People v. Salgado

• Court: Superior Court of Guam
• Decided: August 14, 2024
• Docket: CM0125-23
• Status: Unknown

Opinion

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6 IN THE THE SUPERIOR COURT OF GUAM GUAM 7 PEOPLE OF GUAM, GUAM, )) CRIMINAL CRIMINAL CASECASE NO. CM0125-23 8 ) GPD GPD Report NO. 23-09184 Report NO. 23-09184 )) 9 vs. vs. ) 10 )) DECISION AND ORDER PAUL JAMES SALGADO, )) RE. DEFENDANT'S DEFENDANT'S MOTION MOTION TO 11 11 DOB: DOB: 05/18/1968 05/18/1968 ) DISMISS 12 12 )) Defendant. ) 13 1 _______________ )) 14 14 I. 1. ;NTR0DUCT10N INTRODUCTION 15 15 This matter came before the Honorable Judge Maria T. Cenzon This Cenzon on on February February 29, 2024, 2024, for 16 16 a hearing hearing on Defendant DefendantPaul PaulJames JamesSalgado's Salgado's("Defendant") ("Defendant") Motion Motion to to Dismiss Dismiss Complaint Complaint Due 117

18 to the to De Minimis the De Minims Nature of the Nature of the Alleged Alleged Offense Offense (the (the "Motion"). "Motion").Present Presentat at the the hearing hearing were were 18

19 19 Defendant, person, with Defendant, in person, with counsel counsel Assistant PublicDefender AlternatePublic AssistantAlternate ThereseDunphy DefenderTherese via Duchy via

20 Zoom, Zoom, and AssistantAttorney and Assistant Attorney General General Christine ChristineTenorio Tenorio via via Zoom Zoom for the the People People of Guam ("the ("the 21 People"). People").The TheCourt CourtDENIED DENIEDthe theMotion Motionfrom fromthe thebench benchand andnow nowissues issues this this Decision Decisionand and Order 22 22 memorializing its its ruling. 23

24 II. 11. BACKGR0U_NP BACKGROUND 24

25 25 Defendant is charged chargedwith withViolation Violation of of a Court Court Order Order (As (As a Misdemeanor) Misdemeanor) in violation violation

26 26 off of 9GCA GCA§ §30.40(a) 30.40(a) as follows: as follows: 27 27

28 28 People People v. v. Salgado Criminal Case No. Criminal Case No. CM0125-23 Decision Decision and and Order Re. Defendant's Motion Motion to to Dismiss Page 1 l of of9 On or about about April 5, 2023, 2023, in Guam,PAUL in Guam, PAUL JAMES SALGADO (aka (aka Paul Ignacio Ignacio 1 Salgado) did commit the Salgado) the offense offense of of Violation Violation ofofaa Court Court Order Order (As (As aa Misdemeanor), in 2 that he that he knowingly knowingly violated violated aa court court order filed filed on on July July 26, 26, 2001, 2001, in the Superior Court Court ofof Guam CaseCase No. DM0449-01, DM0449-0J, enjoining enjoining the the Defendant Defendant from from threatening, threatening, abusing, abusing, 3 annoying, harassing molesting, annoying, harassingor or disturbing disturbingthethepeace peaceand andphysical physicalwell-being of Ana well-beingof Ana Ignacio Salvado, or from coming within 1000 1000 feet of Ana feet of Ignacio Salgado, Ana Ignacio Salgado, in in violation violation 4 off of 9GCA GCA§§30.40(a). 30.40(a). 5 Magistrate's Compl. Comal. (April (April 7, 7, 2023). 6

With respect to the facts which With which constitute the basis for the Charge, the Declaration in 7

8 support of the support of the Complaint Complaintyields yieldsthe thefollowing: following:

