Gumataotao v. Highsmith

Opinion

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IN THE SUPERIOR COURT OF GUAM GARY WAYNE FRANCIS CIVIL CASE NO. CV0571-21 GUMATAOTAO,

Plaintiff, vs. ,DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DAVID JEFFREY DISMISS HIGHSMITH, DOES I and II, INSURANCE COMPANIES, and GOVERNMENT OF GUAM

Defendants.

This matter came before the Honorable Dana A. Gutierrez on Defendant David Jeffrey

Highsmith's ("Defendant") Motion to Dismiss and Guam Rule of Civil Procedure Rule 25 Motion

to Replace Plaintiff in the Alternative ("Motion to- Replace Plaintiff') on July 18, 2024 and

February 6, 2025. Present at the hearings were Attorney William Pole ("Pole") on behalf of the

late Plaintiff Gary Gumataotao ("Plaintiff'), and Defendant appearingpro se. Upon review of the

arguments, pleadings and applicable Guam law, the Court hereby grants Defendant's Motion to

Replace Plaintiff and Motion to Dismiss, in part, as further discussed below.

BACKGROUND

This Decision and Order adopts by r~ference the case background previously set forth in

earlier decisions filed on March 29, 2022, July 27, 2022 and March 14, 2023 1• See Decision and

1 The March 29, 2022Decision and Order and March 14, 2023 Decision and Order were both issued by the District Court of Guam. DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV0571-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

Order Re Motions to Dismiss, Motion to Remand and Motion to Stay (Mar. 29, 2022); Decision

and Order Re Motions to Dismiss (July 27, 2022); Decision and Order Re Motion to Dismiss and

Motion to Remand (Mar. 14, 2023).

In brief summary, this matter stems from an incident in which Defendant allegedly pushed

Plaintiff, causing Plaintiff to fall and lose consciousness. Compl. at 3. On July 22, 2021, Plaintiff

filed a Verified Complaint and Request for Jury Trial, alleging Assault, Battery, Infliction of

Emotional Distress, Invasion of Privacy, Loss of Reputation, Oppressive Conduct, Punitive

Damages and "Violation of Civil Rights" against Defendant. 2 Plaintiff also filed claims against

Defendant's employer, the Government of Guam. The matter was removed twice to the District

Court of Guam where numerous claims against Defendant and the Government of Guam were

dismissed. 3

On January 25, 2024, upon the stipulation of the Plaintiff and Government of Guam, and

non-objection of the Defendant, the Court issued an order dismissing the Government of Guam as

a defendant. See Order of Dismissal With Prejudice Against the Government of Guam.

As a result, the only remaining claims against the Defendant are: Assault, Battery, Loss of

Reputation, Intentional Infliction of Emotional Distress, Oppressive Conduct and Punitive

Damages.

On January 30, 2024, Defendant filed a "Noting of Death" which "notes and suggests the

death of plaintiff Gumataotao on the record." Noting of Death (Jan. 30, 2024).

On February 12, 2024, Defendant filed his Motion to Dismiss in which he "moves to

2 Plaintiff also sued Doe Insurance Companies I and II for the claims of assault and battery, and allege that Defendant and Doe Insurance Companies are jointly and severally liable. 3 The case was previously assigned to Judge Elyze J. Iriarte and reassigned to this Court upon her disqualification. 2 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV0571-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

dismiss all claims for pain and suffering and for punitive damages alleged in the complaint because

their recovery is barred by the recent death ofplaintiff Gumataotao." Mot. Dismiss at 1.4 He argues

that the controlling survival statute is Title 19 GCA § 31104, which explicitly excludes damages

for pain, suffering, disfigurement, punitive damages, and future earnings. Id.

On February 22, 2024, Plaintiff filed Opposition to Defendant's Motion to Dismiss

("Opposition"). He argues that 19 GCA § 31104 is being misapplied. He asserts that the statute

governs wrongful death actions and should not limit tort actions unrelated to a person's death as

is the case in this matter. Accordingly, Plaintiff argues that punitive damages are still recoverable.

Opp. at 2-3.

On February 28, 2024, Defendant filed Reply Memorandum Regarding Motion to Dismiss

("Reply"). He responds that the plain language of 19 GCA § 31104 indicates that it applies to all

civil actions.

On March 30, 2024, Pole filed the Motion to Replace Plaintiff, as well as a Declaration of

Widow Re Rule 25 Motion, and a Declaration of Proposed Executor Re Rule 25 Motion.

Defendant did not file any response or opposition to the Motion to Replace Plaintiff.

