Meno v. Govt. of Guam

Opinion

i 1 —. •ra’, r

OF OU/ 2022SEP22 A111: 21 cLERccrcoi 2

IN THE SUPERIOR COURT Of GUAM 5

6 BRIANNA LYN1 MENO, as Special CIVIL CASE NO. CV0304-20 Administratrix of the Estate of Justin Roy 8 Meno, DECISION AND ORDER Plaintiff, GRANTING MOTION FOR SUMMARY JUDGMENT vs. 11 GOVERNMENT OF GUAM, 12

13 Defendant.

15 I. INTRODUCTION

This matter came before the Honorable Judge Maria T. Cenzon on June 24, 2022 for a

18 hearing on the Government of Guam’s (the “Defendant”) Motion for Summary Judgment (the

19 “Motion”) which was filed on March 11, 2022.1 The Defendant was represented by Assistant 20 Attorney General Janice M. Camacho. Attorney Delia Lujan Wolff of Lujan & Wolff LLP 21 appeared on behalf Brianna Lynn Meno, As Special Administratrix of the Estate of Justin Roy 22

Meno (the “Plaintiff’). Attorney Gloria Rudolph previously appeared on behalf of the Plaintiff 23

24 when she was a member of the Lujan & Wolff LLP Firm; however, the record shows that

26 The Court previously dismissed the Plaintiffs claim for wrongful death, thus, Plaintiffs claims arise in negligence. 27 See Decision and Order Re. Government’s Motion to Dismiss the Amended Complaint Under GRCP 12(b,)O) an 12th,)f6,) and Motion to Strike Under ]2ffRenewed(Apr. 12, 202 l)(the “April 2021 Decision and Order”). 28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 1 of 17 Attorney Rudolph had separated from the firm sometime afier the Government filed the instant

2 Motion.

3 following oral argument, the Court took the matter under advisement pursuant to

Supreme Court of Guam Administrative Rule 06-001 and CVR 7.l(e)(6)(A) of the Local Rules 5 of the Superior Court of Guam. Having duly considered the timely filed pleadings on the record, 6 the arguments presented at the Motion Hearing, and the applicable statutes and case law, the

s Court now issues the following Decision and Order GRANTING Defendant’s Motion for

Summary Judgment. I0 II. BACKGROUND Ii On or about March 17, 2017, Justin Roy Meno (the “Decedent” or “Mr. Meno”) was 12

arrested and booked into the Department of Corrections. Am. Compi. 13 ¶ 11 (July 27, 2020).2 A 14 few days later, he was found beaten and was immediately transported to the Guam Memorial 15 Hospital. Id. at ¶ 14-15. On or about September 11, 2017, approximately six months later, Mr. 16 Meno was pronounced dead. Id. at ¶ 16. The Administratrix of his estate filed suit against the’ 17 Government, alleging that Mr. Meno’s dealth resulted from the Defendant’s negligence. 18 9 Specifically, the Plaintiff alleges that on or about March 29, 2017, all inmates in the maximum-

20 security unit Post 6 were negligently released from their cells due to an unexpected flooding in 21 the Post and, that as a direct and proximate result of Defendant’s grossly negligent acts and/or 77

omissions, the Decedent was “severely beaten [and found] unconscious, drenched in water, and 23 bound and gagged” all of which ultimately led to his death. Id. at 24 ¶J 12-17. Plaintiffs complaint 25 included a wrongful death claim but it was later dismissed by this Court due to a lack of

27 2 The Defendant contests that that actual date of Decedent’s arrest and booking into the Department of Corrections was March 15, 2017. AnswerJ 6 (Apr. 16, 2021). 28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 2 of 17 standing and subject matter jurisdiction. See Decision and Order (Apr. 12, 2021). Afterwards,

2 only Plaintiffs negligence claims remained. Id.

In its Motion, the Defendant advances several theories upon which they maintain

adjudication of this matter on summary judgment would be proper, including, significantly, that

the relief Defendant seeks is precluded by statute and, further, that Defendant cannot establish 6

proof of a material element of her claim regarding damages. See Deft.’s Br. (Mar. 11, 2022).

