People v. Castro

• Court: Superior Court of Guam
• Decided: February 7, 2014
• Docket: CM0792-13
• Status: Unknown

Opinion

u ~~r

2 IN THE SUPERIOR COURT OF GUAM 3

4 CRIMINAL CASE NO. C1Vf·792-13 PEOPLE OF GUAM 5 DECISION AND ORDER: People's 6 Motion to Request Court to Identify vs. Conflict of Interest 7

ROBERT NAPUTI CASTRO, 8

9 Defendant.

11 INTRODUCTION 12 This matter came before the Honorable Anita A. Sukola on January 13, 2014 on the 13 People of Guam's ("the People) Motion to Request Court to Identify Conflict of Interest. 14

15 Assistants Attorney General Sean E. Brown and Lisa Lorig appeared on behalf of the People.

16 Robert Naputi Castro ("Defendant") was represented by Attorney Peter C. Perez. The parties 17 submitted on their respective briefs, at which time the Court took the matter under advisement. 18 Upon review of the written arguments and legal authorities presented by both parties, the Court 19 issues its Decision and Order DENYING the People's motion. 20

21 BACKGROUND

22 Defendant is charged with Fourth Degree Criminal Sexual Conduct (As a Misdemeanor) 23 (2 counts); and Harassment (As a Petty Misdemeanor). The Magistrate's Complaint alleges that 24 Defendant "on or about the 23rd day of January 2013, in Guam," caused his hand to touch the 25 breast of L.C.M. (DOB: 12/2/1976). He is also alleged to have caused his hand to touch the 26

27 primary genital area ofL.C.M. (DOB: 12/2/1976). Defendant then "did [commit] the offense of

28 Harassment, with intent to harass another, he subjects another, that is, L.C.M. (DOB:

People v. Robert N. Castro (CM792-13) Page I of6 Decision and Order- People's Mot. to Request Court to Identity Conflict of Interest I2/211976), to offensive touching or threatens to do so." See Magistrate's Complaint (Sep. 7, 1

2 20I3). Defendant was arraigned on September II, 20I3. He pled not guilty and waived his

3 right to a speedy trial. Super. Ct. of Guam Minute Entry Log No. I00723, I01242 (Sep. II, 4 2013). 5 On November 7, 2013, the People filed a Motion to Request Court to Identify Conflict 6

oflnterest. Defendant filed his opposition on December 17, 2013. The Court heard the matter 7

8 on January 13, 2014.

9 DISCUSSION 10 The People move the Court to identify a conflict of interest and disallow opposing 11 counsel from representing Defendant in this case. See People's Mot. at 4 (Nov. 7, 2013). The 12

13 People argue that "defense attorney, Peter Perez, in this matter represented the Victim in the

14 case for about one year on a civil matter involving her son." Id. at 2. "While Peter Perez is no 15 longer with the Lujan firm that was the actual firm assigned to the Victim's civil matter, he 16 personally represented the Victim and her son for a significant period of time. Mr. Perez had 17 access to personal information of the Victim that no Defendant should indirectly possess 18

19 through their counsel." Id. As a result, the People contend that (1) opposing counsel's

20 representation in this case will be directly adverse to his previous client; (2) opposing counsel 21 will be materially limited in his representation of the Defendant herein; (3) the claims asserted 22 in this case is of one client against another client; and (4) no written waiver of conflict was 23

given by the Victim. 24

25 Defendant opposes the People's motion. While defense counsel admits he was a partner

26 at LUJAN AGUIGUI PEREZ LLP from on or about January 2003 until August 1, 2013, he 27 submits in his Declaration that "[d]uring the time [he] was partner there, and at all other times in 28

People v. Robert N. Castro (CM792-13) Page 2 of6 Decision and Order- People's Mot. to Request Court to Identify Conflict of Interest :' " his legal practice, [he] does not believe that he ever represented the [Victim in this instant case] 1

2 in any matter whatsoever." Declaration of Counsel [In Opposition to Motion to Disqualify

3 Counsel] at 1 (Dec. 18, 2013). Defense Counsel further states in his Declaration that "[his] 4 limited understanding is that LUJAN AGUIGUI PEREZ LLP may have represented a person on 5 [Victim's] behalf but for an unrelated matter." Id. 6

The Court first looks at the Guam Rules of Professional Conduct. Specifically Rule 1. 7 7

8 which provides:

9 Rule 1. 7: Conflict of Interest: Current Clients. (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the 10 representation involves a concurrent conflict of interest. A concurrent conflict of 11 interest exists if: (1) the representation of one client will be directly adverse to another client; or 12 (2) there is a significant risk that the representation of one or more clients will be 13 materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. 14 (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: 15 (1) the lawyer reasonably believes that the lawyer will be able to provide competent 16 and diligent representation to each affected client; (2) the representation is not prohibited by law; 17 (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding 18 before a tribunal; and 19 (4) each affected client gives informed consent, confirmed in writing.

20 Guam R. Prof'l Conduct 1.7. 21 The rule suggests that a concurrent conflict exists even when the representation of one or 22 more clients will be materially limited by the lawyer's responsibilities to another client, a 23

former client or a third person or by a personal interest of the la\\')'er. In this case, the People 24

25 argue that Defense Counsel's former firm represented the Victim's son. On that basis, the Court

26 can find that a concurrent conflict of interest exists. Likewise, the Court is unaware of any 27

People v. Robert N. Castro (CM792-13) Page 3 of6 Decision and Order- People's Mot. to Request Court to Identify Contliet of Interest waivers or confirmed consent submitted in writing by the affected client pursuant to Guam R. 1

2 Prof! Conduct 1.7 (b)(4).

3 Next, the Court looks to Guam R. Prof! Conduct 1.9. 4 Rule 1.9: Duties to Former Clients 5 (a) A lawyer who, has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that 6 person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. 7 (b) A lawyer shall not knowingly represent a person in the same or a substantially 8 related matter in which the lawyer formerly was associated had previously represented a client 9 (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 10 1.9(c) that is material to the matter; 11 unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or 12 former firm has formerly represented a client in a matter shall not thereafter: 13 (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or 14 when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would 15 permit or require with respect to a client. 16 Guam R. Prof! Conduct 1.9. 17 Here, the People argue that Defense Counsel's former firm represented the Victim's son. 18

19 There is no indication that an informed consent was confirmed in writing. Therefore, Rule 1.9

20 would not allow Defense Counsel was representing the Defendant in the instant case. "[F]or 21 purposes of determining the lawyer's authority and responsibility, principles of substantive law 22 external to these Rules determine whether a client-lawyer relationship exists." Most of the 23 duties flowing from the client-lawyer relationship attach only after the client has requested the 24

25 lawyer to render legal services and the lawyer has agreed to do so. But there are some duties,

26 such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider 27 whether a client-lawyer relationship shall be established. See Rule 1.18. Whether a client 28

People v. Robert N. Castro (CM792-13) Page 4 of6 Decision and Order People's Mot. to Request Court to Identify Conflict oflnterest lawyer relationship exists for any specific purpose can depend on the circumstances and may be 1

2 a question of fact." Guam R. Profl Conduct Preamble 17.

3 "The Sixth Amendment to the Constitution guarantees that '[i]n all criminal 4 prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his 5 defense."' Wheat v. US. 486 U.S. 153, 158 (1988). "[W]hile the right to select and be 6

represented by one's preferred attorney is comprehended in the Sixth Amendment, the essential 7

8 aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather

9 than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." 10 Id. at 159. "In the nature of law practice, however, conflicting responsibilities are encountered. 11 Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to 12

13 clients, to the legal system and to the lawyer's own interest in remaining an ethical person while

14 earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for

15 resolving such conflicts. Within the framework of these Rules, however, many difficult issues 16 of professional discretion can arise. Such issues must be resolved through the exercise of 17 sensitive professional and moral judgment guided by the basic principles underlying the Rules." 18

19 Guam R. Profl Conduct Preamble 9.

20 While the Guam Rules of Professional Conduct prohibits defense counsel from 21 representing the Defendant in this case should the People's argument be correct, the Court is not 22 convinced at this time that an actual conflict exists absent more information. At this point, there 23 is no citation to a civil case number or any copy of a purported attorney-client contract between 24

25 the LUJAN AGUIGUI PEREZ firm and the Victim. Additionally, the Court agrees with

26 defense counsel that no Declaration was filed by the Victim. The Court is satisfied at this time 27 with defense counsel's assertion that "he's never met with the [Victim], never discussed legal 28

People v. Robert N. Castro (CM792-13) Page5of6 Decision and Order People's Mot. to Request Court to Identify Conflict of Interest matters with [her], never appeared in court on [her] behalf; and never received confidential 1

2 communications from [her]." Declaration of Counsel [In Opposition to Motion to Disqualify

3 Counsel] at 2 (Dec. 18, 2013 ). Defense counsel also asserts that "[he] is not aware of any 4 1 conflict of interest or ethical breach in [his] representation of [Defendant] in CM0792-13" Id. 5 For these reasons, the Court DENIES the People's motion. However, the Court reminds 6

defense counsel that should information come up confirming such a representation of the 7

8 Victim by his previous firm, the exercise of sensitive professional and moral judgment

9 consistent with the Rules mentioned herein must be adhered to. 10 CONCLUSION 11 By preponderance of the evidence and based on the foregoing reasons, the Court 12

13 DENIES the People's Motion to Request Court to Identify Conflict oflnterest.

14 Further Proceedings is scheduled for Z j;1/(t; ~ ~~ ·~ · 15 SO ORDERED this _l_day ofFEBRUARY, 2014. 16

~~&'- 18

20 HONORABLE ANITA A SUKOLA Judge, Superior Court of Guam 21

28 1 court notes that Defense counsel's Declaration makes mention of a "Mr. Cruz" when the Defendant herein is "Mr. Robert N. Castro."

People v. Robert N. Castro (CM792-13) Page 6 of6 Decision and Order People's Mot. to Request Court to Identify Conflict of Interest 2

5 IN THE SUPERIOR COURT OF GUAM 6

7 SHAWN MICHAEL Q. LUJAN, 8 Plaintiff, 9 v. 10 ESTATE OF ISABEL CRUZ SANTOS 11 ROSARIO and ROSA CRUZ PEREZ, CONSOLIDATED 12 CIVIL CASE NOS. Defendants. CV 0505-12, CV-0861-12 13

14 ESTATE OF ISABEL CRUZ SANTOS ROSARIO, 15 Defendant/Third Party Plaintiff, 16 FINDINGS OF FACT 17 v. & 18 THE GOVERNMENT OF GUAM, CONCLUSIONS OF LAW 19 Third Party Defendant. 20

21 BARBARA C. CAMACHO, individually, and BARBARA C. CAMACHO, as the 22 Administratrix ofthe ESTATE OF THERESE MARIE PEREZ LUJAN, 23

24 Plaintiff,

25 v. 26 ESTATE OF ISABEL CRUZ SANTOS 21 ROSARIO and ROSA CRUZ PEREZ,

28 Defendants. Findings of Fact and Conclusions of Law Consolidated Civil Case Nos. CV 0505*12, CV 0861-12- Lujan and Camacho v. Estate ofRosario and Perez

INTRODUCTION

2 This matter came before the Honorable Arthur R. Sarcinas on the 14th day of October,

3 2014, for bench trial. Attorney Michael Berman represented the Plaintiffs, and Attorney Phillip 4 Torres represented the Defendants. The Court now issues the following findings of fact and 5 conclusions of law. 6 FINDINGS OF FACT 7

After examining all of the evidence presented in this case, the Court finds that:

On July 21, 2010, Therese Marie Perez Lujan ("Therese") died as a direct result of a tree

falling on her while she attended the Liberation Day parade.

