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1 2022 JUN -3 PH 3: 07
2 CLERKUFCOURT
3
4 BY= IN THE SUPERIOR COURT OF GUAM 5
6 HEE s. PARK and MYUNG J. PARK, Civil Case No. CV0463-20
7 Plaintiffs,
8 v. DECISION AND ORDER 9 DENYING DEFENDANT'S MOTION ALEX VASQUEZ, FADA INVESTMENTS FOR SUMMARY JUDGMENT 10 LLC, ALBERT WU, PIA MARINE HOMEOWNER'S ASSOCIATION, PIA 11 MARINE HOMEOWNERS ASSOCIATION BOARD OF DIRECTORS, DB 12 INSURANCE co., LTD., and DOES 1-10, 13 Defendants.
14
15 INTRODUCTION 16 This matter came before the Honorable Alberto C. Lamorena, III on March 8, 2022 for
17 hearing on Defendants Pia Marine Homeowner's Association's ("HOA's") and Fade Investments
18 LLC's ("Fade's") (collectively the "Defendants"') Motion for Summary Judgment ("Motion").
19 Attorney Peter Perez represents Her. S. Park and Myung J. Park (collectively the "Plaintiffs"), and 20 Attorney R. Marshal Johnson represents the Defendants. Having duly considered the parries' briefs, 21 oral arguments, and the applicable law, the Court now issues the following Decision and Order and 22 23 DENIES the Defendants' Motion.
24 BACKGROUND 25 1. Undisputed Facts:
26 On May 29, 2020, Plaintiff Her S. Park was attacked and repeatedly bit by a large 27 German Shepherd / Pitbull type dog while walking in Pia Marine Hotel and Condominium's 28 ("Pia Marine's") common area. See Amended Complaint at 1114-15 (Aug. 7, 2020).
Decision and Order Denying Defendant's Motion for Summary Judgment CV0463-20, Her S. Park & .Myung .I Park v. Alex Vasquez, et. al.
Page 1 o f 10
1 The dog was owned by Alex Vasquez, who resided at Pia Marine Unit 1217. at11
2 3, 13. Fade owned Unit 1217 and was Vasquez's landlord at the time. at 11 3-4.
3 Vasquez's lease agreement explicitly prohibited him from keeping any pets in Unit 1217.
4 See Declaration of Albert Wu at 11 9 (Nov. 22, 2021). The HOA was responsible for 5 operating, managing, controlling, and maintaining Pia Marine's premises and common areas 6
7 at the time. See Amended Complaint at 11 6 (Aug. 7, 2020). Both Defendants claim to be
8 unaware that Vasquez was keeping a dog in Unit 1217 prior to the incident. See Declaration
9 of Albert Wu at 'H 11-20, HOA's Memorandum in Support of Motion ("HOA's Memo") at 3 10 (Nov. 22, 2021).
11 11. Procedural History:
12 13 On August 7, 2020, the Plaintiffs submitted their Amended Complaint, alleging
14 claims of negligence, negligence per se, res ipso loquitur, negligent infliction of emotional
15 distress and loss of consortium attributable to the Defendants. See Amended Complaint at 1] 16 22-58 (Aug. 7, 2020).
17 On November 22, 2021, the Defendants filed their Motion for Summary Judgment.
18 Both Defendants deny the existence of any triable issues of material fact. Defendants claim 19
20 their non-pet owner status prevents them firm being liable under the claims of negligence,
21 negligence per se, and res ipso loquitur. See Fade's Memorandum in Support of Motion
22 ("Pads's Memo") at 5-12, 17-19 (Nov. 22, 2021), HOA's Memo at 4-13 (Nov. 22, 2021). 23 Both Defendants also refute the claim of negligent infliction of emotional distress, arguing 24 their conduct was neither extreme nor outrageous. See Fada's Memo at 16-17 (Nov. 22, 25 2021), HOA's Memo at 13-14 (Nov. 22, 2021).
