AA v. Torres

 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF GUAM 8 AA, CIVIL CASE NO. 21-00029 9 Plaintiff, ORDER 10 v. 11 GENERAL CONFERENCE CORPORATION 12 OF SEVENTH DAY ADVENTISTS, et al., 13 Defendants. 14 15 This matter comes before the Court on summary judgment motions from Defendants the 16 General Conference Corporation of Seventh Day Adventists (“GCC”) (Dkt. No. 85), the Guam 17 Micronesia Mission for the Seventh Day Adventist Church (“GMM”) (Dkt. No. 69), Pastor 18 Louis Torres (Dkt. No. 70), and Pastor Steven Silva (Dkt. No. 71)1 (collectively “Defendants”). 19 Having thoroughly considered the briefing and relevant record, and received no CVLR 7(i) 20 request for oral argument, the Court GRANTS in part and DENIES in part the motions as 21 explained herein. 22 I. BACKGROUND2 23 In 2012, Plaintiff’s parents sent him from the Philippines to Guam to continue his 24 25 1 See Docket Numbers 90–94, respectively, for redacted versions of these sealed filings. 26 2 The information contained herein is undisputed, unless otherwise noted. 1 education. (See Dkt. No. 85 at 32.)3 He was sixteen4 at the time. (Id. at 33.) Initially, he stayed 2 with uncles. (Id.) Shortly thereafter, Plaintiff was introduced5 to Danny Dial, GMM’s recently 3 hired Director of Education. (See Dkt. Nos. 85 at 33, 101 at 1.) Mr. Dial invited Plaintiff to spend 4 a few days at Mr. Dial’s GMM-provided apartment. (See Dkt. No. 85 at 33.) During that stay, 5 Mr. Dial sexually abused Plaintiff. (Id. at 34.) 6 Plaintiff reported the abuse to Steven Silva, a Seventh-Day Adventist Senior Pastor. (Id.) 7 Plaintiff also gave Pastor Silva a written account. (Id.) He provided it to Pastor Louis Torres, 8 GMM’s President. (Id.) Pastor Torres spoke with Plaintiff about the incident and then confronted 9 Mr. Dial, who admitted the allegations. (Id.) Pastor Torres terminated Mr. Dial and visited the 10 Guam Police Department’s Hagåtña precinct. (Id.) But the presiding officer informed Pastor 11 Torres that, because the age of consent in Guam is 16, absent non-consensual sexual contact, this 12 was not a reportable offense. (Id.) As a result, Pastor Torres never filed a written report with law 13 enforcement (or any other government agency). (Id. at 35.) At around the same time, Mr. Dial 14 emptied his apartment and fled Guam. (See Dkt. Nos. 85 at 35, 101 at 2.) Some years later, in 15 2021, Plaintiff saw a Facebook post suggesting Mr. Dial was “teaching to the Adventist Youth in 16 Thailand.” (Dkt. No. 100 at 2.) Plaintiff felt “betrayed by the Church . . . because I trusted . . . 17 that they had a process to stop [Mr.] Dial.” (Id.) 18 Shortly thereafter, Plaintiff filed a complaint with this Court. (Dkt. No. 1.) He initially 19 named Mr. Dial and GMM, along with Pastors Silva and Torres. (See generally id.) However, 20 serving Mr. Dial proved difficult. Plaintiff believed that he resided in either Thailand or the 21 Philippines, if not California (where Mr. Dial had attended university). (See Dkt. No. 16 at 2–3.) 22 3 See Docket Number 92 for a redacted version of this sealed filing, which includes GCC’s 23 concise statement of material facts at pages 32–37. GCC’s Facts 1–47 are carbon copies of those put forth by Defendants GMM, Silva, and Torres. (Compare id., with Dkt. No. 93 at 102–06.) 24 Unless otherwise noted, Plaintiff does not dispute these facts. (See Dkt. No. 101 at 1–2.) 25 4 In the Philippines, primary school ends at the tenth grade. (See id. at 46.) By moving to Guam, Plaintiff hoped to attend the eleventh and twelfth grades. (Id.) 26 5 The parties dispute who made the introduction. (See Dkt. No. 99 at 1–3.) 