IN THE SUPERIOR COURT OF GUAM 2 MARIA DUENAS LEON GUERRERO, ) Civil Case no. CV083,2-J 2 3 ) 4 Plaintiff, ) ) 5 VS. ) DECISION AND ORDER ) 6 JAMES JI, ) 7 Defendant. ) ) 8 ) 9
10 This matter came before the Honorable Judge Michael J. Bordallo through assignment II
12 on September 3, 2013 pursuant to 7 GCA § 4103. At the time of assignment, pending in this
13 matter were: 1) Defendant's July 16, 2013, Motion to Withdraw as Counsel; and Plaintiffs
14 April 22, 2013 motion, entitled, Plaintiff-Counter-Defendant Maria Duenas Leon Guerrero's IS Motion to Dismiss Count II of Defendant-Counter Plaintiffs Counterclaim; Motion for 16 Sanctions. Plaintiff is represented by attorney Anita P. Arriola. Defendant is represented by 17 attorney Ron Moroni. Having received and reviewed the arguments, papers, and file herein the 18
19 Court now issues the following motion GRANTING Defendant's Attorney's request to
20 withdraw and DENYING Plaintiffs motion to dismiss and for sanctions. 21 BACKGROUND 22 This case arises out of Plaintiffs July 11, 2012, Complaint for breach of contract, 23 negligence, declaratory and injunctive relief. Plaintiffs causes of action are based in 24
25 allegations surrounding a home renovation contract. Default was entered against Defendant on
26 August 28, 2012. The default was set aside by stipulation and Defendant filed a Verified 27 Answer and Counterclaim on January 31,2013. Defendant's counterclaim contains counts for 28 breach of contract and defamation.
Page 1 of8 On February 7, 2013, Plaintiff filed a motion to dismiss Count II of Defendant's 2 counterclaim and for attorney fees and sanctions. In support of her requests Plaintiff asserts 3 that Count II of Defendant's counterclaim arises out of the complaint she filed with the Guam 4 Contractor's License Board on May 15, 2011. She argues that any statements that she made in 5
6 her complaint were protected by the Citizen Participation in Government Act found in Chapter
7 17 of Title 7 of the Guam Code. Citing to Section 171 06(e) Plaintiff requests that the Court 8 dismiss count 2 of Defendant's counterclaim and order Defendant to pay her attorney fees and 9 the cost of litigation. Plaintiff also requests that the Court enter individual sanctions of 10 $10,000.00 each, against Defendant Ji, his attorney Ron Moroni and the Moroni Law Offices. II
12 Defendant did not file an opposition to Plaintiffs request.
13 On July 16, 2013, Defendant's attorney Ron Moroni filed a motion to withdraw as 14 counsel. In support of his request attorney Moroni asserts that Defendant has indicated that he 15 will not pay the fees agreed in the retainer agreement and that Defendant insists upon a course 16 of action with which attorney Moroni fundamentally disagrees. 17
On August 23, 2013 Plaintiff filed an opposition to attorney Moroni's request. In 18
19 support of her opposition Plaintiff argues that attorney Moroni through his withdrawal is
20 attempting to avoid sanction liability as mandated by the Citizen Participation in Government 21 act and his continued participation is therefore necessary. 22 DISCUSSION 23
24 I. Plaintiff's Motion to Dismiss
a) Moving and Nonmoving Burdens Under 7 GCA § 17101 ct. seq. 25
26 When applying the mandates of any statute a court must begin by examining its plain
27 meaning. Palomo v. Manglona, 2012 Guam 18 ~ 27, see Enriquez v. Smith, 2012 Guam 15, 18 28 (In instances where a trial court is presented with any motion to dispose of a claim, even if pled
Page 2 of8 alternatively, that raises the immunity from liability described in the CPGA, the trial court 2 should first determine whether the claim actually falls within the scope of the CPGA). One of 3 the most basic rules of statutory interpretation is that all of the words in a statute must be given 4 their plain etiect. Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 1 5
6 218 (4 1h Cir. 2009).
