Fl LED SUPERIOR COURT OF GUAM 2022 OCT -4 PH 5: 59
2 CLERK OF COURT
3 Bv. '. 4 IN THE SUPERIOR COURT OF GUAM 5
6 YIPINGWU, ) CNIL CASE NO. CV0680-20 ) 7 Plaintiff, ) 8 ) vs. ) 9 ) DECISION AND ORDER GRANTING TUMON VIEW CONDO HOMEOWNERS ) DEFENDANT'S MOTION FOR ASSOCIATION, ) SUMMARY JUDGMENT AND II ) DENYING PLAINTIFF'S CROSS- ) MOTION FOR SUMMARY JUDGMENT 12 Defendant. ) 13 _____________________________________) 15 This matter is before the Honorable Judge Maria T. Cenzon on Defendant Tuman View 16 Condo Homeowners Association's (the "Defendant") Motion for Summary Judgment (the 17 "Motion"). Defendant is represented by Attorney Mitchell F. Thompson. Yi Ping Wu (the 18
19 "Plaintiff'), represented by Attorney Gary Wayne Francis Gumataotao, filed an opposition and
20 a cross-motion for summary judgment (the "Cross-Motion"). The Court took the matter under 21 advisement without oral argument pursuant to Supreme Court of Guam Administrative Rule 06- 22 001 and CVR 7.l(e)(6)(A) of the Local Rules of the Superior Court of Guam. Having duly 23 considered the parties' briefs, the record, and the applicable statutes and case law, the Court 24
25 now issues the following Decision and Order GRANTING Defendant's Motion and
26 DENYING Plaintiffs Cross-Motion. 27
28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 1 oflS II. BACKGROUND
2 The Plaintiff owned Unit 212 Phase I in the Tumon View Condominium complex. See
3 Verified Compl. ~ 4 (Sept. 11, 2020); See First Am. Verified Comp. at ~ 11 (July 13, 2021). On 4 or about August 2016, Plaintiff was apparently off-island when her apartment began leaking 5 water and causing damage to the unit below. See First Am. Verified Comp. at~ 13(c); See Decl. 6 Evangeline Cepeda ~ 4 (Apr. 12, 2022). The Defendant conducted repairs on the Plaintiffs 7
8 behalf and invoiced the Plaintiff. See Decl. Evangeline Cepeda ~~ 4-5. The Plaintiff reluctantly
9 paid, but only after Defendant retained counsel in an effort to collect the cost of the repairs. See 10 First Am. Verified Comp. at~ l3(c). II Also in 20 16, the roles were reversed when Plaintiff's apartment suffered damages from 12
l3 a water leak originating from the unit above, in Unit 312. See Verified Compl. ~ 5; See also
14 First. Am. Verfied Compl. at~ 5. In a letter titled "Claim for wet damage to 212 from Unit 312 15 water leaking before 20 16," and dated March 1, 20 17, the Plaintiff requested the Defendant pay 16 for the $3,300.00 damages her apartment apparently suffered. Verified Compl. Ex. A. After 17 having not received payment, the Plaintiff sent another letter, this time titled "Re. Unit 212 18
19 requesting compensation for wet damage caused by Unit 312 water leaking (house rule
20 violation)," and dated March 16, 2017. !d. In the new letter, the Plaintiff threatened the 21 Defen dan t with legal action if she did not receive payment. !d. at Ex. A ("We hope that you will 22 make the payment to us immediately and in full on or before Mar. 26, 2017. if by the above 23 mentioned date, the payment is not received by us we shall tum the case to our attorney."). 24
25 Over three years following the demand letter, on September 11, 2020, the Plaintiff filed
26 the instant suit against the Defendant. Verified Compl. In a nutshell, the Plaintiff alleged that 27 the Defendant breached their duties and committed fraud by failing to pay the monies owed and 28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 2 of15 to provide the Plaintiff with an accounting, as supposedly set out by the Defendant's Articles
2 and Bylaws. See !d. at~~ 5-12. The Defendant filed a motion to dismiss Plaintiffs complaint
