Fl L E D SU§*ERiOR COURT 1 O? -GUAM 2 Z!Z30CT 27 AHll=09 3 CLERK OF COURT 4 IN THE SUPERIOR COURT OF GUAM 5 BY= QD/ 6 ) CIVIL CASE NO.: CV0689-21 LUCIA EUSTAQUIO GARCIA ) 7 McDONALD, ) 8 ) 9 Plaintiff, ) ) DECISION & ORDER 10 vs. ) RE: MOTION TO DISMISS 11 ) & MOTION TO STRIKE MARLENE McDONALD CARBULLIDO, ) 12 DOLORES McDONALD PANGELINAN, ) 13 CLAIRE McDONALD MENO and, ) PATRICIA McDONALD TERLAJE, ) 14 ) 15 Defendants. ) 1 16
17 I. INTRODUCTION 18 19 This matter involves a dispute regarding the transfer of real and personal property from a
20 mother to four of her children.' The parties to this case are Plaintiff Lucia Eustaquio Garcia 21 22 McDonald ("Tan Lula") and four of her daughters - Defendants Marlene McDonald Carbullido
23 ("Marlene"), Dolores McDonald Pangelinan ("Dolores"), Claire McDonald Meno ("Claire"), and
24 . . . .. . . Patrlcla McDonald Terlaje ("Patrlcla") (hereafter collectively referred to as "Defendants").2 Tan 25 26 Lula, who is ninety-four (94) years old at the time of the filing of the Complaint in this matter,
27 alleges that Defendants inserted themselves into her life with the intent to create a dependent 28 29 relationship, and then used that dependent relationship to take advantage of her advanced age,
30 1 Tan Lula has eight (8) other children who are not parties to this action. 3l 2 Because members of the McDonald family share the samemiddle/last name, they are refereed to by their 32 first names for clarity, intending no disrespect.
1 I P a g e 1 deteriorating medical condition and lack of education and English language skills to deceive her
2 to convey real and personal property to Defendants. 3 The Court here considers Marlene and Dolores's Motion to Dismiss Complaint filed on 4 5 November 30, 2021, and Patricia's Motion to Strike (and Joiner in Motions to Dismiss...) filed
6 on November 30, 20213. Claire filed Defendant Claire MeDonadd Memo's Joinder...Motion to 7 Dismiss on or about November 30, 2021 and Joiner in Patricia's Motion to Strike on December 8 9 1, 2021. Marlene and Dolores filed a Joiner in Patricia's Motion to Strike on December 1, 2021. 10 11 Tan Lula filed Plaintiffs Opposition to Defendants' Motion to Strike and Dismiss on January 12,
12 2022. Marlene and Dolores filed a Reply to Plaintiffs Objection to Motion to Dismiss on January 13 26, 2022. Patricia tiled a Reply RE: Opposition to Motion to Strike [] and Reply to Opposition to 14 Joined Motions to Dismiss...on January 26, 2022. Claire filed Defendant Claire McDonald 15 16 Meno's Reply to Plaintiffs Opposition to Defendants' Motion to Strike and Dismiss on or about 17 January 26, 2022. 18 19 11. FACTUAL AND PROCEDURAL BACKGROUND
20 At this stage of litigation, the Court accepts all factual statements in the Complaint as true. 21 Taimno v. Calvo Fin. Corp. 2008 Guam 12112. Tan Lula's husband passed away in 1996, leaving 22 23 Tan Lula as the recipient of her husband's pension and benefits through the Office of Veterans 24 Affairs, as well as the sole owner of all the read property acquired in the marriage. Sometime 25 26 thereafter, Defendants moved to designate Patricia as a fiduciary agent with the Office of Veterans
27 Affairs to secure their control over the military benefits intended for Tan Lula. On or about October 28 29, 2010, Defendants allegedly exerted a predominant and undue influence over Tan Lula, and she 29 30 was induced, deceived and coerced to execute a Deed of Gift with Reservation of Life Estate which 31 32 3 The Court has declined oral argument for the Motion to Strike andhas sent CVR 7.1, Form 3 to the Parties previously. 2 I P 3. g 1 conveyed some five (5) parcels of real property to Marlene. See, Exhibit 1 to Declaration of
2 Georgette Bello Concepcion in Support of Motion to Dismiss Complaint. Marlene paid neither 3 consideration nor exchanged substantial consideration for the conveyance of the five parcels of 4 5 real property. On or about June 22, 2011, Tan Lula executed an Amended Deed of Gift with 6 Reservation of Life Estate (which appears to change the lot description for parcel number #3). See, 7
8 Exhibit 2 to Declaration of Georgette Bello Concepcion in Support of Motion to Dismiss
9 Complaint. Marlene paid neither consideration nor exchanged substantial consideration for the 10 Amended Deed of Gift with Reservation of Life. On or about April 18, 2017, Tan Lula executed 11 12 a General Power of Attorney, granting the right to act as attorney-in-fact over her affairs to
13 Dolores, Marlene, and Patricia. See, Exhibit 4 to Declaration of Georgette Bello Concepcion in 14 Support of Motion to Dismiss Complaint. This authority was then allegedly used to transfer 15
16 personal property to Defendants. It is undisputed that all three (3) documents were executed by 17 Tan Lula and recorded in the Government of Guam Department of Land Management Office of lb 19 the Recorder.