26
27 On January 21, 2022, the Plaintiffs submitted their Opposition to Defendant's Motion
28 ("Opposition"). The Plaintiffs claim to be suing Defendants on a basis of premises liability
Decision and Order Denying Defendant's Motion for Summary Judgment CV0463-20, Her S. Park & Myungl Park v. Alex Vasquez, et. al.
1 and direct actions rather than as owners of the dog. See Opposition at 2 (Jan. 21, 2022). The
2 Plaintiffs believe Fade is liable for failing to ensure his tenant complied with HOA rules and 3 regulations, and that HOA is liable for failing to enforce their pet policies. at 7-1 l .
4 On February 3, 2022, the Defendants filed their reply. The Defendants both claimed 5 they can't be found negligent because no evidence was submitted showing they knew the 6
7 dog was dangerous or that they ever possessed the dog. See Fada's Reply at 1-10 (Feb. 3,
8 2022), HOA's Reply at 1-9 (Feb. 3, 2022).
9 T he Court held a hearing on March 8, 2022. After hearing the arguments of the 10 parties, the Court took the matter under advisement.
11 DISCUSSION
12 I. Legal Standard:
13 "S u mma r y ju dgment is a p p r op r ia t e if t he p lea dings , dep os it ions , a ns wer s t o 14
15 interrogatories, and admissions on file, together with the affidavits, if any, show that there is
16 no genuine issue as to any material fact and that the moving party is entitled to a judgment as
17 a matter of law." See Hawaiian Rock Products Corp. v. Ocean Housing, Inc., 2016 Guam 4 18 1] 26 (quoting GRCP 56(c)) (internal quotations omitted). "Genuine issues" are factual 19 disputes requiring resolution by a fact-finder. See Hoyle v. Hemlani, 2000 Guam 25 ii 20.
20 "Material facts" are "relevant to an element of a claim or defense and whose existence might 21
22 affect the outcome of the suit." at 1]20.
23 The court "must view the evidence and draw inferences in the light most favorable to
24 the non-movant." at 1] 21 (internal citation omitted). "If the movant can demonstrate 25 t her e a r e no genu ine is s u es of ma t er ia l fa ct , t he non-mova nt ca nnot mer ely r ely on 26 allegations contained in the complaint, but must produce at least some significant probative 27 evidence tending to .support the complaint." l at 1121 (internal citation omitted). If the 28
Decision and Order Denying Defendant's Motion for Summary Judgment CV0463-20, Hee S. Park & Myung .1 Park v. Alex Vasquez, et. al.
1 non-movant is unable to do so, summary judgment shall be entered against the adverse party.
2 See GRCP 56(e). 3 II. Claim One: Negligence 4 To recover under a theory of negligence under Guam law, the Plaintiffs must 5 establish "the existence of a duty, the breach of such duty, causation and damages." See 6
7 Guerrero v. McDonalds Inf 'l Prop. Co., 2006 Guam 2 'H 9.
8 Both Defendants challenge the existence of any duty of care to protect third parties 9 from Vasquez's dog because they did not own / care for the dog, and had no knowledge of 10 the dog's existence or dangerous propensities. See Fada's Memo at 12-15 (Nov. 22, 2021), 11 HOA's Memo at 9-13 (Nov. 22, 2021).
12
13 However, the Defendants are misconstruing the nature of the Plaintiffs' claim. The
14 Plaintiffs are not suing the Defendants as owners of the dog, rather they are suing upon
15 premises liability and direct action. See Opposition at 2 (Jan. 21, 2022). The Plaintiffs 16 instead alleged Fada owed a duty of care to ensure Unit l217's compliance with Pia 17 Mannes' HOA ru1e.s and regulations. See Amended Complaint at 1] 23 (Aug. 7, 2020). The 18 Plaintiffs alleged HOA failed to enforce Pia Marine's pet policies. at 1123. Furthermore, 19
20 the Plaintiffs have sufficiently alleged that both Defendants breached their duties, and that
21 their breach actually and proximately damaged the Plaintiffs. Q at 1124-26.
