FILED ?!9 {,C ,p
SUP OR URT IN THE SUPERIOR COURT OF GUAM
RICHARD E. MOYLAN, Superior Court Case No. CV0760-16
Plaintiff/Counterclaim Defendant, DECISION AND ORDER vs. RE DEFENDANT AXE MURDERER TOURS GUAMIBEACH HOUSE’S AXE MURDERER TOURS, INC., ET AL., MOTION FOR RECONSIDERATION Defendants/Counter-claimants.
AND RELATED COUNTERCLAIMS AND THIRD-PARTY CLAIMS.
The Court here considers Defendant/Counterclaimant Axe Murderer Tours GuamlBeach
House’s (AMT) Motion for Reconsideration of the Court’s December 13, 2018 Decision and
Order re Motion to Dismiss Counterclaims and Third-Party Claims. Finding no merit to AMT’s
motion, the Court DENIES it.
In its Decision and Order, the Court determined that Plaintiff Richard E. Moylan and
Third Party Defendant Douglas Moylan prevailed in their Motion to Dismiss certain of AMT’s
counterclaims based on the Citizen Participation In Government Act of 1998, 7 GCA Ch. 17
(CPGA).’ The CPGA immunizes citizens who petition the government for relief from being
sued for such activity. 7 GCA § 17104. The Court determined that AMT’s Counterclaims and
Third Party Claims for Harassment and Tortious Interference with Business Relations--based in
part on the Moylans seeking assistance from govermnent entities on over four occasions
The Court also denied the Motion with respect to counterclaims brought by Paseo View Properties, Inc. and E.C. Development, LLP.
ORIGINAL CV0760-16 DECISION D ORDER re DEFENDANT AXE MURDE TOURS Page 2 GUAM/BEACH HOUSE’S MOTION FOR RECONSIDERATION
regarding AMT’s possible environmental violations and fire hazards--violated the CPGA. Dec.
and Order at 8-11 (Dec. 13, 2018). However, the Court also denied the dismissal of
Counterclaims and Third Party Claims concerning trespass, nuisance, and violent conduct,
fmding that these activities did not fall under the CPGA. Dec. and Order at 11-14.
AMT offers three arguments in support of reconsideration: (1) the Court should impose a
requirement that a motion brought under the CPGA be denied unless the allegedly protected
activity was “solely” based on, related to or in response to any act of the moving party in
furtherance of the moving party’s rights; (2) the Moylans are not entitled to relief because they
are not a dismissed party; and (3) Guam’s CPGA statute is unconstitutional.
Under CVR 7.1(1), a court may reconsider a prior order
Only on the grounds of (1) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (2) the emergence of new material facts or a change of law occurring after the time of such decision, or, (3) a manifest showing of a failure to consider material facts presented to the Court before such decision.
CVR 7.1(i). As the Supreme Court of Guam instructs, reconsideration may be granted where the
trial court “(1) is presented with new evidence; (2) committed clear error or the decision was
manifestly unjust, or (3) if there is an intervening change in controlling law.” Ward v. Reyes,
1998 Guam 1 ¶ 10. Furthermore, motions for reconsideration “are both procedurally and
substantively deficient if they simply reiterate in greater detail arguments previously made before
the court.” Guam Bar Ethics Comm. v. Maquera, 2001 Guam 20 ¶9 (quotations omitted).
On the first issue, AMT contends that the Court erred in not following Sandholm v.
Kueckler, 962 N.E.2d 418 (Ill. 2012). Sandholm analyzes Illinois’ anti-SLAPP2 statutes and
2 SLAPP is an abbreviation of “Strategic Lawsuit Against Public Participation,” which the CPGA forbids. 7 GCA § 17 102(a).
OR9INAL CV0760-16 DECISIOND ORDER re DEFENDANT AXE MURDE TOURS Page 3 GUAM/BEACH HOUSE’S MOTION FOR RECONSIDERATION
limits when parties are immune from suit due to the exercise of their rights to petition. Illinois’
anti-SLAPP statute shares many features with Guam’s statute. Both statutes:
• Aim to “protect and encourage citizen participation in government to the maximum
extent permitted by law.” 7 GCA § 17102(b)(l); 962 N.E.2d at 42$.