8 Defendant also posits that the Court should disregard Plaintiffs untimely reply to the Motion,

which was a document styled as, “Declaration of Delia Lujan Wolff In Opposition to Defendant 10 Government of Guam’s Motion For Summary Judgment,” (the “Wolff Declaration”) and filed II on June 24, 2022. 12

13 Pursuant to Rule 7.1 of the Local Rules of the Superior Court of Guam (“CVR”), Plaintiffs

14 opposition brief was due twenty-eight (2$) days after the Motion was filed, or on April 8, 2022. 15 CVR 7.1 FORM 1(Mar. 11, 2022). The pleadings closed on April 22, 2022, without any reply 16 from the Plaintiff. However, 61 days later, on June 23, 2022 at 4:04 PM — the eve of the Motion 17 Hearing scheduled for June 24 — Plaintiff filed an Ex Pane Application to Enlarge Time 18

19 pursuant to GRCP 6(b), citing “excusable neglect” due to Attorney Rudolph’s departure from

20 the Lujan & Wolff Firm. See Ex Parte Appl. (June 23, 2022). Then, minutes before the hearing, 21 on June 24, 2022, at 9:15 AM, the Wolff Declaration was filed, without approval of the Court, 22 which Declaration itself was barely over a page in length, contained no arguments in opposition 23 to the Motion, but which contained over eighty pages of exhibits. See Deci. of Delia Lujan

25 Wolff (June 24, 2022).

26 At the hearing, the Court denied Plaintiffs application to enlarge time on an ex parte basis, 77

- but afforded the parties an opportunity to brief the issue. Hr’g Tr. at 9:39 AM (June 24, 2022). 28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 3 of 17 On July 1, however, Attorney Wolff withdrew the application to enlarge time without citing any

2 reason for such withdrawal, and did not seek any other extension of any type for cause. See

3 Withdrawal (July 1, 2022). On July 6, 2022, the Defendant timely filed an opposition, both to

the application to enlarge time and to Plaintiffs Declaration and its attached exhibits, arguing 5 that the Court should refrain from considering the documents in ruling on the Motion. See 6 Deft’s Opp’n (July 6, 2022). While Defendant’s opposition to the Plaintiffs request to enlarge

$ time is considered moot because of the Plaintiffs withdrawal of the ex pane application, the

Court considers the arguments and the law contained in Defendant’s Opposition because it 10 clearly addresses the law which might have justified granting such a continuance, given the 11 Court’s duty to analyze an issue even if no opposition is filed by the nonmoving party. 12

13 III.DISCUSSION

14 A. THE LAW GOVERNING SUMMARY JUDGMENT 15 1. Proponent of Summary Judgment Motion must show no genuine issue of 16 material fact under GRCP 56.

17 Summary judgment is proper “if the movant shows that there is no genuine dispute as to any 18 material fact and the movant is entitled to judgment as a matter of law.” Guam R. Civ. P. 56(a). 19 “A genuine issue of material fact exists when there is sufficient evidence to establish a factual 20 dispute that must be resolved by a factfinder.” Camacho v. Perez, 2017 Guam 16 ¶ 12 (citing 22 lizuka Corp. v. Kawasho Int’l (Guam), Inc., 1997 Guam 10 ¶ 7 (per curiam)). In reviewing a

23 motion for summary judgment, “[the] court must view the evidence and draw inferences in a 24 light most favorable to the non-movant.” Id. ¶ 13 (quoting Gov ‘t of Guam v. Gutierrez, 2015 25 Guam 8 ¶ 26). “A movant bears the initial burden to show that undisputed facts in the record 26

27 support a prima facie entitlement to the relief requested.” Hawaiian Rock Products Corp. i’.

28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 4 of 17 Ocean Hous., Inc., 2016 Guam 4 ¶ 27. “The movant may ‘[satisfy] and discharge[] its burden 1

2 by establishing the absence of evidence to support the non-moving party’s case.’” Waathdad v.

