Gin Hai Shan Partnership v. Cobblestone Square, INC

• Court: Superior Court of Guam
• Decided: June 9, 2009
• Docket: CV0147-07
• Status: Unknown

Opinion

Lad Pt^'[s6\n

I 2

J GIN HAI SHAN PARTNERSHIP,

4 Plaintitr, DECISION AI\D ORDER 5 vs. 6 COBBLESTONE SQUARE, n'ic., 7 Defendant. 8

9 )

10 This matter came before the HONORABLE VERNON P. PEREZ on December 31,

for a hearing on PlaintifPs Motion for Partial Summary Judgment for Breach of 11

t2 Slander of Title, Libel, and Declaratory Relief (hereinafter 'Motion for Partial 13

14 Judgmenf). Present at the hearing were Attorney Joyce C.H. Tang, rqxese,lrting Plaintiff,

15 Hai Shan Parhrership and Attorney Anita Arriola, representing Defendant, Cobblestone t6 Inc. The Cogrt took the matter under advisement. Having considered the Parties' t7 considering the Parties' pleadings and the record, the Court now issues the following 18 and Order. 19

20 BACKGROUNI)

2l On January 15, 1986, Cobblestone Square, Inc., Celestino Geronimo and Corazon

22 Geronimo, (hereinafter "Defendanf'), entered into a written lease agreeme'nt with Fukuya Guam 23 Inc., (hereinafter "Fukuya"). The written lease agreement (hereinafter "Lease') was for certain 24 property identified as: 25

26 Lot Nos. 5137-2-R2-1,2,3,and 4 (Subdivision of Lot 5137-2-R2), Municipalrty of Dededo, Territory of Guam, Estate No. 20256, Subrnban, as said lot is marked and 27 designated on Drawing No. 207-338, as recorded on January 10,1972, in the Deparhent of Land Management, Government of Guam, under Document No. 108232. Last 28 Certificate of Title No. 60321, 62287,31283 and3l284 Area: 11,882 square meters*.

cin Hai Shan Partnersh v. Cobblestone Squate, Inc. Decision and Order Civil Case No. CV0l47-07 - Page I of28 - Judgment' The term of attached as Exhibit "A" to the Motion for Partial summary 1 see, Lease, 31' on February 1, 19g6 and ending on January 2 the Lease was for fifty (50) years cofllmencing its J the Lessee the right to freely assign and sublet 2,36.paragraph 14 of the Lease permitted 4 compretion of improvements the written consent of the Lessor, once leasehord interest without ) 6 on the ProPertY were finished' '?laintifP')' entered into Decenrb er zg,lggs,Gin Hai Shan partrrership, (hereinafter 7 on Fukuya, as Assignor, assigned to Plaintiff' as 8 an Assignment of Lease agreement in which (See, Exhibit "B" attached to the Motion 9 Assignee, arl of its, right, title and interest in the Lease. so described in 10 The Assignment of Lease covered the property for partiar Summary Judgment). 11 plaintiffentered prazaBuilding. Thereafter, the Leaseo now conrmonly known as the Fountain t2 entertainme'nt conduct retail, restaurant and various sub-te,nants, who 13 into lease agreements with a mortgage in T4 prazaBuilding. At some point in time, plaintiffexecuted I

businesses at Fountain 15 on the Fountain PlazaBuilding' favor of First Commercial Bank 16 se'lrt a Delinquent Rents Under Lease from counsel on septernber 1, 2006, Defendant's t7 for the to plaintiff, demanding delinquent re'nt payme'lrts 18 cobblestone square, Inc., demand letter *A" attached to the opposition). The demand letter gave 19 amount of $205,g60.65. (see, Exhibit \2' aswell as Paragaph 3(d) of the 20 plaintiffttrirty days to pay rent or pursuant to Paragraph 2l The in defaurt and the rease would be subject to termination' Lease, praintiffwould be found 22 First commercial bottom of the PaBe' that a copy had been sent to 23 demand letter showed, on the

24 Bank and FukuYa. or Quif ' which Plaintiff a 'Notice to Pay Rent 25 on January g, 2O0T,Defendant sent to within five days or legal 26 demanded that praintiff pay past rent due in the amount of sri2,721.39 27 attached to the opposition). The Notice to Pay Rent action wourd coilrmence. (see, Exhibit..B,, 28

Squate' Inc' Decision and Order -Page2 of28' Civil Case No. CV0l47-07 sub-tenants risted in Attachment "A" to the and certain 1 or euit was arso addressed to Fukuya .0A,, to the notice contained a list of ten businesses, presumably Plaintiffs 2 notice. Attachment showed' on the J The Notice to Pay Rent or Quit sub-tenants at the Fountain PlazaBuilding' 4 of Account attached going to First commercial Bank' The statement bottom of the Page, a copy ) which dated back that were owed by plaintiffto Defendant, 6 to the notice showed rentar amounts

7 to November, 2005' cove'lrant upon Plaintiffa "Notice to Perform 8 on January 2g,2o07,Defendants served to Pay Taxes or Quif')' 9 payment of rax.es or euif' (hereinafter "l'{otice Lease with Respect to 10 pay Taxes or Quit set forth that plaintiffhad failed to pay property ta:res assessed The Notice to 11 year 2005, payable in February and prernises for the calendar t2 upon improvemeffs to the leased Plaintiffwithin three 13 the calendar year 2006. The Notice to pay Taxes or Quit required April of and to "obtain a t4 pay the taxes along with interest and penarties (3) rlays of the date of service, to of such 15 any conveyance or sale of such property by reason reconveyance of such property from 16 (See, Exlribit possession of the pre'rnises,, back to Defendant. nonpayment of tarres or to deliver l7 to Pay Ta:res or Quit was ..c0, to the Motion for Partial summary Judgment)' The Notice I

risted in Attac,hment "A"' Attachment "A" listed 19 addressed to Fukuya, praintiffand sub-tenants Fountain Plaza 20 were Plaintiffs sub-te'nants at the some nine businesses that presumably 2l to pay Ta:res or euit showed that a copy of the Notice Building. The bottom reft hand corner 22

23 beensenttoFirstCommercialBanklocatedinHagatra"Guam. pay Ta;res or euit was a Deparfine'nt of Revenue & Tanation' 24 Attached to the Notice to (hereinafter 25 copy, Property Tan Statement document Real Property Tax Division, TCIrpayer's care of Plaintiff' The ..Revenue & Tanation documenf) that was addressed to Fukuya in 26

27 which included a that a total of $14 ,586.46was owed, Reve,lrue & Ta:ration docume,lrt showed 28

Square' Inc' Decision and Order -Page3of28- Civil Case No. CV0l47-07 Stamped' a penalty/fee amount owed of $826'60' 1 building ta:r amount owed at $13, 75g.86and document were the words "TAX SOLD 2 twice, on the front of the Revenue & Taxation J PROPERTY''. 4 onFebruaryl,20oT,PlaintifffiledacomplaintforBreachofcontract'slanderofTitl 5 (hereinafter "complainf)' on February 22' 2007 ' Defendant fil 6 Libel, and Declaratory Relief Mernorandum. In 30, 2008, Plaintiff filed an At Issue 7 an Answer to the Complaint. on July

