1 IN THE SUPERIOR COURT OF GUAM 2 3 PETER F. PEREZ, ) Civil Case no.LCY~ ~~ /1,1 ~ '1 10. (" Ii)· .J ) C
4 ) Plaintiff, ) 5 ) v. ) 6 ) ) DECISION AND ORDER 7 WAYSON W.S. WONG, ROSARIO S. ) re: Motion to Dismiss and to Strike BAUTISTA and MANUEL C. SHOLING ) 8 and DEFENDANTS DOES 1 THROUGH ) 10, ) 9 ) ) 10 Defendants. ) ---------------------------) 11
12 INTRODUCTION
13 This matter came before the Honorable Judge Michael J. Bordallo on November 9, 2011.
14 The Plaintiff was represented by Attorney Peter C. Perez. The Defendants were represented by 15 Defendant!Attorney Wayson W.S. Wong. After considering the matters presented, the court now 16 issues the following decision and order granting the Plaintiffs motion to dismiss. 17 BACKGROUND 18 This case arises out of a complaint filed on March 9, 2010. Defendants filed their answer 19 on April 30, 2010. Defendant Wong also filed a counterclaim on May 14,2010. The complaint 20 alleges that Defendants issuance of process in CV0471-07 and CV1012-08 was done with an 21 improper purpose; that Defendants had no legal basis or probable cause to institute, instigate 22 and/or issue the processes of a judicial nature against Plaintiff in either CV0471-07 or CV1012- 23 24 08; and that such actions were the product of a civil conspiracy between the Defendants.
25 Therefore, the complaint contains the following causes of action: abuse of process, malicious
26 prosecution, and civil conspiracy.
In his counterclaim, Defendant Wong appears to assert two causes of action: abuse of DECISION AND ORDER Civil Case no. CV309-10 1
2 process, on the theory that Plaintiff by filing the complaint in this case engaged in abuse of
3 process and wrongful conspiracy. Subsequently, Plaintiff has filed two motions: (l) a motion to
4 strike counterclaims and (2) a motion to dismiss the counterclaims for failure to state a claim for
5 relief.
6 DISCUSSION
7 Plaintiff argues that Defendant Wong's counterclaims should be dismissed because they 8 fail to state a claim upon which relief may be granted; they allege redundant, immaterial,
9 impertinent, or scandalous matter; and the counterclaims are untimely and filed in violation ofthe 10 Guam Rules of Civil Procedure (GRCP). The court will first address whether the counterclaims 11 state a claim upon which relief may be granted. 12 Rule l2(b)( 6) provides that "every defense, in law or fact, to a claim for relief in any 13 pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the 14 responsive pleading thereto if one is required, except that the following defenses may at the option 15 ofthe pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted." 16 Guam R.Civ. P. l2(b)(6). 17 Here, under Rule l2(b)( 6), the facts in the counterclaim are presumed to be true, and the 18 19 counterclaim is liberally construed in favor of the Defendant. First Hawaiian Bank v. Manley,
20 2007 Guam 2, ~9. Generally, a motion to dismiss under Rule l2(b)(6) should be disfavored and
21 doubts should be resolved in favor of the pleader, unless no set of facts could support the claims
22 as plead. Id. A Rule 12 (b)(6) motion tests only whether the claim has been adequately stated in
23 the complaint, and the purpose of a l2(b)(6) motion is to assess the legal feasibility of the
24 complaint, not to weigh the evidence which the plaintiff offers or intends to offer. Ryder Energy
25 Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). Thus, 26
Page 2 of 5 DECISION AND ORDER Civil Case no. CV309-\ 0 1
2 on a motion under Rule 12(b)(6), the court's inquiry is limited to the content ofthe counterclaim 3 and the court should not dismiss the counterclaim merely because the court doubts the Defendant
4 will prevail in the action, or that the possibility of ultimate recovery is remote. Neitzke v.
5 Williams, 490 U.S. 319,327, 109 S.Ct. 1827 (1989). Should the counterclaim fail to state a claim 6 under Rule 12(b)( 6), as with a Rule 12(b)( 1) motion, dismissal without leave to amend is
7 improper unless it is clear that the counterclaim could not be saved by any amendment. 8 Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir.1999).
