Santiago v. Aguon

Opinion

IN THE SUPERIOR COURT OF GUAM

GLORIA UNPINGCO SANTIAGO and CWIL CASE NO. CV0145-21 RANDOLPH AGUON SANTIAGO,

Plaintiffs,

VS• DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION DORIS CHIGUINA AGUON and TO DISMISS ANTHONY AGUON,

Defendants.

This mailer came before the Honorable Dana A. Gutienez on September 7, 2021 for a

hearing on Plaintiffs Gloria Unpingco Santiago (“Plaintiff Gloria”) and Randolph Aguon

Santiago’s (“Plaintiff Randolph”) (collectively “Plaintiffs”) Motion to Dismiss. Present via

Zoom were Defendants Doris Chiguina Aguon (“Defendant Doris”) and Anthony Aguon

(“Defendant Anthony”) (collectively “Defendants”); Attorney Charles H. McDonald II

representing Defendants; Plaintiffs; and Assistant Public Defender David Highsmith representing

Plaintiffs. Upon consideration of the arguments presented and in light of the applicable law, the

Court hereby GRANTS Plaintiffs’ Motion to Dismiss.

BACKGROUND

The above-captioned mailer arises out of Plaintiffs’ Complaint for Permanent Injunction

seeking a restraining order prohibiting Defendants from going within five hundred feet of

Plaintiffs’ residence, from contacting Plaintiffs, and from otherwise harassing Plaintiffs. Based . DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Chiguina Aguon and Anthony Aguon

on Plaintiff’s Motion for an Order to Show Cause, supporting Declaration, and testimony at an

ex parte hearing on February 10, 2021, the Court issued a Temporary Restraining Order on

February 16, 2021.’

When the matter was reassigned to the undersigned, the Court issued a continued

Temporary Restraining Order on February 23, 2021 and scheduled a continued Order to Show

Cause hearing for March 5, 2021. At the March 5, 2021 hearing, the Defendants requested

additional time to hire an attorney, therefore, the Court continued the Temporary Restraining

Order and set a continued Order to Show Cause hearing for April 13, 2021.

At the April 13, 2021 hearing, Attorney McDonald entered his appearance for

Defendants. Defendants requested additional time to file an Answer to the Complaint and agreed

to a continued Temporary Restraining Order. The Court orally continued the Temporary

Restraining Order and directed Defendants to file an Answer or other responsive pleading by

May 13, 2021.

On May 13, 2021, Defendants filed an Answer to Complaint for Permanent Injunction

and Counterclaim. The Counterclaim asserts two causes of action: 1) a claim for a permanent

injunction; 2) a claim seeking damages for the tort of intentional infliction of emotional distress

(“lIED claim”). On June 2, 2021, Plaintiffs filed the instant Motion to Dismiss seeking dismissal

of the TIED claim arguing that regarding this cause of action, Defendants have failed to state a

claim for which relief can be granted.

The Court again continued the Temporary Restraining Order until a hearing on June 15,

2021. At the June 15, 2021 hearing, the parties agreed to a Mutual Temporary Restraining Order

1 This case was previously assigned to the Honorable Elyze M. Itiarte, but was reassigned to the Honorable Dana A. Gutierrez on February 23, 2021.

2 . . DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS CVOJ4S-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Chiguina Aguon and Anthony Aguon

pending the resolution of this case, or until further order of the Court. The Court ordered that

any oppositions to the Motion to Dismiss be filed by July 27, 2021, any replies to be filed by

August 10, 2021 and set the Motion Hearing for September 7, 2021.

Defendants filed their Opposition to Plaintiffs’ Motion to Dismiss on July 30, 2021.

Plaintiffs filed their Reply on August 10, 2021. The parties presented oral arguments to the

Court on September 7, 2021 and the Court subsequently took the matter under advisement.

