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— —( T - IJ
‘T —9 f1 L 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 GUAM]BEACH HOUSE’S AXE MURDERER TOURS, INC., El AL., RECONSIDERATION Defendants/Counter-claimants.
AND RELATED COUNTERCLAIMS AND THIRD-PARTY CLAIMS.
The Court here considers Defendant/Counterclajmant Axe Murderer Tours Guam/Beach
House’s (AMT) Renewed Motion for Reconsideration of the Court’s December 13, 2018
Decision and Order re Motion to Dismiss Counterclaims and Third-Party Claims. Having
considered the parties’ arguments and applicable law, the Court GRANTS AMT’s Motion.
I. PROCEDURAL AND FACTUAL HISTORY
On August 2, 2017, Plaintiff Richard Moylan and Third-Party Defendant Douglas
Moylan moved the Court to dismiss Defendants and Third-Party Plaintiffs AMT, Paseo View
Properties, Inc., and E.C. Development, LLP’s counterclaims and third-party claims, claiming
immunity under the Citizen Participation in Government Act of 1998. AIVIT had filed
counterclaims against the Moylans for Trespass, Nuisance, Injunction, Harassment, and Tortious
Interference with Business Relations. CV0760-16 DECISIOND ORDER re DEFENDANT AXE MURDETOURS Page 2 GUAM/BEACH HOUSE’S RENEWED MOTION FOR RECONSIDERATION
In its December 13, 2018 Decision and Order re Motion to Dismiss Counterclaims and
Third-Party Claims, the Court granted summary judgment in favor of the Moylans as to AMT’s
Harassment and TIBR counterclaims and third-party claims concerning the Moylans’ reports to
the Government of Guam and Douglas Moylan’s photographing of AMT employees and
customers, fmding that the CPGA immunized those activities. The Court reaffirmed its position
in its December 30, 2019 Decision and Order re Motion for Reconsideration, finding that a
passage in Sandholm v. Kuecker, 962 N.E.2d 418 (111. 2012) “convinces this Court that Guam
should not follow the Illinois approach under the present circumstances.” Dec. and Order at 4
(Dec. 30, 2019).
Subsequently, the Supreme Court of Guam issued Cho v. Alupang Beach Club, Inc., 2020
Guam 10, and adopted Sandhotm’s substantial basis test, further developing Guam’s CPGA
jurisprudence. In response, AMT has renewed its motion for reconsideration.
II. LAW AND DISCUSSION
AMT seeks reconsideration based on an intervening change in controlling law.
Reconsideration may be granted on the grounds of “a change of law occurring after the time of
such decision....” under CVR 7.1(i). See also Ward v. Reyes, 1998 Guam 1 ¶ 10.
The Supreme Court of Guam issued Cho v. Alupang Beach Club, Inc., 2020 Guam 10, on
May 28, 2020, and specifically cited to Sandhotm in interpreting the following provision in the
CPGA: “Applicability. This Chapter applies to any motion to dispose of a claim in a judicial
proceeding on the grounds that the claim 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 j § 171104.” 7
GCA § 17105 (emphasis added). Cho determined that the provision “based on, relates to or is in CV0760-16 DECISIOD ORDER re DEFENDAIT AXE MURDER TOURS Page 3 GUAM/BEACH HOUSE’S RENEWED MOTION FOR RECONSIDERATION
response to” excludes motions brought against “claims with a substantial basis other than or in
addition to the petitioning activities.” Cho, 2020 Guam 10 ¶ 12. Though the Moylans argue that
AMT fails to satisfy the reconsideration rule because “the Cho decision does not alter the legal
reasoning applied in the Court’s December 13, 2019 decision,” the Court disagrees. Opp’n at 2
(July 1, 2020). This Court expressly determined to not follow the Sandhotm approach, an
approach the Guam Supreme Court subsequently adopted in Cho. The Court therefore finds that
AMT satisfies the reconsideration standard.
AMT asks the Court to reconsider granting summary judgment in favor of the Moylans.
It argues that the Moylans have failed to establish a prima facie showing that AMT’s
counterclaims and third-party claims are solely based on protected petitioning activities; they
allege that the Moylans’ actions were intended to harass AMT and interfere with AMT’s
business. Mot. at 3 (June 2, 2020).
