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l 2£825 HilY-9 W25 MAY -9 P:f.i 14=198 4: ;o:
22
DLERK G?COURi CiEfH{ DP calm
3 3
4 G U A M 'BY'
4 . in.
IIN THE
E SUPERIOR COURT
CO OF
O F GUAM :By:..__ct,-1c1-----~ 55
66 VINCENTE.
VINCENT LUJAN, CIVIL CASE NO.
CI no. CV0595-24
7 7 Plaintiff, Plaintiff;
8 8
vs.
99
10 1 DECISION AND ORDER DECISION ORDER PAGO BAY HOMEOWNERS Re: Defendant 's Motion Motion to Dismiss, or in
Defendant's in the the
11 ASSOCIATION, THE PAGO BAY T HE PAGO BAY Alternative, Motion to to Strike and for
for aa More
More
HOMEOWNERS ASSOCIATION, HOMEOWNERS ASSOCIATION, INC., INC., DefiniteStatement Definite Statement
12 12 DUNCAN HORNE, DUNCAN HORNE, BRUCE REYNOLDS, GENE DYDASCO, MARIE MARIE P.
p. LIZAMA,
LIZAMA,
13 1 Director of Revenue & Taxation, and and DOES
DOES I
14 14 through XIII, through XIII,
15 1 Defendants. Defendants.
16 16
17 17
On On February
February 4,
4, 2025, matter came 2025, this matter camebefore beforethe
theHon.
Hon.Arthur
Arthur R.
R. Barcinas for a hearing 18 18
19 19 on Defendant's Motion to Defendant's Motion to Dismiss, Dismiss, or
or in
in the
the Alternative,
Alterative, Motion to Strike and for Strike and for a More
20 20 Definite Statement Definite ("Motion"), filed on December Statement ("Motion"), 4, 2024 December 4, 2024 by Defendants Pal o Bay Defendants Pago Bay
21 21 HOmeowners Association, The Homeowners Association, The Pago Page Bay Homeowners Association, Inc., Home, Bruce Inc., Duncan Home,
22 2 Reynolds, Reynolds, and and Gene
Gene Dydasco (collectively, "Defendants"). Plaintiff (collectively, "Defendants"). Plaintiff Vincent Vincent EE. LLujan
ujan
223
("Plaintiff') ("Plaintiff')was wasrepresented
represented by
by Attorney
Attorney Carlos
CarlosTaitano,
Taitano, and
andDefendants
Defendants were
were represented
represented by
24 2
25 25 Attorney G. Patrick Patrick Civille.
Civille.
26 26 BACK GROUND BACKGROUND
27 2 This This matter arises from
matter arises from a homeowners'
homeowners' association governance governance dispute
disputebetween
betweenPlaintiff
Plaintiff
228
and Defendants.Defendant and Defendants. DefendantPago Palo Bay
Bay Homeowners
Homeowners Association,
Association,Inc.
Inc.("PBHA")
("PBHA") is
is aa nonprofit
nonprofit
Decision and Decision and Order, Order; CV0595-24
Vicente E.
E. Lujan
Lujan vs.
vs. Pago Bay Homeowners Association, et Pogo Bay et al.
corporate body body that
thatmanages
managesthe
thesixteen-lot
sixteen-lotsubdivision
subdivisionof
ofPago
Palo Bay
Bay Estates,
Estates, and
and Plaintiff
Plaintiff owns
2 one of those those lots.
lots. The PBHAboard
The PBHA board allegedly
allegedly levied
levied aa$1,500
$1,500 special
special assessment
assessment on
on all
all lot
3 owners within owners within the the Pago Bay Estates
Palo Bay Estates subdivision, subdivision, including
including Plaintiff.