8 AtlssueMemorandum,Plaintiffsetforttrthatajurytrialwasnotdemanded'OnAugUstll 9 summary Judgme'nt' on september 5' 2008, Plaintiff filed the Motion for Partial 10 Defendant filed Defendant cobblestone Square, lnc''s opposition to Motion for Parti 11 In the opposition, Defendant requested' t2 summary Judgment (hereinafter "opposition'). to present facts that are essential to the opposition 13 G.R.C.P. Rule 56(f), additional time to t4 plaintiff filed a Reply to opposition to Motion for motion. on Septernb er 12,200g, Decenrber 31, 2008 a hearing was held 15 on Summary Judgment (hereinafter "Reply'). On t6 took the matter under advisement' l7 Motion for Partial Summary Judgmenl The court Rents Under Lease from 18 on February 27,2007,Defendant sent another Delinquent praintiffforrent owed on February 1, 2007' (see' 19 cobblestone square, Inc. demand retter to 20 ,.C,, attached to the opposition). The demand letter showed a copy going to First Exhibit 2T sent another Delinquent Rents commercial Bank and Fukuya. on March 6,2oo7,Defe,ndant 22 letter to Plaintifffor re'lrt owed on March 1 23 under Lease from cobblestone Square, lnc., demand I

..D,, attached to the opposition). The demand letter showed a copy going to 24 zoo7.(see, Exhibit 25 First Commercial Bank and FuluYa' 26 five day Notice to Pay Rent on Aprit L3,2007 Defendant served upon Plaintiff another 21 (see, Exhibit "E' attached to the or Quit for rents owed in for March 2007 andinterest. 28

ein lJai Shan PartnetshiP v' cobblestone Squate, Inc' Decision and Order - Page 4 of28 - Civil Case No. CV0l47-07 to Fukuya and certain sub-tenants listed in I Opposition). The notice was also addressed to the notice contained a list of nine businesses, 2 Attachment..A,, to the notice. Attachment.,A" J presumablyPlaintifPssub.tenantsattheFountainP|azaBuilding.TheNoticetoPayRentor 4 Quitshowed,onthebottomofthepage,acopygoingtoFirstCommercialBank. 5 another Delinquent Rents Under 6 on April 13,2007,Defendant se,lrred upon Plaintiff letter for rent owed on April l'2007 and for 7 Lease from Cobblestone Square, Inc. demand not paid until rent due on February L,z}o7,which was interest due on the delinquent payment of 8

9 Opposition)' The demand letter showed a March 27,2007.(See, Exhibit "F" attached to the 10 on May 8,2007,Defendant sent another copy going to First commercial Bank and Fukuya. 11 rent square, lnc', demand letter to Plaintifffor t2 Delinquent Rents under Lease from cobblestone

I3 owedonMayl,zxllandforinterestdueonthedelinque'lrtpaymentofrentdueonMarchl' I4 Exhibit "G" attached to the opposition)' 2o0.,,which was not paid until April rg, 2007.(See, 15 Bank and Fukuya' The demand letter showed a copy going to First Commercial 16 to Pay Rent or Quit to on May l8,2007,Defendant sent another five day Notice t7 owed on February l'2007 but not paid 18 Plaintiff for April rent, plus interest for delinquent rents opposition). The notice was also t9 until March 27,2007 .(See, Exhibit "H" attached to the 20 risted in Attachment "A" to the notice. Attachment addressed to Fukuya and certain sub-tenants 21 at the ..A,0 to the notice contained a list of eight businesses, presumably Plaintiffs sub-tenants 22 pay Re,nt or euit showed, on the bottom of the page, a 23 Fountain prazaBuilding. The Notice to

24 copy going to First Commercial Bank' 25 onJune2|,20oTaComplaintforUnlawfulDetainerwasfiledbyDefendantagainst I 26 payments' plaintiff for failure to pay $66,069.03 in past due re,nt and interest due on later rental 27 (see, Paragraph 10 of the Declaration of Mark E. cowan In Support of Defendant cobblestone 28

shan Part i. cobxlestone Square' rnc' Decision and Order - Page 5 of28 - Civil Case No. CV0l47-07 1 Square,Inc.,soppositiontoPlaintiffsMotionforPartialsummaryJudgment(hereinafter 2 ..Cowan Declaration')). Plaintiffpaid the past due re'nts after the lawsuit was fited'

3 Rents Under Lease from on August L7,2007,Defendant sent another Delinquent 4 2007' (See' to Plaintiff for rent owed on August 1' cobblestone Square, Inc. demand letter 5 rent ..I,, attached to *re opposition). The demand letter also sougtrt interest for the 6 Exhibit

7 paymentowedonJulyl,zxoTwhichwasnotpaiduntilAugust6'2007'lateinterestsonother 8 letter showed a copy going to First Commercial installments and attorney's fees. The demand 9 Bank and FukuYa. 10 Rents under Lease from on Septe,rnb er 28,2007,Plaintiffsent another Delinquent 11 rent owed on septenrb er l' 2007 and for t2 cobblestone square, Inc. demand letter to Plaintifffor 12' 1,2007 which was not paid until Septenrber 13 interest on the re,lrt payment owed for August t4 The demand letter showed a copy going to 2007 .(See, Exhibit "J" attached to the opposition). 15 14,2007 Defendant sent another Delinquent First commercial Bank and Fukuya. on Novernb er t6 Rents under Lease from cobblestone square, lnc. demand letter to Plaintifffor rent owed on t7 on the rent payment for Se'ptember 1, 18 october |, 2oe7 and Novemb er l, 2007 and for interest attached to the opposition)' The 19 2007,not paid until octob er 12,2007.(See, Exhibit "IC' 20 Bank and Fukuya' demand letter showed a copy going to First commercial 21 Re'nts Under Lease from on Decemb er 6,2007,Defendant sent another Delinquent 22 rent owed on December l' 2007' (see' 23 cobblestone square, Inc. demand letter to Plaintifffor showed a copy going to First 24 Exhibit..L,, attached to the Opposition). The dernand letter se'nt a letter to Plaintiff commercial Bank and Fukuya. on Decenrb er 6,2007,Defendant 25

associated with plaintifiFs repeated default 26 demanding the payment of attorney,s fees and costs 27 I

t+ai Snan PartnershiP v' CobbTestone square, Inc' Decision and Order - Page 6 of28 - Civil Case No. CV0l47'01 I inpaymentofrents.(See,Exhibit..M,,attachedtotheopposition).Acopyoftheletterwassent 2 to First Commercial Bank and Fukuya' J five day Notice to Pay or Quit to on Decenrb er 6,2007 Defendant sent another 4 attached to the fees, costs and interests. (See, Exhibit'N" Defendant for the payment of attorney 5 listed in to Fukuya and certain sub-tenants 6 opposition). The notice was also addressed businesses, 7 ..A" to the notice. Attachment ..A" to the notice contained a list of eight Attachment to pay Rent or Fountain prazaBuilding. The Notice presumably plaintifps sub-tenants at the 8