On July 21, 2010, Plaintiff Shawn Michael Q. Lujan ("Shawn") suffered bodily injury, as

a direct result of a tree - the same tree that killed Therese falling on him while he

attended the Liberation Day parade.

The trunk of the tree that fell on Therese and Shawn on July 21,2010 stood partly on part

on Lot No. 1353-1-2, Hagatna.

Lot No. 1353-1-2, Hagatna is owned by the Defendant Estate oflsabel Cruz Santos

Rosarios ("the Defendant Estate").

The tree that fell on Therese and Shawn on July 21, 20 I 0 was plainly and obviously dead

at the time it fell.

Shawn suffered damages in the amount of$33,325.28 arising out of medical expenses

incurred as a result of the injuries he sustained from the falling tree.

Shawn suffered damages in the amount of$100,000 arising out of the severe pain and

2of6 Findings of Fact and Conclusions of Law Consolidated Civil Case Nos. CV 0505-12, CV 0861-12 Ltljan and Camacho v. Estate of Rosario and Perez

8. Shawn was unemployed at the time he sustained injuries from the falling tree, and suffered

2 no damages arising out of lost wages.

3 9. Though Plaintiff Barbara C. Camacho ("Barbara") experienced tremendous grief in the 4 wake of Therese's death, she suffered no legally cognizable damages. 5 10. All conclusions of law below that are more appropriately construed as findings of fact are 6 adopted as such. 7

8 CONCLUSIONS OF LAW 9 1. The Defendant Estate, as the owner of the real property on which the tree that injured 10

11 Shawn and Therese was located, had a legal duty to take responsible action to prevent the

12 tree from injuring bystanders. The Defendant Estate breached that duty. 13 2. The fact that the tree was only partially on the Defendant Estate's property does not allow 14 it to escape liability. Just as a tree on a boundary line is owned in common by the owners 15 of the adjacent properties, see 21 GCA § 9206, the owners share liability for injuries 16

17 resulting from it being negligently maintained.

18 3. The Defendant Estate argues that the Plaintiffs failed to present evidence that the 19 Defendant Estate had actual or constructive notice of the dangerous condition of the tree, 20 as required by Guerrero v. McDonald's International Property Company, 2006 Guam 2 ~ 21

22 23, for a finding ofliability. The Court does not agree. The Plaintiffs presented testimonial

23 and photographic evidence of the condition of the tree at the time it fell, and this evidence

24 demonstrated that tree was obviously dead and in an advanced stage of decomposition. 25 The Court concludes that, in light of those facts, the Defendant Estate, as a property 26 owner, had constructive notice of the potential hazard the tree posed to bystanders. The 27

Page3 of6 Findings of Fact and Conclusions of Law Consolidated Civil Case Nos. CV 0505-12, CV 0861-12 Lujan and Camacho v. Estate of Rosario and Perez

Defendant Estate should have known, in the exercise of reasonable care, that the dead tree

2 was dangerous.

3 4. The Defendant Estate insists that neither Shawn nor Therese entered the Defendant 4 Estate's property, but this is irrelevant. The Plaintiffs cite myriad authorities consistent 5 with the Restatement view that an owner of property near an urban roadway is obligated to 6 safeguard against the risk of injury posed by dangerous conditions on the property, 7

8 including trees, to individuals on the nearby roadway, not just those who enter the

9 property. See Restatement (Second) Torts§ 363(2) and accompanying comment e. The 10 Court, applying this well-established law, agrees with the Plaintiffs. 11 5. The Defendant Estate further contends that Shawn and Therese assumed the risk of injury 12

13 or were contributorily negligent when they approached the obviously dead tree. The

14 Court rejects this argument. The Defendant Estate, as a property owner with dominion 15 over the land on which the tree stood, can be charged with constructive notice of the 16 hazard posed by a dead tree on its property; however, the same cannot be said of 17 bystanders on a heavily traveled public roadway over which the dead tree extends. The 18

19 law imposes upon property owners certain special duties of regular inspection and repair.

20 See Guerrero v. McDonald's, id In the course of discharging these duties, the Defendant 21 Estate should have come to know of the hazard posed by the dead tree. The law does not 22 impose any such special duty upon bystanders on a heavily traveled public roadway. 23 Reasonable care would not have required Shawn and Therese to conduct the kind of 24

25 inspection that would have alerted them to the danger posed by the tree, or to avoid the

26 vicinity of the tree. 27

Page4 of6 Findings of Fact and Conclusions of Law Consolidated Civil Case Nos. CV 0505-12, CV 0861-12 Lujan and Camacho v. Estate ofRosario and Perez

6. Shawn requests an award of lost wages for lost work opportunities during his

2 convalescence from his injuries. However, he concedes that he was unemployed at the

3 time of his injury. The Court concludes that an award oflost wages under the facts 4 adduced would be speculative, and that lost wages therefore cannot be awarded. 5 7. Under Newby v. Government ofGuam, 2010 Guam 4 ~~ 25-26, a plaintiff in an action for 6 wrongful death is entitled to recover damages for loss of comfort, protection, and society 7

8 of a decent only to the extent that they entail a pecuniary loss to the plaintiff. While

9 Barbara has presented abundant and convincing evidence of her emotional suffering in the 10 wake of Therese's death, she has not presented any evidence of any attendant pecuniary 11 loss. Therefore, the Court, under Newby, id., cannot award her money damages. 12 8. To the extent that Barbara raises a claim for loss of consortium separate from that implicit 13

14 in a claim for wrongful death, the Court notes that recovery for loss of consortium at

15 common law was limited to a husband's claim arising out of injuries to his wife, and that 16 the tort itself was rooted in the antiquated principle that the benefits of marriage are a 17 man's property. The tort was only recently expanded by some jurisdictions to encompass 18

19 claims by wives for injuries to their husbands, and even more recently to encompass

20 claims by parents for injuries to their children or by children for injuries to their parents. 21 Barbara has cited no authority, and the Court can find none, for the novel proposition that 22 loss of consortium damages are available for injuries suffered by a sibling. The Court 23 concludes that Barbara, as Therese's sibling, is not entitled to damages for loss of 24

25 consortium.

26 9. All findings of fact above that are more appropriately construed as conclusions of law are 27 adopted as such. 28

Page 5 of6 Findings of Fact and Conclusions of Law Consolidated Civil Case Nos. CV 0505-12, CV 0861-12 Lujan and Camacho v. Estate of Rosario and Perez

CONCLUSION

2 Accordingly, as to the claim of Plaintiff Shawn Michael Q. Lujan against the

3 Defendants, judgment shall be entered in favor of Plaintiff Shawn Michael Q. Lujan in the 4 amount of $133,325.28 plus costs. As to the claim of Barbara C. Camacho against the 5 Defendants, judgment shall be entered in favor of the Defendants and costs shall be allowed to 6 the Defendants. 7

9 IT IS SO ORDERED this day 10

II

12 ~"t!> . . -·--llllllllllllt· HONORABLE ARTHUR R. BARCINAS 13 Judge, Superior Court of Guam

Page 6 of6 1 IN THE SUPERIOR COURT OF GUAM 2

3 ) 4 PEOPLE OF GUAM ) ) 5 ) DECISION AND ORDER ) 6 vs. ) Defendant's Motion to Dismiss Due to Civil ) Compromise 7 LENICIA SHANNELLE QUINATA, ) ) 8 ) JOVANNI MILAN DIXON GUERRERO, ) 9 ) --------------------~~~~~------ Defendants. ) 10

11 INTRODUCTION 12 This matter came before the Honorable Anita A. Sukola on February 3, 2014 on Lenicia 13 Shanelle Quinata's ("Defendant Quinata") Motion to Dismiss due to Civil Compromise. 14

15 Defendant Quinata was represented by Assistant Alternate Public Defender John P. Morrison.

16 Co-Defendant Jovanni Milan Dixon Guerrero ("Defendant Guerrero") was represented by 17 Attorney Anthony R. Camacho. The People of Guam ("the People") were represented by 18 Assistant Attorney General Jesse J.N. Nasis. The parties submitted on their respective briefs 19

and the Court took the matter under advisement. Upon review of the evidence, written 20

21 arguments and legal authorities presented by the parties, the Court hereby issues this Decision

22 and Order GRANTING Defendant Quinata's motion. 23 BACKGROUND 24 Defendant Quinata and Defendant Guerrero were arrested on March 11, 2013 on charges 25

26 of Assault by Mutual Combat (As a Misdemeanor). 1 It is alleged that Defendants "were

1 The Magistrate's Complaint caption charges out the crime 28 against Defendants as a Misdemeanor. However the citation

People v. Quinata, Guerrero (CM267-13) Page I of6 Deeision and Order Defendant's Motion to Dismiss Due to Civil Compromise

ORIGINAL engaged in a verbal altercation when [Defendant Guerrero] threw a pillow at [Defendant 1

2 Quinata]." Magistrate's Complaint at Declaration (Mar. 12, 2013). "[Defendant] Quinata

3 indicated that [Defendant] Guerrero pulled her hair, twisted her right thumb and arm, grabbed 4 and twisted her right leg and ankle." Id. "[Defendant] Quinata responded by pushing and 5 scratching Defendant Guerrero in an attempt to get him to stop." Id. "Officers noted redness to 6

7 [Defendant] Quinata's wrist and ankle and [she] appeared to be limping." Id. Officers also

8 "noted redness to [Defendant] Guerrero's lower lip and scratch marks on his neck and face

9 area." Id. 10 Defendants were arraigned on April 3, 2013. Both Defendants pled not guilty. See 11 Super. Ct. of Guam Minute Entry Log 102026 & 102053 (Apr. 3, 2013). The case was assigned 12

13 to this Court on April 5, 2013. On December 27, 2013, Defendant Quinata filed a Motion to

14 Dismiss Due to Civil Compromise. Defendant Guerrero filed his waiver relative to the civil 15 compromise on December 30, 2013. Likewise, the People filed their opposition to the dismissal 16 on January 23, 2013. On February 3, 2014, the Court heard the matter. 17 DISCUSSION 18

19 Defendant Quinata moves the Court to dismiss the instant case arguing that she "would

20 like this misdemeanor compromised." Def. Quinata's Mot. to Dismiss at 2 ( Dec. 27, 2013). 21 Defendant Quinata "has signed and executed a declaration acknowledging she would like this 22 misdemeanor compromised and case dismissed against Mr. Guerrero." Id. Defendant Quinata 23

also acknowledges that "she has received satisfaction for the damages caused by [Defendant] 24

25 Guerrero." Id. She goes on to state on her Declaration that "[she] and Jovanni Milan Dixon

26 Guerrero can and have reached an amicable settlement and [they] have resolved their past 27 provided by the Attorney General's Office refers to 9 GCA § 28 19.30 (d) which specifies that the charges herein should be classified as a "petty misdemeanor."