1 Despite an extension of time, Plaintiff was unable to serve Mr. Dial. (See Dkt. Nos. 16, 20.) To 2 move the case along, Plaintiff dismissed Mr. Dial, (see Dkt. No. 40) (notice of voluntary 3 dismissal), and filed an amended complaint naming solely GMM, Pastor Silva, and Pastor 4 Torres. (See Dkt. Nos. 50, 54) (order granting leave to amend and First Amended Complaint). 5 Plaintiff later added GCC as a defendant. (See Dkt. No. 59) (order granting leave to amend 6 again). 7 The Second Amended Complaint (Dkt. No. 60), which is now the operative complaint, 8 asserts causes of action against all Defendants for child sex abuse (Count I), negligence (Count 9 II), negligent supervision (Count III), negligent hiring and retention (Count IV), breach of 10 fiduciary duty and/or confidential relationship (Count V), and intentional infliction of emotional 11 distress (Count VI). (Id. at 8–17.) Individually, Defendants move for summary judgment (Dkt. 12 Nos. 69–71, 85). Each contend that certain claims are legally deficient and Plaintiff fails to 13 establish genuine issues of fact for the remainder. (See generally Dkt. Nos. 69–71, 85.) 14 II. DISCUSSION 15 A. Summary Judgment – Legal Standard 16 “The court shall grant summary judgment if the movant shows that there is no genuine 17 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 18 Civ. P. 56(a).6 “The moving party bears the initial burden of establishing the absence of a 19 genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If a moving 20 party fails to carry its initial burden of production, the nonmoving party has no obligation to 21 produce anything, even if the nonmoving party would have the ultimate burden of persuasion at 22 6 Material facts are those that may affect the outcome of the case, and a dispute about a material 23 fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non- 24 moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). In deciding whether there is a genuine dispute of material fact, a court must view the facts and justifiable 25 inferences to be drawn therefrom in the light most favorable to the nonmoving party. Id. at 255. The court is prohibited from weighing evidence or resolving disputed issues in the moving 26 party’s favor. Tolan v. Cotton, 572 U.S. 650, 657 (2014). 1 trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). But 2 once the moving party properly makes and supports their motion, the nonmoving party “must 3 come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. 4 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations omitted).7 5 B. Count I – Child Sex Abuse – Vicarious Liability 6 According to the complaint, each defendant is vicariously liable for Mr. Dial’s acts. (See 7 Dkt. No. 60 at 8.) This is in accord with the common law doctrine of respondeat superior, which 8 provides that an employer is liable “for a tort committed by its employee acting within the scope 9 of employment.” 147 Am. Jur. Proof of Facts 3d. 247 (2015) (citing RESTATEMENT (THIRD) 10 AGENCY §7.07). An employee acts within the scope of their employment “when performing 11 work assigned by the employer or engaging in a course of conduct subject to the employer’s 12 control” or if, after the fact, the employer engages in “conduct that justifies a reasonable 13 assumption that the [employer] so consents” to the conduct, i.e., through later ratification. Id. 14 (citing RESTATEMENT (THIRD) AGENCY §4.01). Guam has codified the doctrine at 18 G.C.A. 15 §§ 20309, 20310; see Fajardo ex rel. Fajardo v. Liberty House Guam, 2000 Guam 4, ¶ 7. That 16 codification mirrors California law. See Cal. Civ. Code Ann. §§ 2338, 2339. For this reason, this 17 Court can rely on decisions from both jurisdictions in applying the doctrine, given the “dearth of 18 Guam case law” on the doctrine. Sharrock v. U.S., 673 F.3d 1117, 1119 (9th Cir. 2012).8 19 1. GMM – Stand-Alone Liability 20 GMM admits Mr. Dial was its Director of Education at the time of the incident. (See Dkt. 21 7 Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not 22 be “presumed.