Chapter 12

7 GCA CIVIL PROCEDURE CH. 12 PARTIES TO CIVIL ACTIONS 1 CHAPTER 12 PARTIES TO CIVIL ACTIONS § 12101. Assignment of a Thing in Action Not to Pr ejudice Defense. § 12102. Married Persons. § 12103. When Husband and/or Wife May Defend. § 12104. Minors, Insane or Incompetent Persons; Ap pearance by Another. § 12105. Guardian Ad Litem--Appointment. § 12106. Unmarried Female May Sue for Her Own Sedu ction. § 12107. Father May Sue for Seduction of Daughter. § 12108. Injuries to Children. § 12108.1. Public School Student: Standing to Sue. § 12109. Wrongful Death of Adults or Certain Minor s. § 12110. Doubt as to Defendant Liable. § 12111. Defendants - Actions for Real Property. § 12112. Persons Holding Under Common Title. § 12113. Tenants in Common May Sever. § 12114. Interpleader. § 12115. Associates May Be Sued by Name of Associa tion. § 12116. Exemplary Damages in Malpractice Cases. 2017 NOTE: Past print publications of the GCA included the fo llowing annotation, which has been retained to provide back ground information as to the source of the provisions (Guam Civil Procedure Code ) and legislative history.

ions of the GCA included the fo llowing annotation, which has been retained to provide back ground information as to the source of the provisions (Guam Civil Procedure Code ) and legislative history. NOTE: A substantial part of Title 3, Guam Code of Civil Procedure, §§ 367 through 389, has been superseded by the Superior Court Rules of Civil Procedure. 7 GCA § 22 06 provides that sections of this title which have been replace d by the rules shall have no further force and effect. However, the Rule s may change procedural portions only of this Title. Therefore, those sections will be deleted from this Chapter, and are to be found i n their current form in the Rules of Court. What remains in this Ch apter are those sections which are not specifically dealt with in t he Rules of Court and, in addition, which are of a substantive nature . Rule 17(b) of the Superior Court Rules of Civil Procedure refers to T itle 3 (this Chapter) for matters dealing with the capacity to s ue. CCP § 367, Action to be in name of Party in Interest, replaced by Guam Rules of Civil Procedure, Rule 17. The above annotation contains a reference to 7 GCA § 2206, which was never enacted into law, but was

67, Action to be in name of Party in Interest, replaced by Guam Rules of Civil Procedure, Rule 17. The above annotation contains a reference to 7 GCA § 2206, which was never enacted into law, but was contained in draft legisl ation of Title 7 GCA. See Introductory Note for Title 7 – Civil Procedure. COL41220177 GCA CIVIL PROCEDURE CH. 12 PARTIES TO CIVIL ACTIONS 2 § 12101. Assignment of a Thing in Action Not to Pr ejudice Defense. In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any set-off, or ot her defense existing at the time of, or before notice of, the assignment, but t his section does not apply to a negotiable promissory note or bill of exchange, t ransferred in good faith and upon good consideration, before maturity. SOURCE: CCP § 368. COMMENT: In 1978, the Federal Trade Commission promulgated r ules by which all state laws providing the defense of good faith assi gnment of such negotiable promissory notes for value were superseded by the F ederal rule. NOTE: CCP § 369, Executor, Trustee, etc., may sue without joining the persons beneficially interested, has been superseded by GRC P Rule 17. § 12102.

s for value were superseded by the F ederal rule. NOTE: CCP § 369, Executor, Trustee, etc., may sue without joining the persons beneficially interested, has been superseded by GRC P Rule 17. § 12102. Married Women as Parties to Action. A married woman may be sued without her husband bei ng joined as a party, and may sue without her husband being joined as a party, in all actions, including those for injury to her person, libel, slander, false imprisonment, or malicious prosecution, or for the recovery of her earnings, or concerning her right or claim to the homestead p roperty. SOURCE: CCP § 370. COMMENT: The California § 370 was amended to make this Secti on applicable to both spouses. Guam has enacted, in P.L. 14-28 as Go vernment Code 1104, the local equivalent of the failed federal constitutional 'Eq ual Rights Amendment', with instructions that all laws should be read in light of this new public law. § 12103. When Wife May Defend. If a husband and wife be sued together, the wife ma y defend for her own right, and if the husband neglect to defend, sh e may defend for his right also. SOURCE: CCP § 371. § 12104. Minors, Insane or Incompetent Persons; Ap pearance By Another.