People v. Quinata. Guerrero (CM267-13) Page 2 of6 Decision and Order Defendant's Motion to Dismiss Due to Civil Compromise differences and difficulties. [Furthermore, she does] not require any other restitution." Waiver 1

2 Re: Civil Compromise (Dec. 27, 20 13).

3 Defendant Guerrero also filed a waiver in this case. Defendant Guerrero declares under 4 penalty of perjury that an amicable settlement has been reached between himself and Defendant 5 Quinata. Equally, the differences can or have been resolved and no restitution is required. See 6

Def. Guerrero's Waiver Re: Civil Compromise (Dec. 30, 2013). 7

8 The People oppose the motion. The People argue that dismissal due to civil compromise

9 is prohibited in this case because there is no satisfaction for injury in this case. "The People's 10 position is that satisfaction of the victim's injury is best addressed through the rehabilitation of 11 the Defendant through the criminal justice system." People's Opp'n Mot. at 3 (Jan 23, 2014). 12

13 The People also contend that "there is no voluntary statement from Defendant Guerrero

14 indicating that he has received satisfaction for his injury." Id. at 4. 15 Misdemeanors may be compromised in accordance with Guam law. Guam's Criminal 16 Procedure provides when misdemeanors may be compromised as follows: 17 (a) When the defendant has been charged with the commission of an offense which is 18 not a felony for which the person injured by the act constituting the offense has a 19 remedy by a civil action, the offense may be compromised as provided by the Section. 20 (b) If the person injured appears before, or files his declaration in, the court in which the 21 criminal action is pending at any time before trial and acknowledges that he has 22 received satisfaction for the injury, the court may, on payment of the costs incurred, order the criminal action dismissed. 23 (c) A dismissal under this Section is a bar to another prosecution of the same offense. 24 8 GCA § 80.90 25

26 Section 80.90 is based on California Penal Code§§ 1377 and 1378. California case law

27 is persuasive when there is no compelling reason to deviate from California's interpretation. 28 Zurich Ins. (Gumn), Inc. v. Santos, 2007 Guam 23 ~ 7. As such, the legislative purpose behind

People v. Quinata, Guerrero (CM267-13) Page 3 of6 Decision and Order Defendant's Motion to Dismiss Due to Civil Compromise allowing civil compromise of criminal misdemeanors is not to guarantee a victim maximum 1

2 compensation for the injury, but to remove from criminal prosecution those offenses for which

3 there is a civil remedy available. People v. Stephen, 182 Cal. App.3rd 14, 27 (1986). The 4 rationale for this legislative purpose, as indicated in Stephen, is that the public interest in those 5 cases is best served by requiring the accused to make restitution directly and immediately to the 6

individual victim instead of subjecting the accused to criminal sanctions for the welfare of 7

8 society in general. Id.

9 In People v. Moulton, 131 Cal.App.3d Supp. 10 (1982), the Court held that various 10 factors may be taken into consideration by a trial judge in determining whether to dismiss a 11 misdemeanor criminal prosecution under a civil compromise statute. These factors include (1) 12

13 whether the civil injury was coextensive with the criminal violation; (2) whether the

14 circumstances were such that through private settlement the injury to the public was fully

15 vindicated; and (3) whether the victim's settlement agreement was made voluntarily. Id. at 21- 16 23. 17 In the instant case, the Defendants are charged with Assault by Mutual Combat (As a 18

19 Petty Misdemeanor). As indicated in Moulton, by its very nature, Assault is a crime in which

20 the person injured would almost always have a civil action for damages. Id. at 21. Since a civil 21 remedy was readily available at the inception of this criminal case, it may be deduced that the 22 civil injury was coextensive with the criminal violation. 23

In regards to whether the circumstances are such that through private settlement the 24

25 injury to the public would be fully vindicated, the Moulton court held that the seriousness of the

26 injury, as well as the circumstances of the commission of the offense, are taken into 27 consideration in "determining whether a civil satisfaction adequately vindicates the public's 28

People v. Quinata, Guerrero (CM267-13) Page 4 of6 Decision and Order Defendant's Motion to Dismiss Due to Civil Compromise interest in enforcing its criminal laws." Id. at 23. In the instant case, the altercation was 1

2 between the Defendants involved in a domestic relationship.

3 Lastly, in regards to whether the victim's settlement agreement was made voluntarily, 4 this Court recognizes that both co-Defendants and cross victims submitted their Declaration 5 that they have met and resolved their differences and civilly compromised the incident. The 6

Court is not in a position to second guess their Declaration, considering it was submitted under 7

8 penalty of perjury. Therefore, the Court accepts that the cross victims have voluntarily made

9 their Declaration. 10 The Court finds that Defendant Quinata' s motion provides both the legal and factual 11 basis to approve dismissal pursuant to 8 GCA § 80.90 for the following reasons: (1) The acts 12

13 constituting the offense have a remedy by civil action; (2) the injury suffered by the cross

14 victims was not serious in nature and private settlement would fully vindicate any injury to the 15 public; and (3) the cross victims have submitted a declaration under penalty of perjury that they 16 received satisfaction for the injury and would like for the Attorney General's Office to dismiss 17 this case by way of civil compromise. There is no information provided to the Court of any 18

19 costs incurred as a result of this incident. Therefore, the Court GRANTS Defendant Quinata's

20 motion recognizing that the civil compromise statute as applied in the instant case serves the 21 interests of justice, judicial economy and fairness to the parties. 22 Ill 23

Ill 24

25 Ill

26 Ill 27 Ill 28

People v. Quinata, Guerrero (CM267-13) Page5of6 Decision and Order Defendant's Motion to Dismiss Due to Civil Compromise CONCLUSION 1

2 By preponderance of the evidence and based on the foregoing reasons, the Court

3 GRANTS Defendant Quinata's Motion to Dismiss Due to Civil Compromise. The case is 4 hereby dismissed as to both Defendants. 5 SO ORDERED this jQ_day of FEBRUARY, 2014. 6

11 HONORABLE ANITA A. SUKOLA 12 Judge, Superior Court of Guam

People v. Quinata, Guerrero (CM267-13) Page 6 of6 Decision and Order Defendant's Motion to Dismiss Due to Civil Compromise IN THE SUPERIOR COURT OF GUAM

2 VICTOR C. FERNANDEZ and ) 3 CIVIL CASE NO. CV0970-13 MARIE A. FERNANDEZ, ) 4 ) Plaintiffs, ) 5 ) DECISION AND ORDER vs. ) 6 ) 7 LI, XIU, YAN, WANG, JUN RONG, and ) YUN SHING GUAM, INC., ) 8 ) Defendants. ) 9 ___________________________ ) lO

11 INTRODUCTION 12 This matter came before the Honorable James L. Canto II on Defendants' motion to 13 dismiss, filed September 11, 2013. Oral arguments were heard on November 15, 2013. 14 Attorney William B. Pole represented Plaintiffs and Attorney Phillip Torres appeared on behalf 15 of Defendants. Having considered the parties' briefs, oral arguments, and the applicable law, 16 the Court now issues the following Decision and Order. 17 BACKGROUND 18 On August 14, 2013, Plaintiffs filed a verified complaint alleging that Defendants 19 breached a lease agreement between Plaintiffs and Defendants in which Defendants rented a 20 house at 175A Naiao PL, Barrigada, Guam (hereinafter "Premises") from Plaintiffs, committed 21 fraud in the inducement and actual fraud in failing to renovate the Premises, and caused 22 additional damages to the Premises. (Verified Compl., 2-4, Aug. 14, 2013). 23 On September 11, 2011, Defendants, jointly and individually, filed a motion to dismiss 24 on three grounds: (1) Defendant Xi Y an Li moves to dismiss the case against her on the grounds 25 that the Complaint fails to state a contract claim against her upon which relief can be granted; 26 (2) Defendants Jun Rong Wang and Yung Shing Guam, Inc. move to dismiss the claims against 27 them by Plaintiffs for failure to state a claim against them; and (3) Defendants jointly move to 28

Page 1 of9 dismiss this action against all of them on the grounds that Plaintiffs did not have a business 2 license during the times asserted in their claims. (Mot. Dismiss, I, Sept. 11, 2013). 3 On October 8, 2013, Plaintiff filed an opposition to the motion, arguing that {1) there are 4 sufficient facts pled to show that Plaintiffs entered into a lease and that Defendants failed to live

5 up to the terms of the Lease resulting in financial loss and harm; {2) Plaintiffs have a valid

6 business license; {3) a contract dispute exists between the parties; {4) Plaintiffs should be given 7 leave to amend the complaint if Defendants' motion is successful. (Opp'n Mot., 2-7, Oct. 8. 8 2013).

9 On October 23, 2013, Defendant filed a reply, arguing that Defendant Li was the only 10 Defendant to have signed to the lease agreement and the lease agreement contains deficiencies

11 which precluded the agreement from constituting a contract. (Reply, 2-3, Oct. 8, 2013).

12 Further, Defendant asserts that Plaintiffs have not pled with particularity and that Plaintiffs 13 failed to have a valid business license during the term of the lease agreement frot.p. February 21,

14 2011 to February 20,2013. !d. at 3-4.

t5 DISCUSSION 16 I. Motion to Dismiss

17 Under Guam R. Civ. P. 12(b)(6), a claim may be dismissed where it "appears beyond 18 doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

19 to relief." Core Tech lntn 'I Corp. v. Hanil Engineering & Canst. Co., Ltd, 2010 Guam 13, 52 20 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to dismiss a claim

21 pursuant to Rule 12(b)(6), a court must review the pleading in the light most favorable to the

22 non-movant, accept its material allegations of fact as true, and resolve any doubts in favor of the 23 non-movant. First Hawaiian Bank v. Manley, 2007 Guam 2 , 9. 24 In this case, viewing the verified complaint in the light most favorable to Plaintiffs and 25 a pting its material allegations as true, Defendants failed to renovate the Premises as required 26 under the lease agreement and caused additional damages to the Premises. (Verified Compl., 3,

27 Aug. 14, 2013). On this basis, the verified complaint alleges that Defendants breached a

28 contract, committed fraud, and caused further damage to the house.

Page2 of9 A complaint that is attacked under Guam R. Civ. P. 12(b)(6), "need not contain detailed 2 factual allegations, [but] a plaintiffs obligation to provide the grounds of his entitlement to 3 relief 'requires more than labels and conclusions, and a formulaic recitation of the elements of a 4 cause of action will not do."' Core Tech, 2010 Guam 13 ~52 (quoting Twombly, 550 U.S. at 5 555). Guam R. Civ. P. 12(b)(6) was adopted from Fed. R. Civ. P. 12(b)(6) and a federal court's 6 interpretation ofthe analogous federal rule is persuasive authority. Guam R. Civ. P. 12(b)(6). 7 See also Sananap v. Cyfred, Ltd., 2011 Guam 21 ~ 24 n. 13; Pelowski v. Taitano, 2000 Guam 34 8 ~ 12. The U.S. Supreme Court holds the following regarding how substantive a pleading must 9 be to survive a Civil Procedure Rule 12(b)(6) motion: 10 To survive a motion to dismiss, a complaint must contain sufficient factual matter, II accepted as true, to 'state a claim to relief that is plausible on its face.' ... The plausibility standard is not akin to a 'probability requirement,' but it asks for more I2 than a sheer possibility that a defendant has acted unlawfully ... But where the well- pleaded facts do not permit the court to infer more than the mere possibility of 13 misconduct, the complaint has alleged- but it has not 'shown'- 'that the pleader is 14 entitled to relief.' Fed. Rule Civ. Proc. 8(a)(2). In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings 15 that, because they are not more than conclusions, are not entitled to the assumption I6 of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. I7 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50 (2009) (citations omitted). I8 Pursuant to Guam R. Civ. P. 8(a), a complaint shall contain, "a short and plain statement I9 of the claim showing that the pleader is entitled to relief." The U.S. Supreme Court explains 20 that: 2I [T]he pleading standard Rule 8 announces does not require "detailed factual 22 allegations," but it demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation. A pleading that offers "labels and conclusions" or "a 23 formulaic recitation of the elements of a cause of action will not do." Nor does a 24 complaint suffice if it tenders "naked assertions" devoid of "further factual enhancement. ... a complaint must contain sufficient factual matter, accepted as 25 true, to "state a claim to relief that is plausible on its face."