9 Abuse of Process 10 In order to state a cause of action for abuse of process, a party must adequately plead two 11 fundamental elements: [F]irst, an ulterior purpose, and second, a wilful act in the use of the 12 process not proper in the regular conduct of the proceeding. Oren Royal Oaks Venture v. 13 Greenberg, Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986). Furthermore, while 14 a defendant's act of improperly instituting or maintaining an action may, in an appropriate case, 15 give rise to a cause of action for malicious prosecution; the mere filing or maintenance of a 16 lawsuit-even for an improper purpose-is not a proper basis for an abuse of process action. (See, 17 18 e.g., Friedman v. Stadum, 171 Cal.App.3d 775, 779-780 (1985); Drasin v. Jacoby & Meyers,
19 supra, 150Cal.App.3d481,485;Seidnerv.1551 Greenfield Owners Assn. , 108Cal.App.3d895,
20 904-905 (1980); Christensen v. Younger, 47 Cal.App.3d 613, 617 (1975)).' The process must be
21 1 The overwhelming majority of out-of-state precedents have reached the same conclusion. (See, 22 e.g., Birdv. Rothman, 128 Ariz. 599, 627 P.2d 1097, 1100 (1981); Brody v. Ruby, 267 N.W.2d 23 902,905 (Iowa 1978); Bickel v. Mackie, 447 F.Supp. 1376, 1382-1383 (N.D.Iowa 1978); Baker Driveaway Co., Inc. v. Bankhead Enterprises, 478 F.Supp. 857, 860 (E.D.Mich.1979); Farmers 24 Gin Company v. Ward, 73 N.M. 405, 389 P.2d 9, 11-12 (1964); Drago v. Buonagurio, 89 Misc.2d 171,391 N.Y.S.2d 61, 62, affd. (1978) 46 N.Y.2d 778, 413 N.Y.S.2d 910, 386 N.E.2d 25 821 (Sup.Ct.1977); Petrou v. Hale, 43 N.C.App. 655, 260 S.E.2d 130, 133-134 (1979); Martin v. Trevino, 578 S.W.2d 763, 769 (Tex.Civ.App.1978); contra, Bullv. McCuskey, 96 Nev. 706,615 26 P.2d 957, 960 (1980».
Page 3 of 5 DECISION AND ORDER Civil Case no. CV309-10 1 2 misused, i.e., it must he used for a purpose other than that for which the process is designed. Id.
3 In this case, Defendant Wong's counterclaim fails to sufficiently state an abuse of process
4 claim. He contends this requirement was met by his incorporation of his allegations of malice and 5 intent to harm, made with regard to CV0471-07 and CVI012-08. These allegations may hear on 6 the "ulterior purpose" element but do not satisfY the wilful misuse element of an action for abuse 7 of process. Furthennore, where the only improper act is the mere filing of the lawsuit, the tort is 8 not abuse of process but malicious prosecution. Seidner v. 1551 Greenfield Owners Assn., 108 9 Cal.App.3d 895, 904 (1980). The court finds that the only improper act alleged by Defendant 10 Wong is the mere filing of the Plaintiffs complaint in this case. Therefore, the court hereby 11 dismisses Defendant Wong's abuse of process claim.
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1 IN THE SUPERIOR COURT OF GUAM 2 3 PETER F. PEREZ, ) Civil Case no.LCY~ ~~ /1,1 ~ '1 10. (" Ii)· .J ) C
4 ) Plaintiff, ) 5 ) v. ) 6 ) ) DECISION AND ORDER 7 WAYSON W.S. WONG, ROSARIO S. ) re: Motion to Dismiss and to Strike BAUTISTA and MANUEL C. SHOLING ) 8 and DEFENDANTS DOES 1 THROUGH ) 10, ) 9 ) ) 10 Defendants. ) ---------------------------) 11
12 INTRODUCTION
13 This matter came before the Honorable Judge Michael J. Bordallo on November 9, 2011.
14 The Plaintiff was represented by Attorney Peter C. Perez. The Defendants were represented by 15 Defendant!Attorney Wayson W.S. Wong. After considering the matters presented, the court now 16 issues the following decision and order granting the Plaintiffs motion to dismiss. 17 BACKGROUND 18 This case arises out of a complaint filed on March 9, 2010. Defendants filed their answer 19 on April 30, 2010. Defendant Wong also filed a counterclaim on May 14,2010. The complaint 20 alleges that Defendants issuance of process in CV0471-07 and CV1012-08 was done with an 21 improper purpose; that Defendants had no legal basis or probable cause to institute, instigate 22 and/or issue the processes of a judicial nature against Plaintiff in either CV0471-07 or CV1012- 23 24 08; and that such actions were the product of a civil conspiracy between the Defendants.