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). Ultimately, summary judgment is appropriate against a party who “fails to make a showing sufficient to 23 establish the existence of an element essential to that party’s case, and on which that party will 24 bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 8 See Sumitomo Constr. Co., Ltd. v. Zhong Ye, Inc., 1997 Guam 8, ¶ 7 (“[W]hen a legislature 25 adopts a statute which is identical or similar to one in effect in another jurisdiction, it is 26 presumed that the adopting jurisdiction applies the construction placed on the statute by the 1 No. 85 at 33.) And, at least according to Plaintiff, Mr. Dial oversaw the Guam Adventist 2 Academy, which Plaintiff hoped to attend. (See Dkt. No. 101 at 3.) Plaintiff argues that, because 3 Mr. Dial used this position to lure Plaintiff to Mr. Dial’s GMM-provided apartment (and perhaps 4 recruit him as an Academy student), Mr. Dial did so within the scope of his employment. (See 5 Dkt. No. 96 at 8.) 6 But as GMM points out this is not the law. (See Dkt. No. 109 at 7.) Sexual abuse is not 7 traditionally within one’s scope of employment, even when conducted by an employee entrusted 8 with at-risk individuals, such as children or hospital patients. See, e.g., Lisa M. v. Henry Mayo 9 Newhall Meml. Hosp., 907 P.2d 358, 360 (Cal. 1995); Jeffrey E. v. C. Baptist Church, 243 Cal. 10 Rptr. 128, 130 (Cal. App. 1988); Rita M. v. Roman Catholic Archbishop, 232 Cal. Rptr. 685, 690 11 (Cal. App. 1986). For this reason, any claim here based on a traditional application of respondeat 12 superior would fail. 13 However, this does not end the analysis. Plaintiff contends that, even if Mr. Dial’s sexual 14 abuse was, indeed, outside the scope of his employment, GMM later ratified Mr. Dial’s acts. (See 15 Dkt. No. 96 at 10–11.) Ratification can be express or implied.9 Fajardo ex rel. Fajardo, 2000 16 Guam at ¶ 10. For GMM to have impliedly ratified Mr. Dial’s acts, GMM’s later conduct must 17 be “inconsistent with any reasonable contention . . . other than that [GMM] intended approving 18 and adopting the act[s].” Com. Wealth Ins. Sys., Inc. v. Kersten, 115 Cal. Rptr. 653, 661 (Cal. 19 App. 1974). In support of this proposition, Plaintiff points to the following facts: Pastor Torres 20 initially challenged Plaintiff’s assertions, before confronting Mr. Dial with Plaintiff’s letter; 21 22 originating jurisdiction.”); see also Fajardo ex rel. Fajardo, 2000 Guam at ¶ 15–17 (relying on California case law in applying respondeat superior on the basis that “there is no compelling 23 reason to deviate from [California’s] interpretation”). 24 9 Ratification by implication is “based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is 25 ‘inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it.’” Hirons v. U.S. Bank Natl. Assn., 2022 WL 443133, slip op. at 5 (Cal. App. 2022) 26 (unpublished) (quoting Behniwal v. Mix, 35 Cal. Rptr. 3d 320, 329 (Cal. App. 2005)). 1 Pastor Torres discouraged Plaintiff from reporting the abuse; Pastor Torres’ failed to report the 2 abuse to Child Protective Services; and, finally, Pastor Torres’ failed to inform local police that 3 the sexual contact was, in fact, nonconsensual. (See Dkt. No. 101 at 4.) But as Plaintiff also 4 admits, GMM terminated Mr. Dial and revoked his missionary credential following the incident. 5 (Id. at 5.) It seems unlikely, at least to this Court, that these facts would be sufficient for a 6 reasonable juror to conclude that GMM, through Pastor Torres’ official acts, ratified Mr. Dial’s 7 conduct. But Plaintiff also suggests GCC’s acts amounted to a ratification of Mr. Dial’s conduct. 