ife ma y defend for her own right, and if the husband neglect to defend, sh e may defend for his right also. SOURCE: CCP § 371. § 12104. Minors, Insane or Incompetent Persons; Ap pearance By Another. When an infant, or an insane or incompetent person is a party, he must appear either by his general guardian or by a guard ian ad litem appointed by the court in which the action is pending, in each c ase. A guardian ad litem may be appointed in any case, when it is deemed by the court in which the action or proceeding is being prosecuted, or by a j udge thereof, expedient to represent the infant, or insane or incompetent pers on in the action or COL41220177 GCA CIVIL PROCEDURE CH. 12 PARTIES TO CIVIL ACTIONS 3 proceeding, notwithstanding that he may have a gene ral guardian and may have appeared by him. The general guardian or guard ian ad litem so appearing for any infant, or insane or incompetent person in any suit shall have power to compromise the same and to agree to t he judgment to be entered therein for or against his ward, subject to the approval of the court in which such suit is pending. SOURCE: CCP § 372. § 12105. Guardian Ad Litem--Appointment .

agree to t he judgment to be entered therein for or against his ward, subject to the approval of the court in which such suit is pending. SOURCE: CCP § 372. § 12105. Guardian Ad Litem--Appointment . When a guardian ad litem is appointed by the court, he must be appointed as follows: (a) When the infant is plaintiff, upon the applicat ion of the infant, if he be of the age of fourteen (14) years, or if under that age, upon the application of a relative or friend of the infant. (b) When the infant is defendant, upon the applicat ion of the infant, if he be of the age of fourteen (14) years, and apply within ten days after the service of the summons, or if under that age, or if he neglect so to apply, upon the application of a rela tive or friend of the infant, or of any other party to the action. (c) When an insane or incompetent person is a party to an action or proceeding, upon the application of a relative o r friend of such insane or incompetent person, or of any other party to the action or proceeding. SOURCE: CCP § 373. 2017 NOTE: Subsection/subitem designations altered pursuant to the authority of 1 GCA § 1606. § 12106. Unmarried Female May Sue for Her Own Seduc tion.

to the action or proceeding. SOURCE: CCP § 373. 2017 NOTE: Subsection/subitem designations altered pursuant to the authority of 1 GCA § 1606. § 12106. Unmarried Female May Sue for Her Own Seduc tion. An unmarried female may prosecute, as plaintiff, a n action for her own seduction, and may recover therein such damages, pe cuniary or exemplary, as are assessed in her favor. SOURCE: CCP § 374. § 12107. Father May Sue for Seduction of Daughter. A father, or, in case of his death or desertion of his family, the mother, may prosecute as plaintiff for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward be not living with COL41220177 GCA CIVIL PROCEDURE CH. 12 PARTIES TO CIVIL ACTIONS 4 or in the service of the plaintiff at the time of t he seduction or afterwards, and there be no loss of service. SOURCE: CCP § 375. § 12108. Injuries to Children. (a) The parents of an unmarried minor child, acting jointly, may maintain an action for injury to such child caused by the wrongful act or neglect of another. If either parent shall fail on demand to join as plaintiff in such action or is dead or cannot be found, then the other parent may

jury to such child caused by the wrongful act or neglect of another. If either parent shall fail on demand to join as plaintiff in such action or is dead or cannot be found, then the other parent may maintain such action and the parent, if living, who does not join as plaintiff must be joined as a defendant and, before trial or hearing of any question of fact, must be served with summons either personally or by sending a copy of the summons and complaint by registered mail with p roper postage prepaid, addressed to such parent's last known address with request for a return receipt. If service is made by registered mail, the production of a return receipt purporting to be signed by the addressee sh all create a rebuttable presumption that such summons and complaint have be en duly served. In the absence of personal service or service by registere d mail, as above provided, service may be made as provided in § 14106 of this Title and in GRCP Rule 3e. The respective rights of the parents to any awa rd shall be determined by the court. (b) A mother may maintain an action for such an inj ury to her illegitimate unmarried minor child.

