Fernandez v. Li

Opinion

2 11 trnu ! q l ··.·I , U f',!l! 1n: 06 lo' 1 •. ., ,,;

6 IN THE SUPERIOR COURT OF GUAM 7 VICTOR C. FERNANDEZ and ) 8 MARIE A. FERNANDEZ, ) CIVIL CASE NO. CV0970-13 9 ) Plaintiffs, ) 10 ) DECISION AND ORDER vs. ) 11 ) 12 LI, XIU YAN, WANG, JUN RONG, and ) YUN SHING GUAM, INC., ) 13 ) Defendants. ) 14 ____________________________) 15 INTRODUCTION 16 This matter came before the Honorable James L. Canto II on Defendant Yun Shing 17 Guam, Inc.'s motion for reconsideration, filed on August 18, 2014. Having considered the 18 parties' briefs and the applicable law, the Court now issues the following Decision and Order. 19

20 BACKGROUND 21 On August 7, 2014, the Court issued a Decision and Order, whereby the Court found 22 that Defendant Yun Shing Guam, Inc. (hereinafter "YSG") failed to adequately demonstrate that 23 they met their burden by serving Plaintiffs with a written response to a request for production of 24 documents. (Dec. & Order, 7, Aug. 7, 2014). Finding no justification for Plaintiffs' failure, the 25 Court sanctioned YSG. !d. at 8. 26 On August 18, 2014, YSG filed a motion for reconsideration. YSG seeks 27 reconsideration of the August 7, 2014 Decision and Order pursuant to Rule 52 of the Guam 28

Page 1 of4 Rules of Civil Procedure (hereinafter "GRCP"). YSG argues that the Court made an erroneous 2 finding that YSG failed to adequately demonstrate that they met their burden. In support of this 3 argument, it asserts that YSG's counsel, John R. Bell, affirmatively stated that he provided 4 Plaintiffs with responses to their request for production of documents. (Mot. Reconsideration, 5 3, Aug. 18, 2014). YSG attaches a declaration by John R. Bell, which includes a copy ofYSG's 6 response to Plaintiffs' First Request for Production of Documents, which is stamped-received. 7 (Decl. of John R. Bell, Exhibit A, Aug. 14, 2014). 8 On August 26, 2014, Plaintiffs filed a "Reply to Motion to Reconsider and Plaintiffs' 9 Status on Discovery." Plaintiffs fail to address YSG's motion for reconsideration, and instead 10 state that the only material discovery issue left is the names of the employees of YSG. (Reply, 11 4, Aug. 26, 2014). 12

13 DISCUSSION

14 I. Rule 52 of the Guam Rules of Civil Procedure 15 Rule 52(a) ofthe GRCP provides in part as follows: "Findings of fact, whether based on 16 oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard 17 shall be given to the opportunity of the trial court to judge of [sic] the credibility of the 18 witnesses." Guam R. Civ. P. 52(a) (emphasis added). 19 As a threshold issue relating to the viability of YSG's motion, movant fails to analyze 20 the Court's alleged error in the applicable legal standard, that is, clear error. See Lamb v. 21 Hoffman, 2008 Guam 2 'If 35 ("It is not sufficient for a party simply to announce a position or 22 assert an error and then leave it up to this Court to discover and rationalize the basis for his 23 claims, or unravel and elaborate for him his arguments, and then search for authority either to 24 sustain or reject his position."). "A finding is clearly erroneous when, even though some 25 evidence supports it, the entire record produces a definite and firm conviction that the court . . . 26 committed a mistake." Guam Ethics Bar Comm. v. Maquera, 2001 Guam 20 '1[15 (quoting 27 Yang v. Hong, 1998 Guam 9 '1[4). 28 With respect to the substance of the motion, the basis for YSG's claim is that YSG's

Page 2 of4 counsel, John R. Bell, affirmatively stated through a declaration that he provided Plaintiffs with 2 responses to their Request for Production of Documents. (Mot. Reconsideration, 3, Aug. 18, 3 2014). YSG also provides the Court with a copy of what purports to be YSG's stamp-received 4 response to Plaintiffs First Request for Production of Documents. (Decl. of John R. Bell, 5 Exhibit A, Aug. 14, 2014). 6 However, YSG failed to present the declaration or the stamp-received document as 7 evidence that it served Plaintiffs with a response in the opposition to the motion to compel, filed 8 on May 19, 2014. YSG admits that Plaintiffs alleged in their motion to compel that YSG failed 9 to answer the request for production. (Mot. Compel, 2, Apr. 21, 2014); (Mot. Reconsideration, 10 3, Aug. 18, 2014). Thus it had the opportunity to defend itself by submitting the declaration of 11 John R. Bell and/or YSG's stamp-received response to Plaintiffs First Request for Production 12 of Documents. YSG failed to do so and fails here to provide a reason why the declaration or the 13 document was not presented to the Court in the earlier proceeding. 14 The Court does not find its previous decision that YSG "failed to adequately 15 demonstrate that they met their burden by serving Plaintiffs with a written response" and 16 finding "no justification for [YSG's] failure to serve Plaintiffs a response to Plaintiffs First 17 Request for Production of Documents" were clear error. The declaration of John R. Bell and 18 the stamp-received response were not provided to the Court for consideration in the earlier 19 proceeding that led to the August 7, 2014 Decision and Order. YSG's error in failing to 20 adequately defend a claim is not the Court's error. 21 The Court's decision is consistent with the other rules of GRCP that allow for 22 reconsideration of a Court's decision based on newly discovered evidence which could not have 23 been discovered previously. See Guam R. Civ. P. 60(b)(2). The declaration and the stamp- 24 received response are not newly discovered evidence - they are simply evidentiary items that 25 YSG failed to present in a timely manner for their defense. 26 Ill 27 Ill 28 Ill

Page 3 of 4 CONCLUSION 2 Based on the foregoing, Defendant Yun Shing Guam, Inc.'s motion for reconsideration 3 is hereby DENIED. 4

7 SO ORDERED this f6w day of November, 2014. 8

10 HO . JAMES L. CANTO II 11 Judge, Superior Court of Guam

SERVICE VIA COURT BOX 19

GIN Page 4 of 4