Peter v. Gill

Superior Court of Guam·Decided July 13, 2019·No. CV0426-18·Unknown

Opinion

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IN THE SUPERIOR COURT OF GUAM

JOSHUA F. PETER, ET AL., Superior Court Case No. CV0426-18

Plaintiffs,

DECISION AND ORDER

vs. RE EX PARTE MOTION TO RECONSIDER FRANCIS GILL, FT AL, DISMISSAL OF FRAUD & DTPA CLAIMS

Defendants.

The Court here considers Plaintiffs’ Ex Parte Application for an Order Reconsidering

Dismissal of the Fraud and Deceptive Trade Practices Act (DTPA) Claims Against Defendants

Francis Gill and Cyfred, Ltd., heard on April 16, 2019. Having considered the parties’ arguments

and applicable law, the Court DENIES Plaintiffs’ Ex Parte Motion to Reconsider.

I. PROCEDURAL FACTS

The Court’s February 15, 2019 Decision and Order re Motion to Dismiss dismissed

without prejudice Plaintiffs’ fraud and DTPA claims against Gill and Cyfred as facially

time-barred due to Plaintiffs’ failure to affirmatively plead specific facts establishing tolling.

The Court held that when counting June 5, 2013, as the date Plaintiffs’ action began to accrue,

Plaintiffs’ limitations period expired roughly two months prior to the Complaint. Plaintiffs ask

the Court to reconsider its dismissal because it committed “clear error” in requiring Plaintiffs to

plead specific facts to avoid the application of the three-year statute of limitations applicable to

the fraud and DTPA charges. Ex Parte Mot. at 4, 7 (Mar. 5, 2019).

CV0426-18 DECISION AND ORDER RE EKPARTE MOTION TO RE ONSIDER Page 2

DISMISSAL OF FRAUD & DTPA CLAIMS

II. DISCUSSION

After hearing from the parties at the Motion Hearing that further clarification was needed

as to why the Court utilized June 5, 2013, as the date Plaintiffs’ causes of action began to run, the

Court addresses that issue first. The Court’s Decision and Order referenced Plaintiffs’

allegation

that on June 5, 2013, Gill informed Attorney Wong of Cyfted’s position that becaus e Plaintiffs

had not provided any notice of material breach concerning the parties’ settlement agreem ent,

Cyfred had no further obligation to provide Plaintiffs with free and clear title to their lots. With

no allegations that Plaintiffs should have or could have discovered Gill’s alleged fraud and

misrepresentations at an earlier date, the Court used June 5, 2013, as the accrua l date in its

calculations. Dec. and Order re Mot. Dismiss at 7 (Feb. 15, 2019).

The Court affirms that this date applies to the fraud and DTPA claims. As the Decisi on

and Order states, the time a cause of action accrues for both claims starts at the discov ery of the

facts constituting a fraud, and expires three years later.’ Dec. and Order re Mot. Dismis s at 6.

Both the fraud and DTPA claims reference misrepresentations committed by Gill on March 5, 6,

and 14, 2013. First Am. Compi. ¶IJ 57, 59, 61 (May 11, 2018). However, Plainti ffs’ discovery

that the three representations constituted misrepresentations did not occur until June 5, 2013,

when Cyfred informed Plaintiffs that they had no obligation to provide free and clear title. This

discovery provided Plaintiffs with adequate information to assert the fraud and DTPA claims.

1 5 GCA § 32121 (“All actions brought under this chapter must be commenced.. .within three

years after the consumer discovered.. .the occurrence of the false, misleading, or decept ive

act....”); Taitano v. Calvo fin. Corp., 200$ Guam 12 30, affd on rehg, 2009 Guam ¶

(“...the cause of action in such case not to be deemed to have accrued until the discov ¶ 9 30 ery by the

aggrieved party of the facts constituting the fraud or mistake.”).

—

CV0426-1 8 .

DECISION AND ORDER RE EKPARTE MOTION TO RE ONSIDER DISMISSAL OF FRAUD & DTPA CLAIMS Page 3

The Court now turns to the issue of pleading specific facts, and whether reconsideration

is merited by any clear error. See Ward v. Reyes, 1998 Guam 1 ¶ 10. In applying 7 GCA §

11403, the Court found that Plaintiffs failed to affirmatively plead specific facts establishing

tolling. The Court relied on an explicit requirement in Amsden v. Yamon, et a!., 1999 Guam 14 ¶

16, to “plead affirmatively specIc facts” to toll statutes of limitations under 7 GCA § 11403.