26 Ashcroft v. Iqbal, 556 U.S. 662,678, 129 S.Ct. 1937, 1949 (2009) (citations omitted). 27 The Court goes on to explain that, "[t]hreadbare recitals of the elements of a cause of 28 action, supported by mere conclusory statements, do not suffice ... Rule 8 marks a notable and

Page 3 of9 generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not 2 unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id 3 (citations omitted).

4 Defendants here filed a motion to dismiss on three grounds: (1) Defendant Xi Yan Li 5 moves to dismiss the case against her on the grounds that the Complaint fails to state a contract 6 claim against her upon which relief can be granted; (2) Defendants Jun Rong Wang and Yung 1 Shing Guam, Inc. move to dismiss the claims against them by Plaintiffs for failure to state a 8 claim against them; and (3) Defendants jointly move to dismiss this action against all of them

9 on the grounds that Plaintiffs did not have a business license during the times asserted in their 10 claims. (Mot. Dismiss, 1, Sept. 11, 2013). Each ground will be discussed, in turn. II

12 n. Contract Claim Against Defendant Li 13 Defendant argues that the lease agreement does not comport with the elements of a 14 contract because the consideration for the agreement cannot be determined from the agreement. 15 (Mot. Dismiss, 2, Sept. 11, 2013). Under Guam law, an enforceable contract requires an offer,

16 acceptance, and consideration Mobil Oil Guam, Inc. v. Tendido, 2004 Guam 7 , 34 (citing 18 17 GCA § 85102 (1992) ("It is essential to the existence of a contract that there should be: 1)

18 Parties capable of contracting; 2) Their consent; 3) A lawful object; and 4) A sufficient cause or 19 consideration.")). Even if a contract is not stated in words, an implied contract can exist where

20 th terms are manifested by conduct. 18 GCA § 86103 (2005).

21 In the present case, the breach of contract claim is supported by the following alleged 22 facts: (1) On or about February 21, 2011, Defendant Li executed a two year lease ending on 23 February 20, 2013 to rent the Premises; (2) The lease required Defendants to renovate and 24 repair the Premises as partial consideration; (3) Defendant Li immediately took possession and

25 took occupancy of the Premises; and (4) Defendant Li paid $350 per month for rent. These 26 facts, when taken as true, address the existence of a contract between Plaintiffs and Defendant 27 i and how Defendant Li breached the contract. This breach of contract claim raises a right to 28

Page4 of9 relief above the speculative level and for these reasons, the claim is plausible on its face and 2 shall not be dismissed on this ground. See Twombly, 550 U.S. at 555. 3

4 III. Fraud Claim 5 Defendants argue that Plaintiffs have not pled fraud with particularity and that they have 6 not provided sufficient facts and circumstances to allege misrepresentation. (Reply, 3, Oct. 23, 7 2013). Under Guam law, the elements of fraud are as follows: "1) a misrepresentation; 2) 8 knowledge of falsity (or scienter); 3) intent to defraud to induce reliance; 4) justifiable reliance; 9 5) resulting damages." Trans Pacific Export Co. v. Oka Towers Corp., 2003 Guam 3 ~ 23 10 (citations omitted). II The fraud claim brought by the Fernandez Plaintiffs is supported by the following I2 alleged facts: (1) Defendant Wang, a licensed and experienced contractor, induced Plaintiffs to 13 rent the Premises to the Defendants without which Plaintiffs would not have entered into the I4 lease; (2) Throughout the period of the lease, Defendants repeatedly promised that full repairs, I5 renovations and/or improvements would be completed to the Premises; 3) Defendants left the I6 Premises without having made the renovations and repairs; and 4) Damages resulted from the I7 failure to complete the improvements to the Premises. These facts, when taken as true, do not I8 address how Defendants actions, or inactions, constitute fraud. Specifically, Plaintiffs do not I9 allege any factual allegations as to the knowledge of falsity (or scienter) on the part of 20 Defendants when dealing with Plaintiffs and also lack factual allegations relating to Defendants' 21 intent to defraud to induce reliance. Absent a well pled fact of fraud, the claim fails to raise a 22 right to relief above the speculative level. See Twombly, 550 U.S. at 555. For these reasons, the 23 claim of fraud is not plausible on its face and that claim shall be dismissed. 1 24 II 25 II 26 1 27 Defendants further oppose dismissal on the grounds that amendment should be granted. This argument lacks merit because no amended pleading has been presented for the Court to review. See Car Carriers, Inc. v. Ford 28 Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984) ("[l]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.").

Page 5 of9 IV. Claims Against Defendants Jun Rong Wang and Yung Shing Guam, Inc. as to the Lease Agreement 2 Defendant Wang and Defendant Yun Shing Guam, Inc. argue that they are not parties to 3 the lease agreement and should not be part of the suit. (Mot. Dismiss, 3, Sept. 11, 2013). 4 Plaintiffs allege that Defendant Li entered into the lease on behalf of all the Defendants. 5 (Compl., 2, Aug. 14, 2013). Plaintiffs appear to have included Defendant Wang in the suit 6 because Defendant Wang allegedly induced Plaintiffs to rent the house to Defendant Li. 7 However, as stated above, the fraud claim is dismissed. /d. Furthermore, Plaintiffs appear to 8 have included Defendant Yun Shing Guam, Inc. in the suit because Defendant Li and Defendant 9 Wan wholly own Yun Shing Guam, Inc. and the Premises were used by the company's lO workers. /d. However, the lease agreement is only signed by the Defendant Li and Plaintiffs 11 fails to adequately show how Defendant Li entered into the lease on behalf of the other two 12 Defendants in this suit or in his or her capacity as owner of Yun Shing Guam, Inc. Absent such 13 a showing and a well pled fact of a breach of contract against Defendants Wang and Yun Shing 14 G~ Inc., the breach of contract claim cannot be maintained against Defendants Wang and 15 Y un Shing Guam, Inc., and those claims against them which refer to the lease agreement shall 16 be dismissed. See Twombly, 550 U.S. at 555. ("Factual allegations must be enough to raise a 17 right to relief above the speculative level"). 18

19 V. Business License 20 Defendants argue that II GCA § 70130 provides that a plaintiff cannot maintain the 21 action if he or she does not have a business license and, because Plaintiffs did not have a 22 business license during the period in question, they are precluded from maintaining this lawsuit 23 again t Defendants. (Mot. Dismiss, Sept. II, 2013). Plaintiffs assert that the recent 24 amendments to the statute allow a business to cure any issues that would arise from not having 25 obtained a business license. (Opp'n Mot., 4-5, Oct. 8, 2013). 26 This case involves Guam's BusineSs License Law, found at 11 GCA §§ 70101 et seq. 27 In deciding the business license issue herein, the Court finds the following statutes 28

Page 6 of9 11 GCA § 70130. Restriction of Activities on Persons Engaging in, 2 Transacting, Conducting, Continuing, Doing, or Carrying on a Business Without Licenses. 3 It is the policy of the government of Guam that all persons engaging in, transacting, conducting, continuing, doing, or carrying on a business have 4 business licenses. Unless otherwise specifically exempted by law, no person shall 5 engage in, transact, conduct, continue, do, or carry on a business in Guam until it obtains a business license. The requirement to obtain a business license shall be 6 independent of and in addition to a requirement for a certificate of authority from 7 the Director of Revenue and Taxation or other applicable regulating agency or board, pursuant to applicable Guam laws, including, but not limited to, 22 GCA § 8 15307,22 GCA § 15102, 18 GCA § 7102 and 11 GCA § 106213. 9 11 GCA § 70131. Consequences of Engaging in, Transacting, Conducting, 10 Continuing, Doing, or Carrying on a Business Without Business License or Certificate of Authority. 11 (b) Any person engaging in, transacting, conducting, continuing, doing, or carrying on a business on Guam without a business license and, as may be 12 required by all applicable laws of Guam, a certificate of authority from the 13 Director of the Department of Revenue and Taxation, or other applicable regulating agency or board, may not maintain a proceeding in any Court on Guam 14 until it obtains a business license and, as may be required by all applicable laws of Guam, a certificate of authority to transact business on Guam. 15

16 (e) Notwithstanding the provisions of this Section, the failure of a person to obtain a business license, and, as may be required by all applicable laws of Guam, a 17 certificate of authority from the Director of the Department of Revenue and Taxation, or other applicable regulating agency or board, does not impair the 18 validity of its corporate acts or prevent it from defending any proceeding in 19 Guam.

20 Furthermore, Title 11 Chapter 76, a subset of the Business License law, provides, in

21 pertinent part:

22 Every person engaged in or carrying on any service business or calling, which shall include all non-professional activities engaged in for other persons for 23 consideration, involving the rendering of a service as distinguished from the 24 production or sale of tangible property, but not including the services rendered by an employee to his employer, shall be required annually to obtain a service 25 license. The annual fee for a service license shall be Fifty Dollars ($50.00) except 26 that the fee shall be Ten Dollars ($10.00) for any person who rents or leases not more than one family-residential unit. 27 11 GCA § 76101 (2007) (emphasis added). 28 Here, Plaintiffs rented a house to Defendants for the consideration of $350 per month

Page 7 of9 and renovation to the house. Therefore, Plaintiffs were required to obtain a license. See 11 2 GCA § 76101 (2007). The lease period was from February 21, 2011 to February 20, 2013, but 3 the Plaintiffs obtained a license on April17, 2013. (Opp'n Mot., Exhibit 9, Oct. 8, 2013). 4 Under Guam law, the lack of a business license does not void the underlying obligation 5 altogether. Guam Tai-Pan Dev. and Constr. Inc. v. Yigo Alta Estates, 2002 Guam 20 ~ 11. 6 Thus, the failure of Plaintiffs to hold a business license does not negate the validity of the 7 underlying lease agreement. Jenkins v. Montallana, 2007 Guam 12 ~ 21 n.7 (citation omitted). 8 However, even if a Plaintiff obtains a business license thereafter, he or she may not collect for 9 the breaches of an agreement that occurred during the period of time within which the 10 individual did not have a valid business license. Arashi & Co., Inc. v. Nakashima Enterprises, 11 Inc., 2005 Guam 21 ~ 26. Thus, under Guam Supreme Court precedent, Plaintiffs may not 12 recover for the breaches of the lease agreement during the period which Plaintiffs did not have a 13 valid business license, which equates to any time before Apr. 17, 2013. Because the complaint 14 alleges breaches to the lease agreement before Apr. 17, 2013, any and all claims against 15 Defendants arising from the lease agreement shall be dismissed. 16 Having found that Plaintiffs may not recover for the breaches of the lease agreement for 17 the period in which Plaintiffs did not hold a business license, any amendment to the complaint 18 in this regard is futile and thus, leave to amend the complaint shall not be awarded to Plaintiffs. 19 See Arashi & Co., Inc. v. Nakashima Enterprises, Inc., 2005 Guam 21 ~ 16 (finding that leave to 20 amend may be denied in circumstances where amendment would be futile).

21 VI. Property Damage Claim 22 Plaintiffs state a cause of action against Defendants alleging that Defendants' 23 "workers/employees" caused an estimated $12,993.55 in physical damage to Plaintiffs' house. 24 (Verified Compl., 3, Aug. 14, 2013). Plaintiffs allege Defendants are liable for said damages 25 via a respondeat superior theory. Id. This alleged cause of action is unaffected by Plaintiffs' 26 ability to legally enforce a lease agreement or their timely acquisition of a business license. 27 Further, Defendants did not specifically address this particular claim by Plaintiffs in their 28

Page 8 of9 motion to dismiss. Thus this claim withstands that dismissal motion.