20 On June 29, 2020, Dolores and Claire filed a petition to serve as guardians of Tan Lula, 21 asserting that she suffers from severe dementia and being unable to manage her own financial, 22 23 legal, or medical affairs. This initiated Special Proceedings Case SP0087-20, In the Matter of the 24 Guardianship of the Person and Estate 0f Lueia G. McDonald. The pleadings in this matter set 25 26 forth that the Department of Veterans Affairs had been reviewing evidence, since August25, 2011,
27 about Tan Lula's ability to handle her financial affairs. On or about March 29, 2013, the 28 Department of Veterans AHlairs ("VA") determined that Tan Lula was not competent for V A 29 30 purposes and set forth that the evidence shows that her "disability keep[s] [her] from ably
31 managing [her] Department of Veterans Affairs (VA) benefits". See, Declaration of Claire Meno 32
3 | P a g e 1 in Support of Reply to Objection to Competency...., page 7, SP0087-20 (Feb. 16, 2021). The
2 Guardianship proceeding, SP0087-20, is still pending. 3 On or about April21, 2021, Tan Lula demanded the return other read property. On or about 4 5 July 17, 2021, Tan Lula lodged a complaint with the Office of Veterans Affairs against her 6 fiduciary agent, Patricia, and demanded an accounting. On September 23, 2021, Tan Lula initiated 7 8 the instant action by tiling a Complaint and Demand for Jury Trial alleging that all transfers other
9 real and personal property-mentioned were concluded as the result of Defendants' fraudulent 10 activities. Specifically, Tan Lula alleges that Defendants inserted themselves into her life with the
12 design and intent to create a dependent relationship, and then used that dependent relationship to 13 take advantage of her advanced age, deteriorating medical condition and lack of education and 14 English language sldlls to deceive her to convey read and personal property toDefendants without 15 16 consideration between 2010 and 2017. In relation to these allegations, the Complaint contains the 17 following causes of action: 18 19 • Fraud and Deceit, • Aiding and Abetting Fraud and Deceit, 20 Undue Influence; 21 Constructive Fraud, 22 • Declaratory Relief/Deeds and POA Void Ab Initio; 23 • Accounting, • Breach of Fiduciary Duty, 24 • Aiding and Abetting a Breach of Fiduciary Duty; 25 • Conversion, and 26 • Quiet Title. 27 Defendants now move to dismiss the Complaint in its entirety pursuant to Guam Rules of 28 29 Civil Procedure 12(b)(2) and (6). A hearing was held on the Motion to Dismiss on August 25, 30 2023, wherein the Court took the matter under advisement. The Court now issues this Decision 31 32 and Order.
4 \ P a q e 1 III. LAW AND DISCUSSION
2 A. Marlene and Dolores's Motion to Dismiss." 3 1. Statute of Limitations. 4 Marlene and Dolores first request that the Court dismiss the Complaint under the statute of 5 6 limitations, which is three (3)years for actions whicharise from fraud. 7 GCA § l1305(d). As a
; preliminary matter, the Court notes that all the Complaint's counts arise from fraud and are
9 therefore subject to the three-year statute of limitations. While certain causes of action do not
10 specifically use the word "fraud," they are all based upon allegedly fraudulent conduct. "Fraud can l l be averred by specifically alleging fraud, or by alleging facts that necessarily constitute fraud (even 12 13 if the word 'fraud' is not used)." Vess v. Ciba-Geigy Corp USA, 317 F.3d 1097, 1105 (9th Cir. 14 2003). Undue influence is a species of fraud. Hannah v. Guerrero, 2020 Guam 15. Aiding and 15 abettingRand is also a species of fraud. Lerner v. Fleet Bank NA., 459 F.3d 273, 292 (2dCir. 16 17 2006). The Fourth Cause of Action (Declaratory Relief) seeks a judgment that the Deeds of Gilt 18 and General Power of Attorney are null and void because they "were executed and are the product 19
20 of [Defendants] fraud, deceit, and undue influence." See, Con pl. 11]70, 74. The Sixth Cause of
21 Action (Breach of Fiduciary Duty) and Eighth Cause of Action (Conversion) allege that 22 Defendants converted Tan Lula's personal property while acting "with oppression, fraud, and 23 24 malice." Id 1[1183, 92. The Fifth Cause of Action (Accounting) and the Ninth Cause of Action 25 (Quiet Title) also stem from the same alleged fraud. 26 27 Under Guam law, the elements of fraud are "(l) a misrepresentation; (2) knowledge of
28 falsity (or scienter), (3) intent to defraud to induce reliance, (4) justifiable reliance; and (5) 29 resulting damages." Taitano v. Calve Fin. Corp. 2008 Guam 12 1] 12. "The cause of action in 30 31
32 4ThismotionhasbeenjoinedbytheremainingDefendants. 5 I P a g Q 1 [fraud is] not to be deemed to have accrued until the discovery by the aggrieved party of the facts
2 constituting the fraud or mistake." Id. 1130. "The statute of limitations will begin to run when the 3 4 plaintiff suspects or should suspect that his injury was caused by wrongdoing or that someone has
5 done something wrong to him." Id. fl45. "Discovery does not mean actual knowledge. Discovery 6 means when a plaintiff could have discovered the wrongiixl acts with reasonable diligence. 7
8 Reasonable diligence is tested by an objective standard, and when the unconverted evidence
9 irrefutably demonstrates that the plaintiff discovered or should have discovered the fraudulent 10 conduct, the issue may be resolvedby summary judgment." Id 11 12 Tan Lula tiled the Complaint on September 23, 2021. Defendants argue that the statute of 13 limitations is tied to when the Deeds of Gift and General Power of Attorney were recorded in the 14 Government of Guam Department of Land Management Office of the Recorder and made a matter 15
16 of public record. Defendants argue that the statute of limitations for the read property conveyances