9 Quitshowed,onthebottomofthepare'acopygolngtoFirstCommercialBank' 10 Rents Under Lease from on January 10, 2008, Defendant sent another Delinquent 11

t2 Cobblestonesquare,Irrc.demandlettertoPlaintiffforrentowedonJanuaryl,2008.(See, on the demand letter also sought: interest 13 Exhibit..o,, attached to the opposition). The and not paid until Decernber 14, 2007; delinquent re'nt delinquent rent owed for october r, 2007 L4

owed for Decenrber 14, 2007; and delinquent rent 15 owed for Nove,nrb er | , 2007 and not paid until L6 sent to 4,2007 'A copy of the demand letter was Decernber t,2OO7 and not paid until January t7 Rents 14, 200g Defendant another Delinquent 18 First commercial Bank and Fukuya. on February retter to plaintifffor rent owed on February 19 under Lease from cobblestone square, Inc. demand paid until 20 rent owed for January 1, 2008, and not 1, 200g and for interest owed on delinque,lrt 2l letter to the Opposition)' A copy of the demand February 8, 2008. (See, Exhibit'?" attached 22

23 was sent to First Commercial Bank and Fukuya' Relrts under Lease from 24 on March lT,zxlS,Defendant sent another Delinquent for rent owed on March l' 2008 and for cobblestone Square, hc. demand letter to Plaintiff 25

26 interest on the delinquent rent owed on February l,2o06,which was not paid until March 14' 27 A copy of the demand letter was sent to 2008. (See, Exhibit"Q" attached to the opposition)' 28

snan PartnershiP v' Cobblestone Square, Inc' ffiI Decision and Order - Page 7 of28 - Civil Case No. CV0l47-07 sent another Delinquent I First commercial Bank and Fukuya. on April 1g, 2009, Defendant

letter to Plaintifffor rent owed on Rents Under Lease from Cobblestone Square, Inc. demand 2

J 1,2006 and not paid until April 1, 2008 and for interest on the delinquent rent owed on March 4 of the demand letter was April 16, 2008. (See, Exhibit "R" attached to the Opposition)' A copy ) 6 sent to First Commercial Bank and Fukuya'

Under Lease from '7 On June 5, 2008, Defendant sent another Delinquent Rents

owed on May 1, 2008 and June 1' cobblestone Square, Inc. demand letter to Plaintifffor rent 8

9 rent owed on April l, 2008 and not 200g. The letter also demanded interest on the delinquent 10 paid until May 22,2008. (see, Exhibit "s" attached to the opposition)' A copy of the demand l1 12 letter was sent to First Commercial Bank and Fukuya'

Pay or Quit to Plaintiff 13 On July l7,zl}8,Defendant sent another five dayNotice to T4 for May l' 2008 which demanded that Plaintiffpay past due re,nt in the amount of $21,565'83 15 *T" attached to the opposition)' The rent and $21,565.83 for June 1, 2008 rent. (see, Exhibit t6 to the notice' L7 notice was also addressed to certain sub-tenants listed in Attachme'nt "A"

..A,, to the notice contained a list of eleven businesses, presumably PlaintifPs sub- 18 Attachment

19 te,nants at the Fountain plazaBuilding. The Notice to Pay Rent or Quit showed, on the bottom of

20 the page, a copy going to First Commercial Bank' 2l On July l7,2}}8,Defendant sent another Delinquent Rents Under Lease from 22 1, 2008. (See, Exhibit 23 Cobblestone Square, Inc. demand letter to Plaintiff for re,lrt owed on July

24 .,IJ,, attached to the Opposition). A copy of the demand letter was sent to First Commercial

25 On August 5, 2008, Defendant se,lrt another Delinquent Relrts Under Lease from Cobblestone 26 Square, Inc. demand letter to Plaintitrfor rent owed on August l, 2008 and for interest on the 27 delinquent rent owed on May l, 2008 and June 1, 2008, which was not paid until July 23' 2008' 28

Oin ttai Shan PartnershiP v- Cobblestone Square, Inc. Decision and Order Civil Case No. CVOI47'07 - Page 8 of28 - of the demand letter was sent to First 1 (see, Exhibit "v" attached to the opposition). A copy

2 Commercial Bank. 3 DISCUSSION 4 the Guam code Annotated (G'c'A' The court has jurisdiction pursuant to Title 7 of 5

6 $ 310s.

7 A. Legal Standard for Motion for Summary Judgment governs a motion for summary Rule 56 of the Guam Rules of civil Procedure 8

9 seeo Guam R. Civ. P. 56(c). The supreme court of Guam has interpreted Rule 56 as follows: 10 to Summary judgment is proper if the pleadings, depositionsr .llrswers 11 interrogatories, and admissions on file, together yitn tftt affidavits, if any, show that the moving party is l2 that there is no ge,lruine issue as to any -utoid fact and a genuine issue'- if there is entitled to a judgment as a matter of lu*. There is 13 sufficient evidence which establishes a factual dispule requllq resolution by a fact, which is a fact that is fact-finder. Also, the dispute must be as to a material t4 existence might affect the relevant to an element of a claim or defense and whose 15 outcome of the suit.

l6 poresia Corp .,2007 Guam 22n8 (citations and quotation Guam pacific Ent.. Inc. v. Guam L7 omitted). 18 view the facts in the when ruling on a motion for summary judgment, a court must t9 benefit of all reasonable i 20 most favorable to the non-moving party, grving that party the 2004 Guam 25 n 28' The court 2l that can be drawn from those facts. Bank of Guam v. Flores ,

22 also resolve any factual inconsistencies in favor of the non-moving party. Id' Finally' a 23 a showing sufEcielrt to establi must enter summary judgment against a party who fails to make 24 ttrat party will bear the existence of an element essential to that party's case, and on which 25 genuine issue as to any material 26 burden of proof at trial. In such a situation, there can be no

of the non-moving party's 27 since a complete failure of proof concerning an essential eleme,nt 28

ein Uai Shan PartnershiP v. Cobblestone Square' Inc. Decision and Order Civil Case No . CV 0147'07 - Page 9 of28 - Celotex Com' v' Catrett' 477 US 317 ' 322' 1 necessafily renders all other facts immaterial'

2 (1e86). J B. BREACII OF CONTRACT 4 are rights under such an agreement there A lease is both a contact and a conveyance; ) contactual of randlord and tenant as well as upon the 6 obligations based upon the relationstrip g6P.2d122,124 (Cal' 1939); Valley 7 promises. See. 106 Cal. Rptr.2d 689,694 (Cal' Ct' App' 8

one 9 two distinct sets of rights and obligations- 2001). This dual character serves to create 10 be based on the of randrord and tenant, and said to comprising those growing out of the relation 1l stipulations of the .?rivrty of estate," and the other comprising those growing out of the express t2 of contract'" Medico-De'lrtal etc' co' v' Horton & t3 lease, and so said to be based on'frivity t4 Enterprises v' city of oakland' 128 Cal' Rpt' converse. 132P.2d 457,462 (Cal. Da2);Syuff in the filed a Complaint in this matter alleging 15 2d 808, 822 (Cal.Ct. App. zx,z).Plaintiffhas 16 plaintiffalleges that the the part of Defendant. l7 first cause of action, a breach of confiact on based upon three-day Notice to Pay Tores or Quit' 18 breach occurred when Defendant served a notice, as required in Paragraph 13 of the t9 Plaintiffs failure to pay taxes, rather than a 15-day 20 Lease. 2l Plaintiffasserts that ithas met all of the In the Motion for Partial Summary Judgment 22 judgment forbreach of contract' To succeed 23 essential elements required to prevail on sunmary plaintiffis required to prove: (1) the existence of a 24 on a cause of action for abreach of confiact,