3 Cyfred, Ltd, 2021 Guam 24 ¶ 17 (quoting Kim v. Hong, 1997 Guam 11 ¶ 6)(emphasis added). If the movant satisfies its burden, the burden shifts to the non-movant party to produce at least 5 some significant probative evidence to support the pleadings. Bank of Guam v. Flores, 2004 6 Guam 25 ¶ 7. “If, after adequate time for discovery, the non-moving party ‘fails to make a

8 showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial,’ then Rule 56(c) requires entry of 10 summary judgment.” Kim v. Hong, 1997 Guam 11 ¶ 8 (quoting Cetotex Corp. v. Catrett, 477 11 U.s. 317, 323 (1986). 12

13 In addition to the general law governing summary judgment motions, the Court considers, in

14 tandem, the law governing claims against the Government because of the limited waiver of 15 sovereign immunity provided under the relevant statutes. 16 2. The law governing claims against the government as well as statues 17 regarding negligence claims defmes the evidence necessary for a successful claim for negligence against a government entity.

19 In addition to the general law governing summary judgment motions, the Court’s

20 analysis considers the legal framework upon which claims against the government rest. It is

recognized that “[t]he Government of Guam enjoys broad sovereign immunity.” Kittel v. Guam 22 Mem. HospitalAuth., 2020 Guam 3 ¶14. Because of this sovereign immunity, the Government 23

74 of Guam cannot be sued absent legislation that explicitly waives that immunity. Newby v. Gov.

25 of Guam, 2010 Guam ¶ 31. Such legislation is contained in Title 5, Guam Code Annotated,

26 Chapter 6, where “[t]he Government Claims Act provides a limited waiver of sovereign 77 - immunity for the Government’s torts.” Id. at ¶ 32 (emphasis added). One such limit is what 28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 5 of 17 damages a tort claimant can recover from the Government under the Government Claims Act.

2 Turning to the Plaintiffs claims, the Amended Complaint calls inter alia, for damages

resulting:

¶31: As a direct and proximate result of the negligence, carelessness, gross 5 negligence, recklessness, deliberate indifference to known and obvious dangers, and/or other wrongful acts and/or omissions of Defendant, the decedent suffered 6 conscious pain, suffering, indignity, and death.

¶32: As a result of Mr. Meno’s death, Plaintiff sustained pecuniary and 8 non-pecuniary losses, including, without limitations, grief, loss of society, loss of support, services, care, comfort, affection, moral support, solace, and other tosses for which recovery is authorized under applicable law. 10 ¶33: As a further direct result of Mr. Meno’s death, Plaintiff incurred ii expenses for funeral, burial, and other related costs in an amount to be determined at trial. 12

13 Am. Compl. ¶J 3 1-33 (emphasis added). As a matter of law, Guam statutes preclude the

Plaintiff from obtaining such requested relief.

16 The Guam Supreme Court has previously acknowledged two separate actions a Plaintiff

17 can bring under a Government Claims Act suit. See Kittet v. Guam Memorial Hospital Attthority 18 2020 Guam 3 (Finding the cases there “invoke[d] both a personal injury action and a wrong 19 death action.”). Under either action, trial courts must adhere not only to the limits set forth by 20 the Government Claims Act, but also Guam statutes governing the particular action. Newby v. 21 22 Gov. of Guam, 2010 Guam ¶ 27 (“Accordingly, tf this was not an action against the sovereign,

23 7 GCA § 12109 would apply unhindered by the caps of the Government Claims Act . . .

74 Thus, because Plaintiffs only remaining claims against the Defendant sound in negligence, this 25 Court must also look to Guam’s statutes governing negligence suits. 26

28 Decision and Order Cv0304-20, Meno v. Gov. of Guam Page 6 of 17 19 GCA § 31104, titled “Personal Injury Action; Death does not Abate; Damages when

2 Plaintiff Dies before Judgment; Assignment of Cause of Actions Prohibited” is one such statute

and it reads as follows:

A thing of action arising out of a wrong which results in physical injury to the 5 person or out of a statute imposing liability for such injury shall not abate by reason of the death of the wrongdoer or any other person liable for damages for 6 such injury; nor by reason of the death of a person injured or of any other person who owns any such things in action. When the person entitled to maintain such an action dies before judgment, damages recoverable for such injury shall be 8 limited to loss of earnings and expenses sustained or incurred as a result of the injury by the deceased prior to his death, and shall not include damages for pain, suffering or disfigurement, nor punitive or exemplary damages, nor prospective profits or earnings after the date of death. The damages recovered shall form part of the estate of the deceased. Nothing in this section shall be it construed as making such thing in action assignable. 1’ 19 GCA § 31104 (emphasis added). 13 The statute unambiguously precludes the Plaintiff from the relief sought in her Amended