22 In G u a m , "e ve r y la nd o w ne r o w e s a d u ty to e xe r c ise r e a so na b le c a r e in the 23 management of his property." _s Nissan Motor Corp. v. Sea Star Gap. Inc., 2002 Guam 5 1]
24 11. What constitutes reasonable care varies depending on the circumstances of each 25 individual case, but reasonable care "generally imposes an obligation to make reasonable 26
27 periodic inspections". See Souhsiung Chiu v. Timbershore Home Owners'Ass 'n., 2018 WL
28 414355 (Minn. Ct. App. 2018). Both Fade (as the landlord) and HOA (as an association of
Decision and Order Denying Defendant's Motion for Summary Judgment CV0463-20, Her S. Park & Myung .Z Park v, Alex Vasquez, Hz. al.
1 apartment owners) are held to the traditional tort principles imposed on landlords. See
2 Frances v. Village Green Owners Assn., 723 P.2d 573, 576 (Cal. 1986). 3 The Plaintiffs' allege both Defendants failed to inspect Unit 1217 or ensure the Unit's 4 compliance with HOA rules and regulations. See Amended Complaint at 1] 23 (Aug. 7, 5
6 2020). These allegations sufficiently outline a duty of care and subsequent breach of that
7 duty. In addition, these allegations sufficiently outline damages both actually and
8 proximately caused by the Defendants' breach. A material factual dispute exists here, and
9 the negligence charge may be properly submitted to a fact-finder for resolution.
10 111. Claim Two: Negligence Per Se 11 "The common law doctrine of negligence per se provides that the failure of a person 12
13 to exercise due care is presumed if:
14 (1) He violated a statute, ordinance, or regulation, (2) The violation proximately caused death or injury to person or property, 15 (3) The injury that resulted is the type the statute, ordinance, or regulation was designed to prevent, and
16 (4) The person suffering the injury to its person or property was one of the 17 class of persons whose protection the statute, ordinance, or regulation was adopted."
18 See Carlsberg v. Guam Industrial Services, CV 14-00002 at 1] 11, 2016 WL 7493951 (D.
19
20 Guam Dec. 30, 2016).
21 The Plaintiffs' negligence per sh claim alleges that the Defendants violated 10 G.C.A.
22 § 34116(a) by allowing the dog to run at large without a leash, that this violation of Guam 23 law caused injuries, harm, and damages to the Plaintiffs, that those injuries were of the type 24 that the statute was designed to prevent, and that the Plaintiffs were members of the class of 25 persons the statute was designed to protect. See Amended Complaint at 1] 27-37 (Aug. 7, 26
27 2020). 28
Decision and Order Denying Defendant's Motion for Summary Judgment CV0463-20,Her S. Park & .Myung J Park v. Alex Vasquez, et. al.
1 The statutes in question make it "unlawful for any dog owner to negligently allow a
2 dog owned by him to run at large", and holds "pet owners" liable "if'a pet shall injure any 3 person... to the extent that his negligence was the proximate cause of such injury." See 10 4 G.C.A. §§ 34114, 34116(a) (emphasis added). A "pet owner" means any person who 5 harbors, cares for, exercises control over, or knowingly permits any pet to remain on 6
7 premises occupied by that person. See 10 G.C.A. § 34101(f).
8 Defendants claim they had no knowledge of the dog's existence, thereby giving them 9 a non-pet owner status, preventing them firm violating this statute and being liable under 10 claims of negligence per sh. See Fade's at 6 (Nov. 22, 2021), HOA's Memo at5-9 (Nov. 22, 11 2021).