8 (See generally Dkt. No. 113.) 9 2. GMM’s Relationship with GCC 10 Plaintiff presents evidence that, in 2021, Mr. Dial lectured to Adventist Youth Ministries 11 in Thailand—a video of which was available on the Adventist Youth’s Facebook page. (See Dkt. 12 Nos. 101 at 5, 120–22.) The inference10 is that Mr. Dial participated in a GCC-sanctioned 13 activity well after he admitted to abusing Plaintiff. This supports the notion that GCC impliedly 14 ratified Mr. Dial’s prior acts, as it was undoubtedly aware of his 2012 termination. See United 15 Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989) (describing 16 permissible inferences at summary judgment); Behniwal, 35 Cal. Rptr. 3d at 329 (implied 17 ratification). It also obviates the legal impact of Mr. Dial’s earlier termination, at least to the 18 extent GCC and GMM are inextricably linked. 19 Plaintiff suggests that GMM is not a separate legal entity—that it acted as GCC’s doing 20 business as (“dba”) name in Guam. (Dkt. No. 113 at 2–4.) He presents significant evidence to 21 back this up, including annual corporation filings listing GMM as GCC’s “business activity,” 22 along with other activities GCC engages in within Guam. (Dkt. No. 101 at 199, 201, 202, 204, 23 206, 207, 208, 234, 238.) GCC’s Rule 30(b)(6) deponent concedes that these activities are 24 generally conducted by GMM, (see Dkt. No. 114 at 22), and/or the Academy, (see also id. at 25 106) (record listing the Academy as a GCC dba). A reasonable inference is that GMM and other 26 10 This is an inference that GCC does not challenge on reply. (See generally Dkt. No. 115.) 1 dbas performed these activities on GCC’s behalf. Plaintiff also presents the Court with GCC’s 2 annual reports listing GMM as its dba. (See id. at 113–27.) In addition, Plaintiff presents GCC 3 insurance policies listing GMM as a covered activity of GCC. (See Dkt. No. 101 at 142–160). 4 Finally, Plaintiff points to GCC’s same Rule 30(b)(6) representative’s admission that GCC owns 5 legal title to GMM’s real property. (See Dkt. No. 85 at 118.) 6 Collectively, this is more than sufficient to establish a genuine issue of fact as to whether 7 GMM is, in fact, GCC’s dba.11 For this reason, the Court DENIES summary judgment, in part, to 8 GMM and GCC on Count I.12 However, Plaintiff presents no evidence to establish a genuine 9 issue of fact as to whether Mr. Dial acted as an agent for Pastors Torres or Silva in their personal 10 capacities. (See generally Dkt. No. 97). This is dispositive of Plaintiff’s claims against these 11 defendants. As such, the Court GRANTS summary judgment to Pastors Torres and Silva on 12 Count I. 13 C. Count II – Negligence 14 The complaint next asserts that Defendants were negligent in failing to protect Plaintiff 15 from Mr. Dial. (See Dkt. No. 60 at 10–12.) To support such a claim, Plaintiff must establish “the 16 existence of a duty, the breach of such duty, causation and damages.” Guerrero v. McDonald’s 17 Intern. Prop. Co., Ltd., 2006 Guam 2, ¶ 2. In moving for summary judgment, Defendants all 18 make the same argument: Plaintiff cannot establish causation13 because his allegations represent 19 11 On reply, GCC suggests Plaintiff’s supporting caselaw is inapt, as the only case Plaintiff cites 20 is a California case applying a legal regime not present in Guam. (See Dkt. No. 115 at 2–3.) That 21 is beside the point. Guam courts routinely hold entities liable, even when conducting business through a dba. See, e.g., Lee v. Marianas Properties LLC, 2023 WL 6392706, slip op. at 4 (D. 22 Guam 2023); Guam v. Marfega Trading Co., Inc., 1998 Guam 4, ¶ 27. 12 The Court declines to reach Plaintiff’s remaining arguments regarding alter ego and single 23 enterprise theories, as each presuppose that GMM and GCC are separate legal entities. (See Dkt. 24 No. 113 at 5–10.) 