3 pursuant to Guam Rules of Civil Procedure ("GRCP") Rules 12(b)(6) and 9 for failure to plead 4 fraud with specificity, See Mot. to Dismiss (Oct. 19, 2020). This Court found that the Complaint 5 did fail to plead fraud with the required level of specificity, but allowed the Plaintiff to remedy 6 her shortcomings by filing an amended complaint. See Decision & Order (June 24, 2021). 7
8 Shortly thereafter, Plaintiff filed an amended complaint with three counts: count one for fraud
9 and oppressive conduct, count two for failure to provide accounting, and count three for breach 10 of fiduciary duty. 1 See First Am. Verified Comp. ll The Defendant now brings this present Motion argumg inter alia that summary 12
13 judgment is warranted in their favor for the following reasons: (I) the Defendant has failed to
14 provide any evidence during discovery of the Defendant's intent to defraud the Plaintiff, (2) that 15 neither the law nor the bylaws of the association require Defendant to provide Plaintiff an 16 accounting, and (3) that Plaintiffs action is time-barred by the statute of limitations. The 17 Plaintiffs Cross-Motion argues that summary judgment is instead warranted in her favor 18
19 because the Defendant has failed to follow the law by failing to provide the Plaintiff with an
20 accounting. 21 III. DISCUSSION 22 A. Summary Judgment Standard. 23 Summary judgment is proper "if the movant shows that there is no genuine dispute as to 24
25 any material fact and the movant is entitled to judgment as a matter of law." Guam R. Civ. P.
26 1 27 In her amended complaint, the Plaintiff also provided a copy of Defendant's Articles and Bylaws for the first time. See First Am. Verified Comp. Ex. B. 28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 3 oftS 56(a). "A genuine issue of material fact exists when there is sufficient evidence to establish a
2 factual dispute that must be resolved by a factfinder." Camacho v. Perez, 2017 Guam 16 ,-r 12
3 (citing lizuka Corp. v. Kawasho Int'l (Guam), Inc., 1997 Guam 10 ,-r 7 (per curiam)). In 4 reviewing a motion for summary judgment, "[the] court must view the evidence and draw 5 inferences in a light most favorable to the non-movant." !d. ,-r 13 (quoting Gov't of Guam v. 6 Gutierrez, 2015 Guam 8 ,-r 26). "A movant bears the initial burden to show that undisputed facts 7
8 in the record support a prima facie entitlement to the relief requested." Hawaiian Rock Products
9 Corp. v. Ocean Hous., Inc., 2016 Guam 4 ,-r 27. "The movant may '[satisfy] and discharge[] its 10 burden by establishing the absence of evidence to support the non-moving party's case.' " II Waathdad v. Cyfred, Ltd, 2021 Guam 24 ,-r 17 (quoting Kim v. Hong, 1997 Guam 11 ,-r 6). If the 12
13 movant satisfies its burden, the burden shifts to the non-movant party to produce at least some
14 significant probative evidence to support the pleadings. Bank of Guam v. Flores, 2004 Guam 25 15 ,-r 7. "If, after adequate time for discovery, the non-moving party 'fails to make a showing 16 sufficient to establish the existence of an element essential to that party's case, and on which 17 that party will bear the burden of proof at trial,' then Rule 56(c) requires entry of summary 18
19 judgment." Kim v. Hong, 1997 Guam 11 ,-r 8 (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
20 323 (1986)). 21 B. Plaintiff's continues to fail to plead fraud with the specificity required under 22 GRCP Rule 9(b).
23 The elements of fraud are: "(1) a misrepresentation; (2) knowledge of falsity (or 24 scienter); (3) intent to defraud to induce reliance; (4) justifiable reliance; and (5) resulting 25 damages." Ukau v. Wang, 2016 Guam 26 ,-r 36. Generally, a pleading must only contain "a short 26 and plain statement of the claim showing that the pleader is entitled to relief." !d. at ,-r 21; See 27
28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 4 of IS also Guam R. Civ. P. 8(a). Fraud claims are an exception to this general rule. See Guam R. Civ.