25 or excuse for nonperformance; (3) contract; (2) PlaintifPs performance of the contract, 108 26 First comrnercial Mortgaee co. v. Reece' Defendant,s breach; and (a) the resulting damage. 2',7 finds that based on the briefings and cal. Rph. 2d23,33 (cal. ct. App. 2001). This court 28

ffil sn* PartnershiP v' ffiEona square, rnc' Decision and Order - Page l0 of28 - CMI CaseNo. CV0l47-07 the second and third essential elements I pleadings thus far in the record, Plaintifffails to meet

judgment for breach of contract' 2 required to prevail on a motion for summary 3 of contract action requires Plaintiff s The second element required to prevail on a breach 4 of the Lease in this matter' This court continuing performance or excuse for nonperformance ) to the opposition that plaintifffailed to perform 6 finds from the pleadings and Exhibits attached se,r:rred the 3-day Notice to Pay Tares or 7 under the terms of the Lease, werl before Defendant of the re'nt 8 clearly shows that Plaintifffailed to pay portions Quit. Exhibit..B" to the opposition 9 5, 2005 and up to Dece'lnber'2006' The failure on due under the Lease as farback as Nove,rrber 10 to Pay plaintifps part to pay the rental amounts owed necessitated Defendant's filing of aNotice ll Rent or Quit on January g,2ooT.Plaintiffalso failed to perform under the express terms of the L2

13 Lease, by failing to pay property taxes assessed upon improvements to the property for the

l4 April 2006.In the Motion for Partial calendar year 2005, that were payable in February and 15 failed to preselrt any reasons' Summary Judgment and at the hearing on this mattetr, Plaintiff 16 pay the property tanes that justifications or excuses for its, failure to timely pay rent or to timely t7 18 were due on APril, 2006.

enforce a contract must show 19 A bedrock principle of confiact law is that he who seeks to 20 of the contract on his part to be that he has complied with all conditions and agreements 2l 2005); Harrison v' cook' 29 performed. Brown v. Dillard's. Inc..430 F.3d 1004, 1010 (9th cir. 22 of contract is not 23 cal. Rptr. 269,271 (cal. ct. App. 1963).A party complaining of abreach Pry Com' of America v' 24 entitled to recover, therefore, unless he has fulfilled his obligations' 25 Leach. 2 ca:.Rptr. 425, 429-430 (Cal. ct. App. 1960). It is eleme',ntary that a party may not I 26 under the contact' Andrews v' upon performance of a confiact whe,n he himself is in default 27 non-performance of a confract Horton. 47 P.2d 496, 4g8(Ca1. Ct. App. 1935). A party's own 28

Hai Shan v. Cobblestone Square, Inc' Decision and Order Civil Case No. CV0147-07 - Page ll of28 - party for breach of confract' 1 will defeat his claim against the other contracting 2008); citing to', I 508, 511; 2008 WL 510409 (9th cir' 2 Thomas & Betts Corp.. 268 Fed. Appx. 3 contracts g g4g, at93s (2005) ("The plaintiff witkin, summary of carifornia Law (I0th ed.): 4 the remedies for the order to avail himself or herself of must be free from substantial defaurt in 5 excuse for plead and prove performance "' or an 6 defendanfs breach. Hence, the plaintiffmust

7 performance.") 2005 WL 3579056 (Va' cir' ct'', 2005)' 8 El Jalapeno Mexican Food. L.L.C. v. Rodeers. of the lease commercial premises' Under the terrrs 9 concerned a lease agreement governing 10 each month' required to pay rent by the first day of agreernent, the plaintiff, as Lessee' was 1l as the Lessor, locked t2 plaintifffailed to pay re,nt for three consecutive months and the defendant, ouster. The court ruled l3 plaintiff out of the premises. plaintiffsued for damages for the alleged l4 breach that goes to the very root of the contact' Id' ;

that the falure to pay any re,nt is a material 15 by failing to pay *1. The court held that since plaintiffcommitted the fust breach of the contract 16 plaintiffwas not elrtitled to e'nforce the the rent, which goes to the very root of the contract, I7 18 contract. Id.

19 Intheinstantmatter,thetermsoftheLeaseexpresslyprovidesthatre,lrtisdueinadvance 20 3O), pg' 3 of the Lease' attached as Exhibit "A" on the first day of each month. (See, Paragraph 2l forttr that Paragraph 3(d) of the Lease also sets to the Motion for Partial Summary Judgment). 22 ..[i]f default shall be made by Lessee in the payment of the rent herein reserved, and that default 23

24 shall continue for 30 days after notice thereof in writing to Lessee then Lessee shall be in default

25 3(d), pg.3-4of the Lease, attached as Exhibit of this Lease without further notice." (See, Section 26 ..A,, to the Motion for partiat Summary Judgment). The third paragraph of Paragraph 5 of the

27 taxes that may be assessed and levied by any Lease requires Plaintifl as the Lessee, to pay all 28

Gin Hai Shan Tobbrestone square, rnc' Decision and Order - Page l2 of28 - Civil Case No. CV0l47 -07 govemmental authority on the value of future improvements in excess of the unimproved value I attached as Exhibit "A" to the Motion for 2 of the property. (see Paragraph 5, pg. 5 of the Lease, 3 within which a partial summary Judgment). paragraph 12 of the Lease sets forth the conditions 4 paragraph sets forth that: "[t]ime is of the defaurt will be found. The first sentence in that ) lease" and then lists the failure to pay rent or 6 and Lessee shall automatically be in default of this

7 ta:res within thirty days after the due date, as a basis for automatic default' (See' Paragfaph 12

for Partial summary Judgment') (a), pg. 13 of the Lease, attached as Exhibit "A" to the Motion 8

9 in default for both the Based upon the clear and plain terms of the Lease, Plaintiffwas 10 to pay Ta:res or Quit was se'ned by failure to pay tares and rent well before the three-day Notice 11 Lease, Plaintiffwas required to pay t2 Defendant. To avoid default under the express terms of the

13 both the re,nt and taxes within thirty days after the due date. Plaintiffwas in default under the

t4 within thirty days after the due date' terms of the Lease in May, 2006 for failure to pay the ta:res 15 plaintiffwas in default under the terms of the Lease for failure to pay the rent wittlin thirty days, l6 as far back as Decernber, 2005. (See, Exhibit "8" to the Opposition). When Plaintifffailed to t7 either the ta:res or rent within thirty days, Plaintiffwas in default of the Lease' 18

confact, the record t9 As to plaintiffs performance or excuse for non-performance of the 20 ta;res owed and pay rent' contains substantial evidence that Plaintifffailed to timely pay the 2l Defendant served the These failures clearly place plaintiffin default of the L,ease well before 22

three-day Notice to pay Tares or euit. It is also noteworthy to point out that Plaintiffcontinues 23 prese'lrt action. Exhibits 24 to be in default under the terms of the Lease, even after the filing of the 25 C to V to the Opposition clearly demonsfiate Plaintiffs continuing failure to perform under the 26 performance of the terms of the Lease. plaintifffails to meet the second essential element, 27