12 13 However, whether the Defendants qualify as pet owners remains a material factual
14 dispute requiring resolution by a fact-finder. The Defendants' claim of non-pet owner status
15 is highly relevant towards the outcome of the suit, and it must be presented to a fact-finder 16 who can then determine whether to believe them or not. While the Defendants' claim they 17 had no knowledge of the dog, it remains entirely possible that they did exercise control / 18 care over the dog or gave it permission to remain on the premises. After all, the Plaintiffs 19
20 alleged the dog was living in Unit 1217 for several months, that Vasquez routinely brought
21 the dog in / out of the main entrance, and that HOA employees knew of the dog and its large
22 size. See Opposition at 4-5 (Jan. 21, 2022). Whether the Defendants cared over the dog or 23 knowingly permitted it to remain on the premises is a factual issue that should be submitted 24 to a fact-finder. It would be improper to dispose of this case via summary judgment while 25 this material factual issue remains in dispute.
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27
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Decision and Order Denying Defendant's Motion for Summary Judgment CV0463-20, Her S. Park & Myung J. Park v. Alex Vasquez, et. al.
1 Iv. Claim Three: Res Ipso Loquitor
2 Under the doctrine of res ipso loquitur, "it may be inferred that harm suffered by the 3 plaintiff is caused by negligence of the defendant when (a) the event is of a kind which 4 ordinarily does not occur in the absence of negligence, (b) other responsible causes... are 5 sufficiently eliminated by the evidence, and (c) the indicated negligence is within the scope 6
7 of the defendant's duty to the plaintiff" See Restatement (Second) of Torts § 32ND (1965).
8 However, the doctrine of res ipso loquitur may only be applied when the Defendant has 9 control over the instrumentality causing the injury. See Gordon v. Aztec Brewing Co. 203 7
10 P.2d 522, 524 (Cal. 1949).
11 The Defendants' claims their lack of control over the dog prevents them Hom being 12 13 liable under a theory of res ipso loquitor. See Fade's Memo at 17-19 (NOV. 22, 2021),
14 HOA's Memo at 14-16 (Nov. 22, 2021).
15 However, the Defendants once again misconstrue the nature of the Plaintiffs' claim. 16 The Plaintiffs are not suing the Defendants as owners of the dog, rather upon premises 17 liability and direct action. See Opposition at 2 (Jan. 21, 2022). It was Unit 1217's non-
18 compliance with Pia Marine's HOA rules and regulations that caused the Plaintiffs' injuries.
19
20 The Plaintiffs sufficiently alleged that Fade controlled over Unit 1217, and that HOA
21 controlled over Pia Maline's premises. See Amended Complaint at 1]38-43 (Aug. 7, 2020).
22 The Plaintiffs also sufficiently alleged all elements of their negligence claim (duty of 23 care to ensure Unit 1217's compliance with Pia Maline's HOA rules and regulations, breach 24 of that duty, causation, and damages). L at ii 22-26. Therefore, the Plaintiffs may invoke 25 res ipso loquitor as a "rule of evidence raising an inference of negligence." See Dorswitt v.
26
27 Wilson, 125 P.2d 626, 627 (Cal. 1942).
28
Decision and Order Denying Defendant's Motion for Summary Judgment CV0463-20, Hee S. Park & Myung J Park v. Alex Vasquez, et. al.
1 v. Claim Four: Negligent Infliction of Emotional Distress
2 To recover on a claim for negligent infliction of emotional distress, a claimant must 3 show "(1) extreme and outrageous conduct by the Defendant, and (2) the Defendant should 4 have realized that his conduct posed an Unreasonable risk of causing distress that might 5 result in illness or bodily harm." See Moylan v. Citizens Sec. Bank, 2016 Guam 36 at 1178 6
7 (internal citations omitted).
8 Both Defendants claim their conduct was neither extreme nor outrageous. S ee F a d e's 9 Memo at 16-17 (Nov. 22, 2021); HOA's Memo at13-14 (Nov. 22, 2021).