7 Sections 17101-109 of Title 7 of the Guam Code are entitled Citizen Participation in 8 Government Act (hereafter CPGA). Sections 17101 et. seq. Its enabling language provides for 9 the protection of citizens participation in government processes. 7 G.C.A § 17102. This 10 language, on its face, enables and limits. Id. 1 II
13 1 Section 171 02 of Tile 7 of the Guam Code provides, 14 § 17102. Legislative Findings and Declaration of Purposes. 15 (a) Findings. I Liheslaturan Guahan [The Guam Legislature] finds and declares that: 16 (1) the framers of the United States Constitution, recognizing citizen 17 participation in government as an inalienable right essential to the survival of democracy, secured its protection through the right to petition the government 18 for redress of grievances in the First Amendment to the U.S. Constitution; (2) the communications, information, opinions, reports, testimony, claims and 19 arguments provided by citizens to their governments are essential to the making 20 of wise government decisions and public policy; the public health, safety and welfare; effective law enforcement; the efficient operation of government 21 programs; the credibility and trust afforded government; and the continuation of America's republican form of government through representative democracy in 22 America; 23 (3) civil lawsuits and counterclaims, often claiming millions of dollars, have been, and are being, filed against thousands of citizens, businesses and 24 organizations based on their valid exercise of their right to petition, including seeking relief, influencing action, informing, communicating, and otherwise 25 participating with government bodies, officials, or employees or the electorate; 26 (4) such lawsuits, called 'Strategic Lawsuits Against Public Participation' or 'SLAPPs' are typically dismissed as unconstitutional, but often not before the 27 defendants are put to great expense, harassment and interruption of their 28 productive activities; (5) the number of SLAPPs has increased significantly over the past thirty (30) years; Page 3 of8 It enables the protection of a citizen's unfettered right to communicate to his or her 2 government notwithstanding the utter inaccuracy of the communications or the misplaced 3 intentions of the declarant /d. However, protected communications are also strictly limited to 4 communications about the government, its actions, people and processes: essential to the 5
6 survival of democracy; to the making of wise government decisions; the efficient operation of
7 public programs; to the credibility and trust afforded government; and to "the continuation of 8
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IN THE SUPERIOR COURT OF GUAM 2 MARIA DUENAS LEON GUERRERO, ) Civil Case no. CV083,2-J 2 3 ) 4 Plaintiff, ) ) 5 VS. ) DECISION AND ORDER ) 6 JAMES JI, ) 7 Defendant. ) ) 8 ) 9
10 This matter came before the Honorable Judge Michael J. Bordallo through assignment II
12 on September 3, 2013 pursuant to 7 GCA § 4103. At the time of assignment, pending in this
13 matter were: 1) Defendant's July 16, 2013, Motion to Withdraw as Counsel; and Plaintiffs
14 April 22, 2013 motion, entitled, Plaintiff-Counter-Defendant Maria Duenas Leon Guerrero's IS Motion to Dismiss Count II of Defendant-Counter Plaintiffs Counterclaim; Motion for 16 Sanctions. Plaintiff is represented by attorney Anita P. Arriola. Defendant is represented by 17 attorney Ron Moroni. Having received and reviewed the arguments, papers, and file herein the 18
19 Court now issues the following motion GRANTING Defendant's Attorney's request to
20 withdraw and DENYING Plaintiffs motion to dismiss and for sanctions. 21 BACKGROUND 22 This case arises out of Plaintiffs July 11, 2012, Complaint for breach of contract, 23 negligence, declaratory and injunctive relief. Plaintiffs causes of action are based in 24
25 allegations surrounding a home renovation contract. Default was entered against Defendant on
26 August 28, 2012. The default was set aside by stipulation and Defendant filed a Verified 27 Answer and Counterclaim on January 31,2013. Defendant's counterclaim contains counts for 28 breach of contract and defamation.
Page 1 of8 On February 7, 2013, Plaintiff filed a motion to dismiss Count II of Defendant's 2 counterclaim and for attorney fees and sanctions. In support of her requests Plaintiff asserts 3 that Count II of Defendant's counterclaim arises out of the complaint she filed with the Guam 4 Contractor's License Board on May 15, 2011. She argues that any statements that she made in 5
6 her complaint were protected by the Citizen Participation in Government Act found in Chapter
7 17 of Title 7 of the Guam Code. Citing to Section 171 06(e) Plaintiff requests that the Court 8 dismiss count 2 of Defendant's counterclaim and order Defendant to pay her attorney fees and 9 the cost of litigation. Plaintiff also requests that the Court enter individual sanctions of 10 $10,000.00 each, against Defendant Ji, his attorney Ron Moroni and the Moroni Law Offices. II