Complaint and courts in jurisdictions with statutes similar to Guam’s have confirmed such a

16 result. In Cliv of Los Angeles v. Superior Court, 981 P. 2d 68, 70 (Cal. 1999), cited by the

17 Defendant, the plaintiff sued the police department alleging sexual harassment. However, while

the action was pending, the plaintiff died in a car accident. The Supreme Court of California 19 dismissed the estate’s claims for the Decedent’s pain and suffering based on CC 20 § 377.34’s language that stated that “damages recoverable are limited to the loss or damage that the 21 22 decedent sustained or incurred before death. . . and do not includes damages for pain, suffering, 23 or disfigurement.” CC § 377.34. 24 19 GCA § 31104 is based on California’s statutes. See 19 GCA § 31104 (“SOURCE: 25 CC § 956; added by P.L 8-115 (3/9/66)”). While California amended CC 26 § 956 twice, once in 27 1961 and then again in 1991, the resulting statute, CC § 377.34 is still similar to Guam’s statute

28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 7 of 17 and thus the court’s finding in Superior Court is highly persuasive. People v. Camacho, 2015

2 Guam 37 ¶ 25 (“We make look to the persuasive authority of case law interpreting similar

statutes for guidance.”); Amerault v. Intelcom Support Servs., Inc., 2004 Guam 23 ¶16 (“Guam

courts have considered courts of other states interpreting statutes similar to the law of Guam to 5 be persuasive authority.”). However, Superior Court is distinguishable from this case because 6

that court held “only that. . . an estate [is precluded] from recovering damages for the deceased

8 plaintiffs pain, suffering, or disfigurement. . . .“ Sttperior Cottrt, 981 P.2d at 79. Here, the

Plaintiff is requesting in ¶ 31 of its Amended Complaint damages for the Decedent’s pain and to suffering. Thus, Superior Court only demonstrates that ¶ 31 of Plaintiffs Amended Complaint 11 is precluded, it does not specifically address the remaining claims in 12 ¶J 32 and 33, sttpra, which 13 the Court now considers.

14 Paragraphs 32 and 33 of Plaintiffs Amended Complaint must also fail because they 15 seek relief based on a survival cause of action. See Chipman v. Nelson, WL 5330143 at *4 (E.D. 16 Cal. Sept. 11,2015) (“Unlike a wrongful death cause of action, a survival cause of action is not 17 a new cause of action that vests in heirs on the death of the decedent, but rather is a separate and 18 19 distinct cause of action which belonged to the decedent before death but, by statute, survives

20 the event.”) (emphasis added). When analyzing CC § 377.34, cited supra, the Ninth Circuit held 21 that “Section 377.34 limits damages in survival actions to the victim’s pre-death economic 22 losses.” Chaudhiy v. City of Los Angeles, 751 F. 3d 1096, 1104 (9th Cir. 2014). As a 23

24 consequence, “tt]he practical effect of §377.34 is to reduce, and often to eliminate,

25 compensatory damage awards for the survivors. . . .“ Id. This aligns with the Court’s reading of 26 Guam’s statute that Plaintiffs “damages recoverable for such injury shall be limited to loss of

earnings and expenses sustained or incurred as a result of the injury by the deceased prior to his

Decision and Order CV0304-20, Meno v. Gov. of Guam Page$ of 17 death” and, thus, Plaintiff is precluded from receiving the relief sought in ¶J 32 and 33 of the 2 Amended Complaint. 9 GCA § 31104.

3 2. Summary judgment is warranted because the Plaintiff has failed to satisfy her 4 burden of proof as to element of damages.3

The four elements of the common law tort of negligence are: (1) duty, (2) the breach o 6 such duty, (3) causation, and (4) damages. Guerrero McDonald’s Intern. Property Co., Ltd.

2006 Guam 2 ¶ 9 (citing Leon Guerrero v. DLB Constr. Co., 1999 Guam 9 ¶ 1; See also Restatement (Second) Torts §sS 281, 282 (1988). To be entitled to summary judgment in thei 9

10 favor, the moving party is not required to negate each element of the non-moving party’s case. ii Kim v. Hong, 1997 Guam 11 ¶ 6. As established herein, the only damages to which the Plainti 12 may be entitled in this case are those which the Decedent suffered, from the time of his inju

until his death. The Defendant has highlighted, and this Court finds, that the record is devoid o ‘4 any evidence to support the Plaintiffs claims for such damages.

