Gloria Santiago v. Doris Aguon

Opinion

FT L E #Ls SUFEREUR Qour GF€§i_)f5e§'.»4 ZUZPIJAN 13 M111= 014 CLERK OF COURT

O L

IN THE SUPERIOR COURT OF GUAM

GLORIA UNPINGCO SANTIAGO CIVIL CASE no. CV0145-21 and RANDOLPH AGUON SANTIAGO,

Plaintiffs,

vs. DECISION AND ORDER RE MOTION TO DISMISS

DORIS CHIGUINA AGUON and ANTHONY AGUON,

Defendants.

This matter dame before the Honorable Dana A. Gutierrez on October 12, 2022 for a

hearing on Plaintiffs Gloria Unpingco Santiago ("Plaintiff Gloria") and Randolph Aguon

Santiago's ("Plaintiff Randolph") (collectively "Plaintiffs") Motion to Dismiss. Present via Zoom

were Plaintiffs, Defendants Doris Chiguina Aguon ("Defendant Doris") and Anthony Aguon

("Defendant Anthony") (collectively "Defendants"), Attorney Charles H. McDonald II via Zoom

representing Defendants; and Assistant Public Defender David Highsmith representing Plaintiffs.

Upon consideration of the arguments presented and in light of the applicable law, the Court

hereby DENIES the Plaintiffs' Motion to Dismiss as to the Intentional Infliction of Emotional

Distress ("IIED") claim and Invasion of Privacy claim and GRANTS in part as to the Private

Nuisance claim. DECISION AND ORDER RE MOTION TO DISMISS CVOI45-21; Gloria Unpingco Santiago and Randolph Aguon Santiago at Doris Ch iguina Aguon and Anthony Aguon

BACKGROUND

T his ma tter a r ises out of Pla intiffs' Compla int for Per ma nent Injunction seeking a

restraining order prohibiting Defendants from going within five hundred feet of Plaintiffs'

residence, from contacting Plaintiffs, and firm otherwise harassing Plaintiffs. Complaint, at 3.1

On May 13, 2021, Defendants filed an Answer to Complaint for Permanent Injunction

and Counterclaim ("Counterclaim"). The Counterclaim asserted two causes of action: 1) a claim

for a permanent injunction, and 2) a claim seeking damages for the tort of IIED. On June 2,

2021, Plaintiffs filed a Motion to Dismiss seeking dismissal of the IIED claim arguing that

Defendants had failed to state a claim upon which relief could be granted

Defendants tiled their Opposition to P1aintiff"s Motion to Dismiss on July 30, 2021.

Plaintiffs filed their Reply on August 10, 2021. The parties presented oral arguments to the Court

on September 7, 2021. On December 6, 2021, the Court issued a Decision and Order granting

Plaintiffs' Motion to Dismiss ("Decision") and ordering that Defendants' Second Cause of

Action for IIED be dismissed for failure to state a claim.

On February 28, 2022, Defendants filed their First Amended Answer to Complaint for

Permanent Injunction and Counterclaims and Demand for Jury Trial ("Amended Counterclaim"),

r ea s s er t ing t he P er ma nent I nju nc t ion c la im a nd I I E D c la im s et f or t h in t heir or igina l

Counterclaim and adding a third and fourth cause of action for Invasion of Privacy and Private

Nuisance, respectively. On April 14, 2022, Plaintiffs filed a second Motion to Dismiss ("Second

' Based on Plaintiffs' Motion for an Order to Show Cause, supporting Declaration, and testimony at an ex parte hearing on February 10, 2021, the Court issued a Temporary Restraining Order on February 16, 2021. 2 The Court continued the Temporary Restraining Order again until a hearing on June 15, 2021. At the June 15, 2021 hearing, the parties agreed to a Mutual Temporary Restraining Order pending the resolution of the case, or until further order of the Court.

2 DECISION AND ORDER RE MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Chigufna Aguon and Anthony Aguon

Motion to Dismiss") seeking dismissal of the IIED claim, the Invasion of Privacy claim, and the

Private Nuisance claim. On May 12, 2022, Defendants filed an Opposition to the Second Motion

to Dismiss ("Second Opposition").3 The Court scheduled a Motion Hearing for the Second

Motion to Dismiss on October 12, 2022. The parties presented oral arguments to the Court at the

October 12, 2022 hearing, and the Conn took the matter under advisement.