Gin Hai Shan PatLnershiP v- Cobblestone Square, Inc. Decision and Order Civil Case No. CV0l47'07 - Page l3 of28 - I Lease, or excuse for nonperformance and is not entitled to summary judgment for an alleged

2 breach ofcontract. 3 for a breach of contract action PlaintifPs failure to meet the second essential element 4 will for partial summary Judgment. The court alone justifies this court,s denial of the Motion 5 to prevail on abreach of contract action, 6 however, also address the third esse,lrtial element that Partial Summary Judgment, Plaintiffargues 7 Defendant,s alleged breach. In the Motion for 8 paragraph r3 of the Lease to give plaintiffa 15-day notice prior Defendant was required under 9 as the nonpayment of taxes' Plaintiffasserts termination of the Lease for alleged defaults, such 10 pay Taxes or euit served by Defendant for the failure to pay td(es' that the three-day Notice to l1 undisputedly breached the terms of the Lease and Plaintiffis entitled to summary judgment as a t2 13 matter of law. l4 Defendant argues that the second sentence found in Paragraph 13 of the 15 notice of "other rights and contractually permits the Lessor to elect between the 15-day l6 that sentence found in Paragraph 13 of at law or equity." Defendant contends that based upon t7 under Guam's unlawful detainer t8 Lease, Defendant exercised its other rights and remedies

t9 21 G.C.A. $ 21103, and served a three-day notice based upon Plaintiffs failure to pay 20 authorized by Paragraph 13 of the Defendant ilgues that the three-day notice was fully 2L on this claim should be denied' there was no breach of the Lease and PlaintifPs motion 22 13 of the Lease is to 23 The dispute concems how the language found in Paragraph

24 interpreted. Paragraph 13 of the Lease states the following:

25 13. REMEDIES: ,. 26 Upon the occurrence of any eve,nt of default specified in Section 12, Lessor 27 terminate this lease gi"itg fifteen (15) days prior-writte'n notice' T":* "p* li*oit other riglrts and remedies at law or equity' herein shall not ptrJ.rOi". 28

ein ttai Shan PattnershiP v. Cobblestone Squate, Inc. Decision and Order - Page 14 of28 - Civil Case No. CV0l47-07 this lease for nonpayment of 1 however, that no notice shall be required to terminate other than as provided in paragraph 3(d)' 2 as Exhibit "'\" to the Motion for a J See, Paragraph 13, pg. 13 of the Lease, attached

4 Summary Judgment. are to be interpreted. Specifically 18 5 Guam statutes provide guidance as to how conhacts 6 a contract is to govern its interpretation' if the G.C.A. $ 87104 sets forth that: "[t]he language of 7 an absurdity'" (See, 18 G'C'A' $87104)' In language is clear and explicit, and does not involve 8 ..[w]hen a contract is reduced to writing, the intention 9 addition, 1g G.c.A. $s7105 directs that:

alone, if possible; subject, however to the other l0 the parties is to be ascertained from the writing

1l 18 G'C'A' $ 87110 sets forththat: provisions ofthis chapter." (see, 18 G.C.A. $S7105). Also, t2 ..[t]he words of a contract are to be understood in their ordinary and popular se'nse' rather than 13 by the parties in a technical se'nse' or unless a according to their strict legal meaning, unless used t4 the latter must be followed'" (See' 18 15 special meaning is given to them by usage, in which case

L6 G.C.A. $87110). T7 Guam case law likewise sets forth that a court need not go beyond the four corners of . 18 contract to enforce the terms as written' See' 19

servs.. 2003 Guam 20 n 24. A court is merely required to interpret the confiact as written' 20 the intent of the parties to 2l right of the plain ranguage and the reasonable expectations of ttre plain meaning of the 22 contract is generallY, and whenever possible, resfricted by 23 terms. Camacho v. Camacho, 1997 Guam 5 t[33; ," 24 The words in a contract are generall Guam Hous. & Urban Renewal Auth..2003 Guam 19 fl 36. 25 otherwise in the confracl 26 to be accorded their ordinary meanings, unless specifically stated

27 Camacho. 1997 Guam 5 fl 33. 28

ein Hai Stnn PattnetshiP v. CobbleEEone Square' Decision and Order Civil Case No' CV 0147 -07 - Page l5 of28 - Guam addressed the issue 1 In Wasson v. Berg. 2007 Guam 16, the Suprerne Court of ,) judgment based upon an interpretation of whether the trial court erred in granting swnmary 3 terms and conditions of a price reduction clause found in an Asset Purchase Agreeme'lrt' 4 the purchase price of certain medi price reduction clause allowed for a $50,000 reduction in 5 instarled in the Tenitory of Guam within 6 machinery in the event that a competing machine was of the Asset Purchase Agreeme'nt and 7 two year period. The court, looking to the four corners interpreted the term "installed" in the express terms, found that the rower co'rt erroneousry 8

9 clause impried a causation requirement' reduction crause, and erroneousry concruded that the 10 or faditional approach at ![ 36. The Court set forth that in applyng the "plain meaning" ll corners of the conffact that the t2 confiact interpretation, that one could not find from the four

13 .,installed,, was intended to mean functioning or competing, as the lower court found' Id'

t4 their ordinary meani Court set forth that words in a confiact are generally to be accorded 15 Court also found that whi unless specifically stated otherwise in the contract. Id. at !f26. The t6 the Appellant-Defendant' that as 17 there was no cross motion for summary judgment filed by been satisfied' Id' at t[37' 18 matter of law all of the elements of the price reduction clause had this Court is directed 19 Under both Guam statutes and case law, in construing a contact, 20 plain and clear' the Court begin with the language of the contact and, if the language is 2l enforce the terms as written. This Court finds that the plain meaning of Paragraph 13 of 22 Lease, read as a whole with the e,lrtire Lease, contactually permits the Lessor to elect other 23

other than for nonpayme'lrt 24 and remedies at law or equity based upon a default of the Lease,

25 rent. The provisions of the entire Lease clearly set forth that the only exception to this election 26 remedies is for the nonpayment of rent. The last sente,nce found in Paragraph 13 of the 27 that no notice shall clearly delineates this exception by stating that: "[p]rovided, however, 28

ein estone Squate' Inc. Decision and Order Civil Case No. CY0l47-07 - Page 16 of28 - rent other than as provided in paragpph 3(d)" I required to terminate this rease for nonpayment of ) (See, Para$aph 13, pg. 13 of the Lease, attached as Exhibit "A" to the Motion for Parti J summary Judgment). Paragraph 3(d) sets forth that: "[i]f default shall be made by Lessee in 4 payment of the rent herein reserved, and that default shall continue for thirty (30) days 5 shall be in default of this Lease without 6 notice thereof in writing to Lessee then Lessee attached as Exhibit "A" to the Motion 7 notice.,, (See, paragraph 3(d), pE 3-4 of the Lease, that the onl 8 partial summary Judgment). The prain ranguage of the Lease clearly sets forth 9 to use other riglrts and remedies is exception to either the fifteen-day notice or the election l0 the nonpaYment of rent. 11 notice prior to termination t2 PlaintifPs position that the Lease requires a fifteen{ay corners of the Lease' Plaintiff 13 nonpayment of tares is simply not found within the four l4 partiar Summary Judgment that the Lease clearly sets forth that repeatedly in the Motion for 15 cases of termination, that a fifteen-day written notice is required. Plaintiff asserts that in cases t6 the Lessor. ln order to give t7 termination, there are no other rigtrts and remedies available to that, that sentence 18 meaning to the second sentence found in Paragraph 13 Plaintiffasserts