12 Defendant did not file an opposition to Plaintiffs request.
13 On July 16, 2013, Defendant's attorney Ron Moroni filed a motion to withdraw as 14 counsel. In support of his request attorney Moroni asserts that Defendant has indicated that he 15 will not pay the fees agreed in the retainer agreement and that Defendant insists upon a course 16 of action with which attorney Moroni fundamentally disagrees. 17
On August 23, 2013 Plaintiff filed an opposition to attorney Moroni's request. In 18
19 support of her opposition Plaintiff argues that attorney Moroni through his withdrawal is
20 attempting to avoid sanction liability as mandated by the Citizen Participation in Government 21 act and his continued participation is therefore necessary. 22 DISCUSSION 23
24 I. Plaintiff's Motion to Dismiss
a) Moving and Nonmoving Burdens Under 7 GCA § 17101 ct. seq. 25
26 When applying the mandates of any statute a court must begin by examining its plain
27 meaning. Palomo v. Manglona, 2012 Guam 18 ~ 27, see Enriquez v. Smith, 2012 Guam 15, 18 28 (In instances where a trial court is presented with any motion to dispose of a claim, even if pled
Page 2 of8 alternatively, that raises the immunity from liability described in the CPGA, the trial court 2 should first determine whether the claim actually falls within the scope of the CPGA). One of 3 the most basic rules of statutory interpretation is that all of the words in a statute must be given 4 their plain etiect. Ohio Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 1 5
6 218 (4 1h Cir. 2009).
7 Sections 17101-109 of Title 7 of the Guam Code are entitled Citizen Participation in 8 Government Act (hereafter CPGA). Sections 17101 et. seq. Its enabling language provides for 9 the protection of citizens participation in government processes. 7 G.C.A § 17102. This 10 language, on its face, enables and limits. Id. 1 II
13 1 Section 171 02 of Tile 7 of the Guam Code provides, 14 § 17102. Legislative Findings and Declaration of Purposes. 15 (a) Findings. I Liheslaturan Guahan [The Guam Legislature] finds and declares that: 16 (1) the framers of the United States Constitution, recognizing citizen 17 participation in government as an inalienable right essential to the survival of democracy, secured its protection through the right to petition the government 18 for redress of grievances in the First Amendment to the U.S. Constitution; (2) the communications, information, opinions, reports, testimony, claims and 19 arguments provided by citizens to their governments are essential to the making 20 of wise government decisions and public policy; the public health, safety and welfare; effective law enforcement; the efficient operation of government 21 programs; the credibility and trust afforded government; and the continuation of America's republican form of government through representative democracy in 22 America; 23 (3) civil lawsuits and counterclaims, often claiming millions of dollars, have been, and are being, filed against thousands of citizens, businesses and 24 organizations based on their valid exercise of their right to petition, including seeking relief, influencing action, informing, communicating, and otherwise 25 participating with government bodies, officials, or employees or the electorate; 26 (4) such lawsuits, called 'Strategic Lawsuits Against Public Participation' or 'SLAPPs' are typically dismissed as unconstitutional, but often not before the 27 defendants are put to great expense, harassment and interruption of their 28 productive activities; (5) the number of SLAPPs has increased significantly over the past thirty (30) years; Page 3 of8 It enables the protection of a citizen's unfettered right to communicate to his or her 2 government notwithstanding the utter inaccuracy of the communications or the misplaced 3 intentions of the declarant /d. However, protected communications are also strictly limited to 4 communications about the government, its actions, people and processes: essential to the 5
6 survival of democracy; to the making of wise government decisions; the efficient operation of
7 public programs; to the credibility and trust afforded government; and to "the continuation of 8