• Strive to create a more equitable balance between the rights of persons to file lawsuits
and to trial by jury, and the rights of other persons to petition, speak out, associate and
otherwise participate in their governments. 7 GCA § 17102(b)(2); 962 N.E.2d at 428.
• Must be read liberally to fully effectuate their purposes and intent. 7 GCA § 17108; 962
N.E.2d at 429.
• Subject a claim to dismissal if it is “based on, relates to or is in response to any act of the
moving party in furtherance of the moving party’s rights” as described in 7 GCA §
17104. 7GCA 17105; 962N.E.2dat430.
In Sandholm, however, Illinois clarified what types of suits prevail on anti-SLAPP
motions. Upon review of the Illinois statute’s “clear legislative intent . . . to subject only
meritless, retaliatory SLAPP suits to dismissal,” the Illinois Supreme Court “constme[d] the
phrase ‘based on, relates to or is in response to’ . . . to mean solely based on, relating to, or in
response to ‘any act or acts of the moving party in furtherance of the moving party’s rights of
petition, speech, association, or to otherwise participate in government.” 962 N.E.2d at 430.
AMT urges the Court to apply Illinois’ limitation here.
The Guam Supreme Court analyzed Sandholm in Enriquez v. Smith, 2015 Guam 29. The
defendant in Smith complained to the Guam Board of Examiners for Dentistry (“Dental Board”)
over treatment received at a dental clinic by Dr. Hugh Sule and a dental auxiliary, Salvador
OR6NAL CV0760-16 . DECISION AND ORDER re DEFENDANT AXE MURDE R TOURS GUAM/BEACH HOUSE’S MOTION FOR RECONSIDERATION p Page 4
Enriquez. The Dental Board ultimately filed a disciplinary case against both Dr. Sule and
Enriquez and as a result, Enriquez sued Smith for various torts. Smith responded by moving to
dismiss under the CPGA.
Enriquez asked that the Guam Supreme Court adopt Sandhotm, but the Guam Supreme
Court found Sandholm to be distinguishable.
Unlike this case, where Enriquez’s lawsuit is entirely premised on communications made by Smith to the Dental Board in her complaint or in assisting with the Board’s investigation, many of the allegedly defamatory statements made in Sandhotm were not made to a government board and occurred outside the scope of protected petitioning activities. . . [T]he .
substance of the communications in Sandholm consisted entirely of character attacks on the plaintiff’s coaching and interaction with students. These communications were not directed toward any government employee or entity.. By contrast, Smith’s communications in the present suit were made directly to government officials in their capacity as a government body and related directly to their duties of protecting public health and welfare. Such conduct forms the very core of protected petitioning activity under Guam’s anti-SLAPP statute.
2015 Guam 29 ¶ 16. This passage convinces this Court that Guam should not follow the Illinois
approach under the present circumstances. In distinguishing Sandhotm, the Guam Supreme
Court focused on whether a petition was presented to a government entity. While a parallel
exists in that Sandholm involved a government petition plus character attacks, and the Moylans
Free access — add to your briefcase to read the full text and ask questions with AI
FILED ?!9 {,C ,p
SUP OR URT IN THE SUPERIOR COURT OF GUAM
RICHARD E. MOYLAN, Superior Court Case No. CV0760-16
Plaintiff/Counterclaim Defendant, DECISION AND ORDER vs. RE DEFENDANT AXE MURDERER TOURS GUAMIBEACH HOUSE’S AXE MURDERER TOURS, INC., ET AL., MOTION FOR RECONSIDERATION Defendants/Counter-claimants.
AND RELATED COUNTERCLAIMS AND THIRD-PARTY CLAIMS.
The Court here considers Defendant/Counterclaimant Axe Murderer Tours GuamlBeach
House’s (AMT) Motion for Reconsideration of the Court’s December 13, 2018 Decision and
Order re Motion to Dismiss Counterclaims and Third-Party Claims. Finding no merit to AMT’s
motion, the Court DENIES it.
