Lit’1?3 P L:L - //7
2 BY: 3 IN THE SUPERIOR COURT OF GUAM 4 LUCAS MANGELSDORF, and CIVIL CASE NO. CV0022-22 5 LISA MICHELLE MANGELSDORF,
6 Plaintiffs,
vs. 7 DECISION AND ORDER 8 MAXIMUM ENTERTAINMENT, INC., Re: Defendant Trust’s Motion to Dismiss VIVIAN THORBOURNE and PAUL 9 U1’TPINGCO REVOCABLE TRUST ESTABLISHED UNDER THE UNPINGCO REVOCABLE TRUST DATED 10 SEPTEMBER28, 2011; JOHN DOES I 10, inclusive, JOHN DOE —
11 INSURANCE CARRIER(s) Nos. 1 —5 inclusive. 12 Defendants. 13 INTRODUCTION 14 This matter came before the Honorable Arthur R. Barcinas on September 29, 2022, for a 15 hearing on Defendant Vivian Thorboume and Paul Unpingco Co-Trustees of the Unpingco
16 Family Trust’s (“Defendant Trust”) Motion to Dismiss. Present at the hearing were Plaintiff
17 Lucas Mangelsdorf and Lisa Mangelsdorfs (“Plaintiffs”) Counsel Mark Williams, Defendant
Maximum Entertainment Inc.’s Counsel Tim Roberts, and Defendant Trust’s Counsel Mitchell 18 Thompson. Having considered the arguments, briefs, and applicable law, the Court hereby 19 DENIES Defendant Trust’s Motion to Dismiss as it relates to COUNT I: Negligence and 20 GRANTS Defendant Trust’s Motion to Dismiss as it relates to COUNT IV: Loss of Consortium.
Page 1 of$ 1 BACKGROUND
The instant case arises from Plaintiffs’ Complaint for Negligence; Premise Liability; 2 Loss of Consortium; and Direct Action Damages, filed on January 11, 2022.1 3 About four months later, on April 13, 2022, Defendant Trust filed their Motion to Dismiss
Count I: Negligence and Count IV: Loss of Consortium.2 Plaintiffs filed their Opposition on May
5 5, 2022, and Defendant Trust filed their Reply about 20 days later, on May 25, 2022. A hearing
6 on the Motion was held on September 29, 2022, wherein the parties submitted on their briefs,
and the Court took the matter under advisement. 7 DISCUSSION $ I. Motion to Dismiss for Failure to State a Claim 9 Generally, Rule 8 of the Guam Rules of Civil Procedure (“GRCP”) provides, in relevant
10 part that “[a] pleading which sets forth a claim for relief ... shall contain ... a short and plain
11 statement of the claim showing that the pleader is entitled to relief.” Ukau v. Wang, 2016 Guam
26 ¶ 21; see Guam R. Civ. P. 8(a). When interpreting the plain language of Rule 8(a), [the 12 Supreme Court] has historically held that “Guam law requires only notice pleading, not fact 13 pleading.” Id. (emphasis added); citing Joseph v. Guam 3d. ofAllied Health Exam ‘rs, 2015 Guam 14 4 ¶ 9; see also Taitano Calvo finance Corp., 2008 Guam 12 ¶ 13 (“Rule 8 requires only a short 15 and plain statement of the claim.”). Specific facts are not necessary; the statement need only “give
17 1 While the caption of Plaintiffs’ Complaint reads: Complaint for: Negligence (Two Counts); Premises Liability; Spoilation of Evidence; Loss of consortium; Direct Action Damages; Demand for Jury Trial 1$ the headings within the body of the Complaint read accordingly: Count I—Negligence; Count Il—Negligent Hiring, Training, Retention; Count lI—Action for Spoliation of Evidence; Count Ill—Loss of Consortium by Plaintiff Lisa Michelle Mangelsdorf (Plaintiffs Mother); 19 Count Vu—Direct Action (Negligence) Against John Doe Insurance Carriers No. I 5. —
See Compl. (Jan. 11, 2022). 2 20 The Complaint appears to misnumber the fourth Cause of Action, as it identifies such as “Count III.” Therefore, the fourth Cause of Action—Loss of Consortium by Plaintiff Lisa Michelle Mangelsdorf (Plaintiffs Mother)—is hereinafter identified as “Count IV.” Page 2 of 8 the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Erickson
v. Pardus, 551 U.S. 89, 93 (2007). further, the Guam Supreme Court has declined to adopt the 2 “plausibility standard,” and instead endorsed the Conley standard: “A complaint should not be 3 dismissed for failure to state a claim unless it ‘appears beyond reasonable doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to telief.” See Ukau,
5 2016 Guam 26 ¶J 26 - 27; citing Core Tech International Corp. V. Hctnil Engineering &