9 On On or about April 5, 5, 2023 at approximately 10:10 p.m., GPD 10: p.m., GPD Officers Officers responded responded to a 10 Violation ViolationofofCourt CourtOrder Order complaint complaint at at aa residence in Dededo. At At the location, the Officers Officers met with an anelderly elderlyfemale femaleindividual, individual,AnaAnal Salgado("Victim") I Salgado ("Victim") who who informed informed 11 1 the Officers Officers that that she she has has a permanent permanentrestraining restraining order order (DM0449-01) (DM0449-01) against against her son, later identified as PAUL J. SALGADO identified as SALGADO ("Defendant"). ("Defendant"). Victim Victimprovided provided aa copy of of the 12 12 permanent restraining order, permanent restraining order, which which orders Defendant to to stay stay away away from and not come 13 l,000' feet within 1,000' feet of ofVictim, Victim,residence residence ofofVictim, Victim, or or the the place of employment employment of of Victim, Victim, permanently. This order order was was signed signed on on July July 26, 26, 2011 2011 by the Honorable JudgeJudge Katherine 14 14 A. Maraman. ran. 15 Victim Victimstated stated that that Defendant and his brother, brother, Eddie, an'ived arrived at her residence. Eddie was 16 16 trying to to go go into into his his residence residence (extension (extension near near main main house) house) however, the key was no worldng, working, Defendant Defendant and Eddie started started yelling yelling out of ofanger. anger. Victim Victimstated stated that that Defendant 17 17 has knowledge knowledge of ofthe the restraining order against him. 18 18 Acid AffidofofProbable ProbableCause Cause (April (April 7, 7, 2023). 19 19 On On June 26,2023, June 26, 2023,Defendant Defendantfiled filedaaMotion MotiontotoDismiss DismissDue DuetotoCivil Civil Compromise. Compromise.After After 20 20 taking the motion motion under advisement, advisement, the Court issued issued its its Decision Decision and Order, Order, on October 24, 21

22 22 2023, denying Defendant's motion, determining 2023, denying determining that that"the "the Defendant's Defendant's offense is not

23 23 coextensive coextensive with with the the civil civilremedy remedyand and such such offense offense does does not not meet meet the threshold for possible 24 4 apphcatlon application of 88 GCA GCA§§80.90." 80.90."See SeeOrder Orderre. re.Dlsmlssal DismissalDue Dueto toC1v1l Compromlse. Civil Compromise. 25 In In his present Motion, Motion,Defendant Defendantargues arguesthat thatattendant attendant circumstances circumstances surrounding surrounding the 26 26

27 alleged alleged conduct conduct support dismissal of the criminal case, support a dismissal case, and harm or and the harm or evil evil threatened threatened or 27

28 People v. Salgado Criminal Case CMOl25-23 Case No. CM0125-23 Decision Decision and and Order Re. Defendant's Motion Motion to Dismiss Page Page 2 of of9 criminal judgment caused is "too trivial to warrant a criminal conviction." See of conviction." judgment of Mot. at See Mot. 3-4. In at 3-4. support In support 1

22 of his Motion, Defendant filed three Exhibits: (1) a Declaration of Crime of Victim, signed on Crime Victim,

33 Victim does the Victim that the stating that April 7, 2023, stating of the Attorney General to pursue does not want the Office of 4 . . I . . ¢ | . . this criminal thls case,(2) cr1m1na1case; DeclaratlonRe. (2)a aDeclaration Civil Compromise, Re.Civil on June signed on Compromlse, slgned 16, 2023, June 16, stating 2023, stating 5 that the to waive prosecution of the criminal complaint filed against Defendant; the Victim agrees to Defendant, 6 7 P.L. 31-109. and (3) a copy of P.L. Based on 31-109. Based the Motion, on the Defendant now moves this Court to enter Motion, Defendant 7

88 an Order Dismissing the Magistrate's Complaint.

9 order is not court order ofaa court violation of thataa violation arguingthat Motion,arguing Defendant'sMotion, The People oppose Defendant's 10 .u . . . » . . . trlvlal, further, "the trivial; further, permanent restraining "the permanent order is restralnmg order an important is an remedy available Importantremedy to victims," avallable to vlctlms," 11 11 conduct warrant and the circumstances surrounding the alleged conduct of the Motion. See warrant denial of 12 12

13 13 People's Opp'n People's Mot. atat 3, Opp'nMot. (Feb. 7, 2024). 3, (Feb.