The Court held hearings on both the Motion to Dismiss and Motion to Replace Plaintiff on

July 18, 2024 and took both matters under advisement. See Min. Entry at 10:48 AM (July 18,

2024 ). However, upon further research, the Court called the matter back for a status hearing on

October 15, 2024, noting a potentially controlling statute, 15 GCA § 2209(c), that neither party

addressed.

4 Defendant also stated that "[a] request for punitive damages is not a separate cause of action and can only be awarded based on a finding of liability for an underlying claim.'' Mot. Dismiss at 2 (citing Nat'/ Union Fire Ins, Co. of Pittsburgh, Pa. v. Guam Rous. & Urb. Renewal Auth., 2003 Guam 19 ,r 50).

3 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV0571-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

Following the status hearing, on October 18, 2024, the Court issued an Order for Further

Briefing and ordered that the decision be held in abeyance. On November 25, 2024, Pole filed

Supplemtnal (sic) Briefing for Opposition to Defendant's Motion to Dismiss ("Plaintiff's

Supplemental Brief'). On November 26, 2024, Defendant filed Briefing on Survival Statutes

("Defendant's Supplemental Brief'). On February 6, 2025, the Court held a Continued Motion

Hearing based on the supplemental briefing provided and took the matter under advisement.

DISCUSSION

I. The Court Grants the Motion to Replace Plaintiff

In his Motion to Replace Plaintiff, Pole requests that pursuant to Guam Rule of Civil

Procedure Rule 25 5, the late Gary Warne Francis Gumataotao's widow, Atsuko Gumataotao, be

substituted as Plaintiff. Mot. Replace Pl. at 1. In support, he states, "[t]he law suit [sic] is

community property and so the plaintiff should be substituted so that his widow is the real party

in interest." Id.

Defendant did not file an opposition. However, at the July 18, 2024 hearing, Defendant

stated that he believed that the Executor, Graham Botha, should be substituted in as the proper

plaintiff. Min. Entry at 10:44 AM (July 18, 2024). Plaintiff responded that "it's fine to put in the

executor" and added "there is no conflict between the administrator and surviving spouse, so if the

Court wants to make it the Executor, there would be no problem." Id. at 10:44-10:46 AM.

The Court also agrees with Defendant that the proper party would be the Executor named

in Plaintiffs Will. Under 15 GCA § 2215(b), "a personal representative shall have power, with the

approval of the Superior Court of Guam obtained pursuant to the provisions of subsection (c) of

5 Pursuant to the Guam Rules of Civil Procedure Rule 25, "[i]f a party dies and the claim is not thereby extinguished, the Court may order substitution of the proper parties." 4 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV0571-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

this Section, to compromise and settle all claims or rights of action given to such personal

representative by any law for the wrongful death or injury of the decedent." A personal

representative is defined as "the executor, the administrator with the will annexxed (sic), or the

administrator of a decedent's estate .... " 15 GCA § 2201. Since Graham Botha was the "named

Executor in the Last Will and Testament of [Plaintiff]," the Executor would be the proper

substitution. See Deel. Proposed Executor (Mar. 20, 2024).

Accordingly, the Court finds that substitution of Graham Botha, as the Executor of the

Estate of Gary Wayne Francis Gumataotao, as the Plaintiff in this matter is proper under Rule 25.

II. The Court Grants the Motion to Dismiss

Guam Rules of Civil Procedure ("GRCP") Rule 12(b)(6) provides grounds for dismissal

for failure to state a claim upon which relief can be granted. "In ruling on a l 2(b )(6) motion, a

court's consideration is limited to the complaint, written instruments attached to the complaint as

exhibits, statements or documents incorporated in the complaintby reference, and documents on

which the complaint heavily relies." Newby v. Gov 't of Guam, 2010 Guam 4 ,r 14. When analyzing

a GRCP 12(b)(6) motion to dismiss, the Court "may consider a document the authenticity of which

is not contested, and upon which the plaintiffs complaint necessarily relies." Id. at ,r 15.

A. The Claim for Punitive Damages Is Dismissed, and Pain and Suffering Damages Are Stricken

This matter requires the Court to interpret and reconcile two potentially conflicting Guam

statutes, 19 GCA § 31104 and 15 GCA § 2209, to determine what damages are recoverable when

a plaintiff dies prior to judgment of causes unrelated to the underlying action. In this matter, neither

party has asserted that Plaintiffs cause of death was related to the underlying altercation in this

5 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV0571-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

matter. Because of this, it is undisputed that Guam's wrongful statute, found at 7 GCA § 12109,

does not apply to this matter.