6 Construction Co., 2010 Guam 13 ¶ 52.
Further, GRCP Rule l2(b)(6) allows a court to dismiss a complaint for failure to state a 7 claim upon which relief can be granted. See Guam R. Civ.?. 1 2(b)(6). While a complaint attacked 8 by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, a plaintiffs 9 obligation to provide the grounds of his entitlement to relief “requires more than labels and 10 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Ukcut,
11 2016 Guam 26 ¶ 26; quoting Core Tech., 2010 Guam 13 ¶ 52. Beyond this, the Supreme Court
12 has declined the invitation to apply a heightened plausibility standard to local civil proceedings,
and it imposes only a liberal notice pleading requirement. See Id. at ¶ 33 (emphasis added). When 13 reviewing a Rule 1 2(b)(6) motion, the trial court must “construe the pleading in the light most 14 favorable to the non-moving party, and resolve all doubts in the non-moving party’s favor.” Id. 15 at ¶51. In ruling on a 1 2(b)(6) motion, a court’s consideration is limited to the complaint, written
16 instruments attached to the complaint as exhibits, statements or documents incorporated in the
17 complaint by reference, and documents on which the complaint heavily relies. Core Tech, 2010
Guam 13 ¶ 29 (emphasis added). 18 a. COUNT I: Negligence
Generally, “in a case for negligence, the establishment of tort liability requires the 20 existence of a duty, the breach of such duty, causation [,] and damages.” Lujan Estate of
Page 3 of8 1 Rosario, 2016 Guam 2$ ¶ 33; citing Guerrero v. McDonald’s Int’l Prop. Co., 2006 Guam 2 ¶ 9.
Therefore, in applying the standard for a Rule 1 2(b)(6) motion, the Court must determine whether 2 Plaintiffs provide a short and plain statement of its claim for negligence such that it gives 3 Defendant fair notice of the claim and the grounds upon which it rests. The Court addresses each 4 element in turn.
5 LDuiy
6 Here, Plaintiffs allege that:
Defendants VIVIAN THORBOURNE and PAUL UNPINGCO are co-trustees of the 7 UNPINGCO FAMILY TRUST established under the UNPINGCO REVOCABLE TRUST dated September 28, 2011 (hereinafter “Defendant Trust”), which owns the 8 premises at which the aforementioned bar and tavern were located.
9 Defendant Trust owed all persons on and/or about the premises a duty of reasonable care including but not limited to taking reasonable steps to provide adequate security and other reasonable precautions to ensure the safety of such persons. These duties were non- 10 delegable.
11 Compl. pp. 2 — 3 (Jan. 11, 2022). In viewing the pleading in a light most favorable of Plaintiffs
12 as the non-moving party, the Court finds that these allegations sufficiently reflect a short and plain
statement of Defendant Trust’s alleged duty owed as the owner of the premises at which the bar 13 was located. 14 ii. Breach 15 Next, Plaintiffs allege that:
16 The aforementioned attack, beating, and assault suffered by Plaintiff LUCAS was a direct and proximate result of Defendant Trust having violated the above stated duties in ...
17 multiple ways, including but not limited to
See Compl. pp. 3 — 5 (Jan. 11, 2022). In applying the standard for Rule 12(b)(6), the Court finds
that such allegation is a sufficient short plain statement of Defendant Trust’s alleged breach of 19 duty as it relates to Plaintiffs’ claim for negligence. 20
Page 4 of 8 1 iii. Cause
further, Plaintiffs allege that:
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Lit’1?3 P L:L - //7
2 BY: 3 IN THE SUPERIOR COURT OF GUAM 4 LUCAS MANGELSDORF, and CIVIL CASE NO. CV0022-22 5 LISA MICHELLE MANGELSDORF,
6 Plaintiffs,
vs. 7 DECISION AND ORDER 8 MAXIMUM ENTERTAINMENT, INC., Re: Defendant Trust’s Motion to Dismiss VIVIAN THORBOURNE and PAUL 9 U1’TPINGCO REVOCABLE TRUST ESTABLISHED UNDER THE UNPINGCO REVOCABLE TRUST DATED 10 SEPTEMBER28, 2011; JOHN DOES I 10, inclusive, JOHN DOE —
11 INSURANCE CARRIER(s) Nos. 1 —5 inclusive. 12 Defendants. 13 INTRODUCTION 14 This matter came before the Honorable Arthur R. Barcinas on September 29, 2022, for a 15 hearing on Defendant Vivian Thorboume and Paul Unpingco Co-Trustees of the Unpingco
16 Family Trust’s (“Defendant Trust”) Motion to Dismiss. Present at the hearing were Plaintiff
17 Lucas Mangelsdorf and Lisa Mangelsdorfs (“Plaintiffs”) Counsel Mark Williams, Defendant
Maximum Entertainment Inc.’s Counsel Tim Roberts, and Defendant Trust’s Counsel Mitchell 18 Thompson. Having considered the arguments, briefs, and applicable law, the Court hereby 19 DENIES Defendant Trust’s Motion to Dismiss as it relates to COUNT I: Negligence and 20 GRANTS Defendant Trust’s Motion to Dismiss as it relates to COUNT IV: Loss of Consortium.