DISCUSSION

Plaintiffs seek dismissal of Defendants' IIED claim, Invasion of Privacy claim, and

P r iva te Nuisa nce cla im pur sua nt to R ule l2(b)(6) of the Gua m R ules of C ivil P r ocedur e

("GRCP"), arguing that the assertions in Defendant's First Amended Counterclaim fail to state a

cla im upon which r elief ma y be gr a nted. S econd Mot. to Dismiss, a t 1-6. In opposition,

Defendants assert that their Amended Counterclaim sufficiently meets the outrageous conduct

threshold for an IIED claim, and that Plaintiffs' conduct sufficiently meets all elements to

demonstrate an Invasion of Privacy claim and a Private Nuisance claim. Second Opp., at 2, 5,

7-8.

1. Standard of Review for a Rule l2(b)(6) Motion to Dismiss

A pleading that states a claim for relief must contain, among other things, "a short and

plain statement of the claim showing that the pleader is entitled to relief." GRCP Rule 8(a). Rule

12(b)(6) of the GRCP permits a party to raise by motion the defense that a pleading "fail[s] to

state a claim upon which relief can be granted." First Hawaiian Bank v. Manley, 2007 Guam 2 1]

9, GRCP Rule l2(b)(6). On a motion made under Rule l2(b)(6), the court's inquiry is limited to

the content of the pleading, including written instruments attached to the complaint as exhibits,

3 The Court notes that Plaintiffs did not file a reply to the Second Opposition.

3 DECISION AND ORDER RE MOTION TO DISMISS CV0145-21; Gloria Unpfngco Santiago and Randolph Aguon Santiago v. Doris Chiguina Aguon and Anthony Aguon

statements or documents incorporated in the complaint by reference, and documents on which

the pleading heavily relies. Newby u Gov 't of Guam, 2010 Guam 4 1] 14.

In Ukase u Wang, the Supreme Court of Guam clarified that Guam imposes a liberal,

notice pleading requirement and explicitly rejected the heightened pleading standard established

for federal l 2(b)(6) motions to dismiss by the U.S. Supreme Court in Bell Atlantic Corp. v,

Twombly and Ashcroft VS Iqbal. Ukase v. Wang, 2016 Guam 26 1]20-33 (citing Bell Atlantic Corp.

VS Twombly, 5 5 0 U .S . 5 4 4 ( 2 0 0 7 ) , A s h c r o ft v Iq b a l , 556 U.S. 662 ( 2009) ) . Pur s uant to U k a u ,

"Guam law requires only notice pleading, not fact pleading." Id. at 11 21. This means that a

pleading "need only provide fair notice of what the plaintiff's claim is and the grounds upon

which it rests." Id. at 'H 22. Thus, a pleading "should not be dismissed for failure to state a claim

unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief" Id.

However, while the Supreme Court of Guam has rejected the heightened plausibility

standard established by Twombly/Iqbal, the Supreme Court does recognize the principle that "a

plaintiff's obligation to provide the grounds of his entitlement to relief 'requires more than labels

and conclusions, and a formulaic recitation of the elements of a cause of action will not do."' Id.

at 1] 26 (citing Core Tech Inz'l Cor p. v. Hamil Engineer ing & Constr uction Co., 2010 Guam 13 1]

52). 11. The IIED C la im

The Court previously dismissed Defendants' IIED claim on the grounds that Plaintiffs'

conduct did not rise to the level of "outrageous conduct" necessary to sustain an IIED claim.

Decision, at 8. Defendants assert that the Amended Counterclaim now sufficiently demonstrates

4 DECISION AND ORDER RE MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago u Doris Chiguina Aguon and Anthony Aguon

that Plaintiffs' conduct meets the "outrageous conduct" threshold necessary to support

Defendants' IIED claim. Second Opp., at 2-3. However, Plaintiffs assert that, under the "law of

the case" doctrine the Court is precluded from reviewing the "same issues." Second Mot. to

Dismiss, at 7.

Upon r eview of the pr evious decision, the Cour t finds the or iginal IIED claim was

dismissed because the Court found that reasonable minds could not differ on whether the alleged

conduct was sufficiently outrageous Id. The Court notes that the Defendants have since

clarified their IIED claim in the Amended Counterclaim with new allegations. Furthermore, with

regard to the Plaintiff's law of the case argument, the Court notes that amended pleadings are not

subject to the law of the case doctrine.5 See Asking v. US. Dept. ofHome!and Security, 899 F.3d

1035, 1042 (9th Cir. 2018) (holding that law of case doctrine does not apply when considering a

motion to dismiss an amended complaint), see also Ferdik u Bonzelet, 963 F.2d 1258, 1262 (9th

Cir. 1992) ("[A]&er amendment the original pleading no longer performs any function and is

treated thereafter as non-existent[.]"). T herefore, for these reasons, the Court reviews the

amended IIED claim under the notice pleading standard.