n GRCP Rule 3e. The respective rights of the parents to any awa rd shall be determined by the court. (b) A mother may maintain an action for such an inj ury to her illegitimate unmarried minor child. A guardian may maintain an action for such an injury to his ward. (c) Any such action may be maintained against the person causing the injury, or if such person be dead, then against his personal representatives. If any other person is responsible for any such wrongf ul act or neglect, the action may also be maintained against such other pe rson or this personal representatives in case of his death. The death of the child or ward shall not abate the parents' or guardians' cause of action fo r his injury as to damages accruing before his death. (d) In every action under this section, such damage s may be given as under all of the circumstances of the case may be j ust; provided, that in any action maintained after the death of the child or w ard, damages recoverable hereunder shall not include damages for pain, suffe ring or disfigurement nor punitive nor exemplary damages nor compensation for loss of prospective profits or earnings after the date of death.

able hereunder shall not include damages for pain, suffe ring or disfigurement nor punitive nor exemplary damages nor compensation for loss of prospective profits or earnings after the date of death. COL41220177 GCA CIVIL PROCEDURE CH. 12 PARTIES TO CIVIL ACTIONS 5 (e) If an action arising out of the same wrongful act or neglect may be maintained pursuant to § 12109 of this Chapter, for wrongful death of any child, the action authorized by this section shall be consolidated therewith for trial on motion of any interested party. SOURCE: CCP § 376, amended by P.L. 15-61. 2017 NOTE: Subsection/subitem designations added/altered purs uant to the authority of 1 GCA § 1606. COMMENT: Where, as here, the Guam Legislature has specifica lly acted on a subject after the Rules of Civil Procedure have gone into e ffect, the Compiler presumes that this enactment will prevail over any Rule of Civil Procedure. §12108.1. Public School Student: Standing to Sue. (a) A public school student shall have a claim and standing to sue the government of Guam and any officer of the Executive Branch of the government of Guam in his official capacity only fo r the purpose of enjoining such officer from failing

laim and standing to sue the government of Guam and any officer of the Executive Branch of the government of Guam in his official capacity only fo r the purpose of enjoining such officer from failing to provide an a dequate public education to that public school student but not for money damages, provided that the student must exhaust the administrative process man dated by Title 17 GCA Chapter 11. (b) No action shall lie under this Section until t hirty (30) days, Saturdays, Sundays, and holidays excepted, after no tice of the claim has been filed in the manner required by 5 GCA §§ 6101, 6103(b), (c) and (d), 6201, 6202, 6205 and 6207 with the Attorney General and the head of the department or agency against which the claim is to be made. SOURCE: Added by P.L. 28-045:16, effective, October 1, 20 07, per P.L.28-045:23. Subsection (a) amended by P.L. 29-019:VI:80 (Sept. 29, 2007). § 12109. Wrongful Death of Adults or Certain Minor s. (a) When the death of a person is caused by the wro ngful act or neglect of another, his or her heirs or personal re presentatives on their behalf may maintain an action for damages against the pers on causing the death, or in case of the death of such

gful act or neglect of another, his or her heirs or personal re presentatives on their behalf may maintain an action for damages against the pers on causing the death, or in case of the death of such wrongdoer against the personal representative of such wrongdoer, whether the wrongdoer dies before o f after the death of the person injured. If any other person is responsible for any such wrongful act or neglect, the action may also be maintained again st such other person, or in case of his or her death, his or her personal repre sentatives. In every action under this Section, such damages may be given as, u nder all the circumstances of the case, may be just, but shall n ot include damages recoverable under 19 GCA § 31104. The respective ri ghts of the heirs in any COL41220177 GCA CIVIL PROCEDURE CH. 12 PARTIES TO CIVIL ACTIONS 6 award shall be determined by the court. Any action brought by the personal representative of the decedent pursuant to the prov isions of 19 GCA § 31104, may be joined with an action arising out of the same wrongful act or neglect brought pursuant to the provisions of this Section.