14 14 III. Ill. DISCUSSION DISCUSSION 15 15 A. The The Defendant's alleged conduct warrants Defendant's alleged prosecution. warrants prosecution. 16 16 In determining whether Defendant's acts are de Defendant's acts minims under De minimis under 9 GCA GCA §§ 30.40(a)(3), 30.40(a)(3), the 17 17 18 Court first turns Court first turns to to the the language language of of the the statute. statute. 9 GCA § 30.40(a)(3) provides, in in relevant relevant part, part, as as 18

19 19 follows: follows:

20 20 (a)) Any Any knowing of any t ion of violation knowing viola of tthe ny of following cou he following der s shallll bee a court orders misdemeanor punishable by imprisonment misdemeanor of no less than forty-eight (48) hours imprisonment ono less than forty-eight (48) 21 and not more than one (1) year, and by a fine of not more than One Thousand 22 22 Dollars: Dollarsl

23 order requiring a person to stay away from the residence, dwelling, (3) an order school, day care center, place care center, any other place of employment, or any specified other specified 24 24 place or from a specified five hundred specified person, within live (500') feet hundred (500') of the feet of 25 specified place or specified person.

26 26 (emphasis added). 27 27

28 28 People People v. v. Salgado Salgado Criminal Case No. CM0125-23 Decision Decision and Order Re. Defendant's Motion Motion to to Dismiss Dismiss Page Page 3 of9 The Defendant argues that Defendant argues the nature that the ofthe nature of conductand theconduct theattendant andthe circumstances attendant circumstances 1

2 2 criminal charges the criminal leading to the support a dismissal of charges support the criminal ofthe case. Defendant criminal case. submits that, Defendant submits

3 3 allegesaaViolation chargealleges thecharge ofthe natureof the nature although the of aa Court Violation of coming within Court Order by coming 1,000 within 1,000 4 . . I . . 2023,he April5,5,2023, onApril residenceon Victim'sresidence the Vlctlm's ofthe feet of didnot hedid speak or notspeak make any or make attempt to any attempt contact to contact 5 the Victim. at3. Mot.at Victim. Mot. Additionally,the 3. Additionally, Defendantalso theDefendant submitsthat alsosubmits he was that he with his was with brother the his brother 6 7 night of violation- alleged violation of the alleged policereport the police -. the silentas reportisissilent to whether as to Defendant accompanied whether the Defendant 7

8 to the residence his brother to remained in residence or remained the vehicle. in the Further, the Id. Further, vehicle. Id Defendant argues the Defendant that a argues that

9 9 of conviction judgment of does nothing to protect the Victim, conviction does stated has stated Victimhas the Victim when the especially when Victim, especially 10 10 she does not seek prosecution and that that she she has that she reconciled with has reconciled the Defendant. with the See Exhibits Defendant. See Exhibits 111

A and Mot.The and BB ofofMot. Defendantalso TheDefendant arguesthat alsoargues the Protective thatthe Order isis 22 ProtectiveOrder years-old, and 22 years-old, the and the 12 12

13 13 Defendant has honoredthe has honored Order,such the Order, avoiding attendance suchasasavoiding familyfunctions. attendanceatatfamily Mot.Hr'g. functions.Mot. Hr'g.

14 14 FTR FTRat at 2:03 :15PM. 2:03:15 PM. The People argue otherwise - restraining orders are granted restraining orders for the granted for safety of the safety of

15 15 the victim victim and and serve serve as as aa remedy for those remedy for in fear those in anotherindividual, fearofofanother notwithstanding the individual,notwithstanding 16 16 Victim's Victim's desires drop the charges. desires to drop SeePeople's charges.See Opp'n Mot. People's Opp'n 17 17 the People. Indeed, courts grant The Court agrees with the protective orders grantprotective for the orders for safety of the safety of 18 18

19 19 victims. As As such, such, Defendant Restraining Order imposed by him for the must obey the Permanent Restraining Defendant must

20 20 safety of ofthe Victim. Victim. The ThePermanent Permanent Restraining contains language notifying Order contains Restraining Order the Defendant notifying the 21 of of the consequencesfor the consequences forviolating violating Order: thethe "VIOLATION Order: OFTHIS "VIOLATIONOF ORDERMAY THISORDER MAY SUBJECT 22 YOU TO PUNISHMENT UNDER UNDER 99 GCA GCA 30.40, 30.40, PUNISHABLE FINE OF BYAAFINE PUNISHABLE BY NOT MORE OF NOT 23 23

24 THAN ONE THAN ONE THOUSAND THOUSANDDOLLARS ORBY ($1,000) OR DOLLARS(251,000) IMPRISONMENTNOT BYIMPRISONMENT MORETHAN NOT MORE THAN 24