Page 1 of$ 1 BACKGROUND
The instant case arises from Plaintiffs’ Complaint for Negligence; Premise Liability; 2 Loss of Consortium; and Direct Action Damages, filed on January 11, 2022.1 3 About four months later, on April 13, 2022, Defendant Trust filed their Motion to Dismiss
Count I: Negligence and Count IV: Loss of Consortium.2 Plaintiffs filed their Opposition on May
5 5, 2022, and Defendant Trust filed their Reply about 20 days later, on May 25, 2022. A hearing
6 on the Motion was held on September 29, 2022, wherein the parties submitted on their briefs,
and the Court took the matter under advisement. 7 DISCUSSION $ I. Motion to Dismiss for Failure to State a Claim 9 Generally, Rule 8 of the Guam Rules of Civil Procedure (“GRCP”) provides, in relevant
10 part that “[a] pleading which sets forth a claim for relief ... shall contain ... a short and plain
11 statement of the claim showing that the pleader is entitled to relief.” Ukau v. Wang, 2016 Guam
26 ¶ 21; see Guam R. Civ. P. 8(a). When interpreting the plain language of Rule 8(a), [the 12 Supreme Court] has historically held that “Guam law requires only notice pleading, not fact 13 pleading.” Id. (emphasis added); citing Joseph v. Guam 3d. ofAllied Health Exam ‘rs, 2015 Guam 14 4 ¶ 9; see also Taitano Calvo finance Corp., 2008 Guam 12 ¶ 13 (“Rule 8 requires only a short 15 and plain statement of the claim.”). Specific facts are not necessary; the statement need only “give
17 1 While the caption of Plaintiffs’ Complaint reads: Complaint for: Negligence (Two Counts); Premises Liability; Spoilation of Evidence; Loss of consortium; Direct Action Damages; Demand for Jury Trial 1$ the headings within the body of the Complaint read accordingly: Count I—Negligence; Count Il—Negligent Hiring, Training, Retention; Count lI—Action for Spoliation of Evidence; Count Ill—Loss of Consortium by Plaintiff Lisa Michelle Mangelsdorf (Plaintiffs Mother); 19 Count Vu—Direct Action (Negligence) Against John Doe Insurance Carriers No. I 5. —
See Compl. (Jan. 11, 2022). 2 20 The Complaint appears to misnumber the fourth Cause of Action, as it identifies such as “Count III.” Therefore, the fourth Cause of Action—Loss of Consortium by Plaintiff Lisa Michelle Mangelsdorf (Plaintiffs Mother)—is hereinafter identified as “Count IV.” Page 2 of 8 the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Erickson
v. Pardus, 551 U.S. 89, 93 (2007). further, the Guam Supreme Court has declined to adopt the 2 “plausibility standard,” and instead endorsed the Conley standard: “A complaint should not be 3 dismissed for failure to state a claim unless it ‘appears beyond reasonable doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to telief.” See Ukau,
5 2016 Guam 26 ¶J 26 - 27; citing Core Tech International Corp. V. Hctnil Engineering &