25 Therefore, the complaint contains the following causes of action: abuse of process, malicious
26 prosecution, and civil conspiracy.
In his counterclaim, Defendant Wong appears to assert two causes of action: abuse of DECISION AND ORDER Civil Case no. CV309-10 1
2 process, on the theory that Plaintiff by filing the complaint in this case engaged in abuse of
3 process and wrongful conspiracy. Subsequently, Plaintiff has filed two motions: (l) a motion to
4 strike counterclaims and (2) a motion to dismiss the counterclaims for failure to state a claim for
5 relief.
6 DISCUSSION
7 Plaintiff argues that Defendant Wong's counterclaims should be dismissed because they 8 fail to state a claim upon which relief may be granted; they allege redundant, immaterial,
9 impertinent, or scandalous matter; and the counterclaims are untimely and filed in violation ofthe 10 Guam Rules of Civil Procedure (GRCP). The court will first address whether the counterclaims 11 state a claim upon which relief may be granted. 12 Rule l2(b)( 6) provides that "every defense, in law or fact, to a claim for relief in any 13 pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the 14 responsive pleading thereto if one is required, except that the following defenses may at the option 15 ofthe pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted." 16 Guam R.Civ. P. l2(b)(6). 17 Here, under Rule l2(b)( 6), the facts in the counterclaim are presumed to be true, and the 18 19 counterclaim is liberally construed in favor of the Defendant. First Hawaiian Bank v. Manley,
20 2007 Guam 2, ~9. Generally, a motion to dismiss under Rule l2(b)(6) should be disfavored and
21 doubts should be resolved in favor of the pleader, unless no set of facts could support the claims
22 as plead. Id. A Rule 12 (b)(6) motion tests only whether the claim has been adequately stated in
23 the complaint, and the purpose of a l2(b)(6) motion is to assess the legal feasibility of the
24 complaint, not to weigh the evidence which the plaintiff offers or intends to offer. Ryder Energy
25 Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). Thus, 26
Page 2 of 5 DECISION AND ORDER Civil Case no. CV309-\ 0 1
2 on a motion under Rule 12(b)(6), the court's inquiry is limited to the content ofthe counterclaim 3 and the court should not dismiss the counterclaim merely because the court doubts the Defendant
4 will prevail in the action, or that the possibility of ultimate recovery is remote. Neitzke v.
5 Williams, 490 U.S. 319,327, 109 S.Ct. 1827 (1989). Should the counterclaim fail to state a claim 6 under Rule 12(b)( 6), as with a Rule 12(b)( 1) motion, dismissal without leave to amend is
7 improper unless it is clear that the counterclaim could not be saved by any amendment. 8 Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir.1999).
9 Abuse of Process 10 In order to state a cause of action for abuse of process, a party must adequately plead two 11 fundamental elements: [F]irst, an ulterior purpose, and second, a wilful act in the use of the 12 process not proper in the regular conduct of the proceeding. Oren Royal Oaks Venture v. 13 Greenberg, Bernhard, Weiss & Karma, Inc., 728 P.2d 1202, 1209 (Cal. 1986). Furthermore, while 14 a defendant's act of improperly instituting or maintaining an action may, in an appropriate case, 15 give rise to a cause of action for malicious prosecution; the mere filing or maintenance of a 16 lawsuit-even for an improper purpose-is not a proper basis for an abuse of process action. (See, 17 18 e.g., Friedman v. Stadum, 171 Cal.App.3d 775, 779-780 (1985); Drasin v. Jacoby & Meyers,
19 supra, 150Cal.App.3d481,485;Seidnerv.1551 Greenfield Owners Assn. , 108Cal.App.3d895,
20 904-905 (1980); Christensen v. Younger, 47 Cal.App.3d 613, 617 (1975)).' The process must be
21 1 The overwhelming majority of out-of-state precedents have reached the same conclusion. (See, 22 e.g., Birdv. Rothman, 128 Ariz. 599, 627 P.2d 1097, 1100 (1981); Brody v. Ruby, 267 N.W.2d 23 902,905 (Iowa 1978); Bickel v. Mackie, 447 F.Supp. 1376, 1382-1383 (N.D.Iowa 1978); Baker Driveaway Co., Inc. v. Bankhead Enterprises, 478 F.Supp. 857, 860 (E.D.Mich.1979); Farmers 24 Gin Company v. Ward, 73 N.M. 405, 389 P.2d 9, 11-12 (1964); Drago v. Buonagurio, 89 Misc.2d 171,391 N.Y.S.2d 61, 62, affd. (1978) 46 N.Y.2d 778, 413 N.Y.S.2d 910, 386 N.E.2d 25 821 (Sup.Ct.1977); Petrou v. Hale, 43 N.C.App. 655, 260 S.E.2d 130, 133-134 (1979); Martin v. Trevino, 578 S.W.2d 763, 769 (Tex.Civ.App.1978); contra, Bullv. McCuskey, 96 Nev. 706,615 26 P.2d 957, 960 (1980».