Plaintiffs Plaintiff
Plaintiff filed a Complaint
4 subsequent Fir and subsequent First st Amended Complaint (("FAC") in in objection
objection to
to the
the special
special assessment
assessment
5 inter alia,
seeking, inter to cancel a/ia, to cancel the
the PBHA's
PBHA'sincorporation
incorporation certificate, certificate, abate
abate the assessments,
assessments,
6 recover damages recover damages for breach of fiduciary alleged breach
for alleged fiduciary duty, duty, and
and obtain
obtain injunctive
injunctive and
and declaratory
declaratory
7
8 The FAC relief. The FACincorporated incorporatedeight
eightcauses
causes ofofaction
actionover
overforty
forty pages
pages and
and also
also made
made purported
purported
9 derivative claims on behalf of all other lot lot owners
owners in
in Pago Bay Estates.
Palo Bay Estates.
10 On December 4, 2024,
2024, PBHA filedthe
PBHA filed the instant
instant Motion,
Motion, arguing
arguing that
that Plaintiff
Plaintiff had failed
II to satisfy to satisfy the the pleading
pleading standard
standardofofGuam
GuamRule
Ruleof
ofCivil
Civil Procedure
Procedure ("GRCP") S(a), had ("GRCP") 8(a), had failed to to
12
13 meet the heightened meet heightened fraud fraud particularity
particularity standard
standard of
of GRCP 9(b), and
GRCP 9(b), and had
had asserted
asserted improper
improper
14 claims for "derivative" claims for unnamed unnamed homeowners pursuant pursuant to
toGRCP 23.1. PBHA
GRCP 23.1. further argued PBHA further argued in
15 the alternative that Plaintiff alterative that Plaintiffshould shouldbe
berequired
required toto re-plead
re-plead with
with aa more
more definite
definitestatement
statement for
16 lack of lack of clarity clarity pursuant
pursuant to GRCP
GRCP12(e),
12(e), and
and toto strike
strike all
allredundant
redundant and
and immaterial
immaterial matter
matter for
17 lack of lack of conciseness pursuant pursuant to
toGRCP 12(f).
GRCP 12(f).
18
19 On Jan Januaryy 2, 2025,
2025, Plaintiff filed hhis opposition is op p osit tto tthe Motion, h Mot argumg
ion , ar g u in tthat
h his
h
20 repeated use repeated use of of the
the term
term"or"
"or" to
to incorporate
incorporate prior avermentsisisvalid prior averments underthe valid under theGuam
GuamRules
Rules of
of
21 CivilProcedure, Civil Procedure, and and that
that allegations made upon upon "information and belief'
"infomlation and belief'are are acceptable
acceptable under
under
22 Guam law.
23 · On
On February
February 4,
4, 2025,
2025, the Court
Court took
took the
the matter
matter under advisement.
24
25 DISCUSSION D I S CUS S I ON
26 PBHA BH A f irfirst
s t a rargues
g u e s tthat
h a tthe
h aalleged
lle u it y and
aambiguity n d verbosity r b os it y of
of the
h e FAC warrant
C wa r an
27 dismissal under GRCP S(a), 9(a), GRCP 8(a), 9(a), and
and 12(b)(6),
l2(b)(6), or
or modification
modification under
under GRCP 12(e) and
GRCP 12(e) and 12(f).
l2(f).
28
Page of9 Page2 of
Decision D and Order;
ec i s i o n an O , CV0595-24 CV
V i c en te E. Vicente E Lujan L vs. Pag
vs Pago
e BBay Homeowners
ay Ho meo w n er s AAssociation, et al s s o c i ati o n , et al.
GRCPRule GRCP Rule12(b)(6)
12(b)(6) allows
allows aa court
court to
to dismiss
dismiss aa complaint
complaint for
for failure
failure to
to state
state a claim
l
22 upon which upon which relief reliefcan
canbe
be granted.
granted. See Guam R. Civ.
Civ. P.
P. 12(b)(6).
12(b)(6). Guam law requires requires only
only aa short
3 3 and plain statement statementof
ofthe
theclaim
claimshowing
showing entitlement
entitlementtotorelief.
relief Ukau v.
v. Wang, 2016 Guam
Wang, 2016 Guam26
26 1] ,r
4 52. Whether 52. Whether a plaintiff plaintiff pleaded
pleaded or proved
proved his claim
claim by
by preponderance
preponderance of the
the evidence
evidence is
5 immaterial at 12(b)(6) phase;
at the l2(b)(6) phase, Plaintiff merely has Plaintiff merely has to
to state
state sufficient
sufficient facts to
to place Defendant
6
7 on notice of his claim. Wang, 26 1[53.