10 However, the Plaintiffs sufficiently allege that the Defendants' failure to inspect Unit 11 1217 or ensure its compliance with HOA rules and regulations is extreme and outrageous 12 13 conduct. S ee Amended Complaint at 'll 44-52 (Aug. 7, 2020). Furthermore, the Plaintiffs
14 allege that the Defendants should have known this failure imposed a great risk of bodily
15 harm on Pia Marine's residents. at 'll 44-52. Whether this conduct truly rises to extreme 16 or outrageous levels is a material factual dispute requiring resolution by a fact-finder.
17 VI. Claim Five: Loss of Consortium 18 A claim for loss of consortium may be brought by a plaintiff when his or her spouse 19
20 (1 ) i s i nj u red by the defenda nt's neg l i g ence, a nd (2 ) thos e i nj u ri es a ffect thei r ma ri ta l
21 relationship and cause the plaintiff to suffer damages such as a loss of the spouse's services,
22 companionship, and sexual relations. See Johnson v. May, 585 N.E.2d 224, 232 l5[h Dist. 23 1992).
24 Although not directly challenged in the Defendants' Motion, it logically follows that 25 ifjudgement is entered against the Plaintiffs' negligence claim, then judgment must also be 26
27 entered against the Plaintiffs' loss of consortium claim.
28
Decision and Order Denying Deflendant's Motion for Summary Judgment CV0463-20, Her S. Park & Myung J Park v. Alex Vasquez, et. al.
Pane 8 r\f`10
1 However, as discussed above, the Plaintiffs have adequately laid out all elements of
2 their negligence claim. The Plaintiffs have also explained how the Defendants' alleged 3 negligence affected their marriage, depriving Myung J. Park of love and companionship.
4 See Amended Complaint at 1153-54 (Aug. 7, 2020). The Plaintiffs have properly laid out all 5 elements of their loss of consortium claim, creating a material factual dispute requiring 6
7 resolution by a fact-finder.
8 VII. Claim 6: Vicarious Liability
9 Under traditional vicarious liability rules, "principals or employers are vicariously 10 liable for acts of their agents or employees in the scope of their authority or employment.57 11 See Meyer v. Holley, 537 U.S. 280, 285 (2003).
12 13 Although not directly challenged in the Defendants' Motion, it logically follows that
14 ifjudgement is entered against the Plaintiffs' negligence claim, then judgment must also be
15 entered against the Plaintiffs' vicarious liability claim.
16 However, as discussed above, the Plaintiffs have adequately laid out all elements of 17 their negligence claim. The Plaintiffs also attributed such negligence to HOA's employees, 18 who became aware of Vasquez's dog while on duty, but failed to enforce Pia Martine's pet 19
20 policy regulations. See Amended Complaint at 1] 55-58 (Aug. 7, 2020), Opposition at 5-6
21 (Jan. 21, 2022). The Plaintiffs have properly laid out all elements of their vicarious liability
22 claim, creating a material factual dispute requiring resolution by a fact-finder. 23 CONCLUSION
24 For the reasons stated above, the Court DENIES the Defendants' Motion. The Plaintiffs 25 have sufficiently outlined claims of negligence, negligence per se, negligent infliction of emotional 26 distress, loss of consortium, and vicarious liability attributable to the Defendants. All claims 27 28 contain material factual disputes, requiring resolution by a fact-finder.
Decision and Order Denying Defendant's Motion for Summary Judgment CV0463-20,Her S. Park & Myungl Park v. Alex Vasquez, et. al.
1 IT IS SO ORDERED this June 3 9 2022 2
3
4 HONORABLE ALBERTO c. LAMORENA, III 5 Presiding Judge, Superior Court of Guam 6
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8 SERVICE VIA E-MAIL 9 I acknowledge that an electronic copy of the original was e~mailed to:
10 PP/rm £.b&n, G#/@ f é q t , 11 J A . I/'v~4'»-fa
Date: Time: 3;1; h.
12 Deputy Clerk, Superior Court of Guam 1
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Decision and Order Denying Defendant's Motion for Summary Judgment CV0463-20, Her S. Park & Myung J Park v. Alex Vasquez, et. al.
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