16 In Weinberg v. Whatcom County, 241 F. 3d 746 (9th Cir. 2001), the plaintiff filed a

17 negligence suit against the government. After failing to produce any evidence of damag es, the court granted summary judgment in the government’s favor. On appeal, the Ninth Circui t affirmed the trial court, stating that “[b]ecause [plaintiff] failed to offer any eviden 20 ce establishing the amount of damage he suffered as a result of the County’s alleged negligence,

22 the district court did not err in granting the County’s motion for summary judgment on the state

23 negligence claims.” Id. at 752. The court explained that “[w]here discovery has been comple ted, 24 .

summary judgment is appropnate when a party challenged by motion fails to offer eviden . .

ce 25

26 This Court previously denied the Government’s motion to dismiss Plaintiff’s negligence 27 claims under GRC 12(b), fmding that it had “pled facts sufficient to establish each element [of negligence]... to withstand a motion t dismiss based on both Rule 12(b)( 1) and Rule I 2(b)(6).” April 2021 Decision and Order 28 at p. 10-11. Decision and Order CV0304-20, Meno v. Gov. of Guam Page 9 of 17 supporting an element of a claim on which that party bears the burden of proof at trial.” Id.

2 The Supreme Court of Guam has affirmed this application to Guam cases. See Kim v.

3 Hong, 1997 Guam 1 1J 8 (“If, after adequate time for discovery, the non-moving party ‘fails to make a showing sufficient to establish the existence of an element essential to that party’s case, 5 and on which that party will bear the burden of proof at trial,’ then Rule 56 (c) requires entry of 6

summary judgment.’ “) (quoting Cetotex Corp., 477 U.S. at 322)). Ultimately, the Ninth Circuit

8 held that “{p]roof of damages is required because ‘the purpose of a tort action is to compensate

for loss sustained and to restore the plaintiff to his former position.’ “ Weinberg, 241 F. 3d at l0 751 (quoting Restatement (Second) of Torts § 549 (2) cmt. g (1977)). Indeed, Plaintiff “must II provide evidence such that the jury is not left to speculation or guesswork in determining the 12

13 amount of damages to award.” Id. at 751 (quoting McGtinchy v. Shell Chem Co., 845 F. 2d 802,

14 808 (9th Cir. 1988). 15 Since Plaintiff commenced this action on March 27, 2020, she has been afforded 16 multiple opportunities to produce evidence of the alleged economic damages suffered. In her 17 brief opposing Defendant’s earlier motion to dismiss, the Plaintiff was similarly confronted with 18 19 the issue of damages. The Plaintiff eluded what damages, if any, existed. See Opp’n to Mot. To

20 Dismiss. at 4 (Oct. 19, 2020) (“The facts in this case are murky, requiring this legal process to 2] make proper investigation. It is premature to rule that facts will not arise which justify the 22 granting of the requested relief.”). During oral argument, the Court directly asked Plaintiff’s 23

24 counsel what evidence existed as to the suffering of economic damages. Hr’g Tr. at 11:19 AM

25 (June 24, 2022) (“On what evidence, or what testimony, or what supporting documents [do you

26 rely] to establish his economic damages or earning capacity?”). Responding to Defendant’s

assertion that Decedent “was in and out of jail,” Plaintiff argued that she could “similarly state

Decision and Order CV0304-20, Meno v. Gov. of Guam Page 10 ofl7 that he was working” based on “evidence outside of the record . . . .“ Id. As evident from

2 Plaintiffs necessity to rely on evidence not part of the record, the record is still devoid of any 3 evidence supporting her damages claims, despite more than two years having passed since she

commenced her lawsuit.4

Additionally, Plaintiffs answer demonstrates a fundamental misinterpretation of the 6 burden shifting framework existent in summary judgment proceedings. The Defendant carries