ll (6) SLAPPs are an abuse of the judicial process; they are used to censor, chill, intimidate, or punish citizens, businesses and organizations for involving 12 themselves in public affairs, and controlling SLAPPs will make a major contribution to lawsuit reform; 13 (7) the threat of financial liability, litigation costs, destruction of one's business, 14 loss of one's home and other personal losses from groundless lawsuits seriously affects government, public welfare and individual rights by significantly 15 diminishing public participation in government, in public issues and in voluntary service; 16 (8) while courts have recognized and discouraged SLAPPS, judicial protection of 17 these important rights has not been uniform or comprehensive; and (9) while some citizen communications to government inevitably will be 18 incorrect, unsound, self-interested or not in good faith, it is essential in our democracy that the constitutional rights of citizens to participate fully in the 19 process of government be uniformly, consistently, and comprehensively 20 protected and encouraged. (b) Purposes. The purposes of this Chapter are: 21 (1) to protect and encourage citizen participation in government to the maximum extent permitted by law; 22 (2) to create a more equitable balance between the rights of persons to file 23 lawsuits and to trial by jury, and the rights of other persons to petition, speak out, associate and otherwise participate in their governments; 24 (3) to support the operation of and assure the continuation of representative government in America, including the protection and regulation of public health, 25 safety and welfare by protecting public participation in government programs, 26 public policy decisions and other actions; (4) to establish a balanced, uniform, comprehensive process for speedy 27 adjudication of SLAPPs, as a major contribution to lawsuit reform; and 28 (5) to provide for attorneys fees, costs, sanctions and damages for persons whose citizen participation rights have been violated by the filing of a SLAPP against them. Page 4 of8 2 America's republican form of government through representative democracy in America." !d. 2 Absent this, any communication to the government designed to procure government 3 action falls outside the dismissive and punishing scope of the act; a disgruntled neighbor's 4 report to the police; a civil suit for fraud; expressions of personal animus to a professional 5
6 licensing board. Without clear and convincing showing of a non-government purpose, all
7 these, if within the act, are immediately subject to dismissal and punishment. 7 GCA § 17106. 8 While perhaps a broad application of CPGA increases the reporting of possible 9 violations of rules, codes and common duties, it disallows the resolution of disputes on their 10 merits and punishes any inquiry into the veracity or truth of any statement. For example, under II
12 a different scenario Plaintiff may have falsely or with animus reported other facts to the Guam
13 Contracting Board. She may have reported that the instant renovation was one of five she had
14 contracted with Defendant and in each of them Defendant had used beach sand in the cement 15 mixture, had taken various valuable items of personal property, and was using the unfinished 16 homes as places to engage in lewd acts. If applied as requested the CPGA would prohibit and 17
punish any inquiry into the veracity or intent of the report. It would bar valid legal remedies 18
19 for legitimate and foreseeable harms. 19 GCA §§ 2102-104. The same could be said of a
20 disgruntled client who falsely reports to the licensing board that their attorney has embezzled 21 trust funds, a patron who reports that the chef at a popular restaurant has communicable 22 diseases or a parent who reports that their daycare provider is a pedophile. 23 It cannot be argued that this double edge effect is significant to survival of democracy 24
25 or advantageous to the processes of representative government. 7 GCA §§ 17102 and 17104.
27 2 Section 17103 specifically defines the term government as a, "branch, department, agency, instrumentality, official, employee, agent or other person acting under color of law ... including 28 municipalities and their boards, commissions, and departments, or other public authority." 7 GCA § 17103. Page 5 of8 \\'bile allowing for due and considered inquiry into truth, our carefully developed laws and 2 rules already allow for awards of attorney fees and litigation costs. 3 These laws already 3 encourage the reporting of rule violations while protecting against malice and carelessness. 4 Conversely, as set forth in Brizill, encouraging and allowing citizens to criticize or 5
6 communicate their concerns about candidates for public office, public officials, works or
7 processes, within the First Amendment's marketplace of ideas, and without fear oflegal action, 8 certainly falls within the CPGA 's enabling purposes. Id.; Guam Greyhound, Inc. v. Brizill, 9 2008 Guam 13. 10 Accordingly the threshold requirements of the CPGA require that a citizen first assert, II
12 that they are communicating with a government and second, that they are communicating
13 about the acts ofthat government. 7 GCA §§ 17102 and 17104; see Enriquez, 2012 Guam 15 ~ 14 18 (a trial court should first determine whether the claim actually falls within the scope of the 15 CPGA). Once this threshold requirement has been met, the burden of persuasion by clear and 16 convincing evidence falls upon the non-moving party. 7 GCA §§ 12106(c) and (e). Absent 17