Wang, 2016 Guam 26 53. In Inruling
ruling bn ,r
Onaamotion
motionto
todismiss
dismissunder
underGRCP
GRCP
8 8 12(b)(6), theCourt 12(b)(6), the accept all must accept
Court must all the the well-pleaded facts as well-pleaded facts as true, true, construe
construe the
the pleading
pleading in the
9 light most light most favorable to the non-moving party, and and resolve all
all doubts
doubts in the non-moving party's
10 10 favor. Cruz v. favor. Cruz v. Cruz, 2023 Guam Cruz, 2023 Guam20 ,r 10.
2011 I 0. Dismissal to state Dismissal for failure to state a claim is is appropriate
appropriate
11 only ififitit appears only appears beyond beyond doubt
doubt that
that the non-moving party can prove no set of of facts
facts in
in support
support of
of
12
13 13 his claim which would his would entitle entitle him to
to relief. Id.
relief Id.
14 1 Under Guam Under Guam law,
law, any
any pleading
pleading which
whichsets
sets forth
forth aa claim
claim for
for relief
reliefmust
must contain,
contain, among
15 other things, "a other things, "a short short and
and plain statement
statement of
of the
the claim that the pleader is entitled claim showing that entitled to 16 relief." relief." GRCP GRCP8(a).
8(a). Each
Each averment
averment of
of aa pleading
pleading must
must be
be simple, concise, and
simple, concise, and direct.
direct. GRCP
GRCP
17
8(e)(l). If the pleading If the pleading involves
involves aa fraud
fraud claim,
claim, the
the circumstances
circumstances constituting constituting the fraud must 18 18
19 also be plead also plead with with particularity.
particularity. GRCP 9(b ). "When applying GRCP 9(b). applying Rule Rule 9(b)'s
9(b )'s heightened
heightened pleading
220 requirements to to determine whether a complaint should be dismissed for failure failure to
to state
state a claim,
221 construe the
the Court must construe the complaint complaint in
in the
the light
light most
most favorable
favorable to
to the
the plaintiff." Smith v.
plaintiff" Smith v.
222 Allstate Ins. Allstate Ins. Co., Co., 160 F.Supp.2d 1150,
160 F.Supp.2d 1153 (S.D.
1150, 1153 (S.D. Cal.
Cal. 2001) (citing Parks
2001) (citing ofBusiness School of
Parks School Business v.
v.
23
Symington, 1480, 1484 Symington, 51 F.3d 1480, 1484 (9th (9thCir.
Cir. 1997)).
1997))."A
"A complaint
complaint should not be dismissed unless it 224
25 appears beyond doubt appears beyond doubt that theplaintiff thatthe can prove plaintiff can prove no
no set
setof
of facts
factsin
in support
supportof
ofhis
his claim
claim which
which
226 would entitle would to relief." Id.
entitle him to Id.
227
228
Page3 of Page of9
Decision and Decision and Order;
Order, CV0595-24
CV0595-24
Vicente E. Lujan vs.
vs. Pogo
Pago Bay
BayHomeowners
Homeowners Association,
Association, et
et al.
al.
Under Under Guam
Guam law,
law, there
there are
are five
five elements
elements of
of fraud:
fraud: (1)
(1) AAmisrepresentation, (2)
misrepresentation; (2)
2 offalsity Knowledge of falsity (or (orscienter),
scienter); (3)
(3)Intent
Intenttotodefraud
defraud totoinduce
induce reliance,
reliance; (4)
(4)Justifiable
Justifiable
3 reliance; and reliance, Resulting damages.
and (5) Resulting Ukau v.
damages. Ukau v. Wang,
Wang, 2015
2015 Guam
Guam 26 ,r 36.