6 Construction Co., 2010 Guam 13 ¶ 52.
Further, GRCP Rule l2(b)(6) allows a court to dismiss a complaint for failure to state a 7 claim upon which relief can be granted. See Guam R. Civ.?. 1 2(b)(6). While a complaint attacked 8 by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, a plaintiffs 9 obligation to provide the grounds of his entitlement to relief “requires more than labels and 10 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Ukcut,
11 2016 Guam 26 ¶ 26; quoting Core Tech., 2010 Guam 13 ¶ 52. Beyond this, the Supreme Court
12 has declined the invitation to apply a heightened plausibility standard to local civil proceedings,
and it imposes only a liberal notice pleading requirement. See Id. at ¶ 33 (emphasis added). When 13 reviewing a Rule 1 2(b)(6) motion, the trial court must “construe the pleading in the light most 14 favorable to the non-moving party, and resolve all doubts in the non-moving party’s favor.” Id. 15 at ¶51. In ruling on a 1 2(b)(6) motion, a court’s consideration is limited to the complaint, written
16 instruments attached to the complaint as exhibits, statements or documents incorporated in the
17 complaint by reference, and documents on which the complaint heavily relies. Core Tech, 2010
Guam 13 ¶ 29 (emphasis added). 18 a. COUNT I: Negligence
Generally, “in a case for negligence, the establishment of tort liability requires the 20 existence of a duty, the breach of such duty, causation [,] and damages.” Lujan Estate of
Page 3 of8 1 Rosario, 2016 Guam 2$ ¶ 33; citing Guerrero v. McDonald’s Int’l Prop. Co., 2006 Guam 2 ¶ 9.
Therefore, in applying the standard for a Rule 1 2(b)(6) motion, the Court must determine whether 2 Plaintiffs provide a short and plain statement of its claim for negligence such that it gives 3 Defendant fair notice of the claim and the grounds upon which it rests. The Court addresses each 4 element in turn.
5 LDuiy
6 Here, Plaintiffs allege that:
Defendants VIVIAN THORBOURNE and PAUL UNPINGCO are co-trustees of the 7 UNPINGCO FAMILY TRUST established under the UNPINGCO REVOCABLE TRUST dated September 28, 2011 (hereinafter “Defendant Trust”), which owns the 8 premises at which the aforementioned bar and tavern were located.
9 Defendant Trust owed all persons on and/or about the premises a duty of reasonable care including but not limited to taking reasonable steps to provide adequate security and other reasonable precautions to ensure the safety of such persons. These duties were non- 10 delegable.
11 Compl. pp. 2 — 3 (Jan. 11, 2022). In viewing the pleading in a light most favorable of Plaintiffs
12 as the non-moving party, the Court finds that these allegations sufficiently reflect a short and plain
statement of Defendant Trust’s alleged duty owed as the owner of the premises at which the bar 13 was located. 14 ii. Breach 15 Next, Plaintiffs allege that:
16 The aforementioned attack, beating, and assault suffered by Plaintiff LUCAS was a direct and proximate result of Defendant Trust having violated the above stated duties in ...
17 multiple ways, including but not limited to
See Compl. pp. 3 — 5 (Jan. 11, 2022). In applying the standard for Rule 12(b)(6), the Court finds
that such allegation is a sufficient short plain statement of Defendant Trust’s alleged breach of 19 duty as it relates to Plaintiffs’ claim for negligence. 20
Page 4 of 8 1 iii. Cause
further, Plaintiffs allege that:
As a direct and proximate result of the negligence of... Defendant Trust, Plaintiff LUCAS 3 has sustained and will continue to sustain physical injuries, trauma, pain, mental anguish, psychological injuries, disability, suffering and loss of enjoyment of life, lost wages and 4 benefits, and has been forced and will be forced to incur medical expenses.
See Compl. p. 4 (Jan. 11, 2022). The Court finds that such allegation is a sufficient short plain 5 statement of Defendant Trust’s alleged cause as it relates to Plaintiffs’ claim of negligence. 6 iv. Harm
Finally, Plaintiffs allege that:
8 As a further direct and proximate result of Defendant Trust’s negligence, Plaintiff ...
LUCAS sustained general and special damages in an amount to be determined at trial. 9 See Compl. p. 4 (Jan. 11, 2022). This allegation is a sufficient short and plain statement of 10 Defendant’s alleged harm as it relates to Plaintiffs’ claim for negligence.
11 In viewing the Complaint in a light most favorable to the Plaintiffs as the non-moving
12 party, the Court finds that Plaintiffs sufficiently provide a short plain statement of their claim for
negligence, such that it satisfies the notice pleading requirement under the GRCP. As such, the 13 Court DENIES Defendant Trust’s Motion to Dismiss Count I: Negligence. The Court arrives at 14 this conclusion without consideration of documents outside the Complaint; therefore, the Court 15 is not prompted to consider the instant motion as one for summaiy judgment. The Court now
16 turns to COUNT IV: Loss of Consortium.
17 b. COUNT IV: Loss of Consortium
The Guam Supreme Court authority related to a claim for loss of consortium is limited. 18 At most, the Supreme Court has established that a loss of consortium claim is derivative. See 19 Viltanueva ex. rel. US. v. Commercial Sanitation Systems, Inc., 2005 Guam 8 ¶ 32. Further, the 20
Page 5 of$ 1 Supreme Court concurred with the reasoning expressed in the dissent in Abel/on v. Hartford Ins.