DISCUSSION

Plaintiffs’ Motion to Dismiss seeks dismissal of the Defendants’ lIED claim pursuant to

Rule 1 2(b)(6) of the Guam Rules of Civil Procedure (“GRCP”) arguing that even assuming all

facts alleged by Defendants’ are true, Defendants’ counterclaim of lIED fails to state a claim

upon which relief may be granted. Motion, at 3-5 (June 2, 2021). In opposition, Defendants

argue that whether Defendants’ counterclaim allegations constitute “outrageous or extreme

conduct” is a question of fact that should be determined from all the evidence. Opp. at 2 (July

30, 2021); Mm. Entry, 10:33:42-10:35:08 AM (Sept. 7, 2021).

I. Standard of Review for a Rule 12(b)(6) Motion to Dismiss.

A pleading that states a claim for relief must contain, among other things, “a short and

plain statement of the claim showing that the pleader is entitled to relief.” Guam R. Civ. P.

(8)(a)(2). Rule 12(b)(6) of the GRCP permits a defendant to raise by motion the defense that the

complaint “fail[sJ to state a claim upon which relief can be granted.”2 First Hawaiian Bank v.

Manley, 2007 Guam 2 ¶ 9. In Ukau v. Wang, the Guam Supreme Court explicitly rejected the

2 In the context of this case, the Plaintiffs seek dismissal of a counterclaim. Therefore, when referring to a “complaint,” this Court interprets the case law as applicable to the counterclaim, and the Court considers the Plaintiffs as the counterclaim-defendants, while the Defendants are the counterclaim-plaintiffs.

3 • DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris chiguina Aguon and Anthony Aguon

heightened pleading standard established for federal 1 2(b)(6) motions to dismiss by the U.S.

Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. Ukau v. Wang, 2016

Guam 26 ¶ 20-33 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal,

556U.S. 662 (2009).

Pursuant to Ukau, “Guam law requires only notice pleading, not fact pleading.” Id. at ¶

21. This means that a complaint (or counterclaim) “need only provide fair notice of what the

plaintiff’s claim is and the grounds upon which it rests.” RL at ¶ 22. Thus, a complaint (or

counterclaim) “should not be dismissed for failure to state a claim unless it appears beyond a

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Id. However, while the Guam Supreme Court has rejected the heightened plausibility

standard established by Twombty/Iqbal, the Guam Supreme Court does recognize the principle

that “a plaintiff’s obligation to provide the grounds of his entitlement to relief ‘requires more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Id. at ¶ 26 (citing Core Tech Int’l Corp. v. Hanil Engineering & Construction Co.,

2010 Guam 13 ¶ 52). “In ruling on a 12(b)(6) motion, a court’s consideration is limited to the

complaint, written instruments attached to the complaint as exhibits, statements or documents

incorporated in the complaint by reference, and documents on which the complaint heavily

relies.” Newby v. Gov’t of Guam, 2010 Guam 4 ¶ 14.

II. Whether Plaintiffs’ Conduct May Reasonably Be Regarded As Outrageous Is A Question of Law.

In Guam, the elements of lIED are “(1) extreme and outrageous conduct by the

defendant; (2) intention to cause or reckless disregard of the probability of causing emotional

distress; (3) severe emotional distress, on the plaintiffs part; and (4) actual and proximate

4 . . DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Chiguina Aguon and Anthony Aguon

causation of that emotional distress.” Moytan v. Citizens Sec. Bank, 2015 Guam 36 ¶ 77. In

evaluating a motion to dismiss a claim of lIED, “the role of the trial court is to first determine

whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to

constitute the intentional or reckless infliction of emotional distress.” Travis v. A icon

Laboratories, Inc., 504 S.E.2d 419, 428 (W. Va. 199$) (where the Court identified similar

elements to establish an lIED claim and evaluated a motion to dismiss the claim).

In jurisdictions that have similarly rejected the heightened pleading standard established

by Twombly/Iqbal3 and that have similar, or identical, elements for an lIED claim, courts have

held that “[wJhether conduct may reasonably be considered outrageous is a legal question, and

whether conduct is in fact outrageous is a question for jury determination.” Travis, 504 S.E.2d at

428 (emphasis added); McBrearty v. Livengood, 117 Wash.App. 1094, at *4 (Wash. Ct. App.