I; begin to run, at the latest, on June 22, 2011, when the Amended Deed of Gift with Reservation of
19 Life was recorded. See, Motion to Dismiss, pages 6-7. Defendants also argue that the claims
20 relating to action taken under the General Power of Attorney ("GPOA") begin to run on or about 21 April 18, 2017, when the GPOA was also recorded and made a matter of public record. Tan Lula 22 23 argues that the statute of limitations did not begin when the conveyances and recording occurred 24 due to the doctrine of equitable tolling, Specifically, Tan Lula argues that the statute of limitations 25 26 was tolled until she discovered the fraudulent scheme on or about June 29, 2020, the date when
27 Dolores and Claire tiled their petition for guardianship over Tan Lula and a family feud ensued. 28 Thereafter, a demand for a return of the real property and demand for an accounting was made by 29 30 Tan Lula. 3l /// 32
6 I P a g Q 1 To succeed in arguing equitable tolling, a plaintiff must show he or she could not "by the
2 exercise of reasonable diligence have discovered essential information bearing on his [or her] 3 4 claim," but does not need to allege that the defendant acted in any way to obscure the potential
5 claim. Coda v. Easter Healthcare Corp., 920 F.2d 446, 451-52 (7th Cir. 1990). When considering 6 equitable tolling during a Rule l2(b)(6) motion, "the applicability of equitable tolling depends on 7
8 matters outside of the pleadings, so it is rarely appropriate to grant a Rule l2(b)(6) motion to
9 dismiss." Taitano v. Calvo Finance Corp., 2008 Guam 12 1] 46 (quoting Huynh v. Chase 10 Manhattan Eank, 465 F.3d 992, 1003-04 (9th Cir. 2006)). "The question of when a party
discovered or should have discovered fraud which would toll the statute of limitations is for the 13 jury." Vandegrw v. Lagrone, 477 So.2d 292, 295 (Ala. 1985). However, dismissal due to the 14 statute of limitations may be warranted despite an assertion of equitable tolling where "some fact, 15
16 evident from the face of the complaint, support[s] the conclusion that the plaintiff could not prevail, 17 as a matter of law, on the equitable tolling issue,"Taitano, 2008 Guam 121146 (quotingCervantes 18
19 v_ city of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993).
20 At this stage, the question is whether Tan Lula's Complaint adequately alleges equitable 21 22 tolling. To avail of equitable tolling, plaintiffs must specifically plead facts showing why they
23 were unable to make an earlier discovery despite reasonable diligence. Taitano, 2008 Guam 12 1] 24 52. The Court finds that the Complaint alleges sufficient facts to establish that Defendants inserted 25 26 themselves in Tan Lula's life, creating a dependent relationship that prevented Tan Lula from
27 discovering essential information relevant to her claims. 28 Statements regarding Tan Lula's dependency are found throughout the Complaint. An 29 30 illustrative example is Paragraph 8, which states the following: "[Defendants] over a period of 31 years created an environment of dependency by excluding Tan Lula's other adult children and 32
3 a CI e 1 grandchildren, by taking advantage of her lack of education, her limited command of the English
2 language, her advanced age and abusing their cultural status as daughters, that subjected Tan Lula 3 4 to be deceived and imposed upon by artful or designing persons." Paragraph 16 which states that
5 [Defendants] moved to designate a fiduciary agent with the Office of Veterans Affairs to secure 6 their control over the benefits intended for Tan Lula. Paragraph 17 which states that [Defendants] 7
8 transported Tan Lula to her doctor's appointments and, without the consent of Tan Lula, directed
9 her health care to the exclusion of Tan Lula.... Paragraph 18 which states that [Defendants] 10 "inserted themselves into the financial accounts of Tan Lula, naming themselves as joint owners 11
12 or the identified beneficiary of the financial account.. agreed to withhold Mds firm Tan Lula, 13 and determined in their own judgment whether to provide any funds to Tan Lula, making Tan 14 Lula completely dependent on the will of [Defendant's] for money. Paragraph 64 which states that 15 16 [Defendants] "promised to act fairly and justly with Tan Lula...the promise to act fairly and justly l7 with Tan Lula was false, their promise to act in Tan Lula's best interests was false, their promise IN 19 to protect Tan Lula from artiixl or designing persons was false...." Paragraph 81 which states that
20 "[Defendants] violated their fiduciary duties to Tan Lula by converting her personal property, 21 including but not limited to accounts and funds held in the Bank of Hawaii and Coast 360 Federal 22 23 Credit Union to the [Defendants' use]. Paragraph 85 which states that [Defendants] had personal 24 . . . .. . knowledge of her history, circumstances and advanced age of their mother requlnng the assistance 25 26 of others to manage her personal property...created confusion...caused the conveyance of real
27 property to [Marlene] without any consideration, ...obtained a designated fiduciary with the Office 28 of Veterans Affairs, ..obtained a GPOA to gaLen access to all of Tan Lula's personal property held 29 30 in Financial institutions. 31 /// 32
8 I P a g e 1 The Court also notes that the Complaint adequately alleges that Defendants had early on
2 established a fiduciary relationship with the appointment of Patricia as the fiduciary agent, 3 controlling all of Tan Lula's VA benefits. The eventual execution of the GPOA gave Marlene, 4 5 Dolores, and Patricia control over all of Tan Lula's remaining assets. The existence of a fiduciary
j relationship between the parties is a fact to consider in determining whether a plaintiff has
8 exercised reasonable diligence in the inquiry into the existence and cause of his injury. Gayle v.