8 the initial burden of demonstrating they are entitled to relief, which can be satisfie d “by establishing the absence of evidence to support the non-moving party’s case.’ “ Waathdad v. Cyfred, Ltd, 2021 Guam 24 ¶ 17 (quoting Kim v. Hong, 1997 Guam 11 ¶ 6). The Defendant’s Motion did so. At that point, it became the Plaintiffs burden to “produce at least some 12 significant probative evidence tending to support the pleadings. . . .“ Bank of Guam v. flores, 14 2004 Guam 25 ¶ 7; See also People i’. Bryan, 2019 Guam 8 ¶23 (citing to Zahnen v. Limtia co, 15 200$ Guam 5 ¶ 2$) (“A party that bears the burden of proving an issue also must produc e 16 evidence to supports its position.”). Plaintiffs statements during oral argument nor anythi ng 17 else on the record satisfies that burden. The Supreme Court of Guam has been clear that 18 19 “[s]tatements and arguments of counsel are not evidence and are not to be considered as such.”

20 People v. Biyan, 2019 Guam 8 ¶23 (quoting People v. Reyes, 1998 Guam 32 ¶ 20). Therefore, 21 to satisfy her burden, Plaintiff must have produced something more than a statement during oral 22 argument that was supposedly based off evidence off the record. Nothing was ever produc 23 ed. “Where, as here, the opposition to a motion for summary judgment presented speculation in lieu 25

26 ‘ In Weinberg, the Plaintiff sought an extension pursuant to FRCP 56(f), which was denied. See Weinberg, 241 F. 3d at 750-5 1. In this case, Plaintiff has never requested a good faith continuance or postponement 27 of this Court’s consideration of Defendant’s motion for summary judgment. Thus, this Court finds that Plaintiff has failed to diligently defend its case. GRCP 56(d) is the equivalent of FRCP 56(f). 28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 11 ofl7 of specific facts, the granting of summary judgment is appropriate.” Guerrero v. McDo nald’s

2 Intern. Property Co., Ltd., 2006 Guam 2 ¶ 9 (citing Merrill v. Navegar, Inc., 2$ P. 3d 116, 132 (Cal. 2003).

It is also disconcerting that, rather than proceed with its application for an extension of 5 time, Plaintiffs counsel deemed it appropriate to withdraw this request. Moreover, 6 such additional time could have been provided under GRCP 56(d), at the Court’s discret ion, had $ Plaintiff filed for additional time, which allows a nonmovant to show, by affidav it or declaration, that “it cannot present facts essential to justify its opposition” and the Court may 10 defer considering the motion or deny it, or allow time to obtain affidavits or declarations or to II take discovery, or any other appropriate order. GRCP 56(d)(l) (3). Instead, Plaintiff filed the 12 —

13 Wolff Declaration, which neither sought additional time by its plain statements, nor explain ed 14 how the untimely filed exhibits supported her claims for damages. 15 Having been presented with no concrete evidence of economic damages, neither this 16 Court nor a jury need speculate on how Decedent could have suffered the economic damag 17 es Plaintiff is seeking. Whatcom Coitnty, 241 F. 3d at 751; See also People v. Bryan, 2019 1$ Guam 8

19 ¶ 23. (citing United States v. Caccia, 122 F. 3d 136, 138-39 (2nd Cir. 1997); In Re Samantha 20 C., 847 A. 2d 883, 899-900) (Conn. 2004)) (“While a fact-finder may make inferences based on 21 the lack of evidence, those inferences do not supply proof a particular fact, but may be used 22 only to weigh facts already in evidence.”). As such, summary judgment is warranted under 23

24 GRCP 56(e).

25 3. The Court addresses Plaintiffs untimely tiling as “excusable neglect.”

26 Having granted summary judgment, the Court finds it appropriate to address the Wolff 27 Declaration submitted untimely and as the only responsive pleading (following the withdr awal 2$ Decision and Order CV0304-20, Meno v. Gov. of Guam Page 12 of 17 of its ex parte application). Before addressing this matter, however, the Court emphasizes first

2 that, having reviewed the declaration in preparation for ruling on the ex parte motion (which

then became moot), summary judgment would still be warranted under the law and the exhibi ts submitted purportedly in opposition to the motion for summary judgment. Nothing in the over D

80 pages of exhibits attached to the Declaration supports Plaintiff’s claims for damag 6 es sufficient to survive the Motion, nor should the Court speculate or guess as to how the exhibi ts 8 support such damages claims.