25 25 ONE ONE (1) (1) YEAR YEAR..." ...See Permanent " See Order(July RestrainingOrder PermanentRestraining 26, 2001). (July26, Victim told police 2001). The Victim

26 26 he is aware submits that he Defendant submits and the Defendant Order, and that the Defendant knew about the Restraining Order, 27 27 of ofthe the Order Order and and has honored honored it for the last 22 years. Court is years. The Court not persuaded by the Defendant's is not Defendant' 28 28 People v. v. Salgado Salgado Criminal Case No. No. CMOl25-23 CM0125-23 Decision Decision and and Order Re. Re. Defendant's Motion Motion to Dismiss Page Page4 of9 ambiguous as to whether the Defendant remained in the car assertion that the police report was ambiguous 1

2 certainly, the Defendant may try this issue before a jury or followed his brother to the residence -.- certainly,

3 further unpersuaded Court is further as a defense to the allegations against him. The Court by the age of the unpersuaded by 4 I I . . • Protective Order, Protectlve considering the Order, conslderlng Court at the Court the time at the found cause time found to Issue cause to the issue such an order for the 5 protection of the protection of Victim. Indeed, the Victim. Defendant wishes to find Indeed, if the Defendant alternate relief from the find alternate 6 7 Order, there Protective Order, Protective may well there may avenues available to the Defendant, well be avenues outside the Defendant, which is outside 7

88 jurisdiction purview of and purview jurisdiction and sufficient showing to warrant of this Court. The Court finds that there is a sufficient

99 the Victim's through the prosecution through prosecution statement to Victim's statement the arrival at the Defendant's animal about the Defendant's police about to police 10 . corroboration ofofthat residence, and the granddaughter's corroboration statement. that statement. 11 B. B. Defendant's Defendant's alleged alleged acts acts are not De minims under de minimis under 99 GCA GCA §§7.67. 7.67. 12

13 13 We then tum the acts in which the Defendant is alleged to have turn to the question of whether the

14 14 De minim engaged are de minimsis under GCA §7.67. under 99 GCA § Court finds the Court If the If finds these these acts acts are Deminim are de minims is under

15 15 this statute, then the statute, then v. Perez, may dismiss the charges against the Defendant. See People v. the court may Perez, 16 2004 Guam 4. Section 7.67 provides as follows: follows: 17 17 99 GCA GCA §§ 7.67. Appropriateness of 7.67. Appropriateness of Prosecution. Prosecution. 18 18

19 19 The court shall shall dismiss dismiss a prosecution prosecution if, the regard to the nature of the if, having regard conduct charged to conduct charged to constitute constitute an an offense offenseand and the nature of the the nature attendant the attendant 20 20 circumstances, itit finds finds that that the conduct: the defendant's conduct: 21 (a) Was within within aa customary customary license or tolerance, neither expressly negated by the license or 22 22 inconsistent with the purpose of the person whose interest was infringed nor inconsistent offense; law defining the offense, 23 23 sought to be prevented by (b) Did not actually cause or threaten the harm of evil sought 24 24 the law defining defining the offense or did so to to an an extent extent too too trivial trivial to warrant the to warrant 25 condemnation, condemnation; or

26 26 (c) Presents such c) Presents such other other extenuations that it cannot extenuations that cannot reasonably regarded as reasonably be regarded 27 27 envisaged envisaged by the Legislature Legislature in forbidding court shall not offense. The court forbidding the offense.

28 People People v. v. Salgado Salgado Criminal Case No. No. CM0125-23 Decision Decision and and Order Re. Re. Defendant's Motion Motion to Dismiss Dismiss Page 5 of9 of dismiss a prosecution under this Subsection without filing a written statement 1 of its reasons. of reasons. 2 99 GCA GCA §§ 7.67 (emphasis added)(referred to herein as 7.67 (emphasis as the "de minims statute"). "De minimis 3

de minimis The De directs the trial minims statute directs to dismiss a prosecution if it finds that the trial court to 4

5 defendant's conduct falls defendant's conduct within at falls within least one at least of the one of three distinct the three circumstances. Perez distinct circumstances. Jrlr 6-9. Perez at W

6 as true and determine allegations as In considering this question, the Court should assume all factual allegations 7 whether the alleged conduct exposes society to a risk of harm sufficient to warrant conviction. Id. Id. 8 Jr 16. at H' Moreover,the 16.Moreover, Court isis tasked theCourt with "focusing tasked with ective factors objective "focusing on obi directly related to the factors directly 9

10 Defendant's and, in particular, the consequences conduct and, Defendant's conduct for the consequences for societal interests the societal involved." Id. interestsinvolved." Id.