t9 This interpretation by Plaintitri to some other defaults that might occur, other than termination. 20 parties had intended to limit not found within the plain tanguage of the Lease. If the 2l opportunity to cure termination notices to a fifteen-day notice only so as to allow Plaintiffthe 22 had intended to limit 23 default, then the Lease would have clearly stated so. If the Parties than termination, the'lr 24 second sentence found in Paragraph 13 to all other defaults, other 25 Lease would have clearly stated so. The Lease does not' 26 is This Court finds that the language found in Paragraph 13 of the Lease 27 approach to The Court further finds that in applying the plain meaning or traditional 28

ein gai Shan PartnershiP v. estone Squate, Ine. Decision and Order Civil Case No. CV0147-07 - Page l7 of28 - Defendant to choose between I interpretation, that paragraph 13 of the Lease clearly permits the upon the occurrence of 2 fifteen-day notice or "other rights and remedies at law or equity'' 3 that Defendant breached the default, other than the non-payment of rent. Plaintiffs claim 4 unlawful detainer by electing to serve a three-day notice to quit, pursuant to Guam's ) judgment filed by Defendant here' this 6 fails. While there is no cross motion for summary and Paragraph 13, that the 7 finds that as a matter of law, using a plain reading of the Lease and remedies at law or equi is entitled to elect between a fifteen-day notice or 'oother rights 8

9 the non-payme'nt of rent' upon the occurrence of any default by the Plaintifi other than 10 Judgment on the Based on the foregoing, Plaintiffs Motion for Partial Summary 1l t2 of contract action is DENIED.

13 C. SLA}IDER OF TITLE T4 plaintifgs Complaint alleges in the second cause of action, a claim for slander of 15 plaintiffargues that Defendant's Notice to Pay Taxes or Quit is a publication which falsely t6 ttrat plaintiffwas required to vacate the premises within three (3) days in the event of the fai 1,7

18 to pay property taxes. Plaintiff also argues that the words "TAX SOLD PROPERTY" Pay Taxes or Quit' is 19 tw,ice on the Revenue & Taxation document, attached to the Notice to 20 of false statement in that the property has never been sold or conveyed to the Govenrment 2l or a third party for non-payment of taxes. Plaintiffclaims that Defendant's action in issuing 22 was done wi 23 Notice to pay Taxes or Quit, with the attached Revenue & Tanation document

24 knowledge of its falsity and defamatory naflre, or was done with reckless disregard of 25 the notice and attachme,lrt were false and defamatory, or was done negligently in that 26 failed to ascertain whether the notice and attachme,nt published were false. Plaintiff also 27

Gin Hai Shan PartnershiP v- Cobblestone Square, Inc. Decision and Order Civil Case No. CV0147-07 - Page l8 of28 - 1 that Defendant's false publication affected Plaintiffs relationship with First Commercial B

2 and Plaintiffs sub-tenants at the FountainPlazaBuilding. 3 In the Motion for Partial Summary Judgment, Plaintiff asserts that it has met all of 4 essential elements required to prevail on surnmary judgment for slander of title. The ) 6 elements for a slander of title action are: (1) a publication; (2) which is without privilege

7 justification, (3) which is false, and (a) which causes direct and immediate pecuniary 8 Howard v. Schaniel. 169 Cal. Rprtr. 678, 682 (Cal Ct. App. 1980). The California S 9 oOne who, without Court sets forth that an action for slander of title, is "best stated as follows: 10 privilege to do so, publishes matter which is untrue and disparaging to another's property in 11

r2 chattels or intangible things under such circumstances as would lead a reasonable man to

13 that the conduct of a third person as purchaser or lessee thereof might be determined thereby T4 liable for pecuniary loss resulting to the other from the impairment of vendibility thus caused.' 15 Gudeer v. Manton. 134 P.2d 217,220 (Cal. 1943). This Court finds that based on the bri I6 17 and pleadings thus far in the record, Plaintifffails to meet the second and third esse,lrtial

18 required to prevail on a motion for summary judgment for slander of title.

t9 The second element required to prevail on a slander of title action requires Plaintitr 20 prove that Defendant published matter which was without privilege or justification. In 2l Opposition, Defendant argues that the Notice to Pay Tares or Quit, along with the 22

23 Revenue & Taxation document is absolutely privileged under 19 G.C.A. $2105 O).

24 argues that in the altemative, the Notice to Pay Taxes or Quit, along with the attached

25 & Taxation document, was protected under the "common interesf'privilege found in 19 G. 26 $ 210s (c). 27

Gin Hai Shan CobbTestone sguare, Decision and Order Civil Case No. CV 0147 -07 - Page l9 of28 - which enumerates 1 As pointed out by Defendant in the opposition, 19 G.c.A. $2105, Code $ 47' I 2 t'pes of communications that are privileged, is derived from California Civil 3 G.C.A. $ 2105 (b) states inrelevantpartthat: 4 $ 2105. Privileged Communications. 5

6 A privileged publication is one made:

7 (b) In any (l) legislative or (2) judicial proceedings, or (3) in any other official proceeding authorized by law' 8

9 le G.c. A. $ 2105 o). proponent's motives, morals' 10 This litigation privilege is absolute and applies without regard to a 11 1990)' Guam law ethics or intent. See, Silbere v. Anderson. 786 P. 2d365,370'371(Cat. t2 prerequisite to the filing specifically sets forth that service of a notice to quit is a legally required 13 vs' G'F'G' of an unlawful detainer action. See. 2l G.C.A. $ 21103 (c); Archbishop of Guam t4 Corp.. 1997 Guam 12. As Defendant also points out in the Opposition, the Califomia Supreme 15

I6 Court has held that a landlord's notice to quit or other eviction notice is a prelitigation

t7 in communication that is absolutely privileged, when it relates to litigation that is contemplated 18 good faith and under serious consideration. Action Aparfrne,lrt Ass'n v. City of Santa Monica' 19

20 163 P. 3d 89, 102 (Cal.,2007).

2L In Action Apartment Ass'n v. City of Santa Monica- 163 P. 3d 89 (Cal. 2007) the

California Supreme Court considered whether the "litigation privilege" of California Civil 22 Code

23 that prohibited a landlord from maliciously $ 47 (b) preempted a local municipal ordinance 24 se6dng a notice of eviction or bringing any action to recover possession of a rental unit without 25 preenrpted 26 reasonable factual or legal basis. The Court concluded the privilege of $ 47 O)

27 entirely the provision regarding filing an action to recover possession, but preempted only 28 partially the provision regarding serving a notice of eviction. Id. at 101. With respect to the latter

Cin Hai Shan Pattnets/nip v. Cobblestoae Square, Inc' Decision and Order Civil Case No . CYOL47-07 - Page 20 of 28 - pubrication "made as part of a'judicial 1 the court noted the ritigation privilege appries only to a