26 11 36."[GRCP]
"[GRCP] 9(b)
9(b)
4 provides, in in relevant
relevant part,
part, that
that "the
"the circumstances
circumstances constituting fraud or mistake shall be stated constituting fraud stated 5 particularity" and
with particularity" and that that"[m]alice,
"[m]alice, intent,
intent,knowledge,
knowledge, and
andother
otherconditions
conditionsof
of mind
mind of
of a
6
7 person may may be averred
averred generally." Id. ,r 35.
Id. 11 35. This
This standard
standard isisknown
known as
as the
the "who,
"who, what, when,
8 where, and where, and how" requirement. Id. While itit isisa amore requirement. Id. moreheightened heightenedstandard
standard than
than the
the notice
notice
9 pleading established pleading establishedby byGRCP
GRCP 12(b)(6),
l2(b)(6), itit still
still does
does not
not require
require a plaintiff
plaintiff to
to prove
prove a claim
claim of
of
10 fraud at the the pleading
pleading stage. Id. ,r
stage. Id. 1147. Instead,aaplaintiff 47. Instead, plaintiffmust mustprovide
providefacts
factswith
with"sufficient
"sufficient detail
11 to provide provide notice notice to
to defendants
defendants as
as to
to what
what particular
particular fraudulent action is fraudulent action is being being alleged.
alleged. Id.
Id.
12
13 "Whilestatements "While statements of oftime,
time, place,
place, and
and nature
nature of
ofthe
the alleged
alleged fraudulent
fraudulent activities are are sufficient,
14 conclusory allegations mere conclusory allegations of fraud fraud are
are insufficient. Taitano v.
insufficient. Taitano v. Calvo Calvo Finance
Finance Corp.,
Corp., 2008
2008
15 Guam 12 ,rii 15. Similarly, allegations Guam based entirely allegations based entirely on information and and belief do
do not
not usually
usually
16 satisfy the particularity particularity requirement requirementof
ofRule
Rule 9(b).
9(b). Id.
Id.
17 If Ifthe
the pleading
pleading isis so
so vague
vagueororambiguous
ambiguous that
that aa party
party cannot
cannot be
be reasonably
reasonably required to
18
19 frame aa responsive responsive pleading,
pleading, the
the responding
responding party
party may move for
for aa more
more definite
definitestatement
statement
20 before filing filing aa responsive
responsive pleading.
pleading. GRCP l2(e).
12(e).Upon
Uponmotion
motionby
bythe
theresponding
responding party,
party, the
the
21 Court may also also order
order stricken
stricken from
from the
the pleading
pleading"any
"anyredundant,
redundant, immaterial,
immaterial, impertinent,
impertinent, or
22 scandalous matter." scandalous matter."GRCP GRCP12(f).
l2(f).
23 Finally, pursuant
pursuant totoGRCP
GRCP 23.1,
23.1, aa derivative
derivative action
actionrequires
requiresPlaintiff
Plaintiffto
to file
file a verified
24
25 complaint seeking to complaint seeking to enforce enforce aa right
right ofofa acorporation
corporationororunincorporated unincorporated association.
association. The
26 complaint must must allege
allege that
that Plaintiff
Plaintiff was a member of of the
the corporation
corporation or
or association
association at the time
27 of ofthe the transaction at issue, transaction at issue,and andmust
mustplead
pleadwith
withparticularity
particularitywhat
whatefforts,
efforts,ififany,
any,Plaintiff
Plaintiff took to
28
Page4
e of9
f
Decision D and Order;
ec i s i o n an O , CV0595-24 CV
Vicente i c en te E. Lujan uc vs. Pag
vs Pagoe BBay Homeowners ay Ho meo w n er s AAssociation, et al s o c i ati o n , et al.
obtain the the desired
desired relief
relief from
Hom the officers or
or directions
directions of
of the
the corporation
corporation or association.
association. "The
"The
2 derivative action derivative action may maintained if itit appears may not be maintained appears that that the
the plaintiff does not fairly plaintiff does fairly and and
3 adequately represent the the interests
interests of
of the
the shareholders
shareholders or
or members
members similarly
similarly situated
situated in
in enforcing
enforcing
4 the right of of the
the corporation
corporation or
or association."
association." GRCP
GRCP 23.1.
