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Hocog v. Cook-Huynh
(2025)
Case details
Country
United States
Jurisdiction
Federal
Decided
2025
Disposition
Dismissed
RON
HOCOG
and
TIFFANY
HOCOG,
Does
1-20
for
injuries
and
damages
they
allege
arose
from
Tiffany
Hocog's
admission
to
GMH
negligence,
failure
to
obtain
proper
informed
consent,
loss
of
chance,
and
loss
of
consortium.
Id
malpractice,
wrongful
death,
personal
injury,
negligent
infliction
of
emotional
distress,
gross
at
5-10.
They
also
allege
negligent
hiring,
training,
or
supervision
against
GMH.
Id.
at
9.
DR.
MARIANA
COOK-HUY1;1H,
GUAM
MEMORIAL
HOSPITAL
AUTHORITY
and
DOES
1-20,
raises
concerns
relative
to
the
unethical
conduct
of
the
Hocogs'
attorney,
Mark
Smith,
Esq.
on
February
27,
2024.
P1s.'s
Con
pl.
at
1,
3
(Feb.
26,
2025).
The
Hocogs
allege
medical
arbitration.
The
Court
determines
that
the
Hocogs
were
required
to
effectuate
personal
service,
dismissal
based
on
Plaintiffs
Ron
and
Tiffany
Hocog's
alleged
failure
to
serve
a
demand
for
Cook-Huynh's
motion
and
dismisses
her
from
this
action.
and
in
failing
to
do
so,
failed
to
timely
commence
their
action.
The
Court
thus
GRANTS
Dr.
1.
In
this
action
alleging
medical
malpractice,
Defendant
Dr.
Mariana
Cook-Huynh
seeks
The
Hocogs
brought
this
action
against
Dr.
Cook-Huynh,
Guam
Memorial
Hospital,
and
PROCEDURAL
AND
FACTUAL
BACKGROUND
In
addition
to
addressing
the
dispositive
procedural
aspects
of
this
case,
the
Court
herein
vs.
IN
THE
SUPERIOR
COURT
OF
GUAM
Defendants.
Plaintiffs,
civil
CASE
NO.
CV0140
25
DECISION
AND
ORDER
GRANTING
DEFENDANT
DR.
MARIANA
COOK-
HUYNH'S
MOTION
TO
DISMISS
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CV0140-25
DECISION
AND
ORDER
GRANTING
DEFENDANT
DR.
MARIANA
COOK-HUYNI-I'S
MOTION
TO
DISMISS
Page
2
Dr.
Cook-Huynh
moved
to
dismiss,
arguing
that
the
court
lacks
subj
act
matter
jurisdiction,
the
Plaintiffs'
claims
are
barred
by
the
statute
of
limitations,
and
that
two
of
the
Plaintiffs'
claims
are
not
recognized
by
Guam
courts.
Def.
's
Mot.
Dismiss
at
1
(May
14,
2025).
Relative
to
jurisdiction,
Dr.
Cook-Huynh
declares
she
was
never
served
personally,
nor
was
a
demand
for
arbitration
left
at
her
home.
Cook-Hyunh
Decl.
at
1-2
(May
14,
2025).
Instead,
the
demand
was
left
with
her
office
manager,
Corine
Ricalde-Blas,
on
Febmary
20,
2025.
Sablan
Deal.
at
2
(June
11,
2025).
Also,
Ricalde-Blas
attests
in
her
declaration
that
she
is
not
authorized
to
receive
service
for
Dr.
Cook-Huynh,
nor
did
she
represent
that
she
was
authorized.
Ricalde-
Blas
Second
Decl.
at
1-2
(May
14,
2025).
In
their
opposition,
the
Hocogs
argue
that
they
have
complied
with
the
requirements
in
10
GCA
Chapter
10,
the
Medical
Malpractice
Mandatory
Arbitration
Act
(MMMA),
and
that
Dr.
Cook-Huynh
waived
any
rights
under
the
MMMA
by
refusing
to
consent
to
arbitration.
Pls.'
Opp'n
at
2-3
(June
11,
2025).
The
Hocogs'
process
server,
David
Serbian,
attests
that
Ms.
Ricalde-Blas
"represented
that
she
was
authorized
to
accept
documents
on
behalf
of
Dr.
Mariana
Cook-Huynh"
and
that
she
was
an
authorized
agent
for
Dr.
Cook-Huynh.
Sablan
Decl.
at
2-3
.