2 P. 9(b) ("In all averment of fraud or mistake, the circumstances constituting fraud or mistake
3 shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a 4 person may be averred generally."). But "Rule 9(b) does not require a plaintiff to prove a claim 5 of fraud at the pleading stage. Rather, what is required is that a plaintiff set forth his claim with 6 sufficient detail to provide notice to defendants as to what particular fraudulent action is being 7
8 alleged." Ukau v. Wang, 2016 Guam 26 ~ 47 (citing to Taitano v. Calvo Fin. Corp., 2008 Guam
9 12 ~ 16). The heightened standard for fraud claims is known as the "who, what, when, where, 10 and how" requirement. Id. II This Court previously addressed this issue with the Plaintiff in its June 24, 2021 12
13 Decision & Order and, while it found Plaintiffs Verified Complaint woefully deficient, th
14 Court afforded the Plaintiff an opportunity to file an amended complaint in order to meet the IS heightened pleading standard for fraud claims. The Plaintiff did file an amended complaint and 16 alleged as follows as the factual basis for her fraud claim: 17 12. Plaintiff realleges and incorporates every allegation contained m the 18 previous paragraphs as though more set forth herein. 19 13. Defendant engaged in intentionally false representations that include, but 20 are not limited to, the following: 21 a. By and through its Bylaws, Defendants promised to pay for 22 maintenance of the common areas out of the maintenance reserve fund. 23 b. Defendant further asserted that common areas included "water... and 24 other necessary utility services for the common elements and , .. [sic] 25 for the apartments."
27 c. In furtherance of those assurances, Defendant, in 2019, engaged an attorney to collect sums it insisted were owed relative to a special 28 Decision and Order CV0680-20, Wu v. Tuman View Condo Homeowners Ass'n Page 5 of 15 assessment involving water damage to a neighboring condominium unit that occurred in or before 2016. 2 d. Despite those assurances, when Plaintiffs unit was damaged by water 3 from another neighboring unit, and despite numerous complaints from the Plaintiff, Defendant refused to make repairs and, in fact, insisted 4 that it owed no duty of repair, despite its earlier assessment against the 5 Plaintiff.
6 14. Defendant's representations to the Plaintiff were false when they made them, or were made recklessly and without regard for their truth. 7
8 15. Defendant intended that Plaintiff rely on those representations.
9 16. Plaintiff reasonably relied on those representations and proceeded, under to duress, to make the necessary repairs at her own expense. In addition, Plaintiff agreed to pay the special assessment, along with the additional attorney's fees. II 17. Article V, Section I of its Bylaws require the Defendant to provide such 12 services to Plaintiff as and for part of its duty to maintain the common areas. 13 18. As a direct result of the Defendant's conduct as described above, Plaintiff 14 suffered damages in an amount to be proven at trial, but not less $3,300. 15 First Am. Compl. (Jul. 13, 2021). 16 In construing the pleading in the light most favorable to the Plaintiff, the Court finds tha 17 the amended complaint sufficiently pleads some, but not all of the requite elements of fraud. Th 18
19 Plaintiff identifies the Defendant as "who" made the alleged false misrepresentations ·
20 paragraphs 13, 14, 15, 17, and 18. The Plaintiff identifies "what" false misrepresentation wa 21 allegedly made when she asserts that "Defendants promised to pay for maintenance of th 22 common areas out of the maintenance reserve fund." !d. at ~ 13(a). In the same paragraph, 23 Plaintiff identifies "how" Defendant allegedly made the false representations- "[b]y an 24
25 through its Bylaws . . . ." !d. Then, the Plaintiff satisfies the "where" in paragraph 10, a
26 incorporated by paragraph 12, by alleging the ~rongdoing to have occurred in Guam. !d. at~ 10. 27
28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 6 of IS However. the "when" element is still deficient. The Supreme Court of Guam has held tha
2 "[i]n cases where the exact timing of specific events is critical for determining fraud, lack o
3 precision in alleging dates can be fatal to a pleading." Taitano v. Calvo Fin. Corp., 2008 Gua 4 12 ~ 28. Plaintiff's amended complaint only vaguely mentions the time periods of"in or befor 5 20 16" and "20 19" in her Count 1 alleging fraud. See First Am. Comp1. ~ 13 (c). Here. the exac 6 dates are critical to the claim because the parties are at odds over when the clock on the statute o 7