5 11. GRCP S(a)
RCP 8
6 PBHAfirst PBHA firstargues
argues for
for dismissal
dismissal under
under GRCP
GRCP 8(a), alleging that
that the
thePlaintiffs
Plaintiffs PAC is so
FAC is so
7
8 ambiguous that verbose and ambiguous that PBHA is unable PBHA is unable to
to provide
provide aa proper
proper response.
response. PBHA
PBHAasserts
asserts that
that
9 Plaintiff is "pleading Plaintiff "pleading in in the
the disjunctive
disjunctive various
various acts
acts allegedly
allegedly performed
performed by
by any number of
any number
10 defendants" and defendants" and that that"it
"it is
is impossible
impossible to
to know
know which
which acts
acts are
are being
being complained
complained of,
of, or which
11 defendant was defendant was allegedly involved in allegedly involved in taking taking the
the alleged actions,"
actions," which
which renders
renders it impossible for 12
13 PBHAtotoadequately PBHA adequately respond.
respond. Mot.,
Mot., at
at 8.
8. The
The Court
Court agrees.
14 Pursuant to Pursuant to GRCP 8(a), aa complaint GRCP 8(a), complaint must must provide
provide "a
"a short
short and
and plain"
plain" statement
statement of the
the
15 that the
claim showing that the pleader pleader is
is entitled
entitled to
to relief,
relief, giving defendants fair notice of giving defendants of the the basis for
16 each claim. each Here, the claim. Here, the FAC
PAC spans
spans forty
forty pages,
pages, eight
eightcauses
causes of
ofaction,
action, and
and aathirty-paragraph
thirty-paragraph
17 relief without
player for relief without clearly clearly linking
linking specific
specific facts
facts to
to specific
specific claims
claims or
or defendants.
defendants. It is
is
18
19 neither short neither short nor plain, and the plain, and the confusion
confusion created
created by
by this
this scattershot
scattershot approach
approach precludes fair
20 notice.
notice.
21 Similarly, GRCP 8(e)(1) Similarly, 8(e)(l)requires requires that
that "each
"each averment of aa pleading averment of pleading shall shall be
be simple,
simple,
22 concise, and concise, direct." Instead, and direct." Instead, the PACconsistently the FAC consistently packs packs multiple
multiple alternative
alternative theories
theories and
and
23 conclusory statements conclusory statements into into single
single run-on
run-on paragraphs,
paragraphs,while
while also
also vaguely previous vaguely referencing previous 24
25 claims, e.g.
e.g.
26 108. The foforegoing-described 108. re g o -d e s c ri b e d actions a c t i o n sor
o r conduct
c o n d u c t of
of HHome,
o me
Reynolds, Reynolds, Dydasco, or TPBHAI are or is illegal, unlawful, invalid, TPBHAI are or is illegal, unlawful, invalid, 27 voidable, conspiratorial, void, voidable, conspiratorial, malicious, malicious, vexatious,
vexatious, oppressive,
oppressive,
28 willful misconduct, reckless misconduct, gross negligent
Page 55 of9 P o
\
Decision and Decision and Order;
Order, CV0595-24
Vicente E. Lujan PagoBay Lujan vs. Palo BayHomeowners HomeownersAssociation,
Association,et
et al.
misconduct, negligent, misconduct, negligent, otherwise otherwise tortuous,
tortious, groundless,
groundless, knowing,
l improper, imp e r , or con
conscious,s, flagrant
r an t indifference
in d if f e r e n ce to
t o the
t h e rights
ig h t s of
2 2 [Plaintiff], [Plaintiff], without substantial stantial justification,
justification, without pprobable rob ab
cause, ultra vires, breach of fiduciary duty, fires, breach duty, or violation or or breach
breach
3 3 of the Declaration, or the of the Articles Articles of Incorporation or the the By-laws
By-laws
ofthePBHA. of the PBHA.