ntative of the decedent pursuant to the prov isions of 19 GCA § 31104, may be joined with an action arising out of the same wrongful act or neglect brought pursuant to the provisions of this Section. If an action be brought pursuant to the provisions of this Section, and a separate action arising out of the same wrongful act or neglect be brought pursuant to the provisions of § 956 of the Civil Code, such actions shall be consolidated for trial on the motion of any interested party. (b) For the purposes of Subsection (a), heirs mean only the following: (1) Those persons who would be entitled to succe ed to the property of the decedent according to the provision s of 15 GCA Division 3 (Administration of Decedents' Estates). (2) Whether or not qualified under Paragraph (1), i f they were dependent on the decedent, the putative spouse, chi ldren of the putative spouse, stepchildren and parents. As used in this P aragraph, 'putative spouse' means the surviving spouse of a void or voi dable marriage who is found by the court to have believed in good fait h that the marriage to the decedent was valid.

in this P aragraph, 'putative spouse' means the surviving spouse of a void or voi dable marriage who is found by the court to have believed in good fait h that the marriage to the decedent was valid. (3) Minors, whether or not qualified under Paragrap hs (1) or (2) if, at the time of the decedent's death, they resid ed for the previous one hundred eighty (180) days in the decedent's househo ld and were dependent upon the decedent for one-half (1/2) or m ore of their support. Nothing in this Subsection (b) shall be construed to change or modify the definition of heirs under any other provision o f law. SOURCE: CCP § 377, amended by P.L. 14-128. CROSS-REFERENCE: Civil Code § 956; 19 GCA § 31104. COMMENT: A note to original Guam CCP § 377 states that Rule 18 of the GRCP provides for joinder of claims and remedies. Also, see Vela v. Govt. Emp. Ins. Co., (1968) 395 F.2d. 427. However, the Fourteenth Guam Legislature believed that this Section superseded any rule on the topics covered w ithin this Section, and by passing a new Subsection (b) to this Section indicated its substantive nature. Therefore, this Section is included herein.

ction superseded any rule on the topics covered w ithin this Section, and by passing a new Subsection (b) to this Section indicated its substantive nature. Therefore, this Section is included herein. As a result of this ame ndment, Guam and California § 377 (this Section) now read substantially the same. NOTE: CCP § 378, Who may be Joined as Plaintiffs; § 379, Who May be joined as Defendants; § 379a, Same; have been replaced by GRCP Rule 19. § 379b, Order Preventing Embarrassment, has been replaced by GRCP Rule 20. COL41220177 GCA CIVIL PROCEDURE CH. 12 PARTIES TO CIVIL ACTIONS 7 § 12110. Doubt as to Defendant Liable. Where the plaintiff is in doubt as to the person fr om whom he is entitled to redress, he may join two or more defendants, wit h the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined between the parties. SOURCE: CCP § 379c. § 12111. Defendants - Actions for Real Property. In an action brought by a person out of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and persons in possession may be joined as defendants, and if the

of possession of real property, to determine an adverse claim of an interest or estate therein, the person making such adverse claim and persons in possession may be joined as defendants, and if the judgment be for the plaintif f, he have a writ for the possession of the premises, as against the defendan ts in the action, against whom the judgment has passed. SOURCE: CCP § 380. § 12112. Persons Holding Under Common Title. Any two or more persons claiming any estate or inte rest in lands under a common source of title, whether holding as tenant s in common or in severalty, may unite in an action against any perso n claiming an adverse estate or interest therein, for the purpose of dete rmining such adverse claim, or of establishing such common source of title, or of declaring the same to be held in trust, or of removing a cloud upon the same . SOURCE: CCP § 381. NOTE: CCP § 382, Parties in interest, when to be joined, has been replaced by GRCP Rules 10-21. CCP § 383, Persons severally liable as sureties, etc., has been replaced by GRCP Rule 22. § 12113. Tenants in Common May Sever. All persons holding as tenants in common, joint ten ants, or coparceners, or any number less than