8 limitations began to run, as discussed in more detail later herein. In Taitano, the Supreme Cou
9 of Guam leaned towards finding the pleading deficient because the broad year dates offered o \0 "1968 and 1969" lacked the specificity required under Rule 9(b). Taitano v. Calvo Fin. Corp. II 2008 Guam 12 ~ 28. Similarly, the time periods of"in or before 2016" or "2019" here lack th 12
13 specificity required, especially since the exact timing of the dates are critical in determinin
14 whether the statute oflimitations bars Plaintiffs claim. 15 The Plaintiff also states that the "Defendant filed its Horizontal Property Regime with th \6. Territory of Guam, Department of Land Management Office of the Recorder on December 19 17 1984." !d. at ,-r 10. This leads Defendant to speculate whether "Plaintiff [is] suggesting that th 18
19 Association intended to defraud plaintiff when it adopted its Bylaws in 1984 ?'' Deft's Br. at
20 (Apr. 12, 2022). This Court itself is similarly puzzled. The uncertainty is a prima facie indicate 21 that Plaintiffs pleading remains deficient. After all, fraud claims are subject to a heightene 22 pleading standard for the purpose of "provid[ing] notice to defendants as to what particula 23 fraudulent action is being alleged." Ukau v. Wang, 2016 Guam 26 ~ 47 (citing to Taitano v. 24
25 Calvo Fin. C01p., 2008 Guam 12 ,-r 16). That the Defendant and the Court remain uncertain o
26 what exactly Plaintiff is claiming at the summary judgment stage of the proceedings is troubling. 27
28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 7 oflS When a plaintiff fails to plead his fraud claim with the particular sufficiency required
2 dismissal is required only .. if 'it is clear ... that the complaint could not be saved by an
3 amendment.' " Taitano v. Calvo Fin. Corp., 2008 Guam 12 ~ 9 (quoting Simpson v. AOL Tim 4 Warner, Inc., 452 F. 3d 1040, 1046 (9th. Cir. 2006). Such is the case here. As the Cou 5 discusses later herein, it is evident from the record that Plaintiff became aware or should hav 6 become aware of the availability of a fraud claim by March 16, 2017, the date she penned 7
8 letter demanding payment from the Defendant. See Verified Compl. Ex. A. However, utilizin
9 that date would signal Plaintiffs claim is barred because it was not filed until September 11 10 2020, well beyond the three-year statute of limitations. Consequently, the Plaintiff has but tw II options: (1) to amend the complaint with the correct date but then still be barred from recove 12
13 by the statute of limitations, or (2) to continue offering vague dates so that her claim is not dea
14 on arrival, but noncompliant with the requirements of GRCP 9(b). For this reason, dismissal o 15 the complaint is necessary as Plaintiffs complaint is unsalvageable under the circumstances an 16 cannot be saved by amendment. 17 Furthermore, the United States Supreme Court has offered certain circumstances where 18
19 denial for leave to amend pleadings would be justified, including: "undue delay, bad faith o
20 dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment 21 previously allowed, undue prejudice to the opposing party by virtue of allowance of th 22 amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962). The Gu 23 Supreme Court has articulated these factors as Foman is controlling. See Arashi & Co., Inc. v. 24
25 Nakashima Enters., Inc., 2005 Guam 21 '1f 16. Dismissal of the Complaint here is further justifie
26 because Plaintiff has already been afforded an opportunity to cure his pleading by a 27 amendment, any attempt would be futile as discussed above, and tying the Defendant to thi 28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 8 of 15 untenable claim would only lead to undue prejudice in the form of mounting and unjustifie
2 attorney's cost and fees. Even if the Plaintiff were allowed to once again amend his pleadings
3 summary judgment is merited in Defendant's favor, as illustrated by the Court below. 4 C. Plaintiff's fraud claims in Count 1 and Count 3 are barred by the Statute of 5 Limitations.
6 Title 7 GCA Section 11305 establishes a three-year statute of limitations period for 7 fraud claims. The section titled "Within Three Years," reads in pertinent part: 8 An action for relief on the ground of fraud or mistake. The cause of action in such 9 case not to be deemed to have accrued until the discovery by the aggrieved party 10 of the facts constituting the fraud or mistake.