9 Hemlani, 2000 Guam 25 1125. 10 The Court also notes that the Complaint sets forth sufficient allegations as to the 11 12 deteriorating mental condition of Tan Lula, which would impact her ability to discover the 13 existence of alleged wrongdoing on the part of Defendants. The Complaint sets forth in Paragraph 14 16 that the Defendants moved to have a fiduciary agent appointed to take control over Tan Lula's 15 16 military benefits. The Court takes judicial notice of certain documents filed in the Guardianship 17 Case, SP0087-20, which relate to Tan Lula's ability to comprehend the nature of her proceedings. 18 19 See, Taitano, 2008 Guam 12 112. Specifically, the March 29, 2013, determination letter from the
20 Department ofVeterans Affairs, which sets forth that Tan Lula was not competent for VA purposes 21 and that the evidence shows that her "disability keeps [her] firm ably managing [her] Department 22 23 of Veterans Affairs (VA) berets". See, Declaration of Claire Meno in Support of Reply to 24 Objection to Competency.. ,, page 7, SP0087-20 (Feb. 16, 2021). This letter from the Department 25 26 of Veterans Affairs sets forth that it had been reviewing evidence since August 25, 2011, about
27 Tan Lula's ability to handle her VA benefits. This letter sets forth enough facts that Tan Lula, as 28 far back as 2011 and perhaps longer, was having issues managing her affairs due to a disability/ 29 30 medical condition. 31 /// 32
9 1 E a g e 1 Additionally, Claire's reply brief tiled in this matter, contains a letter written on June 19,
2 2020, by Dr. Justin S. Hade of Guam Regional Medical City which states that Tan Lula scored an 3 8 (out of 30) on the Montreal Cognitive Assessment (MOCA) on that date, which is consistent 4 5 with severe dementia. See, Exhibit A to Defendant Claire McDonald Meno's Reply to Plaintiffs 6 Opposition to Defendants' Motion to Strike and Dismiss. As stated by Dr. Hale, Tan Lula does not 7 8 have the capacity to manage her own financial, legal, or medical affairs. While this test certainly
9 is not conclusive as to Tan Lula's mental capacity several years prior, it does support a finding that 10 Tan Lula' s mental condition could have prevented her from discovering that she had been allegedly 11 12 exploited. 13 Courts have long held that mental weakness, to which one cannot manage the ordinary 14 affairs of life has a bearing on whether one is able to guard himself against imposition, or to resist 15 16 importunity or undue influence. See, Parker v. Ross, 367 So. ad 151, 157-158 (Miss. 2023) 17 (holding that dismissal under the statute of limitations was inappropriate in a son's action that 18 19 alleged mismanagement of trusts, sought to recover real property that was allegedly improperly
20 sold and asserted numerous claims, including bad faith, unjust enrichment, and breach of fiduciary 21 duty where the soundness of mind of the settler's son tolled the general three (3) year statute of 22 23 limitations.), US. Fid & Guar. Co. v. Conservatorship of Melson, 809 So.2d 647, 653 (Miss.
24 2002) (holding that the test for determining whether a person is of unsound mind for purposes of 25 26 tolling a statutory limitations period is: "Is his mind so unsound, or is he so weak in mind...n0
27 matter what cause, that he cannot manage the ordinary affairs of life?"),Johnson v. State, 945 P.2d 28 673, 674 (Utah 1997) (explaining that Utah's Tolling Statute was "obviously intended to prevent 29 30 a person from losing the opportunity to bring a claim where circumstances precluded either proper 31 notice or a realistic effort to pursue the claim".), Bank of Commerce v. Barton, 605 S.W.2d 638, 32
10 I P a gr he l 639-40 (Tex. App.-Fort Worth 1980) (evidence of unsound mind created fact issue making
2 summary judgment improper where the administrator of the estate of a deceased mother sought 3 to cancel a deed executed by a mother to her daughter and son-in-law alleging diminished mental 4 5 capacity and overreaching), Dunn v. Towle, 170 Ga. App. 487, 488 (1984) (holdingthat whether
j because of senility, or undue influence, or misplaced trust and confidence, or affirmative
8 misrepresentations, or for whatever reasons (there is conflicting evidence as to the decedent's
9 mental acuity) the statute of limitations is tolled until such time as the fraudulent conduct was 10 discovered). The Complaint alleges sufficient facts for purposes of defeating a Motion to Dismiss, 11 12 that Tan Lula's deteriorating medical condition played a part in her ability to reasonably discover 13 any of the alleged fraudulent conduct taken on the part of the Defendants. 14 The Court recognizes that Guam law also provides for statutory tolling in certain instances l5 16 which may apply in this case. For both actions involving real and personal properly, Guam law 17 allows for tolling of the statute of limitations for periods when the plaintiff is deemed "insane." 7 18
19 GCA §§ 11215, 11404. "[I]nsanity, for purposes of Guam's tolling statute, mms on the
20 determinative issue of whether a person has demonstrated a severe mental impairment that affects 21 his or her ability to comprehend rights or acts that he would otherwise understand. Absent this 22 23 ability to comprehend, the time in which to commence a cause of action is tolled until the disability 24 ends." Custody v. Boonprakong, 1999 Guam 5 'U 15. FLu'ther, 21 GCA § 29139 states "If a deed 25 26 or other instrument is registered, which is forged, or executed by a person under a legal disability,
27 such registration shall be void...." Courts have long recognized that statutory tolling serves the 28 constitutional goal of ensuring that the statute of limitations does not unreasonably deny those with 29 30 mental disabilities access to the courts. See, Draughon v. Johnson, 631 S.W.3d 81, 89-95 (Tex. 31 2021). 32
ll I P a q G: 1 Both the allegations in the Complaint and the judicially noticed documents independently
2 and sufficiently indicate that there is a legitimate factual question as to whether Tan Lula was able 3 4 to ascertain that Defendants were allegedly taking advantage of her prior to the filing of the
5 Guardianship proceeding. The Complaint adequately pleads facts regarding Tan Lula's inability 6 to fully understand her actions, such as her deteriorating mental condition, inability to mentally 7
8 manage the ordinary affairs of her life and lack of understanding of the English language.