2003) (“Whether certain conduct is sufficiently outrageous is ordinarily a question for the trier of

fact, but the trial court must first determine that reasonable minds could differ on whether the

conduct has been sufficiently extreme and outrageous to result in liability.”); Smith v. Iowa state

Univ. of Science and Tech., 851 N.W.2d 1, 26 (Iowa 2014) (“[lIt is for the court to determine in

the first instance, as a matter of law, whether the conduct complained of may reasonably be

regarded as outrageous.”) (emphasis added).

III. The Conduct of the Plaintiffs Alleged By Defendants May Not Reasonably Be Considered As Outrageous.

Assuming all facts alleged by the Defendants are true, the facts supporting the

As of October 2020, only twelve state supreme courts have substantially examined or addressed the Twombly/Iqbal holding. Matthew Marino, Comment, Debunking Twombly/Iqbal: Plausibility Is More Than Plausible in Ohio and Other States, $9 U. Ci L. Rev. 1066, 1067, n. 11 (October 2020). Of those twelve states, at least eight have declined to shifi from the established basic notice pleading principles to the plausibility requirements established by Twombly/Iqbal. Id. These are: Arizona, Iowa, Minnesota, Montana, Tennessee, Vermont, Washington, and West Virginia. Id.

5 4 DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Chiguina Aguon and Anthony Aguon

Defendants’ lIED claim are as follows:

1. The Plaintiffs and Defendants are neighbors whose homes share a common border

that is approximately fifteen feet apart;

2. The Defendants’ home is well maintained;

3. The Plaintiffs’ home appears cluttered and unorganized and it not well manicured;

4. Around August 2020, the Defendants noticed that the Plaintiffs installed an

electronic device that would state in a male voice “what are you doing” as the Defendants walk

by or stand on their property near the Plaintiffs’ home;

5. Plaintiff Gloria would ensure that the device sounds off while the Defendants are

cooking or enjoying their leisure time outside of their home;

6. Plaintiff Gloria only began using the electronic device to harass the Defendants

after she harassed Defendant Doris regarding her plants;

7. Plaintiff Gloria’s installation of the surveillance system and talking electronic

device and subsequent use against the Defendants was intended to cause the Defendants to suffer

emotional distress;

8. Defendants have suffered emotional distress. Specifically, Defendant Doris feels

anxiety and stress when she is outside her home because of the surveillance system and talking

electronic device. Defendant Doris has lost weight and loses sleep at night because of Plaintiff

Gloria’s actions. Defendant Anthony also has anxiety and stress while working outside his home

because he knows Plaintiff Gloria is watching him and sounding her electronic device when he

walks near certain areas of his property;

9. Defendant Doris had to seek medical care for her anxiety and stress caused by

6 • DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS CVOI4S-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Chiguina Aguon and Anthony Aguon

Plaintiff Gloria. Defendant Doris is emotionally distraught because of Plaintiff Gloria’s actions;

10. Plaintiff Gloria’s actions of installing the surveillance system and directing it

towards the Defendants and her use of the talking electronic device to harass them have caused

the emotional distress suffered by the Defendants;

11. The Defendants have suffered economic and non-economic damages of no less

than $100,000.00.

See Answer and Counterclaim (May 13, 2021). Essentially, the alleged outrageous conduct of

the Plaintiffs can be summarized as placing an electronic device that sounds off when someone

walks near it by stating “what are you doing,” and implementing a surveillance system on their

property. Neither the Counterclaim nor the Defendants’ Opposition was supplemented by

affidavits or exhibits. See id.; Opp. (July 30, 2021).

In Moylan v. Citizens Sec. Bank, when establishing the elements for TIED, the Guam

Supreme Court cited to the standard for lIED set forth in the Restatement (Second) of Torts § §

46, 313 (1988) (“Restatement”). Moylan, 2015 Guam 36 ¶ 77. The Restatement explains that

for conduct to be “extreme and outrageous,” “liability has been found only where the conduct

has been so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community . . . The liability clearly does not extend to mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities. . . plaintiffs must necessarily be expected and

required to be hardened to a certain amount of rough language, and to occasional acts that are

definitely inconsiderate and unkind.” Restatement (Second) of Torts § 46.