II 7 GCA § 11305(d). The simple question before this Court is, "When did the Plaintiff discover 12 the facts constituting the alleged fraud?" When interpreting this very question, the Guam 13 Supreme Court has noted that: 14 Discovery does not mean actual knowledge. Discovery occurs when a plaintiff 15 could have discovered the wrong acts with reasonable diligence. Reasonable 16 diligence is tested by an objective standard, and when the uncontroverted evidence irrefutably demonstrates that the plaintiff discovered or should have 17 discovered fraudulent conduct, the issue may be resolved by summary judgment. 18 Taitano v. Calvo Fin. Corp., 2008 Guam 12 ,/45 (citing Gayle v. Hem/ani, 2000 Guam 25 ,-r 19 24). The Guam Supreme Court has further held that "[o]nce the plaintiff has a suspicion of 20 wrongdoing, and therefore an incentive to sue, he must decide whether to file suit or to sit on his 21
22 rights." Id. (citing Custodio v. Boonprakong, 1999 Guam 5 ,-r 24).
23 In her letter dated March 16, 2017, the Plaintiff sent a letter regarding her unit's $3,300 i 24 alleged water damages to the Defendant stating that "if by the above mentioned date, th 25 payment is not received by us, we shall tum the case to our attorney." Verified Compl. Ex. A. 26
The Plaintiff then filed suit against the Defendant for failing to pay the $3,300 in water damage 27
28 Decision and Order CV0680-20, Wu v. Tuman View Condo Homeowners Ass'n Page 9 ofl5 on September 11, 2020. See Verified Compl. (Sept. 11, 2020). The Plaintiff, however, assert
2 that she "did not become aware until on or about September 1, 2020 that the representations o
3 the Defendant . . . constituted fraud." Decl. of Pl. (Apr. 28, 2022). This claim is wholl 4 unsupported by the evidence presented by the Plaintiff in support of its claim, as told by th 5 documents submitted as exhibits to its verified complaint and amended complaint. 6 Unfortunately for Plaintiff, when she learned that Defendant supposedly committed th 7
8 act of fraud is inapposite to this Court's analysis. What matters is when she learned "of the fact
9 constituting fraud or mistake." 7 GCA § 11305(d) (emphasis added). The letter she hersel 10 penned provides "uncontroverted evidence [that] irrefutably demonstrates that the plaintif II discovered or should have discovered fraudulent conduct ...." Taitano v. Calvo Fin. Corp. 12
13 2008 Guam 12 ~ 45. The Plaintiff was so aware of Defendant's wrongdoing that she possesse
14 an incentive to sue the Defendant, as shown by her threat to refer the matter to her attorney. Se 15 Verified Campi. Ex. A. Thus, at the latest, the statute of limitations for Plaintiffs fraud clai 16 began to run on March 16, 2017 (the date appearing on her letter) and expired on March 16, 202 17 (three years from the date she became aware of the facts constituting the fraud or mistake). Id. 18
19 The Plaintiff decided to sit on her rights until September 11, 2020 and by then Count I of he
20 claim was time-barred. 21 Under the same reasoning, Defendant's Count 3 alleging breach of fiduciary duty is als 22 time-barred as it relates to the fraud claim. Plaintiff contends that "Defendant breached tha 23 standard of care both when it failed and refused to repair the water leak in Plaintiff's apartment 24
25 and when it failed and refused to provide a requested accounting." First. Am. Compl. at ~ 24
26 The three-year statute of limitations applies to any "action for relief on the ground of fraud o 27 mistake." 7 GCA § 11305(d). Thus, the three-year statute of limitations also applies to Plaintiff' 28 De<: is ion and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 10 oftS Count 3 as it deals with the alleged fraud that the Defendant committed when it failed to pay th
2 supposed water damages from the water leak. The Guam Supreme Court has accepted thi
3 interpretation of the statute. See Bautista v. Torres, 2020 Guam 28. ,-r· 13 ("The statute o 4 limitations period applicable to each claim is three years for breach of fiduciary duty ...." 5 (citing to 7 GCA § 11305(d)). Therefore, Plaintiffs Count 3 is also time-barred for the reasonin 6 aforementioned as it relates to the fraud claim. 7
8 "When a complaint shows on its face or on the basis of judicially noticeable facts that th
9 cause of action is barred by the applicable statute of limitations, the plaintiff must plead fact 10 which show an excuse, tolling, or for some other basis for avoiding the statutory bar." Amsden v. ll Yamon, 1999 Guam 14 ,-r 12 (quoting Ponderosa Homes Inc. v. City of Ramon, 23 Cal. App. 4t 12
13 1761, 1768 (Cal. Ct. App. 1994). To rebut Defendant's motion, the Plaintiff can only offer tha
14 she did not know she had a fraud claim until later. See PI. 's Br. at 5; See also Decl. of Pl. As pe 15 7 GCA § 11305(d) and the case law discussed above, this excuse does not suffice. Given tha 16 Defendant is granted summary judgment as to Count 1 and Count 3 of Plaintiffs amende 17 Complaint as they relate to fraud, the Court need not address delve further into additional base 18
19 upon which it is entitled to that same relief.