13 In response, Plaintiff suggests that if the Court were to consider the motions as seeking 25 summary judgment on the remaining elements, it should be denied. (See Dkt. No. 96 at 12–23.) 26 This, in turn, results in a rebuttal argument from Defendants on the nature of the duty owed to 1 acts or omissions postdating Mr. Dial’s abuse. (See Dkt. Nos. 69 at 15–16, 70 at 14–15, 71 at 2 13–14, 85 at 10–12.) Therefore, they could not be a proximate cause of Plaintiff’s injury. (Id.) 3 But according to the complaint, Defendants “allow[ed] Dial to come into contact with [Plaintiff] 4 as a child without supervision . . . [and] fail[ed] to inform or conceal[ed] from [Plaintiff’s] 5 Guardians . . . that Dial was or had been sexually abusing minors” and held “out Dial to 6 [Plaintiff’s] Guardians, and to the community at large, as being in good standing and trustworthy 7 as a person of stature and integrity . . . and deliberately concealed and disguised the sexual abuse 8 committed by Dial.” (Dkt. No. 60 at 11.) This is arguably conduct occurring before Mr. Dial 9 abused Plaintiff. 10 Nevertheless, at summary judgment, more than just these naked (and seemingly 11 conclusory) allegations are needed—Plaintiff must now put forth evidence in support. See 12 Belfield v. City of San Jose, 53 Fed. App’x 427 (9th Cir. 2002) (citing Lujan, 497 U.S. at 888); 13 see also Keiffer v. Pernsteiner, 967 F.2d 587 (9th Cir. 1992) (“[A] plaintiff must refute 14 defendants’ version of events by presenting ‘any significant probative evidence’ tending to 15 support the allegations of his complaint . . . A genuine issue of material fact exists if, based on 16 the evidence presented in the summary judgment proceedings, a jury could reasonably find for 17 either the plaintiff or the defendant.”) (quoting Liberty Lobby, Inc., 477 U.S. at 249). And 18 Plaintiff points the Court to no such evidence. (See Dkt. No. 96 at 11–12.) 19 Instead, Plaintiff states that causation is always a jury question. (Id.) Not so. Under 20 governing federal law,14 Plaintiff must put forth at least some evidence to support each element 21 challenged, even for proximate cause, to survive summary judgment. See Rexall Drug Co. v. 22 Plaintiff. (See Dkt. No. 109 at 11–13.) Because Defendants only explicitly moved for summary 23 judgment on the causation element, the Court declines to reach the remaining elements and/or consider the resulting argument. 24 14 In support, Plaintiff cites to California and Guam precedent. (Id.) But this is a matter of 25 procedural law, so those cases are inapt, as federal law controls. See Cortez v. Skol, 776 F.3d 1046, 1054 (9th Cir. 2015) (the standards governing summary judgment are procedural—not 26 substantive). 1 Nihill, 276 F.2d 637, 645 (9th Cir. 1960) (“We are conscious of the fact that ordinarily proximate 2 cause is a question of fact to be determined by the trier of the fact. It becomes a question of law 3 if the proof is insufficient to raise a reasonable inference that the act complained of was the 4 proximate cause of the injury.”); see also Steinle v. U.S., 17 F.4th 819, 822 (9th Cir. 2021) 5 (requiring some facts to establish causation). And, again, Plaintiff points to none. 6 Accordingly, the Court GRANTS summary judgment to Defendants on Count II. 7 D. Counts III & IV – Negligent Hiring, Supervision, and Retention 8 Count III asserts a claim for negligent supervision and Count IV for negligent hiring and 9 retention. (Dkt. No. 60 at 12–14.) Both are based on allegations that Defendants knew or should 10 have known of Mr. Dial’s “abusive and exploitive propensities,” and that by hiring and retaining 11 Mr. Dial in a “position of trust and authority as a Church teacher” and not taking “reasonable 12 measures to prevent future sexual abuse,” Defendants are liable for Plaintiff’s resulting harms. 