Page 3 of 5 DECISION AND ORDER Civil Case no. CV309-10 1 2 misused, i.e., it must he used for a purpose other than that for which the process is designed. Id.
3 In this case, Defendant Wong's counterclaim fails to sufficiently state an abuse of process
4 claim. He contends this requirement was met by his incorporation of his allegations of malice and 5 intent to harm, made with regard to CV0471-07 and CVI012-08. These allegations may hear on 6 the "ulterior purpose" element but do not satisfY the wilful misuse element of an action for abuse 7 of process. Furthennore, where the only improper act is the mere filing of the lawsuit, the tort is 8 not abuse of process but malicious prosecution. Seidner v. 1551 Greenfield Owners Assn., 108 9 Cal.App.3d 895, 904 (1980). The court finds that the only improper act alleged by Defendant 10 Wong is the mere filing of the Plaintiffs complaint in this case. Therefore, the court hereby 11 dismisses Defendant Wong's abuse of process claim. 12 Conspiracy l3 Defendant Wong's second count of his counterclaim states, "Plaintiff wrongfully 14 conspired with the Lujan finn and/or one or more of its attorneys to engage in such abuse of 15 16 process." Liability for civil conspiracy generally requires three elements: (1) fonnation of the
17 conspiracy (an agreement to commit wrongful acts); (2) operation of the conspiracy (commission
18 of the wrongful acts); and (3) damage resulting from operation of the conspiracy. People v.
19 Beaumont Inv., Ltd., 3 Cal.Rptr.3d 429,456 (Cal.App. 6 Dist. 2003). However, liability for civil
20 conspiracy rests upon the existence of an underlying wrong and if the underlying wrong provides
21 no cause of action, then neither does the conspiracy. Jones v. BP Oil Co., Inc., 632 So.2d 435,
22 439 (Ala. 1993). 23 As the court has explained in the previous section there is no abuse of process claim 24 against Plaintiff. Therefore, the alleged underlying wrong provides Defendant Wong no cause of 25 action and cannot support a claim of conspiracy. Thus, the court hereby dismisses Defendant 26
Page 4 of 5 DECISION AND ORDER Civil Case no. CV309-10 1
2 Wong's conspiracy claim.
3 CONCLUSION 4 Defendant Wong has failed to allege sufficient facts whatsoever to support either of his 5 claims for abuse of process or conspiracy. Furthermore, the counterclaim could not be saved by 6 any amendment because the mere filing or maintenance of a lawsuit-even for an improper 7 purpose- is not a proper basis for an abuse of process action. The facts and nature of the 8 counterclaims are clear and under the substantive law, no liability exists. Therefore, the court 9 hereby GRANTS the Plaintiff's motion to dismiss Defendant Wong's counterclaim. 10 11
12 SO ORDERED this 17th day of February 2012. 13 14 15 16 17 Judge, Superior Court of Guam 18 19 20 21 22
23 24 1 do h~-r:>.~by CGmty fnat the for~ijoklg 25 if. a ';Uti ti..-.~ !ina corr:ed t;Opy c4 the origin>;! 0;-; fwe- ~i th~ of'i'k~ nf H"Hlf (;kdoff:" of th!; Su.p-enor C (r,..1Tt of Gvam 26 O~to
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