In Defendant's Supplemental Brief, he argues that there is no conflict between 19 GCA §

31104 and 15 GCA § 2209, and that they can be harmonized by applying 19 GCA § 31104 to

claims involving physical injury and 15 GCA § 2209 to all other causes of action. Defendant

asserts that § 2209 does not repeal § 31104, and that both should be construed together to avoid

redundancy. He maintains that § 31104 governs this case because it involves personal injury and

bars recovery of pain and suffering, punitive damages, and post-death earnings. He also notes that

Guam's wrongful death statute, 7 GCA § 12109, does not apply here because the lawsuit does not

allege that Defendant caused Plaintiffs death.

On the other hand, Plaintiff argues that 19 GCA § 31104 is intended to address wrongful

death suits whereas 15 GCA § 2209 governs survival actions. He concludes that claims for punitive

damages survive under current law, and only Plaintiffs claim for Intentional Infliction of

Emotional Distress should potentially be dismissed.

i. 15 GCA § 2209 and 19 GCA § 31104 Are Reconcilable

An implied statutory repeal is a doctrine of statutory construction that "may be found when

a later statute, covers the whole situation of an earlier one and is clearly intended as a substitute."

Lujan v. Lujan, 2000 Guam 21, ,r 11 (2000). Repeals by implication are disfavored, and Courts

"must first attempt to reconcile the two statutes" based on rules of statutory construction. Sumitomo

Const., Co. v. Gov't of Guam, 2001 Guam 23, ,r 17 (Guam Nov. 7, 2001). "If we can find a

harmonious construction of the two statutes, we must adopt that harmonizing construction." Guam

Police Dep't v. Guam Civ. Serv. Comm'n, 2020 Guam 12, ,r 30 2020)(emphasis added).

6 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV057 l-2 l; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

Courts can avoid a finding of implied repeal if the two statutes can be reconciled. Id. If the

provisions are in irreconcilable conflict, then the later of the two acts will repeal the earlier one.

Id.

Therefore, the Court must first attempt to reconcile the two statutes. It is a cardinal rule of

statutory construction that courts must look first to the language of the statute itself. See

Pangelinan v. Gutierrez, 2000 Guam 11, ,r 23. Absent clear legislative intent to the contrary, the

plain meaning prevails. Sumitomo Constr., Co., 2001 Guam 23 ,r 17. "[I]n determining legislative

intent, a statute should be read as a whole, and ... courts should construe each section in conjunction

with other sections.".Agana Beach Condo. Homeowners' Ass'n v. Untalan, 2015 Guam 35 ,r 13.

a. Plain Language

Section 31104 is categorized under Title 19, which governs "Personal Relations" and

specifically is titled ''Personal Injury Action; Death; Assignment of Cause of Actions Prohibited."

In relevant part, it states:

A thing of action arising out of a wrong which results in physical injury to the person ... shall not abate ... by reason of the death of a person injured or of any other person who owns any such things in action. When the person entitled to maintain such an action dies before judgment, damages recoverable for such injury shall be limited to loss of earnings and expenses sustained or incurred as a result of the injury by the deceased prior to his death, and shall not include damages for pain, suffering or disfigurement, nor punitive or exemplary damages, nor prospective profits or earnings after the date of death ...

Title 19 GCA § 31104. (1966).

Section 2209(c) is categorized until Title 15, which governs "Estates and Probates."

Specifically, the statute is titled "Actions By or Against Personal Representative; Recovery of

Damages; Death of Plaintiff Before Judgment; Simultaneous Death." In relevant part, 15 GCA §

2209( c) states:

7 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV0571-21; Gary Wayne Francis G11mataotao v. David Jeffrey Highsmith, et al.

When a person having a cause of action dies before judgment, the damages recoverable by the decedent's personal representative are limited to such loss or damage as the decedent sustained or incurred prior to death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and shall not include damages for pain, suffering, or disfigurement.

15 GCA § 2209(c).

The plain language of 19 GCA § 31104 indicates that it applies specifically to actions

"arising out of a wrong which results in physical injury to the person." The statute explicitly limits

the recovery of damages to loss of earnings and expenses sustained before death, and excludes

damages for pain, suffering, disfigurement, punitive or exemplary damages, and future earnings.

The use of restrictive and specific language "physical injury to the person" indicates a narrow

application to actions involving bodily hann.

In contrast, the plain language in 15 GCA § 2209(c) indicates that it applies more broadly

to any cause of action brought by or against a personal representative where the plaintiff dies

before judgment. It allows recovery for damages incurred before death, including punitive

damages, but excludes pain and suffering and disfigurement. While 15 GCA § 2209(c) does not

expressly limit its application to any particular type of tort, its general language, "a cause of

action," indicates that it governs survival of civil claims that do not involve physical injury or

where no more specific statute applies.