2 u ,,notice of eviction is a communication regarding prospective litigation, proceeding, and that a 3 and, as such, it is not necessarilypart of a judicial proceeding'u Id' at pg' 102' The California 4 is privileged only when it relates to Supreme court held that a prelitigation communication ) consideration' Id' 6 litigation that is contemplated in good faith and under serious Notice to Pay Ta:res or 7 In the instant matter, the service by Defendant of the three-day 8 Quit, along with the attached Revenue & Taxation docume'lrt, is a legally required prerequisite to 9 21103; Archbishop of Guam vs' the filing of an unlawful detainer action. (See, 21 G.C.A' $ l0 Defendant's inte'lrtion to file G.F.G. Corp.. 1997 Guam 12.). The Cowan Derlaration asserting 11 provides competent evidence that t2 the unlawful detainer action, while self-serving, nonetheless

of litigation. Paragraphs 9 13 the Notice to pay Taxes or euit was se,nred in serious contemplation l4 evidence that Defendant through l l of the cowan Declaration likewise provides competent 15 to quit and failure on would in fact pursue an unlawful detainer action upon the filing of a notice 16 plaintifgs part to cure. As Paragraph 10 of the Cowan Declaration points out, a Complaint for l7 failwe to pay 18 Unlawful Detainer was filed on June 2l,2oo7 by Defendant based upon PlaintifPs 19 rent. The pleadings and record thus far in this case clearly provides this Court with substantial 20 was served in good faith evidence demonstrating that the three-day Notice to Pay Taxes or Quit 2l and in serious contemplation of litigation. 22 with the 23 In the Reply however, Plaintiffargues that Notice to Pay Tures or Quit, along

24 attached Revenue & Ta:

25 given to any sub-tenants in 21 G.C.A. $ 21103 (c) requires that the three-day notice to cure be 26 actual occupation of the premises. Plaintiffargues that Defendant's failure to serve the sub- 27 that the unlawful tenants, as listed in the Notice to Pay Taxes or Quit, unequivocally shows 28

Gin Hai Shart PartnetshiP v. Cobblestone Square, Inc. Decision and Order Civil Case No. CV0l47-07 -Page2l of28 - 1 detainer litigation was not contemplated in good faith or seriously considered. Plaintiffargues

2 that the lack of good faith intention to actually pursue the litigation destroys whatever litigation 3 privilege Defendant maY have had. 4 The Cowan Declaration sets forth in Paragraph 6 that the three-day Notice to Pay 5

6 or euit was not delivered or mailed to the sub-tenants. No other explanation is given as to

7 the sub-tenants were not served. This Court finds that there could be a whole host of reasons 8 to why the sub-tenants were not served in this matter. Arguably, Defe,ndant's counsel could 9 inadvertently forgotten to serve them or mistakenly thought that the sub-tenants need not 10 served in this particular matter. The fact that Defendant does not address this in the 11

t2 and does not present any evidence or law which conclusively demonstates that although the

13 tenants were not serve, the Notice to Pay Tanes or Quit was still served in good faith and t4 contemplation of litigation does not automatically destroy the litigation privilege. 15 Plaintiff presents no other evidence that Defendant or Defendant's counsel l6 t7 intended to bring the action or that the action was not contemplated in good faith. All

18 presents is an inference that is based upon Defendant's failure to senre the sub-tenants a copy

l9 the Notice to Pay Tores or Quit. If Defendant's failure to serve the sub-tenants were sufficient 20 support an inference that Defendant did not intend to litigate the matter, the purpose of 21 privilege would be severely undermined. Any notice to quit that an attorney may write on 22

23 of a clie,lrt would carry the potential for tort claims and the need for a trial to overcome 24 inference that there was no serious intention to litigate because of an asserted failure to serrre

25 sub-tenants. That inference is not enough for this Court to deny the claim of an absolute privi 26 in this matter and grant the Motion for Partial Summary Judgment. In short, genuine issues 27 material fact conceming why Defendant failed to serve the sub-tenants with the 5-day Notice 28

Gin Hai Shan ParEnersh p v. Cobblestone Square, Inc. Decision and Order Civil Case No. CY0l47 -07 -Page22 of28 - 1 pay Taxes or Quit still exist for purposes of future motions or tial. This Court finds that

2 has not made a suflicient showing for purposes of sunmary judgment to defeat Defendant' 3 potential claim of absolute privilege. Plaintitr has failed to meet the second essential 4 required to prevail on a motion for summary judgment for slander of title. ) 6 Plaintiffs failure to meet the second essential element for a slander of title action

7 once again, justifies this Court's denial of the Motion for Partial Summary Judgment. This 8 will however, also address the third essential element required to prevail on a slander of ti 9 action, publication of a false statement. Plaintifffirst argues that the false publication is found i 10 the Notice to Pay Taxes or Quit issued by Defendant. Plaintiff argues that Defendant issued 1l

12 Notice to Pay Taxes or Quit which stated falsely that Plaintiffs tenancy would be

13 within three days if the property taxes were not paid on the Property. Plaintiff argues l4 Defendant knew the statement was false considering that Paragraph 13 of the Lease allows for 15 15-day notice prior to termination. 16

t7 This Court has set forth in detail above, that under the plain language of the

18 Defendant is entitled to elect between a 15-day notice or other rights and remedies at law

t9 equity upon the occrurence of any default by Plaintifi other than the nonpayment of rent. 20 Court finds from the pleadings on file that Defendant had not paid the property tares that 2l due on the property for the calendar year of 2005, that were payable in February and April 22

23 2006, at the time the Notice to Pay Taxes or Quit was issued. Since Defendant's election to

24 a three-day Notice to Pay Tanes or Quit was authorized under the terms of the Lease 25 Plaintiff had not paid the taxes, there is no false publication in this matter. Plaintiff fails to 26 the third element necessary to prevail on a slander of title action. 27

Gin Hai Shan Partnership v. Cobblestone Square, Inc. Decision and Order Civil Case No. CV0l47-07 -Page23 of28 - 1 Plaintiff next argues that the Revenue & Taxation document attached to the Notice to 2 Taxes or Quit was a false publication. Plaintiffargues that the words "Tax Sold Property'' 3 was stamped twice on the Revenue & Taxation document contained a false statement. P 4 argues that Defendant must have known that the property was not sold for non-payment of ) 6 or at the least acted in reckless disregard of the truth or falsity of the statement. Plaintiff

7 failed to show t\at the property was not in fact sold for non-payment of tanes. Plaintiff 8 the Declaration of Ronald Su In Support of Gin Hai Shan Partnership's Motion for 9 Summary Judgment (hereinafter "Ronald Su Declaration"). In Paragraph 6, Ronald Su 10 that: "[t]o my knowledge, the property has never been sold or conveyed to the Government 1t

l2 Guam or a third party for non-payment of tatres". (See, Paragraph 6, Ronald Su

13 attached to the Motion for Partial Summary Judgment). The term "to my knowledge" does l4 support a claim that the Revenue & Taxation document was indeed false. Plaintiffis the 15 party in this action and has the burden of proving the essential eleme,nts for a slander of 16

17 action. Plaintiffhas failed to show that the Revenue & Taxation document is a false publi

18 Plaintifffails to meet the third element necessary to prevail on a slander of title action. t9 Based on the foregoing, Defendant's Motion for Partial Summary Judgme'lrt on 20 slander of title action is DENIED. 2l D. LIBEL 22

23 PlaintifPs Comptaint alleges in the third cause of action, a claim for libel. Title 19 G.

24 $ 2103 sets forth that: 25 S 2103. Libel, What. 26 Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any 27 person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a teirde,ncy to injure him in his 28 occupation.