9 Considered in the context of substantial real property conveyances made without consideration, 10 these factors raise a question of fact as to whether equitable tolling applies. 11 12 Courts have long held that conveyances made without consideration bears on the question 13 of the mental capacity of the grantor's ability to understand the nature and consequence of her act. 14 See, Estate of Harris v. Harris, 2017 WL 936117 at *4 (Iowa Ct. App. 2017) (the court in affirming l5
16 the trial court's setting aside of a quit claim deed by a mother to her youngest son gave deference 17 to the district court's finding that the mother was in poor physical condition when she executed 18 19 the deed, the consideration was for the nominal amount of one dollar ($l.00), the mother did not
20 receive independent advice regarding the transfer of her property and the transfer of the property 21 left the mother with essentially no assets),Puryear v. Austin, 39 So. ad 257, 260-262 (Miss. 1949) 22 23 (holding that imposition or undue influence will be inferred, where there is gross inadequacy of 24 consideration for the conveyance and the grantor was of mental weakness), Black v. Dukie, 508 25 26 S.W. 3d 40, 49 (Ark. App. 2016) (finding that the gross inadequacy of price in the transfer of
27 property is a circumstance bearing on the question of mental capacity). Here, the conveyances of 28 read property by Tan Lula to Marlene were for zero consideration and let Tan Lula with essentially 29 30 no assets.
31 /// 32
12 I P a g e 1 Based on the foregoing, the Court finds that dismissal on statute of limitations grounds is
2 inappropriate at this stage of the litigation, 3 2. Failure to Plead Fraud with Particularitv. 4 5 Marlene and Dolores next request that the Court dismiss the Complaint, pursuant to Rule 6 9(b) of the Guam Rules of Civil Procedure, based upon Tan Lula's failure to identify the role each 7 8 Defendant had in the alleged fraudulent scheme to defraud Tan Lula of her personal and real
9 property. 10 The Guam Rules of Civil Procedure ("GRCP") provide that "[a] pleading which sets forth
a claim for relief shall contain a short and plain statement of the claim showing that the 13 pleader is entitled to relief" GRCP 8(a). Guam continues to apply a liberal, notice pleading 14
15 requirement for pleadings. See Ukau v. Wang, 2016 Guam 26 1132. Thus, the Com w i l l "consider 16 each and every claim employing the Conley [v. Gibson, 335 U.S. 41 (l957)] 'no set of facts' 17 language." Lucan v. JL.H Trust, 2016 Guam 241] 15. 18 19 However, complaints which allege fraud are held to a heightened standard. Rule 9(b) of
20 the Guam Rules of Civil Procedure states that "[i]n all averments of fraud or mistake, the 21 circumstances constituting Baud or mistake shall be stated with particularity." See Taitano, 2008 22 23 Guam 12 1] 13. However, "a plaintiff need not prove his claim of fraud at the pleadings stage. 24 Rather, what is required is that a plaintiff set tom his claims with sufficient detail to provide notice 25 26 to defendants as to what fraudulent action is being alleged." Id 1116.
27 As set forth above, each of the counts arise from fraud. Therefore, a failure to plead with 28 29 particularity will lead to dismissal of the Complaint in its entirety. The particularity requirement
30 is especially important in this matter because there are multiple defendants. Plaintiffs may not 31 "merely lump multiple defendants together" but must "differentiate their allegations ... and inform 32
13 I P 5 g e 1 each defendant separately of the allegations surrounding his alleged participation in the fraud." 2 United States v. Corinthian Colleges, 655 F.3d 984, 997-98 (9th Cir. 2011) (quoting Swartz v. 3 4 KPMG LLP, 476 F.3d 756, 764-65 (9th Cir. 2007)). At a minimum, plaintiffs must "identify the
5 role of each defendant in the alleged fraudulent scheme," Swartz, 476 F.3d at 764-65, setting out
8 the "who, what, when, where, and how" as to each defendant.Eben ex rel. US v. Lungwitz, 616
8 F.3d 993, 998 (9th Cir. 2010).
9 The Complaint alleges that Defendants "created an environment of dependency in 10 controlling [Tan Lula's] financials, transporting Tan Lula to her medical appointments and 11 12 directing her medications and care," "agreed to withhold funds from Tan Lula, and determined in 13 their own judgment whether to provide any funds to Tan Lula, making Tan Lula completely 14 dependent on the will of [Defendant's] for money," and "exerted a predominant and undue 15
16 influence over Tan Lula, and she was induced, deceived, and coerced to execute legal documents 17 . 18 conveying real and personal property to Defendants." Con pl. 111116-29. Further, as set forth above,
19 the Complaint contains specifics as to exactly what read property was converted, when it was
20 converted, and who received ownership. 21 The Court takes particular notice of the Guam Supreme Court's analysis of the Complaint 22 23 in Ukau: 24 Ukau's Complaint alleges facts that when taken as true establish the particular 25 transferor and transferees, the transfer of particular real properties, the dates upon 26 which the properties were transferred, and the means by which the transfers were agreed upon and executed. Therefore, his Complaint goes far beyond a mere 27 conclusory allegation and satisfies the heightened "particularity" pleading standard 28 set out in Rule 9(b) for the circumstances surrounding the fraud.
