraud with particularity 7 including the pertinent "who, what, when, where, and how" requirements from Ukau v. Wang. 8 Plaintiff's Verified Complaint contains allegations regarding the first element of a 9 misrepresentation - Defendant had her attorney draft deeds transferring parcels of land from 10
11 the Plaintiff to Defendant without adequate consideration. Compl. at
12 Complaint contains allegations regarding knowledge of falsity and intent to defraud because 13 Plaintiff alleges that Defendant conducted the land transfers through her attorney in violation 14 of her purported fiduciary duties through her confidential relationship with the Plaintiff. 15 Compl. at
17 good faith belief that Defendant acted fraudulently and describes damages suffered from rents
18 from the parcels not received, compensatory damages and punitive damages. Compl. at
22 because he cannot prove that a fiduciary duty existed between the Plaintiff and Defendant
23 because they were father and daughter and not in a confidential relationship. Mot. at p. 5.
24 However, as discussed previously, although a familial relationship is not dispositive of the 25 existence of a confidential relationship, it is still a factor in determining whether there was a 26 confidential relationship and that is a factual determination that could be proven or disproven 27
28 at trial. Accordingly, this Court does not determine whether a confidential relationship existed
7 between the parties and cannot find on the basis of the record before it that Plaintiff would be 2 unable to prove a set of facts that would entitle him to relief upon this factual determination. 3 IV. CONCLUSION 4
5 The Court hereby DENIES Defendant's MOTION TO DISMISS, finding that the
6 Plaintiff has sufficiently alleged the elements of fraud within his Verified Complaint. As such,
7 the Court ORDERS the Defendant to file an Answer to the Complaint within ten ( 10) days of 8 the entry of this Decision on the docket. 9
10 SO ORDERED this JAN 2 0 2021 11
13 HONORABLE MARIA T. CENZON JUDGE,SUPERIOR COURT OF GUAM 14
23 SERVICE VIA E-MAIL J acknowledge that an electronic copy ofthe original was e-maillld to: 24 0. ,1/(fo?) 25 t'~v d7.l977l tJ 7lq;)
26 Date: Time:# z) J-4,~ 27 Deputy Clerk, Superior Court of Guam