The Moylans have the burden of making a prima facie showing that “the claims against
them are based on protected petitioning activities.” Enriquez v. Smith, 2015 Guam 29 ¶ 12. To
establish a prima facie showing, the Moylans “must show that the petitioning or protected
activity itself is the wrong complained of.” Cho, 2020 Guam 10 ¶ 7. In short, they must
demonstrate that their pleadings and affidavits have “no substantial basis other than or in
addition to the petitioning activities.” Id. at ¶ $ (quoting Duracraft Corp. v. Holmes Prods. Corp.,
691 N.E.2d 935, 943 (Mass. 199$)). A court must focus “on the conduct complained of, not the
remedies sought.” Id. at ¶ 14.
The Court’s initial decision granted summary judgment in favor of the Moylans as to
AMT’s Harassment and TIBR counterclaims and third-party claims because the evidence CV0760-16 DECISION%D ORDER re DEFENDANT AXE MURDETOURS Page 4 GUAM/BEACH HOUSE’S RENEWED MOTION FOR RECONSIDERATION
indicated the Moylans raised legitimate safety concerns and because the Court could not say
“without hesitancy” that the Moylans used the petitioning process as litigation leverage. Dec.
and Order at 8-12 (Dec. 13, 2018). The Court also found that counterclaims and third-party
claims concerning Douglas Moylan’s photography “fell within the breathing space of the First
Amendment.” Dec. and Order at 12 (Dec. 13, 2018).
In light of the ruling in Cho, the Court must now determine whether AMT’s claims have
a substantial basis other than or in addition to the Moylans’ petitioning activities. Courts vary on
what constitutes a “substantial basis.” In Cho, the parties’ performance under a Settlement
Agreement constituted a substantial basis other than the defendant’s petitioning activity to
support the plaintiff’s claims. 2020 Guam 10 ¶ 17. In Duracraft Corp. v. Holmes Products Corp.,
the court denied summary judgment on the basis that a nondisclosure agreement constituted a
substantial basis other than the defendant’s petitioning activity. 691 N.E.2d 935, 943-44 (Mass.
1998). In Sandholm v. Kueckler, the court found that the defendants failed to establish that the
plaintiff’s defamation claims were “solely ‘based on, relate[d] to, or in response to” their
protected petitioning activity. 962 N.E.2d 418, 434 (Ill. 2012).
While the Moylans argue that their petitions to government agencies are the sole factual
bases for AMT’s claims against them, the pleadings demonstrate otherwise. As one court found,
“[a]lthough one could infer that the defendants’ persistent petitioning activities played a role in
the plaintiffs’ decision to file the complaint, there was also an independent basis for the
complaint—that the defendants were intentionally interfering with the plaintiffs’ right to use and
enjoy their property.” Ayasli v.
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. —
— —( T - IJ
‘T —9 f1 L 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 GUAM]BEACH HOUSE’S AXE MURDERER TOURS, INC., El AL., RECONSIDERATION Defendants/Counter-claimants.
AND RELATED COUNTERCLAIMS AND THIRD-PARTY CLAIMS.
The Court here considers Defendant/Counterclajmant Axe Murderer Tours Guam/Beach
House’s (AMT) Renewed Motion for Reconsideration of the Court’s December 13, 2018
Decision and Order re Motion to Dismiss Counterclaims and Third-Party Claims. Having
considered the parties’ arguments and applicable law, the Court GRANTS AMT’s Motion.
I. PROCEDURAL AND FACTUAL HISTORY
On August 2, 2017, Plaintiff Richard Moylan and Third-Party Defendant Douglas
Moylan moved the Court to dismiss Defendants and Third-Party Plaintiffs AMT, Paseo View
Properties, Inc., and E.C. Development, LLP’s counterclaims and third-party claims, claiming
immunity under the Citizen Participation in Government Act of 1998. AIVIT had filed
counterclaims against the Moylans for Trespass, Nuisance, Injunction, Harassment, and Tortious
Interference with Business Relations. CV0760-16 DECISIOND ORDER re DEFENDANT AXE MURDETOURS Page 2 GUAM/BEACH HOUSE’S RENEWED MOTION FOR RECONSIDERATION
In its December 13, 2018 Decision and Order re Motion to Dismiss Counterclaims and
Third-Party Claims, the Court granted summary judgment in favor of the Moylans as to AMT’s
Harassment and TIBR counterclaims and third-party claims concerning the Moylans’ reports to
the Government of Guam and Douglas Moylan’s photographing of AMT employees and
customers, fmding that the CPGA immunized those activities. The Court reaffirmed its position
in its December 30, 2019 Decision and Order re Motion for Reconsideration, finding that a
passage in Sandholm v. Kuecker, 962 N.E.2d 418 (111. 2012) “convinces this Court that Guam
should not follow the Illinois approach under the present circumstances.” Dec. and Order at 4
(Dec. 30, 2019).