Co.: 2 “The cause of action for loss of consortium does not arise out of a bodily injury to the 3 spouse suffering the loss; it arises out of the bodily injury to the spouse who can no longer perform the spousal function. It is the loss of conjugal fellowship, affection, society, and 4 companionship which gives rise to the cause of action.”
212 Cal. Rptr. 852, 860 — 61 (Cal. App. Dist. 1985); citing Rodriguez v. Bethlehem Steel Corp.,
12 Cal.3d. 382, 405 — 06 (Cal. 1974); see Villanueva, 2005 Guam 8 ¶ 27. 6 While the Supreme Court has not explicitly adopted the majority rule—which only
permits a spousal suit for loss of consortium and not a loss of consortium suit for a parent-child
8 relationship—the authority cited above reflects the Supreme Court interpreting and
9 “concur[ringj” with authority that applies the majority rule. As such, this Court finds that it
appears beyond reasonable doubt that Plaintiffs can prove no set of facts in support of their claim 10 for loss of consortium for two reasons. See Ukau, 2016 Guam 26 ¶J 26— 27. 11 first, Plaintiffs appear to bring a loss of consortium claim based on a parent-child 12 relationship as they allege that: 13 At all times herein relevant, Plaintiff LISA is and was the mother of Plaintiff LUCAS. Plaintiff LUCAS has always throughout his life resided with his mother and did so at the 14 time of the incident complained of.
15 Prior to the injuries caused by the negligence of Defendant[] Trust, Plaintiff LUCAS ...
was able to and did perform his duties as Plaintiff LISA’s son as well as was able to and did perform his duties as Plaintiff LISA’s son as well as was able to provide her love, 16 warmth, and affection and was able to perform services for her and for and in the family home. 17 As a direct and proximate result of Defendant[] Trust’s negligence as set forth herein, ...
and as a direct and proximate result of the injuries suffered by Plaintiff LISA’s son 18 Plaintiff LUCAS, Plaintiff LISA has suffered and continues to suffer loss of consortium, including but not limited to the loss of attention, loss of enjoyment of life, and loss of: 19 mutual comfort, affection, services, care and/or maintenance of the family home and thereby Plaintiff LISA has suffered damages in the amount to be determined at trial. 20
Page 6 of 8 1 See Compi. p. 7 (Jan. 11, 2022) (emphasis added). As mentioned above, the Supreme Court
appears to have “concur[redj” and interpreted a loss of consortium claim as it is applied under the 2 majority rule. See Villanueva, 2005 Guam $ ¶ 27. That is to say that, under the current state of 3 authority, only a spousal claim for loss of consortium is recognized—not one brought based on a
parent-child relationship.
5 Second, a loss of consortium claim is derivative. In other words, “all elements of the
6 underlying cause must be proven before the claim can exist.” Agravante v. Japan Airlines hit ‘1
Co., Ltd., 2007 WL 2026494 *6 (D. Guam 2007) (emphasis added). A loss of consortium claim
arises out of “the bodily injury to the spouse who can no longer perform the spousalfttnction.” $ Abellon v. Hartford Ins.. Co., 212 Cal. Rptr. at 860 — 61 (emphasis added). In other words, the 9 underlying bodily injury must first be proven before a claim for loss of consortium can exist. As 10 such, Plaintiffs’ claim for loss of consortium fails because: (1) Plaintiff Lucas is not Plaintiff
11 Lisa’s spouse, he is her son; and (2) even if he were her spouse, Plaintiff Lucas’s bodily injury
12 must first be proven to give rise to a loss of consortium claim.
As such, even in viewing the Complaint in a light most favorable to Plaintiffs, as the non- 13 moving party, the Court finds that it appears beyond reasonable doubt that Plaintiffs can prove no 14 set of facts in support of their claim for loss of consortium. As such, the Court hereby GRANTS 1 Defendant Trust’s Motion to Dismiss COUNT IV: Loss of Consortium.
1$
Page 7 of 8 1 CONCLUSION
For the reasons set forth above, the Court DENIES Defendant Trust’s Motion to Dismiss
as it relates to COUNT I: Negligence and GRANTS Defendant Trust’s Motion to Dismiss as it
relates to COUNT IV: Loss of Consortium. 4
5 IT IS SO ORDERED 6
7 — HONORABLE ARTHUR R. BARCINAS $ Judge, Superior Court of Guam
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