29 Ukase,2016 Guam 26 1148. As to Marlene, Dolores and Patricia, these same elements are pleaded 30 by Tan Lula and the Complaint generally meets the particularity requirement. 3l 32
14 I P a g Q 1 Marlene is identified in Paragraphs 2]-25, 43 and 49 of the Complaint as having received
2 five (5) parcels of real property for which no consideration was paid. The conveyance of the real 3 property is fully described, with the dates the conveyances were made. Paragraph 38 of the 4 5 Complaint sets forth that Tan Lula demanded the return of her real property. Paragraph 27, states
8 that Dolores, Marlene, and Patricia are named as attorney-in-fact under a GPOA that is executed
8 on or about April 18, 2017. Paragraph 81 of the Complaint sets forth that Marlene, Dolores and
9 Patricia converted Tan Lula's personal property to include accounts held in the Bank of Hawaii 10 and Coast 360 Federal Credit Union. Patricia is identified in paragraph 16 of the Complaint as
being designated as the fiduciary agent with the Office of Veterans Affairs to secure control over 13 the benefits intended for Tan Lula. The heightened pleading standard does not require Tan Lula to 14 document every single statement and action that Defendants made or took in creating the 15 16 dependent relationship. The Complaint alleges fraud in sufficient detail to afford the requisite
1; notice to Marlene, Dolores and Patricia.
19 The Complaint, however, does not sufficiently plead specificity as to what fraudulent
20 action is being alleged against Claire. The Complaint is filled with general allegations as to 21 actionable conduct taken by the "Designing Daughters" with only specific allegations attributable 22 23 to Marlene, Dolores and Patricia. This lack of specificity is fatal as far as Clauire is named as a 24 Defendant. Unlike the other Defendants, Claire did not receive any conveyance of real property, 25 26 nor was she granted power-of-attomey. Nor was Claire designated as the fiduciary agent with the
27 Office of Veterans Affairs. There are no particular allegations in the Complaint which would 28 inform Claire of her alleged participation in the fraudulent scheme. The only specific accusations 29 30 against Claire are that she took care of Tan Lula and later petitioned to become her guardian. These 31 facts do not rise to the level of fraud. The Court finds that the Complaint fails to plead sufficient 32
15 I D a .; Q 1 facts to allow Claire to properly respond to the allegations. Therefore, all claims against Claire are
2 hereby dismissedwithout prejudice.5 See, Swartz v. KPMG LLP, 476 F.3d 756, 765 (9* Cir 2007); 3 Vest v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1107 (9th Cir. 2003) (finding that dismissals under 4 5 Rule 9(b) are "functionally equivalent" to dismissal under Rule l2(b)(6) and should be without 6 prejudice if defects are curable). 7 8 3. The Demand for Accounting is Not Under This Court's Jurisdiction.
9 Marlene and Dolores next request that the Coup dismiss the Complaint's Fifth Cause of 10 Action for an Accounting. This Fifth Cause of Action alleges that Defendants used the GPOA
granted on April 18, 2017, and Patricia's appointment as the fiduciary agent for all of the V A 13 benefits, to take possession of Tan Lula's financial assets, and that Defendants have Maher 14 "refused to give an accounting of their use of the General Power of Attorney [] and the designation 15 16 of fiduciary agency." Comal. 1] 76-79. Tan Lula therefore asks the Court to order an accounting 17 under 15 GCA §4303, which states the following: 18 19 Upon complaint under oath made by a guardian, ward, creditor or other person interested in the ward's estate, or having a prospective interest therein as heir or 20 otherwise, that any person is suspected shaving embezzled, concealed, smuggled, 21 or fraudulently disposed of any property of the ward or has in his possession or has knowledge of any instrument in writing belonging to the ward, the court or judge 22 may cite the suspected person to appear before the court, and may examine and 23 proceed against him on such charge in the manner provided in this Title, with respect to persons suspected of having embezzled, concealed, smuggled or 24 fraudulently disposed of property of a decedent. 25 26 15 GCA § 4303
27 In the Motion to Dismiss, Marlene and Dolores argue that Section 4303 is only applicable 28 in probate proceedings and therefore this cause of action should be dismissed from the instant civil 29 30 proceeding. The Court agrees. The Court notes that the Guardianship proceeding, SP0087-20, is 31 32 5 In Plaintiffs Opposition to Defendants' Motionto Strike and Dismiss, leave to amend is requested should the Court findthatmore particularity is required. 16 I P a q e 1 still an on-going matter. On or about January 22, 2021, Tan Lula filed a Motion for Accounting
2 and Request for Citation pursuant to 15 GCA §4303 in the Guardianship proceeding. Based on 3 4 this filing, the request for accounting can properly be pursued in the Guardianship proceeding.