13 (Id.) In the context of child sexual abuse cases, claims based on negligent hiring, supervision, 14 and/or retention require either actual or constructive knowledge of an employee’s propensity for 15 such conduct. See, e.g., Z.V. v. Cnty. of Riverside, 189 Cal. Rptr. 3d 570, 581 (Cal. App. 2015);15 16 Doe A. v. Green, 298 F. Supp. 2d 1025, 1039 (D. Nev. 2004); Doe v. Corp. of Catholic Bishop of 17 Yakima, 957 F. Supp. 2d 1225, 1233 (E.D. Wash. 2013). 18 In moving for summary judgment, Defendants assert Plaintiff fails to establish a genuine 19 issue of fact as to whether Defendants had such knowledge. (See, e.g., Dkt. No. 69 at 14–16.) 20 The Court agrees. The only evidence Plaintiff puts forth is his own testimony16 that Mr. Dial’s 21 22 15 Guam courts routinely look to other jurisdictions when analyzing negligent hiring, supervision, and/or retention claims. See, e.g., D.M. v. Apuron, 658 F. Supp. 3d 825, 851 (D. Guam 2023) 23 (applying Maryland law); Cruz v. Quichocho, 1987 WL 109899, slip op. at 1 (D. Guam App. Div. 1987) (applying New York and Maryland law). 24 16 Defendants take issue with whether this could be considered, as it appears to contradict 25 Plaintiff’s 2022 interrogatory responses. (See id. at 18–22.) But Plaintiff later supplemented his responses, and those statements are consistent with his deposition testimony. (Compare Dkt. No. 26 101 at 34, with Dkt. No. 101 at 57, 64.) 1 Facebook page, at around the same time as his abuse of Plaintiff, had a photo of “an unknown 2 male person who looked to be a minor” whom “Dial was groping the young man’s buttocks.” 3 (Dkt. No. 101 at 57, 64.) In fact, in his deposition, Plaintiff concedes that this is the only 4 evidence he has of Mr. Dial’s propensity to abuse minors. (See id. at 65.) 5 This is not sufficient evidence to carry Plaintiff’s burden of persuasion at trial that 6 Defendants had actual or constructive knowledge of Mr. Dial’s propensity for sexual abuse. See 7 Nissan Fire & Marine Ins. Co., 210 F.3d at 1106 (describe quantum of evidence required to 8 defeat summary judgment). For instance, it does not establish when the image first appeared on 9 Mr. Dial’s Facebook account, how long it remained, whether the individual in the image was, in 10 fact, a minor. All of which would be required to establish Defendant’s constructive knowledge, 11 particularly if the Facebook page were the only evidence of possible sexual impropriety available 12 to Defendants at the time of Mr. Dial’s hiring and/or throughout his employment term. And 13 Plaintiff is on record stating he is aware of no other evidence. (See Dkt. No. 92 at 51–52.) 14 Accordingly, the Court GRANTS Defendants summary judgment on Counts III and IV. 15 E. Count V – Breach of Fiduciary Duty and/or Confidential Relationship 16 The complaint also asserts that “[b]y holding Dial out as a safe, trustworthy and highly 17 ethical Church Teacher with integrity . . . Defendants created and entered into a fiduciary and/or 18 confidential relationship specifically with [Plaintiff].” (Dkt. No. 60 at 15.) To support such a 19 claim, Plaintiff must put forth evidence of “the existence of a fiduciary [or confidential] 20 relationship, breach of that duty and damages.” Shopoff & Cavallo LLP v. Hyon, 85 Cal. Rptr. 3d 21 268, 285 (Cal. App. 2008). Plaintiff alleges that his “care welfare, and/or physical custody were 22 temporarily entrusted to Defendants” and implies that Defendants accepted that responsibility— 23 thereby creating a fiduciary or confidential relationship. (Dkt. No. 60 at 10.) At summary 24 judgment, more is required. Plaintiff must put forth evidence supporting these allegations. See 25 Nissan Fire & Marine Ins. Co., 210 F.3d at 1102–03. And as Defendants aptly point out, 26 1 Plaintiff provides none. (See generally Dkt. No. 96 at 24–25.) 