4 4
55 ,r FAC,11 I108. FAC, This manner 08. This manner of
of writing
writing is consistent
consistent through
through the
theFAC, and Plaintiff
FAC, and notably uses Plaintiff notably uses
6 some variation of the the phrase
phrase"illegal,
"illegal, unlawful,
unlawful, invalid" in lists invalid" in lists with
with various
various other
other synonyms
synonyms at
at
7 7 least thirty times throughout the entire document. This structure flouts This structure flouts the the standard
standard established
8
by GRCP by GRCP8(e)(l)
8(e)(l)and
andonly
onlycompounds
compoundsthe
theproblem
problemofofnotice
noticepresented
presented by the
the GRCP 8(a) issue
GRCP 8(a) issue
9
IO0 1 above. Plaintiff above. argues that Plaintiff argues that GRCP IO(c)permits GRCP l0(c) permitsincorporation incorporation by
by reference.
reference. However, itit does does
II not justify embedding each not each of of the
the FAC's previous paragraphs FAC's previous paragraphs in each count, particularly when 12 paragraphs involve
said paragraphs involve multiple unrelated theories.
multiple unrelated theories.This This manner
manner of
of omnibus
omnibus incorporation
incorporation only
only
133 1 obscures the obscures the operative operative facts
factsand
andprevents
preventsPBHA
PBHA from
from determining
determining which allegations which specific allegations 14 14
support which support which claim.
claim. Thus,
Thus, the
the Court
Court also
also finds that Plaintiff finds that fails to Plaintiff fails to meet
meet the
the GRCP 8(e)
GRCP 8(e)
15 1
166 1 standard.
standard.
17 1 z.
2. GRCP 9(b)
18 PBHAalso PBHA alsoargues
argues that
that the
the FAC fails to
FAC fails to meet
meet the heightened particularity standard set by particularity standard
19 GRCP9(b). GRCP 9(b ). InInopposition, opposition, Plaintiff
Plaintiffasserts
asserts that
that he
he sufficiently
sufficientlypled
pied"general
"generalfraud,
fraud, statutory
statutory
20 20
fraud, common law fraud, law fraud, fraud, actual
actual fraud,
fraud, or
or constructive
constructive fraud."
fraud." Opp.,
Opp., at
at 7.
7. The
The Court agrees
agrees with
with
21
22 2 PBHA that Plaintiff PBHAthat not plead does not
Plaintiffdoes plead fraud fraud with
with particularity
particularity as
as required
requiredby
by GRCP 9(a). While
GRCP 9(a). While
23 2 Plaintiff alludes Plaintiff alludes to to "fraudulent"
"fraudulent" conduct
conduct at multiple points throughout throughout the
the FFAC,
AC, none of
of the
the
24 counts actually counts actually plead plead a standalone
standalone fraud
fraud cause
causeof
ofaction.
action.The
The FAC simply does
FAC simply does not
not detail
detail the
the
25 25
"who, what, "who, what, when, when, where,
where, and
and how"
how" ofofany
anymisrepresentation
misrepresentation or
or concealment
concealment that
that itit alleges,
alleges, to
to
26 26
27 2 the extent the thatititalleges extentthat allegesany anyatatall
allas
aseven
evenPlaintiffs
Plaintiff's opposition
opposition argument
argument does
does not
not specifically
specifically
28 28 state what type state what fraud isis actually of fraud
typeof actually being being pied.
pled. Furthermore,
Furthermore, large
large parts
partsof
of the
theFAC's reference
FAC's reference
PPage 6 of9
ag e 6 o
Decision and Decision and Order, Order; CV0595-24
CV0595-24
Vicente E. Lucan Vicente Lujan vs.
vs. Pogo BayHomeowners
Pago Bay Homeowners Association, Association, et
et al.
to fraud fraud are are predicated
predicatedon
oninformation
information and
andbelief,
belief and allegations based based entirely
entirely on
on information
information
l
2 2 and belief do not not usually
usually satisfy
satisfy the
the particularity requirement requirement of
of Rule 9(b ). Taitano
Rule 9(b). v. Calvo Taitano v.
3 3 Corp., 2008
Finance Corp., 2008 Guam Guam12
1211 15. ,r
15. Thus,
Thus, the
the Court finds that
that any fraud
fraud theory
theory presented
presented by
4 4 the FAC the is dismissed FAC is dismissed for
for failure
failure to
to satisfy
satisfy GRCP 9(b
GRCP 9(b).