A. The Amended Allegations Cannot Be Dismissed In Guam, the elements of IIED are "(1) extreme and outrageous conduct by the

4 The Court notes that this application of a "reasonable minds" standard may have been less liberal than the notice pleading standard the Supreme Court of Guam adopted in Ukase. Decision, at 7-9, see Ukase, 2016 Guam 26 ii 32. 5 Plaintiffs assert that, under the "law of the case" doctrine illustrated in Carlson u Perez, the Court is precluded from considering Defendants' amended IIED claim. Second Mot. to Dismiss, at 7 (citing Carlson v. Perez, 2007 Guam 6 11 19). The Court notes that the Carlson law of the case standard comes from People of Guam v. Hualde, 1999 Guam 3 11 13, which cites the standard from the Ninth Circuit decision in United States VS Alexander; 106 F.3d 874, 876 (9th Cir. 1997). The Ninth Circuit has distinguished that standard for amended claims in Atkins 14 U.S. Dept. ofHomelana' Sec., determining that the doctrine does not preclude a court from reassessing its own legal rulings in the same case.

5 DECISION AND ORDER RE MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v Doris Chigufna Aguon and Anthony Aguon

defendant, (2) intention to cause or reckless disregard of the probability of causing emotional

distress, (3) severe emotional distress, on the plaintiff's part, and (4) actual and proximate

causation of that emotional distress." Moylan v. Citizens Sec. Bank, 2015 Guam 36 1]77.

Defendants present the following IIED allegations in the Amended Counterclaim:

23. Around August 2020, the [Defendants] noticed that [Plaintiff] Gloria installed an electronic device that would state in a male voice "what are you doing" as the [Defendants] cook, clean, or relax in the outdoor living portion of their home.

24. [Plaintiff] Gloria only began using the electronic device to harass the [Defendants] after she confronted [Defendant] Doris Aguon regarding her plants.

25. Upon information and belief [Plain tif] Gloria also installed no less than fee (5) surveillance cameras aimed directly al the Aguon residence. 26. [Plaints] Gloria uses her electronic devices to spy on the [Defendants] and monitor their private affairs. [Plaintwj Gloria watches Ana' monitors the [Defendants] daily. SNe takes notes and reports to the police when Mrs. Aguon is not wearing a bra or when she is wearing only uncle garments in her home. 27. [PlaintQ'§ Gloria has disrupted special family events and holidays. On one particular occasion, [Plaintiff Gloria disrupted the funeral services for a member of the Aguonfamily and caused the arrest ofMl: Aguon. 28. [Plaints] Gloria spies on the [Defendants] as they flirt and tease each other romantically and express their love and affection for each other [Plaints] Gloria calls the police when they are engaged in such behavior 29. [PlaintwJ Gloria also watches other members of the Aguon family and has threatened to report them to the auth orities for no apparent reason.

30. [Plaiizt] Gloria filed meritless police reports 20 harass and agitate the [Defendants] Police have advised [Plaints] Gloria that there is nothing they can do about most other complaints, but she continues to complain about the same or similar conduct. [Plaints] Gloria hasjiled at least one police report against the [Defendants] every month since November 202] to the present. There have been no criminal charges brought against tlze [Defendants] stemming from thepolice reports.

6 DECISION AND ORDER RE MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Ch iguina Aguon and Anthony Aguon

31. Gloria's installation of the surveillance system and talking electronic device and subsequent use against the [Defendants] was intended to cause the [Defendants] to suffer emotional distress.

32. [ Plaintwj G l o r i a l s s t a l k i n g a n d h a r a s s i n g b e h a v i o r wh i l e t h e [ Defendants] are in the privacy of their home was intended to cause the [Defendants] to sher emotional distress. 33. The [Defendants] have suffer ed emotiona l distr ess. Specifica lly, [Defendant] Doris Aguon feels anxiety and stress when she is outside her home enjoying her outdoor living because of the surveillance system and talking electronic device. [Defendant] Doris has lost weight and loses sleep at night because of [Plaintiff] Gloria's actions. Mr. Aguon also has anxiety and stress while working outside his home because he knows [Plaintiff] Gloria is watching him and sounding her electronic device when he walks near certain areas of his property. 34. [Defendant] Doris Aguon had to seek medical care for her anxiety and stress caused by [Plaintiff] Gloria. [Defendant] Doris Aguon is emotionally distraught because of [Plaintiff] Gloria's actions. 35. [Plaintiff] Gloria's continued harassment of the [Defendants] and actions of installing the surveillance system and directing it towards the [Defendants] and her use of the talking electronic device have caused the [Defendants]to suffer emotional distress. 36. The [Defendants] have suffered economic and non-economic damages of no less than $100,000.00. Amended Counters., at 5-6 (italicized emphasis added to new allegations).'

