Cho v. Alupang Beach Club

Opinion

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2023 MAY 16 Pf\ 4: 38

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3 CLEm{ Di" c7 4 BY=------'--'--1

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7 IN THE SUPERIOR COURT OF GUAM 8

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10 CIVIL CASE NO. CV 1059-17 HEE K. CHO and MINS. CHO, ll Plaintiffs,

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13 DECISION & ORDER Re: Defendants' Second Motion for Summary 14 V. Judgment 15

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17 ALUPANG BEACH CLUB, INC. and 18 STEVEN KASPERBAUER, 19 Defendants.

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22 This matter came before the Honorable Arthur R. Barcinas on February 15, 2023, upon 23

24 Defendants Alupang Beach Club, Inc. and Steven Kasperbauer's Second Motion for Summary

25 Judgment ("Second Judgment") filed on March 15, 2022. Plaintiffs Hee K. Cho and Min S. Cho 26 ("Plaintiffs") were represented by Attorney Daniel J. Berman. Defendants Alupang Beach Club, 27 Inc. and Steven Kasperbauer ("Defendants") were represented by R. Todd Thompson. After 28 reviewing the pleadings and oral arguments, for the reasons set forth below, the Court GRANTS Defendants' Second Motion for Summary Judgment.

BACKGROUND

On August 2, 2018, the Court issued a Decision and Order denying Defendants' first Motion for Summary Judgment Based on Anti-SLAPP Statute, on the grounds that the

Decision & Order r r Hee K. Cho and Min S. Cho v. Alupang Beach Club, Inc. and Steven Kasperbauer, Civil Case No. CV1059-17

differences between the Replacement Horizontal Property Regime ("HPR") and the Amended 2 HPR were not sufficiently material to sustain a claim for CPGA relief. On August 7, 2018, the 3

4 Defendants appealed the Court's Decision and Order and filed a Notice of Appeal with the 5 Supreme Court of Guam. 6 On May 28, 2020, the Supreme Court of Guam issued an Order affirming the trial 7 court's decision that summary judgment under the CPGA was not appropriate, albeit on 8 different grounds. The Supreme Court held that summary judgment under the CPGA was 9 inappropriate because the scope and applicability of the parties' Settlement Agreement and 10

11 Mutual Release ("SAMR") to the Amended HPR was unclear. 2020 Guam 10 1 17. The 12 Supreme Court held that, because the scope and applicability of the Settlement Agreement was 13 unclear, the parties should have the opportunity to flesh out those issues on the merits. Id. The 14 Supreme Court stated that, were the Settlement Agreement's scope and applicability to the 15 Amended HPR not subject to interpretation, it would find that CPGA immunity applies. Id. The 16 Supreme Court further held that the Settlement Agreement constituted a substantial basis other 17

18 than or in addition to ABC's petitioning activity to support the Chos' claims, and subsequently

19 ABC could not avail itself of immunity derived from the CPGA. Finally, the Supreme Court 20 held that the alleged breach of contract is an issue to be fully resolved on remand. 21 On March 15, 2022, Defendants filed the Second Motion for Summary Judgment, sans 22 all claims pursuant to the CPGA. Defendants argued that: ( 1) Plaintiffs lack standing to seek 23 restitution of the settlement consideration because they did not pay the consideration in the first 24

25 place; (2) if the Court finds Plaintiffs have standing, courts are unwilling to find waiver of the

26 right to petition in circumstances which fall short of being clear and compelling; and (3) ABC 27 did not "clearly, compelling and unambiguously" waive its right to participate in all GLUC 28 proceedings in perpetuity.

ANALYSIS

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Guam

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r Decision & Order r r Hee K. Cho and Min S. Cho v. Alupang Beach Club, Inc. and Steven Kasperbauer, Civil Case No. CV1059-17

R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Rule 56(c) of the 2 GRCP further mandates summary judgment against a party, "who fails to make a showing 3

4 sufficient to establish the existence of an element essential to that party's case, on which that 5 party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. A genuine issue of 6 material fact exists if there is sufficient evidence which establishes a factual dispute requiring 7 resolution by a fact-finder. Guam Pac. Enter., Inc. v. Guam Poresia Corp. et al., 2007 Guam 8 22. n. 8 (citing Iizuka Corp. v. Kawasho Int'/ (Guam). Inc., 1997 Guam 10 ~ 7). The factual 9 dispute must also concern a fact "that is relevant to an element of a claim or defense and whose 10

11 existence might affect the outcome of the suit." Id.

12 If the movant demonstrates a lack of a genuine issue of material fact, "the non-movan 13 cannot merely rely on allegations contained in the complaint, but must produce at least som 14 significant probative evidence tending to support the complaint." Edwards v. Pacific Fin. Corp.

15 et al., 2000 Guam 27 n. 7 (citations omitted).

16 A. Plaintiffs Do Not Sufficiently Prove They Have Standing To Bring This Claim.

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18 "Standing is a threshold jurisdictional matter." Guam Imaging Consultants v. Guam

19 Mem 'I Hosp. Auth., 2004 Guam 15 ~ 17 (citing Brewer v. Lewis, 989 F.2d 1021, 1025 (9th Cir. 20 1993)). Standing is a requirement of subject-matter jurisdiction that must be determined as of 21 the date of filing of the complaint. Taitano v. Lujan, 2005 Guam 26 ~ 15. The Court has no 22 subject-matter jurisdiction over a case when a party lacks standing, and must dismiss the case.