2 Ill 3 Ill 4 Ill 5 CONCLUSION 6 Based upon the foregoing, Defendants' motion to dismiss is hereby GRANTED in part, 7 such that the fraud claim and any and all claims pertaining to the lease agreement are hereby 8 dismissed. The claim regarding a cause of action for damage to real and/or personal property, 9 as well as any other cognizable claims not discussed above, survive the motion to dismiss.

11 SO ORDERED this f1-rrt day of February, 2014. 12

15 HON. JAMES L. CANTO II 16 Judge, Superior Court of Guam 17

Page 9 of9 RIOR COURT OF GUAM

2 CHEN YU MACK, ) CIVIL CASE NO.~'CtVo65ItHI 3 ) Plaintiff, ) 4 ) vs. ) 5 ) DECISION AND ORDER 6 ) DONALD B. DAVIS, ) 7 ) Defendant. ) 8

9 INTRODUCTION 10 This matter came before the HONORABLE VERNON P. PEREZ on November 8, 2013 11 on Defendant's Motion to Compel Discovery Responses. Attorney Jehan'ad G. Martinez 12 appeared on behalf of the Defendant. Attorney Daniel J. Berman appeared on behalf of the 13 Plaintiff. Having reviewed the pleadings, the arguments presented and the record, the Court 14 now issues the following Decision and Order. 15 BACKGROUND 16 This case arises from a complaint for Injunctive Relief and Damages. Plaintiff alleges 17 that Defendant granted her an irrevocable proxy. Plaintiff and Defendant came to an agreement 18 in 2008 where they would put up their own money to form IHIAC, Inc. in addition to acquiring 19 a joint loan from Bank of Guam ("BOG") also for that purpose. The intent was to purchase 20 Zurich Insurance Guam, Inc. ("ZIG"). After forming IHIAC, both parties were issued 1,999 21 shares of IHIAC stock and 2 shares went to one Francis Santos as a tie breaker. The agreement 22 came to fruition and IHIAC bought all of the stock of ZIG, after which ZIG's name was 23 changed to Island Home Insurance ("IHIC"). After the company consolidation was completed, 24 Plaintiff alleges that she invested $1,525,000.00 into IHIAC, transferred her Staywell Guam, 25 Inc., stock worth approximately $3,000,000.00 to IHIAC, became jointly liable on a 26 $9,415,000.00 loan from BOG and allowed her $1,960,000.00 valued real property to be used as 27

28 security on the BOG loan.

Chen Yu Mack v. Donald B. Davis Decision and Order Civil Case No. CV0651-II -Page I of 5- Thereafter, Plaintiff alleges that Defendant promised Plaintiff a proxy of Defendant's 2 shares to allow Narcissa Samonte ("Samonte") to become a I 0% shareholder in IHIAC to calm 3 Plaintiffs concerns over becoming a minority shareholder. Plaintiff also alleges that Defendant 4 granted her a proxy of his shares via email. Plaintiff attempted to use the alleged proxy at a 5 shareholders meeting on April 8, 20 II in order to pass a resolution that would grant her 6 $10,000.00 a month and reduce Defendant's annual salary. Yet, when attempting to use the 7 alleged proxy, Defendant revoked his proxy and Plaintiffs resolution failed. 8 On January I2, 20 I2, this Court issued a Preliminary Injunction ordering Defendant to 9 desist from voting his share of his IHIAC stock until the resolution of this matter at trial. The 10 Guam Supreme Court subsequently affirmed the Court's decision. There were, however, 11 pending issues regarding discovery. Defendant brought a Motion to Compel Discovery 12 responses and Plaintiff opposed. The Court now addresses that motion. 13 DISCUSSION 14 At issue is whether the Court should compel production of Plaintiffs tax returns an 15 other documents relative to Plaintiffs financial condition. The Supreme Court of Guam i 16 Haeuser v. Dept. of Law, Gov't of Guam explained that "[t]he United States Supreme Court an 17 the Ninth Circuit have recognized that tax returns are privileged documents, but do not enjoy a 18

19 absolute privilege from discovery." Haeuser v. Dept. of Law, Gov't. ofGuam, I999 Guam 12

20 23. (citing St. Regis Paper Co. v. United States, 368 U.S. 208, 219; Premium Service Corp. v. 21 Sperry & Hutchinson Co., 5II F.2d 225, 229 (9th Cir. 1975). Furthermore, "[a] public polic 22 exists against unnecessary disclosure in order to encourage taxpayers to file complete an 23 accurate returns." !d. (citing Premium Service Corp., 511 F.2d at 229). 24 25 The Supreme Court in Haeuser adopted a rule to determine whether tax returns should b

26 disclosed in discovery. "[A] court must determine whether: I) the tax return is relevant to th 27 subject matter in dispute; and 2) a compelling need exists for the return because the informatio 28

Chen Yu Mack v. Donald B. Davis Decision and Order Civil Case No. CV0651-Il -Page 2 of 5- sought is not obtainable from other sources." ld. (citing Terwilliger v. York Int 'l Corporation 2 176 F.R.D. 214,216-217 (W.D. Va. 1997). "The party seeking discovery oftax returns bears th 3 burden of establishing its relevance, while the resisting party has the task of identifying a 4 alternative source for information." Id. 5

6 The trial court in the underlying case in Haeuser ruled against production of tax returns

7 finding that there were other sources from which to draw the information from those documents. 8 The Supreme Court affirmed the trial court's decision, ruling that the "government present[ed] 9 only general assertions of relevance and [did] not offer any other arguments to justify reversin 10 the trial judge's determination that these documents were not needed." Haeuser at~ 28. 11

12 In the present case, Defendant argues that establishing the truthfulness of Plaintiff, an

13 her financial claims, necessitates the requests for production. Def s. Mot. pg. 5. Defendan 14 further argues that there are no public sources of the information being sought as Plaintiff is not 15 publicly traded company, or a public employee whose financial condition is subject to reportin 16

17 requirements and public scrutiny. Defs Mot. pg. 5. On that basis, Defendant concludes tha

18 Plaintiff should be ordered to produce the documents requested. 19 Plaintiff first argues that her financial information is not relevant to any issue in thi 20 litigation. She further argues that the legal issue at hand is not whether she needs the money bu 21 instead whether she is legally entitled to it. Plaintiff cites to 6 Moore's Federal Practice 22 23 26.1(8)(a)-(b), which states in relevant part: "[c]ourts continue to apply the general principle tha

24 a party's financial information is relevant for purposes of discovery if it implicates specifi 25 elements of a claim or defense. Plaintiff also cites to case law for the notion that disclosure o 26 tax returns is especially disfavored. US. v. Bonnano Organized Crime family of La Costr 27 Nostra, 119 F.R.D. 625, 627 (E.D.N.Y 1998). 28

Chen Yu Mack v. Donald B. Davis Decision and Order Civil Case No. CV0651-ll -Page 3 of5- The Court is tasked with balancing the discovery needs of a party against the publi 2 policy favoring non-disclosure. In the Bonnano case cited by Defendant, the Court set aside a 3 order precluding the production of tax returns and held that the tax returns were "clearl 4 relevant" because of the Government's contentions that the party, from whom the tax return 5

6 were sought, did not have adequate income to make purchases and operate as he did. Bonnano a

7 628. In Smith v. Bader, the court noted that along with the test of relevance and whether ther 8 was a compelling need for the information, some courts also considered whether the taxpayer ha 9 made an issue ofhis income. Smith v. Bader, 84 F.R.D. 437, 438 (1979). In that case the Cou 10 ordered the production of the plaintiffs tax returns, holding that "[p]laintiffs have placed thei 11

12 income in issue by claiming that they have suffered a loss due to defendants' actions and i

13 would be inequitable to prevent the defendants from obtaining the necessary evidence t 14 disprove this claim." In Mitsui & Co., v. Puerto Rico Water Resources Authority, the court als 15 ordered the plaintiffs therein to produce their income tax returns. Mitsui & Co. Inc. v. Puert 16

17 Rico Water Resources Authority, 79 F.R.D. 72, 81 (1978). In that case, the plaintiff claimed ove

18 thirty million dollars for losses and damages due to defendants' alleged non-compliance wit 19 their obligations under the contract. The Court ultimately held that the plaintiff "clearly put a 20 stake its income ... so as to waive any right it may have to maintain undisclosed its tax returns' 21 matters." Id. 22 23 Here, we have a similar situation. Plaintiff alleges: Because of [Defendant's] breach o

24 the irrevocable Mack Proxy, [Plaintiff] has suffered general, consequential, and compensator 25 damages, including, but not limited to, damages for lost profits, attorney's fees and expenses, 26 pre-judgment interest, future and loss bargain damages in an amount to be proven at trial. Pl' 27 Compl. ~ 52. 28

Chen Yu Alack v. Donald B. Davis Decision and Order Civil Case No. CV0651-Il -Page 4 of5- Further, in its April 22, 2011 letter to Defendant, Plaintiff wrote: "I have become unabl 2 to pay my debts monthly as they become due without the $10,000 monthly compensation yo 3 promised me in exchange for my investment and contribution in the companies. I will need t 4 admit to BOG shortly that I am unable to pay all my debts as they come due." See Decl. o 5

6 Jehan'ad Martinez, Decl. ~ 3; Ex. 1. The Court notes that Defendant is a co-borrower on th

7 BOG debt referenced by Plaintiff. 8 The Court deems the above two references sufficient for a finding that Plaintiffs incom 9 has been placed at issue. As such, the Court believes that production of tax returns and financia 10 documents is relevant to the subject matter in dispute. Furthermore, Plaintiff has not identifie 11

12 an alternative source for the information sought. On that basis, the Court will grant Defendant'

13 Motion to Compel Production of Discovery Responses, as outlined in the parties' Amended CV 14 37.l(b) Stipulation filed on December 30, 2011. The Court, however, heeds the traditiona 15 privacy concerns relative to these documents, and orders that the parties sign a confidentialit 16

17 stipulation prohibiting the disclosure of documents produced to anyone other than counsel.

18 CONCLUSION 19 For the foregoing reasons, the Court GRANTS Defendant's Motion to Compel 20 Discovery Responses. 21 So ORDERED this \\~ day ofFebruary, 2014. 22 23

24 HO RABLE VERNON P. PEREZ 25 JUDGE, SUPERIOR COURT OF GUAM 26

27 28

Chen Yu Mack v. Donald B. Davis Decision and Order Civil Case No. CV0651-ll -Page 5 of 5- ~ Uuur "T' 1

IN THE SUPERIOR COURT OF GUAM / I l:u 2 ) SPECIAL PROCEEDINGS CASE'Nd.l PORT AUTHORITY OF GUAM, ) SP0125-1 3 ) 4 Petitioner, ) vs. ) 5 ) 6 CIVIL SERVICE COMMISSION, ) ) DECISION AND ORDER 7 Respondent, ) ) 8 and JOSE B. GUEVARA, III, ) 9 ) Real Party in ) 10 Interest. ) 11

12 This matter came before the HONORABLE VERNON P. PEREZ on November 22,2013

13 for Further Proceedings. Attorney John R.B. Bell appeared on behalf of the Port Authority o 14 Guam ("Petitioner"). Attorney Jeffrey A. Moots appeared on behalf of Jose B. Guevara, th 15 Real Party in Interest ("Guevara"). At the hearing, the parties brought to issue, whether th 16

17 Court has jurisdiction to proceed on this case. 1 The Court took the matter under advisement.

18 Having considered the parties' arguments and pleadings, the Court now issues the followin 19 Decision and Order. 20 BACKGROUND 21 This case stems from actions taken by the Civil Service Commission ("Respondent" 22 23 relative to Guevara's employment at the Port Authority of Guam ("PAG"). Guevara occupied

24 position referred to as "Financial Affairs Controller" at the PAG. Verified Pet. ~ 5. 0

25 December 18, 2012, Guevara was served a Final Notice of Adverse Action for dismissal base 26

27 1 Guevara had also filed a Motion to Dismiss requesting that the Court dismiss Petitioner's filing for lack of

28 jurisdiction. Although the November 2013 hearing was not a motion hearing, the Court heard arguments relative to the Guevara's Motion to Dismiss.