2 Nor does Plaintiff meaningfully dispute (or even address) evidence proffered by 3 Defendants suggesting that (1) Plaintiff was sent to Guam by his parents; (2) he initially lived 4 and slept in the construction worker barracks, along with his uncles; (3) they dropped him off at 5 the church gate, without an arrangement with the church for Plaintiff’s care; (4) and Plaintiff 6 later independently accepted Mr. Dial’s invitation to stay at his house “for a couple of days so he 7 could help Plaintiff with his schooling and give him a short tour of Agana Heights.” (See Dkt. 8 Nos. 69 at 103, 101 at 1–2.) From this, it is not clear to the Court what relationship, fiduciary or 9 otherwise, Plaintiff had with Defendants.17 10 Accordingly, the Court GRANTS Defendants summary judgment on Count V. 11 F. Count VI – Intentional Infliction of Emotional Distress 12 Finally, the complaint asserts a claim for intentional infliction of emotional distress 13 (“IIED”). (See Dkt. No. 60 at 16–17.) To establish such a claim, Plaintiff must demonstrate the 14 following: “(1) extreme and outrageous conduct []; (2) intention to cause or reckless disregard of 15 the probability of causing emotional distress; (3) severe emotional distress, on the plaintiff's part; 16 and (4) actual and proximate causation of that emotional distress.” Cruz Reyes v. U.S., 2010 WL 17 5207583, slip op. at 5 (D. Guam 2010). In moving for summary judgment on this claim, 18 Defendants focus on their own conduct and intent, and suggest Plaintiff provides no evidence to 19 meet the required standard. (See, e.g., Dkt. No. 69 at 29–30.) But this presupposes Defendants 20 are not vicariously liable for Mr. Dial’s conduct. Because there are genuine issues of fact 21 22 17 Defendants also argue that courts “across jurisdictions unanimously” hold a breach of duty claim to be duplicative of a negligence claim and, therefore, dismiss the breach of duty claim. 23 (See Dkt. No. 69 at 26) (emphasis added). A quick review of such caselaw shows this statement 24 to be inaccurate. See, e.g., Moshe v. TapIn2, Inc., 2019 WL 1883912, slip op. at 4 (C.D. Cal. 2019); F.D.I.C. v. Johnson, 2012 WL 5818259, slip op. at 4 (D. Nev. 2012). The Court cautions 25 counsel that making a demonstrably false statement such as this is sanctionable conduct. While the Court will not impose a sanction in this instance, it will consider doing so if such conduct 26 continues in this matter. 1 precluding summary judgment on this issue, at least to GCC and GMM, see supra Part II.B.2, 2 the Court must deny summary judgment on Plaintiff’s IIED claim with respect to these 3 Defendants. 4 Accordingly, the Court GRANTS summary judgment to Pastors Torres and Silva on 5 Count VI and DENIES summary judgment to GCC and GMM on Count VI. 6 III. CONCLUSION 7 For the foregoing reasons, Defendants motions for summary judgment (Dkt. Nos. 69, 70, 8 71, 85) are GRANTED in part and DENIED in part. Genuine issues of fact preclude summary 9 judgment on Counts I and VI solely against GMM and GCC. As for the remaining counts and 10 remaining Defendants, they are entitled to judgment as a matter of law. 11 Within 30 days of this order, the parties are DIRECTED to meet and confer and provide 12 the Court with a joint status report containing an estimated trial schedule (i.e., number of days 13 anticipated for trial) in light of the rulings above and three alternative trial dates based on the 14 parties’ availability. The Court will issue a revised scheduling order following receipt of this 15 submission. 16 17 DATED this 22nd day of July 2024. A 18 19 20 John C. Coughenour 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26