23 DPS Guam L.P., v. A.B. Won Pat Int 'l Airport Auth., 2014 Guam 12 ~ 14. The relevant question 24

25 the Court must ask regarding standing is "whether the litigant is entitled to have the [C]ourt

26 decide the merits of the dispute or of particular issues." Benavente v. Taitano, 2006 Guam 15 ~ 27 14 (citing Warth v. Seldin, 422 U.S. 490,498 (1975)). 28 Where standing is not expressly conferred by statute, a party must show: (1) "it has suffered an 'injury in fact"'; (2) "that the injury can be fairly traced to the challenged action taken by the defendant"; and (3) that "it is likely and beyond mere speculation that a favorable decision will remedy the injury sustained." In Re A.B. Won Pat Int'! Airport Auth., Guam, 2019 Guam 6, ~~ 17-18 (citing Guam Mem'l Hosp. Auth. v. Superior Court, 2012 Guam 17 ~ 10).

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Decision & Order r r Hee K. Cho and Min S. Cho v. Alupang Beach Club, Inc. and Steven Kasperbauer, Civil Case No. CV1059-17

Plaintiffs' Complaint states that, "[u]nder the SAMR, Hibari Guam Corporation, 2 provided and paid the sum of$490,000, consisting of$475,000.00 to ABC and $15,000.00 to 3

4 the Lujan Law Firm related to their costs and fees." Comp!., at 2. This is corroborated by

5 Section 2.0 of the SAMR, which specifically states that "Hibari Guam shall pay to ABC or its 6 designee the sum of$475,000.00 U.S. Dollars upon the execution of this Settlement and 7 Release" and that "[t]his amount represents payment to ABC or its designee of a disputed claim 8 ... and will resolve all of ABC's claims against the Defendants." SAMR, at 5.

9 Subsection 3.8 of the SAMR further states that, if ABC breaches its obligations under 10

11 the SAMR, then "Hibari Guam shall have the right to refund for any amounts paid" under the

12 SAMR. Id., at 7. Plaintiffs also stipulate that "ABC gave a right of refund to Hibari Guam for 13 any amounts paid under the SAMR in the event that ABC breached any of the obligations" 14 stated in the SAMR. Comp!., at 4.

15 Plaintiffs now seek restitution of the amount paid by Hibari to ABC, along with accrued 16 interest as of May 9, 2017, allegedly amounting to at least $874,800. As Defendants note, 17

18 Plaintiffs do not indicate they have sustained any additional injury beyond the amount paid by

19 Hibari to ABC. Plaintiffs allege that they are entitled to the amount because they are 20 "successor[s] to all of the rights and privileges ofHibari Guam Corporation." Comp!., at 2. 21 However, Defendants allege that Plaintiffs cannot prove that they are successors to Hibari, and 22 subsequently allege that Plaintiffs therefore have no right to sue for any injury to Hibari or any 23 refund that might be due to Hibari.

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25 Plaintiffs claim that they have uncontroverted proof that they are successors to Hibari' s

26 right ofrefund, citing the Declarations of Plaintiff Hee K. Cho and the 2003 Purchase and Sale 27 Agreement between Hibari Guam and Plaintiff Hee K. Cho. However, Plaintiffs do not cite or 28 quote any specific language in the Purchase and Sale Agreement that support their claim, save for quotations from Plaintiffs Declarations, in which Plaintiff Cho states that "[t]he Cho Group is the sole successor to the Hibari Guam right of refund." Opp. to Second MSJ (quoting Declaration (1st) Hee K. Cho, ,r 17). The Court does not find Plaintiffs' attempt to use their own Declarations as probative evidence particularly convincing. Furthermore, as Defendants note,

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Decision & Order

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Hee K. Cho and Min S. Cho v. Alupang Beach Club, Inc. and Steven Kasperbauer, Civil Case No. CV l 059-17

the 2003 Purchase and Sale Agreement predates the 2004 SAMR by more than a year, and the 2 Court does not find it feasible that Hibari would grant a right to refund more than a year before 3

4 said right even existed. Additionally, Section 4.11 (c) of the Purchase and Sale Agreement states 5 that: 6 The Alupang Beach Club (tenant of Commercial Unit No. 2) is claiming that it is owed rents under leases known as the "Lillian Lease" and "Akasaka lease" due to 7 Purchaser's prior use for parking and bus turnaround. In addition, Alupang Beach 8 Club has alleged that Seller was negligent in the maintenance of its generator which resulted in damage to certain personal property owned by the Alupang 9 Beach Club. The Seller has denied these allegations. Presently, no lawsuit has 10 been filed. The Seller assumes all liability in connection with these claims. 11 The Court finds that the explicit assumption of liability by Hibari, combined with th 12 subsequent payment of $475,000 from Hibari to ABC to settle these claims, denotes that th 13 right of refund for said payment attached to Hibari after the Sale and Purchase Agreement wa 14 executed. Even if Plaintiffs allegedly succeeded Hibari's rights pursuant to the Sale and Purchas 15

16 Agreement, the right to refund was not one of them because ( 1) it did not exist at the time, an

17 (2) the right of refund is tied to the obligation of payment and Hibari's liability to ABC, both o 18 which were excepted from the Purchase and Sale Agreement. Because Plaintiffs are owed n 19 money pursuant to any right of refund, the Court thus finds that there is no injury in fact, an 20 therefore Plaintiffs have no standing.

21 CONCLUSION

22 Accordingly, the Court GRANTS the Defendants' Motion for Summary Judgment fo 23

24 lack of standing, and finds in favor of Defendants. 25

26 IT IS SO ORDERED this day of _ _M_AY_1_6_Z0_23_ _.

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S1E!<Vac1c VHtl IE-MAHii.. I acknowledge that an eleclronic copy of the original was e-mailed to:

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HONORABLE ARTHUR R. BARCINAS ~-'--.,.. -Ttl<?(J:Jt ~ Judge, Superior Court of Guam Date: Time: f¥~ ...T

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,Joseph Bamba. Jr.

Depul'/ Clerk, Superior Court of Guam