Pangelinan v. Cunliffe as Trustee of Dongo Trust

Opinion

U1 1 7I r L 2 ‘

IN THE SUPERIOR COURT OF GUAM 6 ROSALIA U.G. PANGELINAN, Civil Case No. CVO3O1-20

$ Plaintiff,

9 v. DECISION AND ORDER DENYING DEFENDANT’S 10 F. RANDALL CUNLIFFE as TRUSTEE Of MOTION FOR SANCTIONS THE DONGO TRUST, and DOES 1-20, INCLUSIVE, 12 Defendants. 13 14 INTRODUCTION 15 This matter came before the Honorable Alberto C. Lamorena, III upon submission of 16 Defendant F. Ranndall Cunliffe’s (“Defendant’s”) Motion for Sanctions (“Motion”). Attorney 17 Jacqueline Taitano Terlaje represents Plaintiff, and Attorney Joseph C. Razzano represents

1$ Defendant. Oral arguments were not requested and the Court decided this matter on the briefs. 19 Having duly considered the parties’ briefs and the applicable law, the Court now issues the

20 following Decision and Order and DENIES Defendant’s Motion. 21 BACKGROUND 22 On May 4, 2021, Plaintiff failed to appear for her pre-arranged deposition. Rule 37.1 23 Stipulation at A.2 (Jul. 27, 2021). A second deposition was set for May 25, 2021, but Plaintiff once

24 again failed to appear. Id. at A.4. Defendant served notice on Plaintiff’s counsel before each of

25 these occasions. j. at A.2 & A.3. Plaintiff states she missed both these depositions due to illness,

26 and provided Defendant’s counsel with a doctor’s note from the American Medical Center to back

27 this claim up. . at B.5. 28

Decision and Order Denying Defendant’s Motion for Sanctions CVO3O1-20, Pangetinan v. F Randall Cuiztffe as Trustee of the Dongo Trust Page 1 of 3 1 A third deposition was scheduled for June 11, 2021. However, shortly before this date,

2 Plaintiff replaced her lawyer with a new one who was on a multi-month vacation at the time. Id. at

3 A.5. This change prevented the June 11 deposition from going forward. Defendant believes

4 Plaintiff changed counsel to once again avoid the deposition. Id. at A.5. Plaintiff claims this

5 change was genuine and wasn’t related to any attempt at avoiding discovery obligations. Id. at B.2.

6 On July 27, 2021, Defendant filed his Motion for Sanctions against Plaintiff. Defendant

7 claims that Plaintiffs repeated failures to take a deposition violate GRCP 30, and justify sanctions

8 under GRCP 37(d). Motion at 1-2 (Jul. 27, 2021). Defendant claims Plaintiffs three missed 9 depositions are just part of a long-run attempt at avoiding the deposition dating back to October

10 2020. Id. at 2. Defendant now seeks to dismiss Plaintiff’s Complaint, or, in the alternative, order

11 Plaintiff to sit for her deposition in Judge Lamorena’s courtroom and pay for all of Defendants fees

12 and costs associated with her deposition and all its failed attempts. Id. at 3.

13 On August 24, 2021, Plaintiff filed her Opposition to Motion for Sanctions (“Opposition”).

14 Plaintiff denies violating GRCP 30, and claims she made a good faith effort to resolve the discovery

15 dispute. Opposition at 2 (Aug. 24, 2021). Plaintiff also states that it’s incorrect to say discovery

16 obligation avoidance dates back to October 2020, as the parties amended their discovery plan and

17 agreed to stay discovery between December 24, 2020 and February 16, 2021. Id. at 2.

18 Oral arguments were not requested and the Court decided this matter on the briefs. The

19 Court took the matter Under Advisement on September 7, 2021, the day reply briefs were due. See

20 CVR 7.1 Form 1 (Jul. 27, 2021).

21 DISCUSSION 22 Guam Rule of Civil Procedure 30 requires a party to sit for a deposition without leave of

23 court. GRCP 30(a)(1). When a party fails to attend his or her own deposition, after being served

24 with proper notice, the Court on motion may make such orders regarding the failure as are just.

25 GRCP 37(d)(l)-(3). Furthermore, the Court “shall require the party failing to act ... to pay the 26 reasonable expenses, including attorney’s fees, caused by the failure unless the court finds that the

27 failure was substantially justified or that other circumstances make an award of expenses unjust.

28 GRCP37(d)(3).

Decision and Order Denying Defendant’s Motion for Sanctions CVO3O1-20, Pangelinan v. F Randall Cunltffe as Trustee of the Dongo Trust Page 2 of 3 1 It is undisputed that Plaintiff failed to attend three separate depositions. However, these

2 failures were substantially justified. Plaintiff missed the first two depositions due to illness, as

3 confirmed through a written doctor’s note provided to Defendant’s counsel. Opposition at 3 (Aug.

4 24, 2021). The Court finds it unrealistic and outright dangerous to pressure sick individuals into

5 attending depositions, especially given the deadly pandemic currently sweeping across Guam.

6 furthermore, Defendant offers no evidence to support his theory that Plaintiff’s change in counsel

7 was purposely made to delay I avoid the June 11th deposition. Plaintiff has stated she changed

$ counsel in good faith, and Defendant has provided no reason to think otherwise.

9 CONCLUSION 10 For the reasons stated above, the Court DENIES Defendant’s Motion. Plaintiff shall not pay

11 any sanctions towards Defendant. It is up to the Parties to reach agreement on a new deposition

12 date.

14 IT IS SO ORDERED this

1$ HONORABLE ALBERTO C. LAMORENA, III Presiding Judge, Superior Court of Guam 19

23 SERVICE VIA E-MAIL acknowledge that an electronic copy of the oginal was e-mailed to: c%_ , 25

26 Date: Time:______ Joseph Rir 27 Deputy Clerk, Superior Court ofGuam

Decision and Order Denying Defendant’s Motion for Sanctions CVO3O1-20, Pangelinan v. F Randall Cunttffe as Trustee of the Dongo Trust Page 3 of 3