(Emphasis added.) The Court found that Plaintiffs failed to meet this standard in

alleging--without more detail--that “both Francis Gill and Stephanie Mendiola were absent from

Guam for long periods of time and any statute of limitations would not run against them during

any such absence.” First Am. Compi. ¶ 69. Because this broad allegation was insufficient to

establish tolling, the Court found that Plaintiffs’ fraud and DTPA claims were time-barred as the

applicable statutes of limitation had expired on February 12, 2018--two months before the

Complaint. Dec. and Order re Mot. to Dismiss at 7.

Plaintiffs now ask the Court to reconsider its dismissal due to a clear error in treating

Amsden’s “specific facts” requirement as precedent when it is merely dicta. Ex Parte Mot. at 4,

7. Dicta, according to Plaintiffs, “could be anything not necessary to the resolution of the case.”

Ex Parte Mot. at 7 (citing to Underwood v. Guam Election Comm’n, 2006 Guam 17 ¶ 37).

Plaintiffs then cite to Amsden ‘s cited California cases, which merely require an affirmative

allegation of absence from the state to toll the running of the statutes of limitations under

California Code of Civil Procedure § 341. Ex Parte Mot. at 5-7.

Though 7 GCA § 11403 is fashioned afler section 341, which makes California case law

persuasive, Guam case law is binding. Amsden expressly dismisses the plantiff’s complaint “due

to [his] failure to plead affirmatively specific facts.” This requirement was not dicta or

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CV0426-18 .

DECISION AND ORDER RE EXPARTE MOTION TO RECONSIDER . Page 4 DISMISSAL OF FRAUD & DTPA CLAIMS

accidental: California cases continue to require a party seeking to avail of tolling to plead

“specific facts” to avoid a dismissal based on limitations ground. See Mills v. forestex Co., 134

Cal. Rptr. 2d 273, 286 (Ct. App. 2003) (“when a plaintiff relies on a theory of. . . delayed

accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face

to be time-barred, he or she must specifically plead facts which, if proved, would support the

theory”); 43 Cal. Jur. 3d Limitation of Actions § 227.

The reasoning underlying the specific facts requirement applies here. It has been a

long-established rule that when a claim is barred on its face--as the fraud and DTPA claims are in

this instance--there is a presumption that the claims are untimely. It is simply insufficient and

improper for time-barred claims to proceed to discovery unless specific allegations support

tolling: “Formal averments or general conclusions to the effect that the facts were not discovered

until a stated date, and that plaintiff could not reasonably have made an earlier discovery, are

useless.” Bradler v. Craig, 79 Cal. Rptr. 401, 405 (Ct. App. 1969) (citing 2 Witkin, Cal. Proc.

(1954) Pleading, § 479). Again, Plaintiffs’ mere mention that Gill was off-island did not

establish dates of his absence or further facts that demonstrated he or Cyfred could not be served

on Guam during the three-year period.

Accordingly, the Court does not find it committed clear error sufficient to justify

reconsideration of its dismissal of the fraud and DTPA claims. The Court would like to note,

however, that its Decision and Order re Motion to Dismiss stated it “may be possible for

Plaintiffs to plead specific facts establishing Gill and Mendiola were off-island from 2013

onward” and dismissed the claims without prejudice. Dec. and Order re Mot. to Dismiss at 7.

CV0426-I$ DECISIO 9 .

ANI) ORDER RE EXPARTE MOTION TO RECONSIDER DISMISSAL OF FRAUD & DTPA CLAIMS Page 5

Again, Plaintiffs may seek leave to amend their Complaint if they have sufficient facts

establishing Gill’s absence from Guam to toll the applicable statute of limitations.

III. CONCLUSION

Because the Court did not commit clear error in dismissing Plaintiffs’ fraud and DTPA

claims for untimeliness, the Court DENIES Plaintiffs’ Ex Farte Motion to Reconsider.

SO ORDERED this 4th day of June 2019.

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