20 D. Plaintiff fails to meet her burden as to entitlement of accounting in Count 2 and Count3. 21
22 In her amended complaint, the Plaintiff asserts the "Defendant has failed and refused to
23 provide the accounting required by law." First Am. Compl. at ,-r 20(d). Between her amended 24 complaint and brief, the Plaintiff cites to four different authorities that supposedly require the 25 Defendant to provide her with an accounting. 26
28 Decision and Order CV0680-20, Wu v. Tuman View Condo Homeowners Ass'n Page 11 of 15 Plaintiff cites to Article V, Section 7 of Defendant's Bylaws and the California Civil
2 Code in her amended complaint. See ld. at~ 20 (a)-(b). None of the Plaintiffs citations require
3 the Defendant to provide an accounting. To begin, "Article V, Section 7" does not exist in 4 Defendant's Bylaws as the Plaintiff contends. Article V of Defendant's Bylaws, as provided by 5 the Plaintiff in her amende~ complaint, contains only three sections. See First Am. Compl. at 6 Ex. B. However, through its own initiative of reviewing the bylaws provided by the Plaintiff, 7
8 the Court notes that Article IV, Section 7 reads as follows in its entirety:
9 The Treasurer shall have responsibility for all funds and securities of the 10 Association, maintain and keep full and accurate accounts of all receipts and disbursements of the Association and render statements thereof in such fonn and II as often as may be required by the Board of Directors, and be responsible for the deposit of all moneys and other valuable effects in the name and to the credit of 12 the Association in such depositories as may from time to time be designated by 13 the Board.
14 First Am. Compl. at Ex. B. Nothing in this Section 7 requires the Defendant or its treasurer to 15 provide owners of units with an accounting upon their demand. The section admittedly states 16 that accounts must be provided "in such fonn and as often as may be required by the Board of 17 Directors ...." !d. Otherwise, it is silent on any other duties and the Plaintiff has not alleged 18
19 she represents the Board of Directors. Thus, Plaintiff has failed to show how Defendant has
20 infringed on its Bylaws by not providing her with an accounting. 21 Plaintiff also cites to "Section 5240 (b) of the 20 19 Davis-Stirling Common Interest 22 Development Act, the portion of the California Civil Code which governs condominium 23 communities in California . ... " as the law upon which the Defendant is purportedly infringing. 24
25 First Am. Compl. at Ex. B (emphasis added). As the Plaintiff herself states, the law governs
26 condominium communities in California but then she does not articulate or even remotely argue 27
28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 12 ofl5 why that law extends or governs the Defendant in Guam, leaving the Court to guess or
2 hypothesize upon its application.