Subsequently, the Supreme Court of Guam issued Cho v. Alupang Beach Club, Inc., 2020
Guam 10, and adopted Sandhotm’s substantial basis test, further developing Guam’s CPGA
jurisprudence. In response, AMT has renewed its motion for reconsideration.
II. LAW AND DISCUSSION
AMT seeks reconsideration based on an intervening change in controlling law.
Reconsideration may be granted on the grounds of “a change of law occurring after the time of
such decision....” under CVR 7.1(i). See also Ward v. Reyes, 1998 Guam 1 ¶ 10.
The Supreme Court of Guam issued Cho v. Alupang Beach Club, Inc., 2020 Guam 10, on
May 28, 2020, and specifically cited to Sandhotm in interpreting the following provision in the
CPGA: “Applicability. This Chapter applies to any motion to dispose of a claim in a judicial
proceeding on the grounds that the claim 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 j § 171104.” 7
GCA § 17105 (emphasis added). Cho determined that the provision “based on, relates to or is in CV0760-16 DECISIOD ORDER re DEFENDAIT AXE MURDER TOURS Page 3 GUAM/BEACH HOUSE’S RENEWED MOTION FOR RECONSIDERATION
response to” excludes motions brought against “claims with a substantial basis other than or in
addition to the petitioning activities.” Cho, 2020 Guam 10 ¶ 12. Though the Moylans argue that
AMT fails to satisfy the reconsideration rule because “the Cho decision does not alter the legal
reasoning applied in the Court’s December 13, 2019 decision,” the Court disagrees. Opp’n at 2
(July 1, 2020). This Court expressly determined to not follow the Sandhotm approach, an
approach the Guam Supreme Court subsequently adopted in Cho. The Court therefore finds that
AMT satisfies the reconsideration standard.
AMT asks the Court to reconsider granting summary judgment in favor of the Moylans.
It argues that the Moylans have failed to establish a prima facie showing that AMT’s
counterclaims and third-party claims are solely based on protected petitioning activities; they
allege that the Moylans’ actions were intended to harass AMT and interfere with AMT’s
business. Mot. at 3 (June 2, 2020).
The Moylans have the burden of making a prima facie showing that “the claims against
them are based on protected petitioning activities.” Enriquez v. Smith, 2015 Guam 29 ¶ 12. To
establish a prima facie showing, the Moylans “must show that the petitioning or protected
activity itself is the wrong complained of.” Cho, 2020 Guam 10 ¶ 7. In short, they must
demonstrate that their pleadings and affidavits have “no substantial basis other than or in
addition to the petitioning activities.” Id. at ¶ $ (quoting Duracraft Corp. v. Holmes Prods. Corp.,
691 N.E.2d 935, 943 (Mass. 199$)). A court must focus “on the conduct complained of, not the
remedies sought.” Id. at ¶ 14.
The Court’s initial decision granted summary judgment in favor of the Moylans as to
AMT’s Harassment and TIBR counterclaims and third-party claims because the evidence CV0760-16 DECISION%D ORDER re DEFENDANT AXE MURDETOURS Page 4 GUAM/BEACH HOUSE’S RENEWED MOTION FOR RECONSIDERATION
indicated the Moylans raised legitimate safety concerns and because the Court could not say
“without hesitancy” that the Moylans used the petitioning process as litigation leverage. Dec.
and Order at 8-12 (Dec. 13, 2018). The Court also found that counterclaims and third-party
claims concerning Douglas Moylan’s photography “fell within the breathing space of the First
Amendment.” Dec. and Order at 12 (Dec. 13, 2018).