Plaintiffs contend that "the facts complained of do not rise to the level of [IIED]" and that

"[a]ssuming that all the allegations of the counterclaim are tie, they do not constitute 'extreme

and outrageous conduct'...." Second Mot. to Dismiss, at 3. While Plaintiffs dispute the factual

basis of Defendants' allegations and whether these allegations rise to the IIED standard, the

Court notes that Guam does not require fact pleading to survive a GRCP Rule l2(b)(6) Motion to

Dismiss, only notice pleading. See Ukase, 2016 Guam 26 ti 29. At this stage in the proceedings,

the Court finds that Defendants allegations, such as Plaintiffs disrupting a family funeral service, 6 The Court notes seven (7) new allegations in the Amended Counterclaim from the original Counterclaim: paragraphs 25-30 and paragraph 32.

7 DECISION AND ORDER RE MOTION TO DISMISS CVOI45-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Ch iguina Aguon and Anthony Aguon

support an IIED claim and meet the requirements of notice pleading. See id. Therefore, the Court

finds that Defendants provide a sufficient pleading under this standard and denies dismissal of

the IIED claim.

III. Invasion of Privacy by Intrusion

The Supreme Court of Guam has established four legal theories of invasion of privacy,

"(l) unreasonable intrusion upon the seclusion of another (2) appropriation of the other's name

or likeness, (3) unreasonable publicity given to the other's private life...; and (4) publicity that

unreasonably places the other in a false light before the public...." Moylan, 2015 Guam 36 1169

(citing Varnado u Midland Funding, LLC, 43 F.Supp.3d 985, 991 (N.D. Cal. 20l4)).

The Defendants base their claim upon the first theory, unreasonable intrusion upon the

seclusion of another. Amended Counters., at 7. While the Supreme Court of Guam has not yet

addressed this theory in detail, the Supreme Court in Moylan relied on California case law for

guidance on invasion of privacy claims. Moylan, 2015 Guam 36 ii 69.

The Supreme Court of California holds that "[o]ne who intentionally intrudes, physically

or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is

subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive

to a reasonable person." Shulman v. Group W Productions, Inc., 955 P.2d 469, 490. (Cal. 1998).

The action for intrusion has two elements: (1) intrusion into a private place, conversation, or

matter, and (2) in a manner highly offensive to a reasonable person. Id.

Defendants plead the claim as follows:

38. Sometime during the period of August 2020 to the present, [Plaintiff] Gloria, without the prior knowledge or consent of the [Defendants], installed viewing, listening and recording devices and intentionally intruded on their solitude, seclusion, and private affairs.

8 DECISION AND ORDER RE MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago u Doris Chiguina Aguon and Anfnony Aguon

39. The [Defendants] discovered that their private conversations could be heard and were being recorded from a police officer after he responded to a complaint by [Plaintiff] Gloria against the [Defendants] The police officer instructed the [Defendants]to keep their voices down as he interviewed them because [Plaintiff] Gloria could hear them and was recording their everyday activities. 40. [Plaintiff] Gloria's intrusions are substantial, and of kind that would be highly offensive to an ordinary reasonable person.

41. [Plaintiff] Gloria's intrusions have caused Plaintiffs to sustain injury and harm.

Amended Countercl., at 8.

In the Second Motion to Dismiss, Pla intiffs cla im tha t a ny a lleged intr usions into

Defendants' seclusion were not more than "slight or trivial," and were not "highly offensive to a

reasonable person" and therefore do not rise to the elements of an invasion of privacy claim.

Second Mot. to Dismiss, at 5.

Once again, Plaintiffs challenge the factual allegations of Defendants' claim rather than

whether the pleading meets the standard to dismiss under a GRCP Rule l 2(b)(6) motion. Under

the applicable notice pleading standard, the Court finds that Defendants made a plain statement

alleging that Plaintiffs' actions of installing "viewing, listening, and recording devices" have

"intentionally intruded" on the Defendants' solitude and private affairs. Further, Defendants

allege that their "private conversations" are being heard and recorded by Plaintiffs. The Court

finds the allegations support a sufficient pleading showing entitlement to relief under the theory

of unreasonable intrusion upon the seclusion of another. See Shulman, 955 P.2d at 490.

Therefore, the Court denies the dismissal of the Invasion of Privacy claim.