In jurisdictions that have cited the standard reflected in the Restatement, courts have

7 . DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Chiguina Aguon and Anthony Aguon

consistently found that surveillance cameras set up to record neighbors and other related

“annoying” or even harassing conduct against neighbors is not, as a matter of law, sufficiently

“outrageous conduct” to survive a motion to dismiss an lIED claim.4

In this case, even assuming all the facts alleged by Defendants are true, the Court does

not find that reasonable minds could differ on whether the Plaintiffs’ alleged conduct has been

sufficiently extreme and outrageous to result in liability for an lIED claim. See Mc3rearty, 117

Wash.App. at *4 Case law and the Restatement hold that surveillance of neighbors, even when

coupled with other vulgar, annoying, or disturbing actions, is not “outrageous conduct” in the

context of an TIED claim. See supra, note 4.

Here, aside from the surveillance of Defendants, the only additional conduct alleged is

that Plaintiffs have used a sensored electronic device which says “what are you doing” when it

detects movement. Although it may be “annoying,” “unkind,” or even conducted with malicious

intent, it is not enough that a person’s conduct has been characterized by “malice” or a “degree of

Compare, e.g., Schiller v. Mitchell, $28 N.E.2d 323, 333, 33$ (Ill. App. Ct. 2005) (affirming trial court’s dismissal of lIED holding that harassing homeowners by continually calling police and aiming surveillance cameras at the neighbors’ property could not reasonably be considered “extreme and outrageous”); Curry v. Whitaker, 943 N.E.2d 354, 361-62 (md. Ct. App. 2011) (affirming trial court’s dismissal of the lIED claim and finding that as a matter of law, “installing surveillance cameras, filing police reports, waging a campaign in the community against [the plaintiffs], and collusion with [a police officer]” did not constitute “outrageous conduct”); Polay v. Mcliahon, 10 N.E.3d 1122, 1128-30 (Mass. 2014) (affirming the dismissal of lIED claim and holding that 1) filing false police reports, 2) verbally attacking plaintiffs and parking their car in such a way as to prevent plaintiffs from pulling out of driveway, and 3) monitoring and recording plaintiffs on a continual basis does not constitute “extreme and outrageous conduct”); Hall v. Gallo, No. 030476708, 2008 WL 2796950, at 11 (Conn. Super. Ct. 2008) (dismissing lIED claim for failure to allege sufficiently “outrageous conduct” where the defendants placed surveillance on their neighbors and repeatedly “gave the fmger” to them), with Czajkowsld v. Meyers, 172 P.3d 94, 102 (Mont. 2007) (where continual surveillance of neighbors for over four years coupled with evidence that defendants subjected plaintiffs to “an unrelenting barrage of obscene gestures” and “vile verbal abuse in which [defendants] employed the coarsest and most offensive words in [the english] language” was found to be “atrocious and utterly intolerable in a civilized community.”).

8 . II DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION TO DISMISS CV0145-21; Gloria Unpingco Santiago and Randolph Aguon Santiago v. Doris Chiguina Aguon and Anthony Aguon

aggravation which would entitle the plaintiff to punitive damages for another tort.” Restatement

(Second) of Torts § 46.

Even assuming all the facts alleged by Defendants are true, the conduct complained of

may not reasonably be viewed as “so outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized community.” See Id. Therefore, upon a review of the facts alleged by Defendants and

in viewing the allegations in the light most favorable to the Defendants, this Court finds that as a

matter of law, the Defendants have not sufficiently pled “extreme and outrageous conduct”

committed by the Plaintiffs to overcome dismissal of the Defendants’ lIED claim.

CONCLUSION

Accordingly, for the foregoing reasons, the Court hereby GRANTS Plaintiffs’ Motion to

Dismiss and ORDERS that Defendants’ Second Cause of Action: Intentional Infliction of

Emotional Distress is DISMISSED.

SO ORDERED: 6 DEC 7Oi

HO RA LED A .GUTI Z Jud Supe br C urt f Guam

SERVICE VIA E-MAIL I acknowledge that an electronic copy of Thginal was e-mailed to: / z2s’

Date: Joseph Bamba, Jr. Deputy Clerk, Superior Court of Guam