Port Authority of Guam v. Civil Service Commission Decision and Order Special Proceedings Case No. SPO 125-13 - Page I of 5 - on allegations pertaining to the certification of unavailable funds, among other things. Verifie

2 Pet. ~ 13. Guevara subsequently appealed his termination to Respondent, seeking to void th 3 personnel action, in part, on the basis that Petitioner violated a provision of 4 GCA § 4406, als 4 known as the "60-Day rule." Verified Pet.~ 18. Petitioner opposed the appeal on the ground 5

6 that the 60-Day rule was not violated and also that, as an unclassified employee, Guevara had n

7 standing to appeal his termination before respondent. Verified Pet. ~ 19,30. Ultimately, 8 majority of Respondent's Commissioners voted to grant Guevara's motion to void the personne 9 action against him. Verified Pet.~ 30. Petitioner then filed the instant matter. 10 DISCUSSION 11

12 Before the Court can address the substance of Petitioner's claims, the Court must firs

13 determine whether jurisdiction over this matter is proper. The Verified Pet. states that this cou 14 has jurisdiction over this subject matter pursuant to 7 GCA § 4101 and 7 GCA §§ 31101, et seq. 15 Verified Pet. ~ 1. Further, Petitioner requests Judicial Review, pursuant to 7 GCA § 31108 16

17 Verified Pet. ~ 2. Guevara contends that pursuant to Carlson v. Perez, 2007 Guam 6 ~ 61, th

18 Guam Supreme Court states that 4 GCA § 4406, instead, provides the statutory jurisdiction fo

19 judicial review of the Respondent's decisions regarding an adverse action. Mot. to Dismiss pg. 20 2. Guevara also points out that the procedure to be applied is that which is developed pursuant t 21 the Court's authority found in 7 GCA § 7117. Mot. to Dismiss pg. 2. On those bases, Guevar 22 23 argues that Petitioner has failed to invoke any legal basis for this Court to exercise jurisdiction t

24 review Respondent's decision and, therefore, the Court should dismiss Petitioner's filing. 25 The relevant portions of the statutory provisions at issue are as follows: 26 II 27 II 28

Port Authority of Guam v. Civil Service Commission Decision and Order Special Proceedings Case No. SP0125-13 -Page 2 of5- § 4101. Superior Court: Nature and Composition 2 The Superior Court of Guam is a court of general jurisdiction in Guam, having 3 original jurisdiction as prescribed by this Title and in other laws of Guam which are not within the exclusive jurisdiction of the Supreme Court of Guam or the 4 District Court of Guam. 5 7 GCA § 4101. 6 §§ 31101, et seq. Writ of Review 7 The Writ of certiorari may be denominated the writ of review. 8

9 7 GCA §§ 31101, et seq.

10 § 31108. Extent of Review 11 The Review upon this writ cannot be extended further than to determine whether 12 the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. 13

14 7 GCA § 31108.

15 § 4406. Adverse Action Procedures and Appeals

16 The decision of the Commission or appropriate entity shall be final, but subject to 17 judicial review.

18 4 GCA § 4406. 19 § 7117. Means to Carry Jurisdiction into Effect 20 When jurisdiction is by law conferred on a court or judicial officer, all the means 21 necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of the proceeding be not specifically pointed out by law 22 or by rules of procedure adopted by the Supreme Court, any suitable process or 23 mode of proceedings may be adopted which may appear most conformable to the spirit of this Title. 24 7 GCA § 7117. 25

26 The Guam Supreme Court in Carlson v. Perez, 2007 Guam 6, held that "where th

27 agency's specific legislation directs how the agency action is to be judicially reviewed, then tha 28 agency's law should govern how one is to seek judicial review of that agency's action." Carlsm

Port Authority of Guam v. Civil Service Commission Decision and Order Special Proceedings Case No. SPO 125-13 - Page 3 of 5 - v. Perez, 2007 Guam 6 ~59. The Supreme Court went on to recognize that, "the law establishin 2 the [Civil Service Commission ("CSC")] governs appeals to the CSC from adverse actions an 3 provides for judicial review." Id. at~ 60. While 4 GCA § 4406 arguably confers jurisdiction o 4 the court to review decisions of the CSC, the Supreme Court held that it only provides guidanc 5

6 as "the statute is ... silent on the procedures for obtaining review." Id. at~ 61. The Court wen

7 on to hold that "for an appeal of a CSC decision, the aggrieved must denominate the Petition as 8 'Petition for Judicial Review. "'2 Finally, the Court held that "reliance on the procedures of th 9 writ of mandate is inappropriate because the extraordinary remedy of mandate is discretionar 10 and carries a threshold of satisfying certain statutory requirements, while review of a CS 11

12 adverse action decision should be heard as a matter of right, not discretion." !d. at~ 66.

13 In the present case, Petitioner attempts to invoke jurisdiction on this Court by citing to 14 GCA § 4101, 7 GCA §§ 31101, et seq, and 7 GCA § 31108. Verified Pet.~ 1-2. As thes 15 statutes alone deal with the Nature and Composition of the Superior Court, Writ of Review, an 16

17 Extent of Review, the Court can dismiss this petition as inconsistent with the holding in Carlson.

18 The Court, however, finds a distinction with facts in the present case and those in Carlson. 19 In Carlson, the Petitioners sought a writ from the Superior Court to reverse the Gua 20 Economic Development and Commerce Authority ("GEDCA") actions taken against them. 21 Carlson at~ 53. They urged the Supreme Court to "treat their respective petitions liberally, an 22 23 construe them as petitions for judicial review." !d. at~ 67. The Court, however, declined to d

24 so because neither Petitioner indicated in the pleadings that they were appealing the CS 25 decisions. !d. Further, the Petitioners did not even name the CSC as a party to the proceeding.' 26 27 2 28 The Court reasoned its holding as stemming from its power to designate "any suitable process or mode of proceedings ... most conformable to the spirit of this title" found in 7 GCA § 7117.

Port Authority of Guam v. Civil Service Commission Decision and Order Special Proceedings Case No. SPO 125-13 - Page 4 of 5 Id. at~ 55. This Court, however, takes note of footnote 24, where the Supreme Court therei 2 stated, "[i]ndeed if the Petition had named the CSC as a party and requested review of the CS 3 decisions, we would have treated it as an appropriate Petition for Judicial Revie 4 notwithstanding its label as a Petition for a Writ of Mandate." Id. at~ 67, fn. 24. 5

6 In this case, the CSC is named as a party to the proceedings. Furthermore, the Court i

7 satisfied that there are sufficient grounds to determine that although Petitioner invoked thi 8 Court's jurisdiction erroneously under the Writ provision, the Petitioner ultimately seeks Judicia 9 Review of the CSC's decision. Thus, the Court construes the pleadings liberally and maintain 10 jurisdiction over this matter. On that basis, the Court will deny Guevara's motion to dismiss fo 11

12 lack of Jurisdiction.

13 CONCLUSION 14

15 For the foregoing reasons, the Court DENIES the Real Party in Interest's Motion t

16 Dismiss. 17 So ORDERED this day of _ll_ February, 2014. 18

20 21 HO ORABLE VERNON P. PEREZ JUDGE, SUPERIOR COURT OF GUAM 22 23 II 24 25

Port Authority of Guam v. Civil Service Commission Decision and Order Special Proceedings Case No. SPOI25-13 -Page 5 of5- ~SUPERIOR COURT OF GUAM 2 ) CIVIL CASE NO"' CM583-05 Jf!Tt? 3 THE PEOPLE OF GUAM )

AFTERHEA~:C ) 4 ) vs. ) ORDER 5 I~_' ' F

) 6 ) JONATHAN A. LEON GUERRERO, ) 7 ) Defendant. ) 8 ______________________________) 9

10 This matter came before the HONORABLE VERNON P. PEREZ on February 5, 201 11 for Further Proceedings. Assistant Attorney General James Stake appeared representing th 12 Government. Attorney Todd Thompson appeared representing the Defendant. Having reviewe

13 the pleadings and the arguments presented, the Court now issues the following decision an

14 order. DISCUSSION 15 16 Defendant pled guilty to one count of Assault (as a misdemeanor) on May 5, 2005.

17 Judgment was entered and the Court ordered Defendant to pay a fine of $500 to the Crimina Injuries Compensation Fund and restitution to the victim. The Court also sentenced Defendan 18 to a two year term of supervised probation expiring May 5, 2008. The issue is whether the Cou 19 still has jurisdiction over Defendant. The People argue that the Court should exercise it 20 jurisdiction over Defendant because he has failed to make any payments to his fine an 21 restitution. The People ask that the Court find Defendant in contumacious default and order hi 22 incarcerated for a period of one (1) year. Defendant argues that the Court lacks jurisdiction t 23 revoke probation because Defendant's probationary term expired on or about February 23, 2009. 24 As a result, Defendant requests this Court disregard the People's demand that Defendant b 25 imprisoned. The Court agrees with Defendant. Pursuant to People v. Anson, 1998 Guam 11, th

26 People's motion was made after Defendant's probationary term had expired. Thus the Court i

27 now without jurisdiction. On that basis the Court will not order Defendant be incarcerated. Court, instead, will dismiss this matter. 28

People v. Leon Guerrero Order After Hearing Criminal Case No. CM583-05 -Page l of2- 2 CONCLUSION

3 For the foregoing reasons, the Court DENIES the People's Motion and ORDERS thi case Dismissed. 4

5 So ORDERED this day of \\*' February, 2014. 6 7 8 HONORABLE VERNON P. PEREZ JUDGE, SUPERIOR COURT OF GUAM 9 10 II

11 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

People v. Leon Guerrero Order After Hearing Criminal Case No. CM583-05 -Page 2 of2- IN THE SUPERIOR COURT OF GUAM

2 TUDOR CONSTRUCTION CO., INC., and ) 3 PHILIP C. AHN, ) CIVIL CASE NO. CV0513-12 4 ) Plaintiffs, ) 5 ) DECISION AND ORDER vs. ) 6 ) 7 CORE TECH INTERNATIONAL ) CORPORATION and FIDELITY AND ) 8 DEPOSIT COMPANY OF MARYLAND, ) ) 9 Defendants. ) 10

12 INTRODUCTION

13 This matter came before the Honorable James L. Canto II on Defendant Fidelity and

14 Deposit Company of Maryland's motion for summary judgment on Plaintiffs supplemental

15 complaint of bad faith, filed September 27, 2013. The final brief by the parties regarding this

16 motion was filed October 21, 2013, and the Court took the matter under advisement thereafter.