Turning to the declaration itself, the Court makes a record of its attempts to compel I0 compliance with court scheduling orders and the local rules governing practice before the courts 11 of Guam. Scheduling Orders, Briefing Schedules and the like are unequivocally orders of the 12

13 court, and compliance with the Local Rules, the Civil Rules and all applicable rules and statute s 14 is a mandate of both the courts as well as the Guam Rules of Professional Conduct. Rule Rule 15 1.1 of the Guam Rules of Professional Conduct under “Competence” requires that “A lawyer 16 shall provide competent representation to a client. Competent representation requires the legal 17 knowledge, skill, thoroughness and preparation reasonably necessary for the representation .”

19 And, under Rule 5.1 of these Rules, managing and all supervisory attorneys of a firm have the 20 responsibility of ensuring that subordinate attorneys conform to the provisions of the Rules of 21 Professional Conduct. Thus, filing of a non-responsive declaration on the eve of a hearing on a 22 dispositive motion would appear to fail all applicable orders and rules of the Superior Court. 23

Currently, CVR 7.1 governs the Superior Court of Guam’s motion practice. The Plaintiff

25 violated this rule by failing to file her documents before the deadlines stated therein. See CVR 26 7.1(d). The rule also states that “{pjapers not timely filed by a party including any memor anda ‘7 - or other papers required to be filed under this Rule shall not be considered without leave of 28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 13 of 17 court.” CVR 7.1 (1) (emphasis added). Again, this Court stresses that these rules are not

2 discretionary but mandatory. The Supreme Court of Guam tells us so. People v. Superior Court

of Guam, 2001 Guam 26 ¶ 9. (“This court expects compliance, by both court and counsel, with

the procedural rules set forth in the Superior Court.”). Compliance is especially significant in 5 this instance because the Government’s limited waiver of its sovereign immunity requires strict 6 compliance with the rules of procedure of the Superior Court of Guam. See 5 GCA § 6209. So 8 as to not encourage future dismissiveness and noncompliance with the Local Rules of the

Superior Court of Guam, the Guam Rules of Civil Procedure, the Rules of Professional Conduct 10 and this Court’s scheduling orders, as well as concerns with Defendant’s due process rights, the 11 Court shall, and has, disregarded Plaintiffs late filings in considering Defendant’s Motion. 12

13 Apart from the Local Rules of the Superior Court of Guam, this Court also issued a

14 scheduling order. See Am. Order Setting Case Schedule (Feb 4, 2022). As stated by the 15 Plaintiffs counsel herself, “Plaintiff was given under this amended order setting case schedule 16 14 days thereafter which was March 25 to file an opposition.” Hr’g Tr. at 9:50 AM (June 24, 17 2022). Again, Plaintiff did not file anything until several months later and only on the eve of the 18 19 hearing. The Supreme Court of Guam has acknowledged that “[t]he failure to abide by a

20 scheduling order ‘constitutes a failure to comply with the rules of procedure as well as the 21 failure to comply with court order and, in most instances, delays the timely resolution of the

action ‘ In re Estate of Concepcion, 2003 Guam 12 ¶ 14 (quoting McKenzie v. Scheeler, 23

24 P. 2d 116$, 1172 (Mont. 1997). In Concepcion, the trial court refused to consider motions

25 that were filed one month after the motion cutoff date set forth in that courts scheduling order.

26 Id. at ¶ 13. The “threshold issue presented [before the Guam Supreme Court was] whether the 27

28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 14 of 17 probate court erred in the procedural denial.” Id. The counsel in Concepcion attempted to 1

2 excuse their delay by claiming to be a new attorney to the case. Id. at 21. ¶ 3 Similarly, Plaintiffs counsel justifies missing the filing deadline due to “excusable

neglect” because “at that time [March 25, 2022], that was the day that the attorney who was 5 working on this case actually departed our firm and so I personally had no involvement in the 6 preparation of any of the documents or prosecution of this case.” Hr’g Tr. at 9:46 AM (June 24,

8 2022). As conflict of interest provisions in the Rules of Professional Conduct impute knowledge

of any such conflicts to all members of a law firm, this Court similarly imputes to all members 10 of the same firm the general knowledge of all cases in which a firm has undertaken to represent 11 a client, based upon Rule 5.1 of the Rules of Professional Conduct. These deadlines were set 12