The
Hocogs
additionally
assert
that
they
mailed
a
copy
of
the
demand
to
the
Defendants.
1
II.
LAW
AND
DISCUSSION
A.
Dr.
Cook-Huynh
was
not
properly
served.
Any
claim
involving
a
patient
and
a
health
care
professional
"shall
be
submitted
to
mandatory
arbitration"
under
the
MMMA.
10
GCA
§
10102.
"Arbitration
is
initiated
by
a
1
The
American
Arbitration
Association
closed
the
Hocogs'
arbitration
demand,
concluding
it
did
not
have
the
authority
to
administer
the
dispute
under
the
consumer
mies.
Decl.
Anita
Arriola,
Ex.
D
(May
14,
2025).
Dr.
Cook-Huynh
contends
this
occurred
because
the
Hocogs
filed
the
wrong
arbitration
demand
form.
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CV0140-25
DECISION
AND
ORDER
GRANTING
DEFENDANT
DR.
MARIANA
COOK-I-IUYNH'S
MOTION
TO
DISMISS
Page
3
petitioner
or
petitioners
serving
a
written
demand
for
arbitration
upon
a
respondent
or
respondents
in
the
same
manner
provided
by
law
for
the
service
of
summons
in
the
Superior
Court
of
Guam..."
10
GCA
§10103.
Thus,
if
the
Hocogs
did
not
follow
Guam
law
and
rules
to
serve
the
Defendants
with
the
written
demand
for
arbitration
properly,
arbitration
was
not
initiated.
The
burden
to
demonstrate
proper
service
falls
on
the
Hocogs.
Fuqua
u
Turner,
996
F.3d
1140,
1156
(nth
Cir.
2021).
Guam
law
requires
personal
service
on
individual
defendants.
7
GCA§
14l05(g).
Guam
Rule
of
Civil
Procedure
4
elaborates
on
this
process:
an
individual
may
be
served
by
delivering
a
copy
of
the
summons
and
the
complaint
to
the
individual
personally,
by
leaving
a
copy
at
the
individual's
home
with
someone
of
suitable
age
and
discretion
who
resides
there,
or
by
delivering
a
copy
to
an
agent
authorized
by
appointment
or
law
to
receive
service
of
process.
GRCP
4(e)(2).
Attorney
Smith
argues
that
Guam
follows
a
liberal
notice
pleading
standard,
implying
that
the
Court
can
consume
service
requirements
liberally,
however,
this
standard
of
pleading
relates
to
the
contents
of
a
pleading-not
the
timeliness
of
a
claim.
See
Ukase
v
Wang,
2016
Guam
26
W
22-33
(describing
a
liberal,
notice
pleading
requirement,
meaning
a
pleading
may
make
a
short
and
plain
statement
of
a
claim)
.
In
contrast,
the
Guam
Supreme
Court
has
explicitly
"adopted
a
rule
of
strict
compliance
with
statutory
service
requirements
Pineda
u
Pineda,
2005
Guam
10
1118.
This
means
that
statutory
service
requirements,
specifically
the
requirements
that
Dr.
Cook-Huynh
be
served
personally
or
an
agent
authorized
by
appointment
or
law
to
receive
service
of
process
must
be
strictly
complied
with.
This
Court
abides
by
the
strict
service
compliance
standards
expressly
stated
by
the
Guam
Supreme
Court.
It
is
undisputed
that
Dr.
Cook-Huynh
did
not
receive
the
arbitration
demand
personally
or
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CV0140-25
DECISION
AND
ORDER
GRANTING
DEFENDANT
DR.
MARIANA
COOK-HUYNH'S
MOTION
TO
DISMISS
Page
4
at
her
home.
The
Hocogs
contend
that
service
upon
Dr.
Cook-Huynh
was
accomplished
through
her
assistant
and
under
the
doctrine
of
apparent
authority,
however,
that
concept
applies
to
service
on
corporations,
not
individuals.
Pls.'
Opp'n
at
11,
Direct
Mail
Specialists,
Inc.
v
Eclat
Computerized
Technologies,
Inc.,
840
F.2d685,
688
(9th
Cir.
1988).
Dr.
Cook-Huynh
is
named
in
her
personal
and
individual
capacity,
thus,
arguments
relative
to
apparent
authority
do
not
apply.
This
means
that
the
argument
that
Ms.
Ricalde-Blas
had
apparent
authority
to
accept
service
fails.