In light of the ruling in Cho, the Court must now determine whether AMT’s claims have
a substantial basis other than or in addition to the Moylans’ petitioning activities. Courts vary on
what constitutes a “substantial basis.” In Cho, the parties’ performance under a Settlement
Agreement constituted a substantial basis other than the defendant’s petitioning activity to
support the plaintiff’s claims. 2020 Guam 10 ¶ 17. In Duracraft Corp. v. Holmes Products Corp.,
the court denied summary judgment on the basis that a nondisclosure agreement constituted a
substantial basis other than the defendant’s petitioning activity. 691 N.E.2d 935, 943-44 (Mass.
1998). In Sandholm v. Kueckler, the court found that the defendants failed to establish that the
plaintiff’s defamation claims were “solely ‘based on, relate[d] to, or in response to” their
protected petitioning activity. 962 N.E.2d 418, 434 (Ill. 2012).
While the Moylans argue that their petitions to government agencies are the sole factual
bases for AMT’s claims against them, the pleadings demonstrate otherwise. As one court found,
“[a]lthough one could infer that the defendants’ persistent petitioning activities played a role in
the plaintiffs’ decision to file the complaint, there was also an independent basis for the
complaint—that the defendants were intentionally interfering with the plaintiffs’ right to use and
enjoy their property.” Ayasli v. Armstrong, 780 N.E.2d 926, 933 (2002) (movants demonstrated
that neighbors’ conduct in harassing movants formed an independent basis for complaint). AMT CV0760-16 DECISION ORDER re DEFENDANT AXE MURDEROURS Page 5 GUAM/BEACH HOUSE’S RENEWED MOTION FOR RECONSIDERATION
has that same independent basis here--that the manner in which Douglas Moylan took his
photographs amounted to harassment and tortious interference of business relations. This is
evident in the TIBR claim which alleges that “Richard E. Moylan through his agent Douglas
Moylan committed harassment by approaching [AMT’sJ employees and customers, taking
pictures of them, occasionally within inches of their faces, their vehicles and their license
plates.” AMT Countercl. ¶ 44 (July 13, 2017). Moreover, in an interaction with an AMT
employee, “Douglas Moylan raised his hand to motion for the employee to leave and in doing so,
struck the employee.” AMT Countercl. ¶ 46.
The Moylans argue that denying CPGA protection when there is a mixed claim involving
protected activity “allows plaintiffs to simply artfully draft complaints to ‘SLAPP’ persons who
report possible wrongdoing to law enforcement authorities, thereby negating the findings and
declared legislative purposes of our Anti-SLAPP/CPGA law.” Opp’n at 3. The Court
disagrees--this interpretation simply urges the Court to differentiate more closely between
meritorious and meritless claims by ascertaining that their basis is solely protected petitioning
activity. It strives to create a more equitable balance between the rights of persons to file lawsuits
and the rights of other persons to petition. 7 GCA § 17l02(b)(2). This interpretation also closely
follows Cho ‘s direction to exclude motions from CPGA protection when a substantial basis
exists other than or in addition to the petitioning activities implicated. Cho, 2020 Guam 10 ¶ 12.
III. CONCLUSION
For the aforementioned reasons, the Court GRANTS AMT’s Renewed Motion. The
Court’s December 13, 2018 Decision and Order is amended in that the Moylans’ CPGA motions CV0760-16 DECISION ORDER re DEFENDANT AXE MURDEROURS Page 6 GUAM/BEACH HOUSE’S RENEWED MOTION FOR RECONSIDERATION
are denied as to AMT’s Harassment and TIBR counterclaims and third-party claims. The
harassment and TIBR claims are hereby reinstated.
The Court notes that the CPGA provides the right to an expedited appeal from a trial
court order denying a motion under that provision. 7 GCA § 17106(a)(2). The pending motions
in this case will remain in abeyance for at least thirty days. If no appeal is filed within that time,
the Court will issue an Order which outlines which motions will be heard or considered next.
Moreover, given this Decision and Order denying the Moylans’ CPGA claims in full, the Court
finds the issue of the Calvo Fisher & Jacob’s attorneys’ depositions concerning damages and
attorneys’ fees under the CPGA to be MOOT.
SO ORDERED this 9th day of October 2020.
HON. E YZE M. IRIARTE Judge, Superior Court of Guam
Appearing Attorneys: Douglas B. Moylan, Esq., Law Offices of Douglas B. Moylan, for Plaintiff/Counter-Defendant Richard F. 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 Curtis C. Van de Veld, Esq., The Vandeveld Law Offices, 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 Guam/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.
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