17 Having considered the parties' briefs and the applicable law, the Court now issues the following

18 Decision and Order. 19 BACKGROUND 20 On May 3, 2012, Plaintiff filed a complaint to allege nonpayment for work completed in

21 two construction projects as a subcontractor to Defendant Core Tech International Corporation

22 (hereinafter "CTI"), where one project was guaranteed by a payment bond executed with

23 Defendant Fidelity and Deposit Company of Maryland (hereinafter "Fidelity"). Plaintiff alleges 24 that CTI owes $103,525.15 plus interest for its work on the first project for the U.S. Navy 25 (hereinafter "Navy project"). (Complaint, 2, May 3, 2012). Plaintiff also alleges that CTI owes 26 $232,502.49 plus interest for its work on the second project for the Guam Waterworks

27 Authority (hereinafter "GWA project'). /d. at 2-3. The amount owed for work completed on 28 the GWA project is fully insured by Fidelity's payment bond pursuant to 5 GCA § 5304. /d.

Page 1 of6 On November 7, 2012, Plaintiff moved to supplement its complaint with an additional

2 claim that Fidelity has refused to pay undisputed debts in violation of a surety's good faith duty 3 to process claims. Plaintiffs proposed supplemental complaint alleges that the parties agreed

4 upon undisputed amounts of liability in August 2012 but that Fidelity withheld payment in bad 5 faith and caused further damages related to creditor claims, and the emotional distress and 6 hospitalization ofPlaintiff's President. (Mot. to Add Supplemental Claims, 5-6, Nov. 7, 2012). 7 On January 23, 2013, CTI and Fidelity moved to amend their answers to allege a set-off 8 defense and a breach of contract counterclaim for the GWA project. Plaintiff argues that 9 paragraphs nine and ten of the counterclaim do not state plausible claims for relief and are 1o therefore futile or alleged in bad faith. The proposed amended answers also deny the prior

11 admission that $232,502.49 plus interest is owed to Plaintiff for the GWA project. Defendants 12 assert that the prior admission was made in error and Plaintiff objects that the correction is made

l3 in bad faith and with delay that shall cause prejudice. 14 On April 16, 2013, the Court issued a Decision & Order granting Tudor's motion to 15 amend the complaint in part, but denied Tudor's motion to supplement a claim for emotional

16 distress damages. (Dec. & Order, April 16, 2013). The Court also granted CTI's motion to

17 amend their answer. /d. 18 On August 30, 2013, Tudor filed a motion for partial summary judgment on three

19 separate grounds: (1) there is no question of material fact that there is an undisputed amount 20 presently due and owing to Tudor from Defendants on the GWA project; (2) CTI is not entitled 21 to $75,940.41 in remediation costs as a matter of law regarding its counterclaim; and (3) Tudor 22 is entitled to the amount of $103,1525.13 plus interest for Tudor's extra work performed at 23 CTI's request on the Navy project. (Mot. Partial Summ. J., 1-2, Aug. 30, 2013). In opposition, 24 CTI and Fidelity argue that: (1) under Guam law, an obligee of a surety agreement may not 25 recover in tort for a surety's bad faith, and thus Tudor has failed to state a claim for relief

26 against Fidelity for bad faith; (2) the undisputed amount allegedly owed to Tudor is in dispute 27 and the construction subcontract authorized CTI to set-off all of the amounts asserted in its

28 counterclaim, which amounts exceed any amounts allegedly owed to Tudor; and (3) there are

Page 2 of6 genuine issues of material fact relating to the Navy project. (CTI's Opp'n. Mot., Sept. 27,

2 2013); (Fidelity's Opp'n. Mot., Sept. 27, 2013). 3 On September 27, 2013, Fidelity filed a motion for summary judgment on Plaintiffs

4 supplemental complaint of bad faith asserting that a cause of action for "surety bad faith" should

5 not be recognized, and even if it is recognized, Fidelity is still entitled to summary judgment

6 based on the facts ofthis case. (Fidelity's Mot. Summ. J., 8-19, Sept. 27, 2013).

7 DISCUSSION 8 I. Summary Judgment Standard 9 Guam Civil Procedure Rule 56(c) provides that a court may grant summary judgment "if

10 the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

II affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

I2 party is entitled to a judgment as a matter of law." Guam R. Civ. P. 56(c) (2010). A genuine

13 issue of fact exists when "there is 'sufficient evidence' which establishes a factual dispute

I4 requiring resolution by a fact-finder." Iizuka Corp. v. Kawasho Int'l (Guam), Inc., 1997 Guam I5 10 ~ 7 (citing T. W Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th

I6 Cir. 1987)). "A 'material' fact is one that is relevant to an element of a claim or defense and

I7 whose existence might affect the outcome of the suit.. .. Disputes over irrelevant or unnecessary

I8 facts will not preclude a grant of summary judgment." !d. "If the movant can demonstrate that

I9 there are no genuine issues of material fact, the non-movant cannot merely rely on allegations

20 contained in the complaint, but must produce at least some significant probative evidence

2I tending to support the complaint." !d. at~ 8 (citing Anderson v. Liberty Lobby, 477 U.S. 242,

22 249, 106 S.Ct. 2505 (1986)). 23 In order to determine whether summary judgment may be granted, "the Court must view

24 the evidence and draw inferences in the light most favorable to the nonmovant." Edwards v.

25 Pacific Financial Corp., 2000 Guam 27 ~ 7 (citing Anderson, 477 U.S. at 249). "The court's 26 ultimate inquiry is to determine whether the 'specific fact' set forth by the nonmoving party,

27 coupled with undisputed background or contextual facts, are such that a rational or reasonable

28 jury might return a verdict in its favor based on that evidence." Iizuka, 1997 Guam 10 ~ 8

Page 3 of6 (quoting T W Elec. Serv., 809 F.2d at 631) (internal quotations omitted). "Stated simply, there 2 is a trial issue if there is sufficient evidence for a jury to return a verdict in the non-moving 3 party's favor." Kim v. Hong, 1997 Guam 11 ~ 8 (citing Anderson, 477 U.S. at 250). 4 II. Bad Faith Claim Against Surety 5 On January 29, 2013, the Court issued a Decision and Order recognizing a cause of 6 action for bad faith claims against a surety. (Dec. & Order, 4-6, Jan. 29, 2013). Fidelity argues 7 that, even if the Court deems surety bad faith a recognized tort on Guam, applying the 8 undisputed facts in this case to the relevant law warrants summary judgment in favor of 9 Fidelity, precluding this claim. 1o In the jurisdictions that recognize a cause of action for surety bad faith, courts have 11 noted that "[ s]o long as a surety acts reasonably in response to a claim made by its obligee, the 12 surety does not risk bad faith tort liability." Dodge v. Fidelity and Deposit Co. of Md., 778 P.2d 13 1240, 1243 (Ariz. 1989) (citation omitted). Conversely, "[w]hen the insurer unreasonably and 14 in bad faith withholds payment of the claim of its insured, it is subject to liability in tort." 1 15 Wilson v. 21st Century Ins. Co., 171 P.3d 1082, 1087 (Cal. 2007). 16 In its briefs, Fidelity references Fidelity Enterprises, Ltd., v. National Union Fire 17 Insurance Company of Pittsburgh, Pa., CV0753-05, at 8 (Super. Ct. Guam Jun. 7, 2012), which 18 quotes a California Court of Appeals case as follows: "[A]n insurer denying or delaying the 19 payment of policy benefits due to the existence of a genuine dispute with its insured as to the 20 existence of coverage liability or the amount of the insured's coverage claim is not liable in bad 21 faith even though it might be liable for breach of contract." Chateau Chamberay Homeowners 22 Assn. v. Associated Internal. Ins. Co., 108 Cal.Rptr.2d 776, 784 (Ct. App. 2001) (emphasis 23 added). However, this genuine dispute does not relieve an insurer from its obligations to 24 thoroughly and fairly investigate, process and evaluate the insured's claim. Wilson, 171 P.3d at 25 1089 (emphasis added). "A genuine dispute exists only where the insurer's position is 26 maintained in good faith and on reasonable grounds." !d. (citations omitted). 27 1 28 Under Guam law, suretyship is a type of insurance. 22 GCA § 18106 (2005).

Page 4 of6 Applying the genuine issue rule in the context of summary judgment motions filed in 2 bad faith claims, a reviewing court may "grant summary judgment when it is undisputed or 3 indisputable that the basis for the insurer's denial of benefits was reasonable-for example, 4 where even under the plaintiffs version of the facts there is a genuine issue as to the insurer's 5 liability under California law." Amadeo v. Principal Mut. Life Ins. Co., 290 F.3d 1152, 1161 6 (9th Cir. 2002). Under the above example, "because a bad faith claim can succeed only if the 7 insurer's conduct was unreasonable, the insurer is entitled to judgment as a matter of law." !d. 8 However, "an insurer is not entitled to judgment as a matter of law where, viewing the facts in 9 the light most favorable to the plaintiff, a jury could conclude that the insurer acted 10 unreasonably." /d. (citation omitted). Put simply, "an insurer is entitled to summary judgment 11 based on a genuine dispute over coverage or the value of the insured's claim only where the 12 summary judgment record demonstrates the absence of triable issues as to whether the disputed 13 position upon which the insurer denied the claim was reached reasonably and in good faith." 14 Wilson, 171 P.3d at 1089. 15 In this case, Fidelity maintains that it denied payment on Plaintiffs claim due to the 16 existence of a genuine dispute as to the amount of the claim and the validity of the claim. For 17 Fidelity to succeed on its motion for summary judgment, the record must indisputably 18 demonstrate that the basis for Fidelity denying Plaintiffs claim was reasonable and in good 19 faith. Amadeo, 290 F.3d at 1161. Viewing the facts in the light most favorable to Plaintiff, the 20 Court finds that there is a triable issue as to whether the disputed position upon which the 21 insurer denied the claim was reached reasonably and in good faith. Under the above standard, 22 there are insufficient facts to show that Fidelity thoroughly and fairly investigated, processed 23 and evaluated the Plaintiffs claim when it was first submitted to Fidelity. 24 In support of Fidelity's claim, Dennis Walsh, as Claims Counsel for Fidelity, declares 25 that he was "informed, believed, and determined that a legitimate dispute exists between CTI 26 and Tudor over the amount ofTudor's subcontract, the quality of work performed by Tudor, the 27 amount of costs and expenses incurred by CTI to repair and complete Tudor's scope of work, 28 and the amount, if any, owed between the parties." (Decl. Dennis Walsh, 3, Sept. 27, 2013).