111 at JrII' 12, 12, citing citing to State Zarrilli, 523 A. 2d 284 State v.v.Zarrilli, (N.J. Super. 284 (N.J. Ct.Law Super.Ct. Div. 19870, LawDiv. ajf'd, 532 A.2d 19870, aff'd, A.2d

12 12 Ct. App. Div. 1987). 1131 (N.J. Super Ct. 13 13 The The Guam Guam Supreme Supreme Court Court adopted adopted the theNew NewJersey Jerseycou1*£'s guidance in Zarrilli, court's guidance Zarrilli, which 14 in determining eloquently defined the question that the Guam trial courts should answer in detemiining whether 15

16 an offense is "truly trivial":

17 17 The protection to which society is entitled is provided by a dismissal only when the offense offense is truly truly 'trivial.' Consequently, is public Consequently, it is risk that public risk determines what is that determines 18 18 trivial. answered in trivial. The one question to be asked and answered in response de minimis response to aa De minims 19 19 motion is therefore: therefore:

20 20 What What is the risk risk of ofharm harm to to which which society society isis exposed exposed by defendant's defendants conduct? conduct? 21 Id Id at If 12(quoting Jr 12( what factors to consider in answering added). In determining what quoting Zarilli) (emphasis added). 22 this question, the Guam Supreme Court noted consideration of: (a) the circumstances surrounding 23 23

24 24

27 27

28 People People v. Salgado v. Salgado Criminal Case No. Criminal Case No. CM0125-23 CMOl25-23 Decision Decision and and Order Re. Re. Defendant's Defendant's Motion Motion to Dismiss Page 6 ofof9 commission of the commission offense; (b) of the offense, (b) the the existence existence of ofcontraband, contraband; (0) (c) the the amount amount and and value value of 1 1 2 property involved; property d) the involved, (d) the use use or threat threat of of violence; violence, and (e) the use use of weapons. weapons. Id. Ids

3 The Court now applies these factors as laid out in Perez and Zarrilli: Perez and 4 surrounding the a. Circumstances surrounding the commission commission of of the the offense. offense. 5 The Court Court must must first make make "factual determinations determinations with with respect respect to to the the conduct conduct charged charged 6

and the the attendant attendantcircumstances. circumstances.Perez at [Iv Perez at Jr 66(citing (citingState v. Carmichael, 53 P. State v. P. 3d214, 214,218 218 (Haw. (Haw. 7

8 Defendant submits 2002)). The Defendant submits that thaton onthe thenight nightof of the thealleged alleged offense, offense, Defendant Defendant followed followed his

9 brother, Eddie, to brother, Eddie, to the the Victim's Victim's residence, residence, where the brother also resides. brother also resides. See See Mot. Mot. at at 3. 3. The JO 10 brother open the entrance brother failed to open entrance to to an extension of the the house house where the brother brother resides. resides. Id. Id 11 Thereafter, the Thereafter, the Defendant and Eddie Defendant and Eddie began began yelling yelling at at each each other, other, where where around around this time the 12 12

13 13 Victim Victim most most likely called called the police to report the theViolation. Violation. Id., Id.; Ajfid Affid. of ofProbable ProbableCause Cause (Apr. 7,

14 2023). The Defendant's Defendant's assertion assertion of ofthe the ambiguity whether the Defendant followed followed the the brother to 15 the. residenceororremained the. residence remainedininthe thevehicle vehicleisisof of no no consequence. consequence.The TheVictim, Victim, by by virtue virtue of her her 16 statement to police, statement to police, knew that that the Defendant Defendant was was around around the residence residence and and could hear hear the 17 17 Defendant yelling at the Defendant yelling the brother, brother, prompting promptingthe theVictim Victim to to notify notify the the police. police. Again, protective 18

19 orders are designed orders are designed to to protect protect victims victims from those whom they fear. fear. Certainly, Certainly, the the Defendant's Defendant's