5 5
3. GRCP23.1
RCP 23
6 6
7 PBHAfurther PBHA furtherargues argues that,
that, by seeking relief on behalf of all other other lot-owners, Plaintiff purports Plaintiff purports
8 to assert to assert derivative derivativeclaims,
claims,but
butfails
fails to
to comply
comply with
with GRCP 23.1 because
GRCP 23.1 because aa derivative derivative action is
9 by aa shareholder
initiated by shareholder to assert assert aa right
right belonging
belonging to
to a corporation.
corporation. The Court agrees.
The Court agrees. Under
10 1 law, aa derivative
Guam law, derivative action action may
may be
be "brought
"brought by
by one
one or
or more
more shareholders
shareholders or
or members
members to
11 11 enforce enfor ce a rright of aa cor ig ht of corporation or ofofananunincor p or ation or unincorporated association, the p or ated association, the cor corporation or
p or ation or
12
association having failed to to enforce a right which may properly which may properly be
be asserted
asserted by
by it."
it." Plaintiff has
Plaintiff has
13 1
14 1 assertions that made no assertions thathe he isis attempting
attemptingtotoenforce
enforceany
anyright
rightof
ofPBHA, any right PBHA, particularly any
15 that that PBHA previouslyfailed PBHA previously failedtotoassert.
assert. Plaintiff
Plaintiffinstead
instead purports
purports to
to "bring a derivative cause cause of
of
16 1 action on behalf of other action other members members of
of the
the dissolved
dissolved PBHA," and argues PBHA," and argues that
that "even a single
single
17 1
member of the member the PBHA, like[Plaintiff]
PBHA, like [Plaintiff]may maymaintain
maintainaaderivative
derivativecause
cause of
ofaction
action under
under Rule
Rule 23.1
23.1
18 1
199 1 'adequately representing'
as 'adequately representing' only only himself as a member." The Court himself as Court does does not
not find
find this
this argument
argument
20 2 compelling, as at all compelling, as the the Ninth
Ninth Circuit
Circuit has
has held
heldthat
that ififa ashareholder
shareholder has
has aa direct,
direct, personal
personal
21 interest in interest in his cause of action, then then the
the claim is not
claim is not derivative.
derivative. See,
See, e.g.
e.g. Meland
Melany v.
v. WEBER,
WEBER, 2
22 22
F.4th 838, 868 F.4th 868 (9th (9th Cir.
Cir. 2021).
2021). Further,
Furrier, on March 5, 2025, March 5, 2025, the Court
Court issued an
an Order
Order enjoining
enjoining
23 2
Defendants Defend ants from fr om taking
taking any action to
any action to enfor
enforce collection
collection of
ofassessments
assessments ag
against
ainst Plaintiff
24 2
255 2 pendente lite.
pendent lite. In that Order, the the Court stated that
Court stated that any
any homeowner
homeowner who believes
believes that
that they have a
26 2 derivative claim to derivative this suit to this suit could,
could, within
withinthirty
thirty(30)
(30) days,
days, request
request to
to have
have that
that protection
protection
27 2
28 28
PPage7
ag e of9
o
Decision D and Order;, CV0595-24 ec i s i o n an CV Vicente i c en te E. Lujan vs vs.. Po
Pago
g o BBay Homeowners
ay Ho meo w n er s AAssociation, et al s o c i ati o n , et al.
extended to extended to them them upon
upon submission
submission of
of affidavit.
affidavit. No other lot-owners No other Jot-owners submitted submitted an
an affidavit
affidavit in
l
2 2 that that time, time, effectively
effectively rendering
rendering Plaintiff
Plaintiff the sole party
party to
to his
his derivative
derivative claim.
claim.
3 3 Accordingly, the Accordingly, the Court GRANTS a dismissal of of the derivative claims.
claims.