Page 5 of6 Despite this unsupported, conclusory statement, this Court cannot grant Fidelity's summary 2 judgment motion on this claim, in the absence of any evidence proffered to detail the actual 3 nature, quality, and thoroughness ofthe alleged investigation. 4 Ill 5 Ill 6 Ill 7 CONCLUSION 8 Based upon the foregoing, Defendant Fidelity and Deposit Company of Maryland's 9 motion for summary judgment on Plaintiffs supplemental complaint of bad faith is hereby

10 DENIED. II

13 SO ORDERED this /2-rrt day of February, 2014. 14

17 HON. JAMES L. CANTO II 18 Judge, Superior Court of Guam 19

C~ 3 ) CRIMINAL CASE NO. PEOPLE OF GUAM 4 ~ S~--~~~~ 5 vs. ) DECISION AND ORDER ) 6 ) (Defendant Badobinft S. Taisacan's Motion FREDDY VILLAGOMEZ DEGRACIA, ) to Dismiss Indictment and Motion for Bill 7 ) of Particulars) OLYMPIA SABLAN TAISACAN, ) 8 ) BADOBINO SABLAN TAISACAN, ) 9 ) ) 10 JONATHAN SABLAN TAISACAN, ) ) 11 Defendants. ) --------------~~====~--~ 12 INTRODUCTION 13

14 This matter came before the Honorable Anita A. Sukola on January 13, 2014 on

15 Badobino Sablan Taisacan's ("Defendant") Motion to Dismiss Indictment and Motion for Bill 16 of Particulars. Defendant was indicted along with Co-Defendants Freddy Villagomez Degracia, 17 Olympia Sablan Taisacan, and Jonathan Sablan Taisacan. Defendant was represented by 18

19 Attorney Anthony R. Camacho. Co-Defendants did not join in on the motion. The People of

20 Guam ("the People") were represented by Assistant Attorney General James L.G. Stake.

21 Following the hearing, the Court took the matter under advisement. Upon review of the written 22 arguments and legal authorities presented by both parties, the Court issues this Decision and 23 Order DENYING Defendant's Motion to Dismiss Indictment and Motion for Bill of Particulars. 24

25 BACKGROUND

26 The Superior Court of Guam Grand Jury returned a true bill in the instant case. The 27 indictment charges out the following: (1) Burglary (as a 2nd Degree Felony) (3 counts); (2) 28 Theft of Property (as a 2nd Degree Felony); (3) Theft by Receiving Stolen Property (as a 2nd

People v. F. Degracia, 0. Taisacan, B. Taisacan & 1. Taisacan (CF436-12) Page I of6 Decision and Order- Def. 's Mot. to Dismiss Indictment & Motion for Bill of Particulars

ORIGINAL Degree Felony); (4) Theft of Property (as a 3rd Degree Felony) (2 counts); (5) Theft by 1

2 Receiving Stolen Property (as a 3rd Degree Felony); and (6) Jurisdiction Over an Adult (as a

3 Misdemeanor) (5 counts). The alleged crime took place on or about June 27, 2012, involving 4 items stolen from Inarajan Middle School. Defendant is only indicted on the third charge, Theft 5 by Receiving Stolen Property (as a 2nd Degree Felony). 6 On November 14, 2013, Defendant filed a Motion to Dismiss Indictment and Motion for 7

8 Bill of Particulars. The People filed a "response" on December 27, 2013, under seal.

9 Accordingly, the Court heard this matter on January 13,2014. 10 DISCUSSION 11 Motion to Dismiss Indictment 12

Defendant moves the Court to Dismiss the Indictment on the basis that the People failed 13

14 to present exculpatory evidence to the Grand Jury pursuant to 8 GCA § 50.46. See Def.'s Mot.

15 to Dismiss at 2 (Nov. 14, 2013). Defendant specifically argues that "[the People} failed to 16 present exculpatory statements given by male minor F.D., Jr. (DOB: 8/6/94)." Id. at 3. "F.D., 17 Jr.'s exculpatory statement was that he saw an unidentified light skinned male with black hair 18

and narrow face with the T.V. set missing from Inarajan Middle School." Id. Defendant 19

20 contends that he "was prejudiced by the omission because the [G]rand [J]ury was denied the 21 opportunity to investigate whether (he] had any involvement at all in the alleged theft of the 22 T.V. from Inarajan Middle School." Id. Defendant further contends that "these statement[s] are 23 direct and substantial evidence that someone other than Taisacan received the T.V.'s that were 24

25 allegedly stolen from Inarajan Middle School." Id.

26 The People oppose Defendant's motion for dismissal. They argue that the statement 27 made by F.D., Jr. cannot be considered substantial evidence. The People contend that a review 28

People v. F. Degraeia, 0. Taisacan, B. Taisacan & J. Taisacan (CF436-J2) Page 2 of6 Decision and Order- Def. 's Mot. to Dismiss Indictment & Motion for Bill of Particulars of the discovery demonstrates that "F.D., Jr.'s statement is different from what Defendant 1

2 makes it out to be. F.D., Jr. states in an interview to Officer Aflague, "Ma'am I did not take any

3 part of the missing TV. And I don't know of anyone that is involved." F.D., Jr. continued, 4 "Now I remember, that I saw a light skinned male adult about 5'7 tall with black hair, and a 5 narrow face walking by my residence the night the TV was missing." The Court having 6

reviewed this statement agrees with the People that F.D., Jr. did not say a man with the T.V. 7

8 Rather, he saw a man as described above walking by the "evening the TV was missing."

9 The People have a duty to disclose exculpating evidence in their possession. Guam law 10 provides: 11 The grand jury shall receive only evidence presented to it by the prosecuting 12 attorney but the prosecuting attorney shall submit any evidence in his possession 13 which would tend to negate guilt and the grand jury shall weigh all the evidence submitted. 14 8 GCA § 50.46 (2005) (emphasis added). 15

16 In the instant case, the Court does not find the statement made by F.D., Jr. as exculpating

17 evidence that would tend to negate guilt against the Defendant. The above statute does not 18 impose on the prosecutor a duty to explain any evidence beneficial to the defense in the context 19 the statement was offered. See People v. Grajo, No. 86-00002 (D. Guam App. Div. 1986). 20 Accordingly, the Court DENIES Defendant's Motion to Dismiss Indictment. 21

22 Motion for Bill of Particulars

23 Defendant also moves for a Bill of Particulars citing 8 GCA §55.30. Defendant argues 24 that a Bill of Particulars is necessary to clarify the pleading and contain "such particulars as may 25 be necessary for the preparation of [his] defense." See Def.'s Mot. to Dismiss at 3 (Nov. 14, 26

2013). Defendant further argues that only the third charge of the indictment applies to him. 27

28 "This charge does not disclose the monetary an1ount or the stolen items that were allegedly

People v. F. Degracia, 0. Taisacan, B. Taisacan & J. Taisacan (CF436-12) Page 3 of6 Decision and Order Def.'s Mot. to Dismiss Indictment & Motion for Bill ofParticulars received by [the Defendant]." Id. "The indictment fails to give [him] notice of exactly what 1

2 stolen items he allegedly received or what the monetary value of these items were." Id.

3 "It is a cardinal principal of our criminal law that an indictment is sufficient which 4 apprises a defendant of the crime with which he is charged so as to enable him to prepare his 5 defense and to plead judgment of acquittal or conviction as a plea to a subsequent prosecution 6 for the same offense." People v. Jones, 2006 Guam 13 ~ 12 (citing Portnoy v. United States, 316 7

8 F .2d 486, 488 (1st Cir. 1963 ). "A motion for a bill of particulars is appropriate where a

9 defendant requires clarification in order to prepare a defense." United States v. Long, 706 F.2d 10 1044, 1054 (9th Cir. 1983). "It is designed to apprise the defendant of the specific charges being 11 presented to minimize the danger or surprise at trial, to aid in preparation and to protect against 12

13 double jeopardy." !d. "In determining if a bill of particulars should be ordered in a specific

14 case, a court should consider whether the defendant has been advised adequately of the charges 15 through the indictment and all other disclosures made by the government. !d. (citing United 16 States v. Giese, 597 F .2d 1170, 1180 (9th Cir. 1979)). 17 Guam law provides for Bill of Particulars as follows: 18

19 Whether or not an indictment or information complies with § 55.1 0, if it fails to specify the particulars of the offense sufficiently to enable the defendant to 20 prepare his defense, the court may, on motion of the defendant, require the prosecuting attorney to furnish the defendant with a clarification of the pleading 21 containing such particulars as may be necessary for the preparation of the 22 defense.

23 8 GCA § 55.30 (2005) (emphasis added). 24 The Court recognizes that it has discretionary authority to require the People to furnish 25 such a clarification, notwithstanding an indictment's conformance with 8 GCA § §55.1 0. "The 26 law on statutory construction is well-settled. [I]f a statute is unan1biguous, then judicial inquiry 27

28 is complete." People v. Quichocho, 1997 Guam 13 ~ 5 (citing Rubin v. United States, 449 U.S.

People v. F. Degraeia, 0. Taisaean, B. Taisaean & J. Taisaean (CF436-12) Page 4 of6 Decision and Order Def.'s Mot. to Dismiss Indictment & Motion for Bill of Particulars 424 (1981 ). The "Bill of Particulars" statute is unambiguous. Therefore, the Court will review 1

2 the charges as drafted in the indictment to determine whether the exercise of its discretionary

3 authority is appropriate. 4 Defendant is charged with Theft by Receiving Stolen Property enumerated as charge 3 5 in the Indictment. The charge reads as follows: 6

THIRD CHARGE 7

8 On or about June 27, 2012, in Guam, FREDDY VILLAGOMEZ DEGRACIA, OLYMPIA SABLAN TAISACAN, and BADOBINO SABLAN TAISACAN 9 did commit the offense of Theft by Receiving Stolen Property, in that they did 10 intentionally receive, retain or dispose of the movable property of Inarajan Middle School, knowing that it had been stolen or believing that it had probably been 11 stolen, in violation of9 GCA §§ 43.50(a), 43.20(a) and 4.60. 12 Indictment (Jul. 27, 2012). 13 The statutory language of the third charge, as codified in Guam law reads as follows: 14 (a) A person is guilty of theft if he intentionally receives, retains or disposes of 15 moveable property of another knowing that it has been stolen or believing that 16 it has probably been stolen. It is a defense to a charge of violating this Section that the defendant received, retained or disposed of the property with intent to 17 restore it to the owner. 18 9 GCA § 43.50(a)(2005). 19 The Indictment also cites to 9 GCA § 43.20(a) relative to the third charge. That provision reads: 20 (a) Theft constitutes a felony of the second degree if the amount involved exceeds 21 One Thousand Five Hundred Dollars ($1 ,500) or if the property stolen is a bus, 22 truck, automobile, aircraft, motorcycle, or motor boat, or in the case of theft by receiving stolen property, if the defendant is in the business of buying and selling 23 stolen property. In the case of theft as a felony of the second degree, the court shall impose a sentence of imprisonment of a minimum term of five (5) years and 24 may impose a maximum term ofup to ten (10) years; the minimum term imposed 25 shall not be suspended nor may probation be imposed in lieu of the minimum term nor shall parole or work release be granted before completion of the 26 minimum term. The sentence shall include a special parole term of not less than 27 three (3) years in addition to such term of imprisonment provided, however, that in the case of an offender not previously convicted of a felony or of an offense 28 constituting theft, the court may sentence the offender to not more than five (5)

People v. F. Degracia, 0. Taisacan, B. Taisacan & J. Taisacan (CF436-12) Page 5 of6 Decision and Order Def.'s Mot. to Dismiss Indictment & Motion for Bill ofParticulars years imprisonment and the provisions of this subsection prohibiting probation, 1 suspension, parole, or work release shall not be applicable to such offender. 2 9 GCA § 43.20(a)(2005). 3

Generally, an indictment which tracks the words of the statute charging the offense is 4

5 sufficient as long as the words unambiguously set forth all the elements of the offense. See

6 People v. Jones, 2006 Guam 13. With the case at bar, the Court finds that the indictment tracks 7 the language of the statute and with reference to § 9GCA §43.20(a), the monetary value is 8 given. Therefore, Defendant is provided with adequate information to prepare his defense. 9

10 Accordingly, Defendant's Motion for Bill of Particulars is DENIED.

11 CONCLUSION

12 By preponderance of the evidence and based on the foregoing reasons, the Court 13 DENIES Defendant's Motion to Dismiss Indictment and Motion for Bill of Particulars. 14 ..;it A continued Pre-Trial Conference is scheduled for fV/11&1-f /0 ,2014 at Cf e:;, M. 15

16 SO ORDERED this _f.!:_day ofFEBRUARY, 2014.

19 pi /14{(__ 20 / HONORAB~SUKOLA Judge, Superior Court of Guam 21

People v. F. Degraeia, 0. Taisaean, B. Taisaean & J. Taisaean (CF436-12) Page 6 of6 Decision and Order Def. 's Mot. to Dismiss Indictment & Motion for Bill of Particulars