5 In the Opposition, Tan Lula argues that the Court can take judicial notice of the 6 Guardianship proceeding as a basis for ordering an accounting under Title 15. Taking judicial 7 8 notice of the existence of the related Guardianship proceeding would not, however, somehow
9 transform the instant matter into a probate or guardianship proceeding and render Section 4303 10 applicable. The same applies to Tan Lula's suggestion in the Opposition, that 7 GCA §4lol 11 12 provides this Court with the ability to transform this case into a probate or guardianship
13 proceeding. Tan Lula makes this suggestion with no other basis of authority. The Court finds that 14 Section 4303 does not apply, and the Fifth Cause of Action is dismissed. 15 16 B. Patricia's Motion to Strike.' 17 Patricia moves to strike portions of the Complaint under Guam Rule of Civil Procedure 18 19 12(f), which allows the Court to strike "any insufficient defense or any redundant, immaterial,
20 impertinent, or scandalous matter." Matters are 'immaterial' if they have 'no essential or important 21 22 relationship to the claim for relief or the defenses being pleaded' and 'impertinent' if they do not
23 pertain and are not necessary to the issues i n question. Marcus v. ABC Signature Studios, Inc., 279 24 F.Supp. 3d 1056, 1062 (C.D. Cal. 2017). Scandalous pleading must 'reflect cruelly' upon the 25 26 defendant's mom character, use 'repulsive language' or 'detract from the dignity of the court.'
27 Donnelly v. Commonwealth Fin. Sys., 2008 WL 762085, at *4 (M.D. Pa. Mar. 20, 2008). 28 As a general rule, motions to strike are disfavored. Ukau v. Wang 2012 WL 1503325 at 29 30 *2 (D.C. Guam April 24, 2012), Barber v. Johnson & Johnson Co., 2017 WL 2903255, at *3 (C.D.
31 32 6 This Motion has beenjoined by Marlene,Dolores and Claire. 17 I P 5 g Q 1 Cal. April 4, 2017). "In reviewing a motion to strike, the court must view the pleadings under
2 attack in the light most favorable to the pleader." Juno Therapeutics, Inc. v. Kite Pharma, 2018 3 WL 1470594, at *3 (C.D. Cal. March 8, 2018). Where a movant challenges allegations as 4
5 immaterial or impertinent, "[a] court must deny the motion to strike if there is any doubt whether 6 the allegations in the pleadings might be relevant in the action." Oracle Am., Inc, v. Micron Tech., 7 8 Inc., 817 F. Supp. ad 1128, 1132 (N.D. Cal. 2011).
9 Because "the Court must view the pleadings in a light most favorable to the pleading party," 10 a 12(t) motion to strike will rarely be granted. In re 2TheMart.com, Inc. Securities Litigation, 114 11
12 F.Supp.2d 955, 965 (C.D. Cal. 2000). Denying a motionto strike i n In re 2TheMart.com,thecourt 13 described the heavy burden facing the movant: 14 "Immaterial" means that the matter has no bearing on the controversy before the 15 court If there is any doubt as to whether the allegations might be an issue in the 16 action, courts will deny the motion "Impertinent" has been defined as allegations 17 that are not responsive or irrelevant to the issues that arise in the action, and which are inadmissible as evidence. "Scandalous" includes allegations that cast a cruelly 18 derogatory light on a party or other person. 19 ld. 20 21 Patricia points to several paragraphs in the Complaint which she asserts are immaterial,
22 impertinent, or scandalous allegations. The Court will address each in tum. 23 First, Patricia objects to numerous paragraphs of the Complaint which detail Tan Lula's 24 25 personal history, including hardships she endured early in life.7 Here, one of the central issues of 26 the lawsuit is whether Defendants took advantage of Tan Lula due to her advanced age, 27 deteriorating health and lack of education and English language skills. There are legitimate 28 29 30 * Paragraph 5 states that Tan Lula was married to Charles McDonald from October 1948 to his death in November 1996, and lists her twelve (12) children in order of birth. Paragraph 9 provides some personal information about Tan 31 Lula, including that she was bam in 1926, survived World War II, was the daughter of an American soldier, was 32 tortured by Japanese soldiers and was forced to watchbeatings arid executions.
18 I P a q 1 questions of fact regarding the extent of these conditions, and Tan Lula's personal history will be
2 a relevant factor in addressing these questions. Such background is neither impertinent nor 3 immaterial and therefore will not be stricken. See, Doe 1 v. University of San Francisco, 2023 WL 4 5 5021811 at *I6-17 (N.D. Cad. August 4, 2023) (the court declined to strike allegations in the 6 complaint concerning the nature of the institution, its views on abuse of power and abuse on 7
8 campus, different allegations by different plaintiffs during a different time period about different
9 alleged abusers, holding that at the pleadings stage the court cannot say that the allegations have 10 no possible bearing on the litigation), Lacey v. Arpaio, 2013 WL 12209845 at *2 (D.C. Ariz., 11 12 December l l , 2013), Fraze v. American Behavioral Health Systems Inc, 2022 WL 2342834 at *2 13 (W .D. W ash., June 29, 2022) (the court denied a motion to strike allegations in the complaint 14 concerning Plaintiff' s history of sexual trauma and former addiction). 15
16 Patricia next seeks to strike paragraphs related to Defendants, specifically statements that 17 Defendants "are Chamoru daughters with the rights and privileges afforded them in a Chamoru 18 19 family" and "successful women in Guam's American Colonized culture." Comal. 1111 13, 14.