In its Decision and Order, the Court determined that Plaintiff Richard E. Moylan and
Third Party Defendant Douglas Moylan prevailed in their Motion to Dismiss certain of AMT’s
counterclaims based on the Citizen Participation In Government Act of 1998, 7 GCA Ch. 17
(CPGA).’ The CPGA immunizes citizens who petition the government for relief from being
sued for such activity. 7 GCA § 17104. The Court determined that AMT’s Counterclaims and
Third Party Claims for Harassment and Tortious Interference with Business Relations--based in
part on the Moylans seeking assistance from govermnent entities on over four occasions
The Court also denied the Motion with respect to counterclaims brought by Paseo View Properties, Inc. and E.C. Development, LLP.
ORIGINAL CV0760-16 DECISION D ORDER re DEFENDANT AXE MURDE TOURS Page 2 GUAM/BEACH HOUSE’S MOTION FOR RECONSIDERATION
regarding AMT’s possible environmental violations and fire hazards--violated the CPGA. Dec.
and Order at 8-11 (Dec. 13, 2018). However, the Court also denied the dismissal of
Counterclaims and Third Party Claims concerning trespass, nuisance, and violent conduct,
fmding that these activities did not fall under the CPGA. Dec. and Order at 11-14.
AMT offers three arguments in support of reconsideration: (1) the Court should impose a
requirement that a motion brought under the CPGA be denied unless the allegedly protected
activity was “solely” based on, related to or in response to any act of the moving party in
furtherance of the moving party’s rights; (2) the Moylans are not entitled to relief because they
are not a dismissed party; and (3) Guam’s CPGA statute is unconstitutional.
Under CVR 7.1(1), a court may reconsider a prior order
Only on the grounds of (1) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (2) the emergence of new material facts or a change of law occurring after the time of such decision, or, (3) a manifest showing of a failure to consider material facts presented to the Court before such decision.
CVR 7.1(i). As the Supreme Court of Guam instructs, reconsideration may be granted where the
trial court “(1) is presented with new evidence; (2) committed clear error or the decision was
manifestly unjust, or (3) if there is an intervening change in controlling law.” Ward v. Reyes,
1998 Guam 1 ¶ 10. Furthermore, motions for reconsideration “are both procedurally and
substantively deficient if they simply reiterate in greater detail arguments previously made before
the court.” Guam Bar Ethics Comm. v. Maquera, 2001 Guam 20 ¶9 (quotations omitted).
On the first issue, AMT contends that the Court erred in not following Sandholm v.
Kueckler, 962 N.E.2d 418 (Ill. 2012). Sandholm analyzes Illinois’ anti-SLAPP2 statutes and
2 SLAPP is an abbreviation of “Strategic Lawsuit Against Public Participation,” which the CPGA forbids. 7 GCA § 17 102(a).
OR9INAL CV0760-16 DECISIOND ORDER re DEFENDANT AXE MURDE TOURS Page 3 GUAM/BEACH HOUSE’S MOTION FOR RECONSIDERATION
limits when parties are immune from suit due to the exercise of their rights to petition. Illinois’
anti-SLAPP statute shares many features with Guam’s statute. Both statutes:
• Aim to “protect and encourage citizen participation in government to the maximum
extent permitted by law.” 7 GCA § 17102(b)(l); 962 N.E.2d at 42$.
• Strive to create a more equitable balance between the rights of persons to file lawsuits
and to trial by jury, and the rights of other persons to petition, speak out, associate and
otherwise participate in their governments. 7 GCA § 17102(b)(2); 962 N.E.2d at 428.
• Must be read liberally to fully effectuate their purposes and intent. 7 GCA § 17108; 962
N.E.2d at 429.
• Subject a claim to dismissal if it is “based on, relates to or is in response to any act of the
moving party in furtherance of the moving party’s rights” as described in 7 GCA §
17104. 7GCA 17105; 962N.E.2dat430.