3 In her Cross-Motion, the Plaintiff points to two more authorities that also fail to suppo 4 her claim that she is entitled to an accounting from the Defendant. First, Plaintiff alludes to thi 5 specific language in Article VI, Section 1 of the Defendant's Bylaws: 6 All apartment owners are obligated to pay the monthly assessments against them 7 imposed by the Association to meet the common expenses of the project, 8 including, without limitation the management and operation thereof, maintenance, repair and rebuilding of the common elements and premiums for liability and 9 hazard insurance. 10 Pl. Opp'n & Cross-Motion at 5 (Apr. 28, 2022). Primarily, no language in this section compels 11 the Defendant to provide the Plaintiff with an accounting. Second, the Plaintiff points to Title 21 12
13 GCA Section 45110 as legal grounds for its demand. See !d. at 6. That section reads entirely as
14 follows: 15 The common profits of the property shall be distributed among, and the common 16 expenses shall be charged to, the apartment owners in proportion to the common interests appurtenant to their respective apartments; provided, that in the case of 17 limited common elements, all costs and expenses of every description pertaining thereto, including, but not limited to, the cost of the maintenance, repair, and 18 replacement of, and the making of any additions and improvements to any limited 19 common element, may be charged to the owners of the apartments for the use of which such limited common element is reserved in any equitable manner as set 20 forth in the declaration. 21 21 GCA § 45110. 22 Once more, no language dictates that the Defendant must provide the Plaintiff with a 23 accounting. To the contrary, the Plaintiff herself cites to persuasive authority that, in her ow 24
25 words, establish accounting is not an independent cause of action but instead a remedy:
26 Under California law, "an accounting is generally a remedy in equity" rather than 27 an independent cause of action. See Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177, 1191 (N.D. Cal. July 9, 2009); see also Fradis v. 28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 13 oflS Savebig.com, 2011 WL 7637785 at *8 (C.D. Cal. Dec. 2, 2011) (noting "[a] number of courts have held that an accounting is merely an equitable remedy."). 2 Pl. Opp'n & Cross-Motion at 6. Thus, even if the Court accepts Plaintiffs interpretation and 3 theory of the case law, she is requesting a remedy without indicating an independent cause of 4
5 action that would entitle her to that remedy. If Plaintiff is suggesting she is entitled to an
6 accounting as a remedy for Defendant's supposed fraud for failure to pay the water damages, 7 the argument fails as, for the reasons aforementioned, summary judgment in Defendant's favor 8 for that cause of action is warranted. 9
Alternatively, if Plaintiff is argumg m her Cross-Motion that she is entitled to a 10
II accounting because of Defendant's supposed breach of fiduciary duty, this Court likewise canno 12 grant that relief because, as Plaintiff herself stated, "[i]f there exists a contractual relationshi 13 between the parties . . . the implied covenant is limited to assuring compliance with the expres 14 terms of the contract, and cannot be extended to create obligations not contemplated in th 15
16 contract." Id. at 7 (citing Racine & Laramie, Ltd. v. Dep 't of Parks & Recreation, II Cal. App.
17 4th 1026, 1032 (Cal. Ct. App. 1992). Plaintiff cannot point to any specific contractual obligatio 18 Defendant has to provide her with an accounting. With no duty, it follows that Defendant coul 19 not have breached a fiduciary duty to the Plaintiff. 20 In sum, the Court is not persuaded by any of Plaintiffs cited authorities upon which sh 21
22 relies as supporting her entitlement to an accounting. Moreover, Plaintiff cannot receive
23 accounting as a remedy if no cause of action ~xists that would entitle her to that remedy. As 24 result, the Plaintiff has failed to meet her "initial burden to show that undisputed facts in th 25 record support a prima facie entitlement to the relief requested." Hawaiian Rock Products Corp. 26
v. Ocean Hous., Inc., 2016 Guam 4 ~ 27. Therefore, her Cross-Motion is denied and instea 27
28 Decision and Order CV0680-20, Wu v. Tumon View Condo Homeowners Ass'n Page 14 oflS Count 2 merits adjudication by summary judgment in Defendant's favor. Count 3 arguing tha
2 Defendant breached a fiduciary duty "when it failed and refused to provide a requeste
3 accounting," is thus also similarly implicated and deficient. See First Am. Compl. , 24. 4 IV. CONCLUSION 5 Plaintiffs Count One is subject to dismissal for its continued failure to plead fraud with 6 the specificity required, but Defendant's motion for summary judgment in its favor is warranted 7
8 because it this claim is barred by the statute of limitations. Defendant's motion for summary
9 judgment on Plaintiff's Count Two is equally meritorious because the Plaintiff has failed to 10 show that she is entitled to an accounting as a matter of law, either as a standalone cause of II action or as a remedy. Lastly, Plaintiffs Count Three must also be disposed of by summary 12
13 judgment in Defendant's favor because it is predicated on the fraud claim and the accounting
14 claim. As such, Defendant's Motion is GRANTED and the Plaintiff's Cross-Motion is 15 DENIED. 16 Judgment shall follow under separate cover. 17 SO ORDERED this 41h day of October, 2022. 18 '-- 19
21 Judge, Superior Court of Guam 22
28 Decision and Order CV0680-20, Wu v. Tuman View Condo Homeowners Ass'n Page 15 ofl5