20 mere presence presence at atthe theVictim's Victim's residence rises rises to to a level of ofconcern concern that that goes beyond De minims, de minimis, 21 and the Defendant's and the Defendant's violation violation of that Protective Order Order is not not De minims. Therefore, the Court de minimis. Court 22 22 finds that that this this factor factor weighs weighs heavily against finding Defendant's Defendant's actions actions De minims or de minimis or that there 23 23

24 was little risk of ofharm harm to society by by such such actions. actions. 24

26 26 11 The The Guam Guam Supreme Court noted that Zarrilli excluded from consideration any speculation because "every trivial trivial can be seen as the first step offense can step toward toward serious serious misconduct. misconduct. ... Suspicion that future future misconduct misconduct may occur occur is 27 27 not a basis basis for for aa charge charge of of present present misconduct misconduct inin our our system system of ofjustice." Zarrilli at p.238. The New Jersey court also excluded deterrence because it is aa sentencing sentencing term term that that does does not not measure measure triviality. triviality. Id Id 28 People v. People v. Salgado Criminal Case Criminal Case No. No, CM0125-23 CMOl25-23 Decision and Order Re. Decision and Re. Defendant's Motion Motion to Dismiss Page 7 of9 of The existence b. The of contraband. existence of contraband. l

2 There is no allegation that contraband allegation that was involved. contraband was Therefore, the involved. Therefore, Court finds the Court that this finds that

3 in finding the risk of harm factor weighs in to society harm to to be society to lower where be lower no illicit where no drugs, alcohol, or illicit drugs, 4 other substances were also used. 5 The amount and value of property involved. c. The 6

no allegation of There is no property damage ofproperty in this case. damage in neither for nor case. This factor weighs neither 7

8 8 the risk against the of harm risk of to society. harmto society.

9 d. The of violence. The use or or threat of JO 10 There is no no allegation of of violence the threat orthe violence or violence, apart threat of violence, from the Victim apart from hearing Victim hearing 11 11 the Defendant and his brother yelling Defendant and of anger out of yelling out after the brother failed to anger after enter his to enter the his side of the 12 12

13 residence. Indeed, the Permanent Restraining Order against the Permanent Restraining Defendant is designed to prevent the Defendant

14 14 such threatsof such threats ofviolence. violence. Therefore, the Court finds that thatthis thisfactor factorweighs weighs low in in finding the the risk 15 of of harm to society. 16 16 e. The The use use of weapons. 17 17 There is no allegation of ofany ofweapons. use of any use This factor weapons. This weighs neither factor weighs for nor neither for against nor against 18 18

19 19 to society. harm to the risk of harm society.

20 20 Based upon the theCourt's analysis of Court's analysis ofthe De herein and considering forth herein set forth minims factors set de minimis 21 the the information provided to information provided to it by the Defendant by the in support Defendant in his Motion, support his Court DENIES the Court Motion, the 22 Defendant's Defendant's Motion. Motion. The The Court the following: finds the Court Ends following: (1) thatthe (1)that Defendant's alleged the Defendant's conduct does allegedconduct 23 23 24 warrant prosecution, warrant prosecution,and and(2) (2) that thatthe therisk riskof of harm harm to by Defendant's exposed by to society exposed conduct Defendant's conduct 24

25 25 weighs against the Defendant. weighs against

26 26

28 28 People People v. v. Salgado Salgado Criminal Case No. Criminal Case No. CM0125-23 CMOl25-23 Decision Decision and Order Re. Re. Defendant's Motion Motion to Dismiss Page 8 of of9 Iv. IV. _CLUSION CONCLUSION 1

2 For the above above reasons, the Defendant's reasons, the Defendant's Motion Complaint Due Dismiss Complaint Motion to Dismiss to the Due to the De

3 3 Minims Minimis Nature of the Nature of the Alleged Alleged Offense Offense is is DENIED. 4 Trial Trial of ofthis thismatter matter shall shall be be scheduled. scheduled. 5 ORDEREDthis SO ORDERED this ALE; AUS l" 114 Ll '02' 9 tune I protupc/Fe 1 4..gZuncpro tu vary 29, 2024. 6 6

8 HONO BLE MARIA T. CENZON Judge S period Court of Guam 9

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28 People v. v. Salgado Case No. Criminal Case CM0l25-23 No. CMOl25-23 Decision and and Order Re. Defendant's Motion Re. Defendant's Dismiss to Dismiss Motion to Page Page 9 of9