In Sandholm, however, Illinois clarified what types of suits prevail on anti-SLAPP
motions. Upon review of the Illinois statute’s “clear legislative intent . . . to subject only
meritless, retaliatory SLAPP suits to dismissal,” the Illinois Supreme Court “constme[d] the
phrase ‘based on, relates to or is in response to’ . . . to mean solely based on, relating to, or in
response to ‘any act or acts of the moving party in furtherance of the moving party’s rights of
petition, speech, association, or to otherwise participate in government.” 962 N.E.2d at 430.
AMT urges the Court to apply Illinois’ limitation here.
The Guam Supreme Court analyzed Sandholm in Enriquez v. Smith, 2015 Guam 29. The
defendant in Smith complained to the Guam Board of Examiners for Dentistry (“Dental Board”)
over treatment received at a dental clinic by Dr. Hugh Sule and a dental auxiliary, Salvador
OR6NAL CV0760-16 . DECISION AND ORDER re DEFENDANT AXE MURDE R TOURS GUAM/BEACH HOUSE’S MOTION FOR RECONSIDERATION p Page 4
Enriquez. The Dental Board ultimately filed a disciplinary case against both Dr. Sule and
Enriquez and as a result, Enriquez sued Smith for various torts. Smith responded by moving to
dismiss under the CPGA.
Enriquez asked that the Guam Supreme Court adopt Sandhotm, but the Guam Supreme
Court found Sandholm to be distinguishable.
Unlike this case, where Enriquez’s lawsuit is entirely premised on communications made by Smith to the Dental Board in her complaint or in assisting with the Board’s investigation, many of the allegedly defamatory statements made in Sandhotm were not made to a government board and occurred outside the scope of protected petitioning activities. . . [T]he .
substance of the communications in Sandholm consisted entirely of character attacks on the plaintiff’s coaching and interaction with students. These communications were not directed toward any government employee or entity.. By contrast, Smith’s communications in the present suit were made directly to government officials in their capacity as a government body and related directly to their duties of protecting public health and welfare. Such conduct forms the very core of protected petitioning activity under Guam’s anti-SLAPP statute.
2015 Guam 29 ¶ 16. This passage convinces this Court that Guam should not follow the Illinois
approach under the present circumstances. In distinguishing Sandhotm, the Guam Supreme
Court focused on whether a petition was presented to a government entity. While a parallel
exists in that Sandholm involved a government petition plus character attacks, and the Moylans
submitted government petitions plus allegedly trespassed, created nuisances, and struck an AMT
employee, the Moylans’ petitions still met the traditional definition of public participation by
requesting the assistance of government entities to protect the public health and welfare. Based
on the contents of those petitions--which addressed the safe storage of compressed gases and
hazardous chemicals--this Court stands by its prior ruling that the Court cannot say “without
hesitancy” that the Moylans’ conduct was a sham. To the contrary, the Moylans’ inquiries with
OR1GNAL CV0760-16 . DECISION AND ORDER re DEFENDANT AXE MIJRDE TOURS GUAMJBEACH HOUSE’S MOTION FOR RECONSIDERATION Page 5
government agencies resemble “the very core of protected petitioning activity.” Enriquez, 2015
Guam 29 ¶ 16.
To deny dismissal because the Moylans committed other unprotected conduct in addition
to their government petitions disallows persons who participate in public forums from being
protected under the CPGA. Construing the statute in a way that fails to safeguard public
participation countermands the purpose of the law. It creates a precedent in which a plaintiff can
strategically chill speech and protected government petitioning by simply adding multiple causes
of action (e.g., libel, slander, tortious interference with business relations, and violations of
constitutional rights). In that way, no cause of action and no lawsuit will ever “solely” concern
another person’s rights to petition.
Moreover, meeting the “solely” test becomes procedurally difficult given the suspension
of discovery under the CPGA. 7 GCA § 17106(b).3 A party defending its public participatory
conduct may face challenges in proving the underlying intent of a SLAPP lawsuit when limited
to using the pleadings and whatever affidavits it can obtain without the benefit of discovery.
Under the CPGA’s procedural structure, using Illinois’ restrictions may end up strong arming
litigants--who otherwise would be protected under anti-SLAPP statutes--into prolonged litigation
and settlement. These outcomes fail to secure and encourage citizen participation to the
maximum intent, again contrary to the CPGA’s purpose. 7 GCA § 17l02(b)(1).