As a general rule of statutory interpretation, when two in pari materia provisions conflict

with each other, the more specific provision trumps the general. Topasna v. Gov't of Guam, 2021

Guam 23 ,i 17.

This "general-specific" canon ensures that"[ w]here there is no clear intention otherwise, a

specific statute will not be controlled or nullified by a general one." Id. (quoting Morton v.

8 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV0571-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

Mancari, 417 U.S. 535, 550-51 (1974)). Instead, the more specific statute will operate as an

"exception to, or qualification of, the general statute." Id. (quoting Wark v. Wash. Nat'l Guard,

557 P.2d 844, 845 (Wash. 1976)).

Title 19 GCA § 31104 is narrowly tailored to address personal injury claims resulting in

bodily harm and provides an explicit bar to punitive damages, as well as damages for pain and

suffering in such cases. In contrast, Title 15 GCA § 2209(c) is a general provision concerning

survivability of claims. The statutes can coexist without conflict by applying 19 GCA § 31104 to

personal injury actions and 15 GCA § 2209 to all other types of actions.

b. Legislative Intent

Neither party presented clear arguments about the legislative intent of the statutes. 6 In fact,

it appears that there is no clear legislative intent that contradicts the interpretation that 19 GCA §

31104 applies to personal injury actions and 15 GCA § 2209 to all other types of actions.

Both of these statutes borrow language from former California Civil Code ("CC") § 956.

In 1966, Guam passed 19 GCA § 31104, using the exact language from CC § 956. However, prior

to Guam's enactment of 19 GCA § 31104, in 1961, the California Legislature had repealed CC§

956 and moved its provisions, with certain amendments, to former§ 573 of the California Probate

Code ("CPC"). County of Los Angeles v. Superior Court ofLos Angeles County, 21 Cal. 4 th 292,

296 (1999). CPC § 573 became the source for 15 GCA § 2209, which was enacted by the Guam

Legislature in 1982, and which, at the time, also "represent[ed] a complete revision of§ 573 of the

Probate Code of Guam (1970)." 15 GCA § 2209, COMMENT. However, in 1992, California

6 In his Motion to Dismiss, Defendant stated that "Section 31104 is based on California Code of Civil

Procedure§ 377.34 ...."Mot.Dismiss at 2. However, the accompanying comments of 19 GCA § 31104 clearly state that it is based on former California Civil Code § 956 (repealed 1961). 19 GCA § 31104, SOURCE.

9 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV0571-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

repealed CPC § 573 and enacted CCP § 377.34, which now governs recovery of damages in

survival actions in thatjurisdiction. County ofLos Angeles, 21 Cal. 4th at 296.

The California legislative history of CPC § 573 provides some useful insight into the

evolution of survival statutes in California and, by extension, Guam. See Cal. Law Revision

Comm'n, Recommendation Relating to Survival of Torts, No. 33 (Apr. 9, 1959),

https://clrc.ca.gov/pub/1959/M59-040XX:X.pdf. The California Law Revision Commission

explained that CPC § 573 was intended to broaden the survivability of claims, stating that it

"provides, of course, for the survival of all causes or rights of action.'' Id. (emphasis added).

Whereas "the present Civil Code Section 956 appears to deal only with 'things in action,"' CPC §

573 was a "survival statute dealing with all 'causes or rights of action' .... "Id.

"A thing in action is a right to recover money or other personal property by a judicial

proceeding. 19 GCA § 31101. 7 Therefore, 19 GCA § 31104, like CC § 956, is limited to a right to

recover money or personal property arising out of a wrong which results in physical injury to the

person. See 19 GCA § 31104. The California Law Revision Committee recognized that the

language in CC § 956, the basis of 19 GCA§ 31104, was narrower than that of CPC § 573, the

basis of 15 GCA § 2209.

However, Guam's adoption of both statutes-19 GCA § 31104 in 1966 and 15 GCA §

2209 in 1982-suggests the Guam Legislature's intent to preserve both statutes.

"We presume that the Legislature, when enacting a statute, was aware of existing related

laws and intended to maintain a consistent body of rules." Guam Police.Dep't, 2020 Guam 12, ,I

7 Title 19 GCA § 31101, which is based on former California Civil Code § 953, defines a "thing in action"

as "a right to recover money or other personal property by a judicial proceeding." This same definition governed the interpretation of former California Civil Code§ 956, upon which 19 GCA § 31104 is modeled.

10 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV05 71-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

30 (quoting Stone St. Capital, LLC v. Cal. State Lottery Comm'n, 80 Cal. Rptr. 3d 326, 333 (Ct.