4 4 1. 1. GRCP 12(b)(6)
5 5 Based on Based on the
the above
above arguments,
arguments, Plaintiff
Plaintiffhas
has not
notmet
metthe
thestatutory
statutory requirements
requirements for
6 6
7 pleading. Counts I-III pleading. Counts of the I-III of the FAC
FACare
areexpressly
expresslystated
stated to be acts
acts of
of fraud,
fraud,which
which Plaintiffhas
Plaintiff not
8 met standard for, met the pleading standard andeven for, and evenifif they
theywere
werenot,
not,all
allof
ofthe
theclaims
claims put
putforth
forthin
in the
theFAC
FAC
9 are so are so ambiguous ambiguous that
that they
they do
do not
not give sufficient notice give sufficient notice as as to
to which party is
which party is responsible responsible for
10 what relief. Each Eachcount
count ofofthe
the FAC
FACasserts,
asserts, essentially,
essentially, that
that either
either one
one or
or some
some or
or all of the
all of the
II defendants performed defendants performed one one or
or more
more acts
actseither
eitherillegally
illegally or
or invalidly or unfairly invalidly or unfairly and and that
that one or
12 1
13 1 of the
some or all of the defendants defendants should
should be
be found
found liable for one or more of of those
those acts.
acts. That
That could
14 14 mean anything, mean anything, and puts no-one on on notice.
notice. So
So far as
as the
the Court
Court can
can determine,
determine, Count
Count V
V does not
15 even state even state aa claim, exists only to claim, but exists to state state that
that this action
action affects
affects the
the title of
ofreal
real property,
property,
166 1 any explanation
without any explanation as as to
to how
how that
that contributes
contributes to
to the
the greater
greater argument.
argument. Thus,
Thus, the Court
117
finds that the the FAC does not
FAC does not meet the
the notice
notice pleading
pleading standard
standard of
of 12(b)(6).
l2(b)(6).
18 1
19 1 Upon review, Upon review, however,
however, the
the Court
Court determines
determines that,
that, with the
the exception of
of the
the derivative
20 2 claims, the Court ORDERS Plaintiff Plaintiff to
to submit
submit aa more
more definite
definite statement
statement pursuant
pursuanttotoGRCP
GRCP
21 2 12(e). Further, l2(e). Further, the S that the Court O R D E RS that any impertinent, or any remaining immaterial, impertinent, or redundant redundant
22 22 those relating
allegations, particularly those relating solely theories or solely to derivative theories or featuring featuring conclusory
conclusory lists
23 2
24 of adjectives, of adjectives, should be stricken stricken pursuant
pursuant to
to GRCP 12(f), so
GRCP 12(t), so as
as to
to streamline
streamline the
the pleading and
25 25 its focus narrow its focus to to the
the genuinely
genuinely contested
contested issues
issues in
in this
this matter.
matter.
26 2
27 27
28 28
PPage
a 8 oof9
Decision D and Order;, CV0595-24 ec i s i o n an CV 0 Vicente i c en te E. Lujan uj vs.. Po
vs Pago
g o BBay Homeowners
ay Ho meo w n er s AAssociation, et al s o c i ati o n , et al.
CONCLUSION
l
22 Based on Based on the
the foregoing,
foregoing, the
the Court
Court hereby
hereby ORDERS that
that Plaintiff submit
submit aa second
second
3 Amended Complaint Complaint within
within fifteen
fifteen (15)
(15) days,
days, having stricken from said Complaint Complaint all
all theories
theories
4 based on
solely based on derivative derivative claims
claims and
and all
allredundant,
redundant, immaterial,
immaterial, impertinent,
impertinent, or
or scandalous
scandalous
5 matter. matter.
6
7
8 IT IS IS SO
SOORDERED
ORDERED MAY g g92025 MAY O 2025 ---------
9
IO 10 ,,,\/` ./*
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/-..a-;
I ,\
11 11 ft . \
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( 6 ' _
(".
_ ,
/.
12 HONORABLE"}{THURR B;;Rc1nAs/ Judge, Superior cbufpéfguam /» /
13 13 ~&0,7" ,.,."
-v . ,
114
15 15
16 16
17
18 18
19
220 0
21
22 2
23
224
25 25
226 6
227
228
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