18 meeting the inverse burden that the actions of the moving party are not within the processes of
19 government and not designed to procure government action, the CPGA mandates a summary 20 dismissal and order of costs. !d. at§§ 171 06(a) and (e). 21
23 3 Guam R. Civ. P. 11; 5 GCA § 32107 (On a finding by the court that an action under this 24 chapter was groundless and brought in bad faith, or brought for the purpose of harassment, the court shall award to the innocent party reasonable and necessary attorneys' fees and court costs); 25 7 GCA 11306 (A person against whom a suit is filed may recover attorney's fees and damages 26 where the Court determines that a false accusation was made with no basis in fact and with malicious intent. A verdict in favor of the accused shall not be the sole basis for a determination 27 that an accusation was false); Fleming v. Quigley, 2003 Guam 4, ~~ 6, 7 and fn 3, 26 fn 9 (Under 28 the American Rule, parties bear their own litigation expenses, including attorney's fees .... The exceptions to the American rule include where attorney's fees are: (1) authorized by statute, (2) authorized by contract, or (3) allowed in judicially-established equitable circumstances); 7 GCA Page 6 of8 In this case, Plaintiff asserts that her statements, reporting the Defendant to the Guam 2 Board of Contractors, are the basis of his detamation action against her and that they are 3 therefore are protected by CPGA. Mot. at 4-6. Defendant's Counterclaim provides, 4 On or about May 2011 Plaintiff published a statement defaming Defendant and 5 injuring Defendant's business reputations. Specifically, the Plaintiff falsely 6 reported to the Guam Contractors' Licensing Board, that Defendant had performed in a shoddy and unwork-manlike manner, when completing 7 renovations on Plaintiff's home. 8 Countercl. at 4 ~ 9. Applying the above standards, the Court is not persuaded that Defendant's 9 pleading complains of actions specifically protected by Section 17102. 7 GCA §§ 17102(a)(2) 10
and 17104. While it asserts that Plaintiff made statements to a Guam government agency it II
12 does not allege that those statements were about government processes, actions or persons,
13 essential to democracy. Countercl. at 4 ~ 9. Rather it contains complaints of a dispute between 14 two private citizens brought by one to the attention of a government agency. !d. As such, 15 Plaintiff's moving papers fail to meet the threshold requirements of the act. 7 GCA §§ 17102 16
17 and 17014. They assert no facts or legal arguments to support a finding that Defendant was
18 acting under color of law or a necessary part of government processes. Mot. at 1-9. Absent this 19 or other assertions of government action, the Court is unable to analyze or grant the relief 20 requested. 7 GCA §§17102 and 17014. 21 b) Additional Sanctions and Damages 22
23 Subsection 171 06(g)(2) requires that upon dismissal the Court consider sanctions. 7
24 GCA 171 06(g)(2). Under this Subsection any award of sanctions is discretionary. !d. 25 Subsections 171 06(g) and (g)(2) provide, 26 (g) the court shall award a moving party who is dismissed ... 27
28 § 26602 (costs are allowed of course to the plaintiff upon a judgment in an action for the recovery of money or damages). Page 7 of8 (2) such additional sanctions upon the responding party, its attorneys or law 2 finns as it detennines will be sufficient to deter repetition of such conduct and 3 comparable conduct others similarly situated.
4 /d. 5 An award of sanctions under this Subsection is dependent upon a finding ofthe amount, 6 if any, which is necessary to deter. /d. Inherent in such a finding and necessary to a sanction 7 award are facts which support probable recidivism. /d. It is also dependent upon the 8
9 applicability of CPGA. For the reasons stated above, the request for sanctions is denied.
10 II. Motion to Withdraw II Defendant's attorney for reasons of non-payment and fundamental disagreement in case 12 strategy requests that he be allowed to withdraw as attorney of record in this matter. In 13 support of this request he asserts that there are no pending motions or approaching deadlines 14
15 and that a trial has not been set. The Opposition is based upon the Court holding the CPGA
16 applies. Accordingly the Court, having held CPGA inapplicable, finds that these assertions are 17 sufficient to support an order allowing withdrawal. 18 CONCLUSION 19 For the above reasons Plaintiff's motions to dismiss and motion for sanctions are 20
21 DENIED. Defendant's motion to withdraw is GRANTED.
23 SO ORDERED, this a~ 24
26 BLE MICHAEL J. BORDALLO 27
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