App. 2008).

Unlike California, which explicitly repealed CC§ 956 with the passing of the broader CPC

§ 573, Guam did not repeal 19 GCA § 31104 upon the adoption of 15 GCA § 2209. Importantly,

when the Guam Legislature enacted 15 GCA § 2209 in 1982, it is presumed that it did so with

knowledge that 19 GCA § 31104 was in existence. See id. This retention of both provisions

supports the inference that the Guam Legislature intended 19 GCA § 31104 to apply narrowly to

personal injury and property claims, while 15 GCA § 2209 serves as the general survival statute

applicable to other civil causes of action. This interpretation is further supported by the fact that

despite California's repeal of CC§ 956 in 1961, Guam adopted the repealed statute as reflected in

19 GCA § 31104 in 1966, and later also adopted 15 GCA § 2209 in 1982.

For these reasons, the doctrine of implied statutory repeal does not apply here. See Lujan,

2000 Guam 21 ,r 11 (stating that implied repeals are disfavored and will not be presumed unless

there is an irreconcilable conflict between the statutes). As discussed, the Guam Legislature's

decision to enact 15 GCA § 2209 with the presumed knowledge of 19 GCA § 31104, suggests not

an intent to substitute, but rather to preserve both survival statutes. Thus, because the statutes serve

complementary purposes and can be harmonized, there is no basis to conclude that 15 GCA § 2209

impliedly repealed 19 GCA § 31104.

Since the legislative history for 19 GCA § 31104 and 15 GCA § 2209 does not clearly

contradict such an interpretation, the plain meaning interpretation prevails. See Sumitomo Cons tr.,

Co., 2001 Guam 23 ,r 17.

11 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV057l-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

ii. Punitive Damages and Pain and Suffering Damages Are Not Recoverable

Because the underlying cause of action arises from alleged physical injuries, 19 GCA §

31104 governs. This statute limits recoverable damages to loss of earnings and expenses sustained

prior to death and explicitly excludes punitive damages and damages for pain, suffering or

disfigurement. Accordingly, Plaintiffs claim for punitive damages is dismissed.

Additionally, although Defendant requests that pain and suffering damages be dismissed,

dismissal is not appropriate under GRCP Rule 12(b)(6), which governs dismissal: for failure to

state a claim upon which relief can be granted. A request for a specific category of damages does

not constitute a standalone claim, but rather a component of the relief sought for an underlying

cause of action. Johnson v. State Farm Fire & Cas. Co., No. CV1815209RBKKMW, 2019 WL

2285491, at *2 (D.N.J. May 29, 2019)(holding that consequential damages and attorneys' fees "are

not independent 'claims' but simply forms of damages.").

Therefore, the appropriate remedy is not dismissal, but to strike the request for pain and

suffering damages as unavailable under 19 GCA § 31104. Accordingly, pain and suffering

damages are stricken. See GRCP 12(f)("[U]pon the court's own initiative at any time, the court

may order stricken from any pleading any insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.").

B. Intentional Infliction of Emotional Distress Is Dismissed

In Plaintiffs Supplemental Briefing, he states that "[t]he count for Emotional Distress out

of an abundance caution should probably be dismissed." Suppl. Br. at 4. At the February 6, 2025

hearing, the Court asked whether the parties are in agreement that the Intentional Infliction of

Emotional Distress claim should be dismissed, and both parties stated that they were in agreement.

12 DECISION AND ORDER RE MOTION TO REPLACE PLAINTIFF AND MOTION TO DISMISS CV0571-21; Gary Wayne Francis Gumataotao v. David Jeffrey Highsmith, et al.

Min. Entry at 10:2 lAM (February 6, 2025). Based upon the briefing and representations by the

parties, the Court dismisses Plaintiffs claim of Intentional Infliction of Emotional Distress.

CONCLUSION

For the foregoing reasons, Plaintiffs Motion to Replace Plaintiff is GRANTED. Graham

Botha, as the Executor of the Estate of Gary Wayne Francis Gumataotao, is substituted as the

Plaintiff in this case.

Defendant's Motion to Dismiss is also GRANTED, in part. Plaintiffs claims for Punitive

Damages and Intentional Infliction of Emotional Distress are DISMISSED. Plaintiffs request for

damages for pain and suffering is STRICKEN.

Y A Status Hearing in this matter shall be held on Tuesday, June 10, 2025 at 9:45 a.m.

so ORDERED: MAY 12 2925 ;,--

-Jlt{3/l\o;j ..

HONO IERREZ Judge, Superiif~;Go~f .:,,1/am '-"t);c't[fi