ly liable as sureties, etc., has been replaced by GRCP Rule 22. § 12113. Tenants in Common May Sever. All persons holding as tenants in common, joint ten ants, or coparceners, or any number less than all, may jointly or several ly commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party. SOURCE: CCP § 384. NOTE: CCP § 385, Abatement of Actions, has been replaced by GRCP Rule 25, Substitution of Parties. § 12114. Interpleader. COL41220177 GCA CIVIL PROCEDURE CH. 12 PARTIES TO CIVIL ACTIONS 8 A defendant, against whom an action is pending upon a contract or for specific personal property, may at any time before answer, upon affidavit that a person not a party to the action makes against hi m, and without any collusion with him, a demand upon such contract, or for such property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, upon his depositing in court the amount clai med on the contract, or delivering the property or its value to such person as the court may direct; and the court may, in its discretion,

o either party, upon his depositing in court the amount clai med on the contract, or delivering the property or its value to such person as the court may direct; and the court may, in its discretion, make the orde r. And whenever conflicting claims are or may be made upon a person for or relating to personal property, or the performance of an obligat ion, or any portion thereof, such person may bring an action against th e conflicting claimants to compel them to interplead and litigate their severa l claims among them- selves. The order of substitution may be made and t he action of interpleader may be maintained, and the applicant or plaintiff b e discharged from liability to all or any of the conflicting claimants, althoug h their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one another. SOURCE: CCP § 386. COMMENT: While GRCP Rule 25 covers Interpleaders, this sect ion provides the substantive basis for such actions, and for additio nal actions of a similar sort. Therefore, it has not been replaced by the GRCP. NOTE: CCP § 387, Intervention, has been replaced by GRCP Rules 14 and 24. § 12115.

is for such actions, and for additio nal actions of a similar sort. Therefore, it has not been replaced by the GRCP. NOTE: CCP § 387, Intervention, has been replaced by GRCP Rules 14 and 24. § 12115. Associates may be Sued by Name of Associa tion. When two or more persons, associated in any busine ss, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the sum- mons in such cases being served on one or more of t he associates; and the judgment in the action shall bind the joint propert y of all the associates, and the individual property of the party or parties ser ved with process, in the same manner as if all had been named defendants and had been sued upon their joint liability. SOURCE: CCP § 388. NOTE: CCP § 389, Court may order Amended Pleading, has been replaced by GRCP Rule 15. § 12116. Exemplary Damages in Malpractice Cases. COL41220177 GCA CIVIL PROCEDURE CH. 12 PARTIES TO CIVIL ACTIONS 9 Any exemplary damages awarded to a client in a tort suit based on health care or professional services rendered or wh ich should have been rendered by a health professional or health care in

CTIONS 9 Any exemplary damages awarded to a client in a tort suit based on health care or professional services rendered or wh ich should have been rendered by a health professional or health care in stitution to a patient shall be placed in a special fund that may be expended at the discretion of the administrator, Guam Memorial Hospital, for the impr ovement of medical services within the territory of Guam. SOURCE: Added by P.L. 13-116:5 as CCP § 390. COMMENT: This is a section unique to Guam, but was added in tentionally by the Legislature as part of an act relative to malpracti ce suits against health care professionals. The Compiler has added the word 'exe mplary' after 'any' at the beginning of the first sentence of this Section. Th e title of this Section, as enacted, indicates that only exemplary damages are to be pla ced in this separate fund. However, the wording of this Section indicates that 'any dam ages' received in tort actions of the type described are to be placed in the special fund . It is inconceivable that the Legisla- ture intended to deprive a plaintiff of all recover y in malpractice actions.

ceived in tort actions of the type described are to be placed in the special fund . It is inconceivable that the Legisla- ture intended to deprive a plaintiff of all recover y in malpractice actions. Even if this were the intent, the title of this Section indicate s a different intent. § 12117. Officer or Agent Who Assists Violation. Any person, who either as a director, officer, or a gent of any firm or corporation or as an agent of any person violating the provisions of 9 GCA Chapter 69, 5 GCA Chapter 32, or any other law; kno wingly aids or assists, directly or indirectly, in such violation, knowing that the firm, corporation, or person is violating a law, is responsible theref or equally with the firm, corporation or person in any civil case. SOURCE: CCP § 391 added by P.L. 21-18. COMMENT: This addition is part of an act to create an anti- trust law and to strengthen the Attorney General's consumer protecti on powers. ---------- COL4122017