13 months in advance. Thus, without any more than what was proffered at the hearing of the 14 Motion, the Court would not find “excusable neglect,” however, the Court was not given the ‘ opportunity to do so because Plaintiff had withdrawn the motion. 16 The Court is also concerned about infringing the Defendant’s due process rights if it 17 accepted these late filings. “The basic elements of due process are reasonable notice and an opportunity to be heard.” In re Estate of Concepcion, 2003 Guam 12 19 ¶ 26 (quoting People v. 20 Superior Court (Laxamana), 2001 Guam 26 ¶ 26). In Laxamana, the People argued that its due 21 process rights were violated when the trial court considered an ex parte motion despite it being 22 in violation of the Rules of the Superior Court of Guam. The Supreme Court of Guam 23

24 entertained the argument and ultimately leaned on a California case where “[t]he court found no

25 due process violation, in part, because [the opposing party was] well prepared and argued the

26 motion at length, thereby demonstrating that they were in fact afforded a fair hearing.” The 77 = same could not be said here. The Defendant was not aware of Plaintiffs position on her 28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 15 ofl7 summary judgment motion because the Plaintiff never filed a reply. When the Plaintiff appear ed 2 on the day of the hearing with documents and an ex parte application, the Defendant was not prepared to argue on those documents or their admissibility and rightfully so. Ultima tely, “[t]he trial judge must, however, be more conscientious in ensuring due process and compliance with

the rules particularly when a party appears ex parte or submits proposed findings ex 6 parte.” Fargo Factfic, Inc. v. Korando Corp., 2006 Guam 22 ¶ 67. And although the Court granted all $ parties an opportunity to argue whether the Court should accept the late filing, the Plaintiff withdrew the application, so there is nothing else on the record which might have suppor ted the 10 extension.

Even assuming arguendo that the untimely Wolff Declaration and its contents should be 12

13 considered by this Court, doing so would not culminate in a different result. Plainti ffs 14 Declaration and its contents seemingly advance the elements of duty and causation. Howev er, 15 the filing is still silent as to the proof of the element of damages and whether Decedent suffered 16 any economic harm between the time of the injury and his death. Thus, even if the 17 Court considered these particular documents in making its decision, summary judgm 18 ent in

19 Defendant’s favor would nevertheless be warranted as no evidence on the record demon strates a 20 genuine issue of material fact. 7j To reiterate its final concerns, the Court is compelled to admonish Plaintiffs counsel for 22 the lackadaisical handling of this case. To ignore or willfully violate the Superior Court’ 23 s Local Rules, the Guam Rules of Civil Procedure, and this Court’s scheduling order is 24 far from a 25 laudable practice, even if the violation falls upon a subordinate member of the same firm and 26 not upon the attorney who is faced with the undesirable task of responding under these ‘7 circumstances. But to file over eighty pages of documents mere minutes before the hearing , 28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 16 of 17 without seeking the permission of the Court and surprising opposing party (as well as the Court) 2 could be considered abuse of the process. Not only does this behavior unfairly surprise the 3 Defendant, but such conduct frustrates a prepared court, a prepared party and robs alt parties and the court of an efficient adjudication of a disputed matter. The Court admonishes all parties 5 to simply read the rules carefully and take considered, deliberate actions when confro 6 nted with arguably the most heart-stopping circumstance of the legal profession — the passing of a $ deadline. This response would go a long way to advance the integrity of the proces s and of the legal profession while preserving the rights of all parties. 10 IV. CONCLUSION 11 The Court finds that the Plaintiff has failed to establish a triable issue of materi 12 al fact

13 relating to the damages element of her claim for negligence — the sole remaining cause of action ‘4 in this lawsuit. The Plaintiff cannot survive summary judgment and maintain this case because 15 she has failed to produce any evidence that the Decedent suffered any econom ic damages from 16 the time of his injury until his death. Plaintiffs failure to present evidence as 17 to this basic element entitles the Defendant to an adjudication of this matter on summa 18 ry judgment.

19 Defendant’s Motion is GRANTED.

20 Judgment shall follow under separate cover. 21 50 ORDERED this SEP 22 2022 22

25 —

26 HONORABLE MARIA T. CENZON Judge, Superior Court of Guam 27

28 Decision and Order CV0304-20, Meno v. Gov. of Guam Page 17 of 17