IV. Private Nuisance

In Guam, nuisance is defined as "anything which is injurious to health, or is indecent or

offensive to the senses, or an obstruction to the free use of property, so as to interfere with the

9 DECISION AND ORDER RE MOTION TO DISMISS CVOI45-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Cniguina Aguon and Anthony Agzzon

comfortable enjoyment of life or property...." 20 G.C.A. § 10101.

The Supreme Court of Guam has only addressed the issue of private nuisance in

Guerrero u DLB Const. C o. , in which a r eta ining wa ll built by defenda nts colla psed on

plaintiffs' house, destroying parts of it. 1999 Guam 9. The Supreme Court held that in order for a

plaintiff to recover under a nuisance theory, "the party must show the acts of tortfeasor were

either, a) injurious to health, b) indecent or offensive to the senses, c) obstructive [of] the

comfortable enjoyment of life or property, [or] d) unlawfully obstructive [of] the free passage or

use, in the customary manner, of any river, bay, stream, canal, or basin, in any public park,

square, street, or highway." Id. at 11 15. The Supreme Court affirmed the trial jury's verdict

finding defendant-appellants liable for nuisance, because defendant-appellants' failure to remove

the wall remnants and debris on the plaintiff-appellees' property physically prevented them from

using their property. Id. at 111] 15, 18.

Regarding the Private Nuisance claim, Defendants plead the following:

43. Since about August 2020, [Plaintiff] Gloria installed security recording cameras and pointed them directly at the Aguon home without their knowledge or assent. 44. The [Defendants] have expressed their objection to the security cameras but the Santiagos have refused to cease recordings. 45. [Plaintiff] Gloria's actions have caused [Defendant] Doris to experience health issues and constitutes a private nuisance.

46. [Plaintiff] Gloria's actions have obstructed the free use of the [Defendants] house and has interfered with their comfortable enjoyment of life and property. 47. The [Defendants] have suffered harm and injury as a result of [Plaintiff] Gloria's actions.

10 DECISION AND ORDER RE MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Chiguina Aguon and Anthony Aguon

While Plaintiffs admit that the allegations "might~be deemed 'harassment,"' they claim

that the actions ar e "in no wa y physica l" a nd a llege tha t pr iva te nuisa nce "r equir es tha t

something physical offends the senses or obstructs access to property." Second Mot. to Dismiss,

at 6. Therefore, Plaintiffs claim that Defendants' allegations are "inadequate" to support a private

nuisance claim. Id. In response, Defendants claim that "there is no requirement for something

physical to obstruct or offend" under the nuisance statute. Second Opp., at 9.

Defendants allege that Plaintiffs' actions have "obstructed the free use" of their property

and "interfered with their comfortable enjoyment of life and property" and even caused "health

issues." Amended Countercl., at 8. However, Defendants never specify in their allegations what

the Plaintiffs' "actions" are that have caused these issues besides a general reference to the

Plaintiffs' installation of security cameras. Amended Countercl., at 8. Further, Defendants make

no connection to how the installation of cameras have "obstructed" or "interfered" with their

property or caused the alleged "health issues.H

Under the notice pleading standard, Defendants are responsible to provide fair notice of

their claim and the grounds upon which it rests. See Ukase 2016 Guam 1] 26. Upon review,

Defendants fail to provide the grounds that connect their allegations of nuisance to the Plaintiffs'

actions but rather merely recite the statutory requirements of nuisance. Id. Therefore, the Court

finds the pleading to be insufficient due to the Defendants' failure to provide the Plaintiffs with

notice of the grounds to their claim and thus, the Court grants dismissal of the Private Nuisance

claim.

11 DECISION AND ORDER RE MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago u Doris Ch fguina Aguon and Anthony Aguon

CONCLUSION

Accordingly, for the foregoing reasons, the Court hereby DENIES the Second Motion to

Dismiss with regard to the the Defendants' IIED claim and Invasion of Privacy claim, and the

Court GRANTS the Plaintiffs' Second Motion to Dismiss with regard to the Defendants' Private

Nuisance claim and ORDERS that the Private Nuisance claim is DISMISSED. Dismissal of the

Private Nuisance claim is without prejudice and leave to amend is GRANTED.

An amended pleading, if filed, shall be filed by within ten business days to be considered

timely. Responsive pleadings shall be filed no later than ten business days after an amended

pleading is filed or, if none is filed, within twenty-one calendar days of this Decision and Order.

SO ORDERED: JAN 1 32023

HOF ORABLE DAN RREZ Jud , 1 _error 'Cou1't'of Gun

SERVICE VIA E-MAIL I acknowledge that an electronic copy of the original was e-maiied to:

FDSC, m ,/J hw 0#'fq Date: I?/ 7} ' Time:N'f7W n MA Deputy Clerk, Superior Coun01 Guam