20 Again, this background is relevant. The crux of this case involves the relationship between Tan 21 Lula and her daughters (the Defendants). Their personal backgrounds are highly relevant in 22 23 making determinations regarding their interactions. Despite Patricia's argument that these 24 allegations are included "solely for inviting racial anim osity," the language used is not 25 26 inflammatory and therefore falls short of the high bar necessary for the Court to strike. A motion
27 to strike may not be granted merely because "they portray [Defendant] in an unfavorable light."
ii Kaiser Found Hasps. V California Nurses Ass'n, 2012 WL 440634, at *4 (N.D. Cal. Feb. 10,
30 2012) (reasoning that the defendant would "have an opportunity to challenge these allegations as 31 32
19 I P a g e 1 the case proceeds"). As explained above, these allegations are directly relevant to the relationship
2 between Tan Lula and the Defendants. 3 Patricia asks the Court to strike Paragraphs 31 and 32 of the Complaint as "immaterial to 4
5 any cause of action and an issue of standing to sue as to injury to such persons exists as Plaintiff 6 lacks such standing." Paragraphs 31 and 32 state as follows: "Upon information and belief, upon 7
8 the other adult children discovering the attempts of [Defendants] to declare their mother
9 incompetent, a family feud ensued. Upon information and belief as a result of concerns raised by 10 Tan Lula's other adult children, it was discovered that [Defendants] created a scheme to deprive 11
12 Tan Lula of all her personal property and real property." Contrary to Patricia's position, this 13 information is relevant. It establishes important factual background information for both the 14 underlying Saud and the ultimate discovery of such fraud, which is of particular importance due 15
16 to the issue of equitable tolling. While it is true that Tan Lula's other adult children stand to inherit 17 and therefore have a potential financial interest in this case, their involvement in the factual 18
19 development of this case does not raise "standing issues." The same applies to Paragraphs 51 and
20 59.8 These paragraphs therefore will not be stricken. See, McEnery v. McEnery, 621 F. Supp. ad 21 1059, 1065 (N.D. Cal. 2022) (the court in denying a motion to strike allegations that the Defendants 22 23 were "exploit[ing] a family member for financial gain" found that the allegations, among other 24 things, provide background information about the parties' relationship). Further, such a motion 25 26 "should not be granted unless it is clear that the matter to be stricken could have no possible bearing
27 on the subject matter of the litigation." Barber, 2017 WL 2903255, at *3. 28 29
30 a In the context of Tan Lula's cause of action for Aiding and Abetting Fraud and Deceit, Paragraph 51 states: "With 31 the assistance and aid of each of [Defendants], as a direct and proximate cause [Defendants] damaged Tan Lula, arid
32 Tan Lula's intended heirs, in an amount to be proven at trial. Paragraph 59 uses the exact same language in the context of Tan Lula's cause of action for Undue Influence.
20 I P a g f; 1 Patricia further objects to the Complaint's reference to Defendants collectively as
2 "Designing Daughters," alleging that this is an "offensive slight" intended to "impute shame based 3 4 on the allegations by use of this slogan." Labeling Defendants as "Designing Daughters" does not
5 disparage Defendants any more than any other allegations in the Complaint. While this designation
8 may impose some level of shame, it does not approach the level of incivility necessary for the
8 Court to exercise its discretion linder Rule 12(t) to strike portions of a complaint. Even what could
9 be cradled colorful descriptive language is not stricken where it is material and pertinent to the 10 claims at issue. See, LeSEA, Inc. v. LeSEA Broad Corp., 379 F. Supp. ad 732, 733-39 (N.D. Ind.
2019), Kuhlmey v. City of Hammond, 2016 WL 5724484, at *Z-3 (N.D. Ind. Sept. 30, 2016) 13 (denying motion to strike characterization of defendants conduct as "shoot first, ask questions 14 later" policy because case hinged in fact on whether defendants promulgated an improper pattern 15 16 or practice"). 17 A motion to strike should not be granted unless it is absolutely clear that the matter tobe 18 19 stricken could have no possible bearing onthe subject matter of the litigation.Lilley v. Charren,
20 936 F.Supp. 708, 713 (N.D.CauL 1996). Based upon the above, the Court determines that adj of 21 what Patricia is requesting to be stricken does have a bearing on the litigation. Accordingly, 22 23 Patricia's Motion to Strike is DENIED in its entirety. 24 I v . CONCLUSION AND ORDER 25 26 Based on the foregoing, the Court DENIES the Motion to Dismiss as to Marlene, Dolores
27 and Patricia. The Court GRANTS the Motion to Dismiss all counts against Claire without 28 29 prejudice. The Court GRANTS the Motion to Dismiss the Complaint's Filth Cause of Action for
30 an Accounting. The Court DENIES in its entirety, Patricia's Motion to Strike. 31
21 I E' a g e 1 Plaintiff is GRANTED LEAVE TO AMEND the Complaint as to Claire, such Amended
2 Complaint should be filed within ten (10) days from the date of this Decision and Order, In the
1 interests of judicial efficiency, the Court STAYS the deadline under Rule l2(a)(1) of the Guam
5 Rules of Civil Procedure, for Marlene, Dolores and Patricia to file an Answer. If no Amended
j Complaint is filed within the ten (10) days permitted, then Marlene, Dolores and Patricia may file
8 an Answer no later than ten (10) days from the expiration of the deadline to file the Amended
9 Complaint. 10
HI 12 S0 ORDERED this 2_1 day of Q g f v é a , 2023. 13 14 15 16 /Lm <.E,M; 17 KRIST INA L. BAIRD Judge Pro Tempore 18 Superior Court of Guam 19
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