Shan Partnership v. Cobblestone Square, Inc. Decision and Order Civil CaseNo.CV0l4747 -Page24 of28 - 1

19 G.C.A. $ 2103 2

3 Plaintiff s allegations to support an action for libel, mirror those allegations for Plaintiffs

4 of title claim. Moreso, Plaintiffargues that Defendant's publication of the Notice to Pay TCIres ) Quit contained the false statement that Plaintiffwas required to vacate the premises within three 6 days in the event of the failure to pay the property taxes. Plaintiff also argues that the words 7

8 "TAX SOLD PROPERTY" stamped on the Revenue and Taxation document is a false

9 In the Motion for Partial Summary Judgment Plaintiff asserts that it has met all of 10 essential elements required to prevail on summary judgment for libel. As Plaintiffpoints out 11 the Motion for Partial Summary Judgment, like the elements for slander of title, the I2 elements for libel are (1) a publication that is (2) false, (3) defamatory, and (a) unprivileged, 13

I4 that (5) has a natural tendency to injure or that causes special damage. Taus v. Loftus. 151 P.

15 1I 85, 1209 (CaI., 2007).

16 This Court finds that Plaintiff fails to meet the second and fourft essential L7 required to prevail on a motion for summary judgment for libel. As to the second element 18 alleged false statements, this Court's reasoning set forth above in the slander of title discussion i 19

20 equally applicable. As set forth above, Plaintiff is the moving party in this action and fails

2l establish that the words "TAX SOLD PROPERTY" stamped on the Revenue & Taxati 22 document is a false publication. 23 As to the fourth element, the absence of a privilege, this Court's reasoning set forth 24 in the slander of title discussion is once again applicable. As set forth above, Plaintiffis unable 25

26 make a sufficient showing for purposes of sunmary judgment to defeat Defendant's

27 claim of absolute privilege. 28

Gin Hai Shan Partnersh p v. Cobblestone Square, Inc. Decision and Order Civil Case No . CY0l47 -07 -Page25 of28 - 1 Based on the foregoing and the court's reasoning set forth in the slander of

action is DENIED' discussion, Defendant's Motion for Partial Summary Judgment on the libel 2

3 E. DECLARATORYRELIEF 4 plaintiffargues that an actual controversy has arisen among the parties regarding their ) to issue a 6 respective rights and obligations under the Lease, which requires this Court

judgment declaring that 7 Declaratory Judgment. Specifically, Plaintiff asks this Court to issue a in Paragraph 13 of Defendant must first comply with the 15-day notice requirement, as set forth 8

9 under Guam's the Lease, as a precondition to issuing a notice to perform or quit as permitted 10 unlawful detainer statutes. 1t

I2 Title 7 G.C.A. $ 26301 authorizes actions for declaratory relief. It provides that: '13 $ 26301. Declaratory Relief. 14 Any person interested under a deed, will, or other writte'n instrume'nt, 15 or under a confiact, or who desires a declaration of his rights or duties with respect to another, or in respect to, in, over, or upon property, or with T6 respect to the location of the natural channel of a water course' may, in cases of actual controversy relating to the legal rights and duties of the L7 respective parties, bring an action in the court having jurisdiction for a 18 declaration of his rights and duties in the premises, including a determination of any question of construction or validity arising under such 19 instrume,lrt or contract. He may ask for a declaration of rights or duties, 20 either alone or with other relief; and the court may make a binding declaration of such rights or duties, whether or not further relief is or could 2l be claimed at the time. The declaration may be either afErmative or negative in form and effect, and such declaration shall have the force of a 22 final judgment. Such declaration may be had before there has been any 23 breach of the obligation in respect to which said declaration is sought.

24 7 G.C.A. $ 26801.

2s Declaratory judgments are equitable in nature and are abinding adjudication that establishes the 26 rights and other legal relations of the parties without providing for or ordering e,lrforcernent. 27

cin ltai Shan PartnershiP v. Cobblestone Squate, Inc. Decision and Order Civil Case No. CV0l47 -07 -Page26 of28 - 1 Executive View Estate. Inc. v. Look. Civ. No. 93-00062A; l994WL 129748 at*2 (D. Guam

2 App. Div. 1994) (citations omitted). 3 Pursuant to Guam law, in order to pursue a declaratory judgment action there must exist 4 an actual controversy relating to the legal riglrts and duties of the respective parties. This Court 5

6 finds that there is no actual controversy in this matter that requires this Court to issue a

7 declaratory judgment. Plaintiffclaims that Defendant is required under the express provisions of 8 the Lease, as set forth in Paragraph 13 of the Lease, to issue a fifteen-day notice prior to 9 termination of the Lease based upon PlaintifPs default in failing to pay taxes when due. Plaintiff 10 argues that prior to filing an unlawful detainer action or sending a notice to perform or quit 11

t2 Guam's unlawful detainer statutes, Defendant is required to provide a fifteen-day notice.

13 is in essence asking this Court to issue a Declaratory Judgment that would revnite the provisions 1,4 of the Lease. 15 A court does not have the power to create for the parties a contact which they did not l6 t7 make and cannot insert language which one party now wishes wetre there. Principal Mut. Life

18 Ins. Co. v. Vars. Pave. McCord & Freedman 7'l Cal. Rpft. 2d 479,483 (Cal. Ct. App. 1998).

L9 When the language of a contract document is unanrbiguous, courts are not free to restnrcture the 20 agreement. Car Business Entemrises Inc. v. Citv of Chowchilla 82 Cal. Rpfi. 3d 135, 138 (Cal. 2T Ct App. 2008). No court has the power to make for the parties to a written instrument, a 22

23 contractual arrangementwhichtheydidno seefittomake. Pauleyv. Faucett" 269P.2d89,92

24 (Cal. Ct. App. l95a). 25 This Court has set forth in detail above, that as a matter of law, the plain and unequivocal 26 provisions of the Lease allows the Defendant to choose between a fifteen-day notice or other 27 rights and remedies at law or equity upon the occrrrence of any default by Plaintiff, other than 28

n Hai Shan Partnersh v. Cobblestone Square, Inc. Decision and Order Civil CaseNo.CV0l4747 -Page27 of28 - I the non-payment ofrent. Based upon this Court's finding above, there is no acfual controversy

2 that would require this Court to issue a declaratory judgment. As such, Plaintiffs Motion for 3 Declaratory Relief is hereby DENIED. 4 CONCLUSION ) 6 Based upon the foregoing, PlaintifPs Motion for Partial Summary Judgment for

7 of Contract, Slander of Title, Libel, and Declaratory Relief is hereby DENIED in its' entirety. 8 Defendant's Rule 56(f) affidavit requesting more time to allow supplemental briefing 9 time is rendered moot by the Court's ruling. 10

11 F' 12 So ORDERED this davof 5 June,2009.

15 HONORABLE VERNON P. PEREZ l6 JUDGE, SUPERIOR COURT OF GUAM t7 18

T9

2l 22

27 0 B 2009 {,,,,,,,,,,,,,,,UN

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Gin Hai Shan part v. Cobblestone Squa.re, Decision and Order Civil CaseNo. CV014747 - Page 28 of28 -