The Court therefore upholds its analysis in its Decision and Order and finds following
Sandholm to be inadvisable under the circumstances presented.
AMT has also argued that the law’s suspension of discovery hampers its ability to prove the Moylans committed a sham. See, e.g., AMT’s Proposal For Briefing Issues Before the Court (Oct. 9, 2019). However, the law clearly states that “discovery shall be suspended.” 7 GCA § 17 106(a). The Court is not at liberty to deviate from the plain language, and must at the same time liberally construe the CPGA to effectuate its purposes and intent. 7 GCA § 1710$.
ORIGINAL CV0760-16 . DECISION AND ORDER re DEFENDANT AXE MURDE TOURS GUAM!BEACH HOUSE’S MOTION FOR RECONSIDERATION Page 6
AMT’s second basis for reconsideration concerns “whether the CPGA has been activated
by the court’s decision since neither the Plaintiff nor the Third-Party Defendant have been
dismissed as a result of the December 13, 2018 Decision and Order.” Mot. at 7 (Oct. 29, 2019).
AMT focuses on the language in section 17106(g): “the court shall award a movingparty who is
dismissed” the costs of litigation including attorney’s fees and additional sanctions. (Emphasis
added.) AMT questions whether attorney’s fees can be awarded if the Moylans are not
dismissed as other claims remain alive. However, section 17106(h) makes clear that the
Moylans may seek attorney’s fees as a result of AMT’s violation of the Moylans’ petitioning
rights by bringing a claim seeking relief on that petitioning activity: “A person damaged or
injured by reason of a claim filed in violation of their rights . . . may seek relief in the form of a
claim for actual or compensatory damages, as well as punitive damages, attorney’s fees and
costs, from the person or persons responsible.” 7 GCA § 17 106(h) (emphasis added).4 The court
therefore finds that the Moylans may still receive remedies once the Court has determined that a
SLAPP claim has been brought, regardless of whether other claims remain alive after the
disposition of a CPGA dismissal motion.
Finally, AMT asks the Court to review the constitutionality of the CPGA. AMT
introduces a 2017 case from Minnesota and a 2015 case from Washington which examined those
jurisdictions’ anti-SLAPP statutes. AIvIT admits that both of those cases existed prior to the
filing of the Moylans’ motion to dismiss and AMT’s opposition to that motion. Since there is no
The CPGA discusses dismissed “claims” in two other subsections: (1) “This Chapter applies to any motion to dispose of a claim. . 7 GCA § 17105 (emphasis added); and (2) “The court shall grant the motion and dismiss .“
the judicial claim, unless the responding party has produced clear and convincing evidence that the acts of the moving party are not immunized from liability by § 17104.” 7 GCA § 17106(e) (first emphasis added).
ORIGINAL CV0760-16 DECISION AND ORDER re DEFENDANT AXE MURDERER TOURS Page 7 GUAM/BEACH HOUSE’S MOTION FOR RECONSIDERATION
“change of law” and AMT could have raised these arguments earlier, AIVIT has not met the
standard for reconsideration.
For these reasons, AMT’s Motion for Reconsideration is DENIED.
SO ORDERED this 30th day of December 2020.
HO ELYZE M. IRIARTE .
Judge, Superior Court of Guam
i’ Op
1e,k Scorc
Appearing Attorneys: Douglas B. Moylan, Esq., Law Offices of Douglas B. Moylan, for Plaintiff’Counter-Defendant Richard E. Moylan Gary W.F. Gumataotao, Esq., Law Offices of Gumataotao & Pole, P.C., for Plaintiff/Counter-Defendant Richard E. Moylan and Third-Party Defendant Douglas B. Moylan Jeffrey Cook, Esq., Law Offices of Cunliffe & Cook, for Defendant Axe Murderer Tours Guami’Beach House Mitchell Thompson, Esq., Thompson Thompson & Alcantara, P.C., for Defendant/Counterclaimant/Third-Party Plaintiff E.C. Development, LLP, and Defendant Paseo View Properties, Inc.
ORIGINAL