Additionally,
Ms.
Ricalde-Blas
was
not
identified
as
Dr.
Cook-Huynh's
agent
through
appointment
or
law,
making
the
later
section
of
Rule
4
inapplicable
as
well.
The
Hocogs
filrther
argue
that
Dr.
Cook-Huynh
was
served
by
mail,
however,
service
by
mail
is
not
an
authorized
service
method
for
a
private
individual
within
Guam
or
the
United
States
under
the
Guam
Rules.
See
GRCP
4.
Considering
these
facts
and
the
Guam
Supreme
Court's
strict
adherence
standards
for
service,
the
Court
concludes
that
Dr.
Cook-Huynh
was
not
properly
served.
Moreover,
because
service
of
the
demand
was
not
accomplished
under
Rule
4,
the
Hocogs
did
not
initiate
arbitration
as
required
under
Guam
law.
B.
There
was
no
waiver
of
compliance
with
the
Mandatory
Medical
Malpractice
Arbitration
Act.
Next,
the
Hocogs
claim
that
Dr.
Cook-Huynh
has
waived
the
right
to
arbitrate
under
the
MMMA
because
she
failed
to
act
or
affirmatively
participate
in
the
arbitration
process.
P1s.'
Opp'n
at
4.
They
argue
that
Dr.
Cook-Huynh's
inaction
"reflects
a
complete
relinquishment
of
any
purported
right
to
demand
compliance
with
the
arbitration
process
under
the
MMMA."
Id
The
MMMA
addresses
waiver:
"Any
party
who
proceeds
with
arbitration
after
knowledge
that
any
provision
of
this
chapter
has
not
been
complied
with
and
fails
to
state
his
obi
actions
thereto
in
writing
shall
be
deemed
to
have
waived
his
right
to
object."
10
GCA
§
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CV0140-25
DECISION
AND
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GRANTING
DEFENDANT
DR.
MARIANA
COOK-HUYNI-I'S
MOTION
TO
DISMISS
Page
5
10129.
In
reviewing
the
statute,
the
Court
looks
at
the
plain
language
of
the
statute,
looking
at
the
statute
as
a
whole.
Aguon
u
Gutierrez,
2002
Guam
14
116.
Section
10129
must
be
read
in
conjunction
with
other
provisions,
including
the
statutory
deadline
for
a
respondent's
response,
which
must
occur
"after
service
of
a
demand
for
arbitration."
10
GCA
§
10104.
If
a
respondent
fails
to
respond
to
a
demand
for
arbitration
within
20
days
of
service,
"then
the
petitioner
or
petitioners
may
proceed
in
default
to
appoint
an
arbitration
panel
pursuant
to
§
10108
of
this
Chapter."
10
GCA
§10104.
This
issue
again
relates
back
to
the
fact
that
Dr.
Cook-Huynh
was
not
adequately
sewed
with
process.
The
statutory
provision
on
waiver
covers
the
conduct
of
a
party
who
proceeds
with
arbitration
despite
knowing
that
there
was
noncompliance
with
the
MMMA.
That
did
not
occur
here
as
the
Hocogs
have
not
demonstrated
that
Dr.
Cook-Huynh
engaged
in
the
arbitration
proceedings
after
successful
service.
In
order
for
Dr.
Cook-Huynh
to
have
waived
compliance,
she
must
have
first
been
adequately
sewed
and
then
proceeded
with
the
arbitration
process.
The
Hocogs
point
to
Dr.
Cook-Huynh's
attorney
being
the
recipient
of
correspondence
from
the
AAA,
however,
that
in
itself
does
not
demonstrate
that
Dr.
Cook-Huynh
proceeded
with
the
arbitration
of
this
dispute.
Proper
service
of
the
demand
remains
the
lynchpin
in
this
case.
Without
strict
compliance
with
Rule
4's
service
requirements,
the
Court
cannot
impute
knowledge
of
these
proceedings
upon
Dr.
Cook-Huynh.
Again,
the
Court
is
tied
to
abiding
by
the
requisite
stn'ct
adherence
standard
and
cannot
find
that
service
was
effectuated
correctly.
Without
this,
the
Hocogs'
argument
collapses.
c.
The
statute
of
limitations
has
expired.
According
to
7
GCA
§11308,
"an
action
to
recover
damages
for
injuries
to
the
person
,
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DECISION
AND
ORDER
GRANTING
DEFENDANT
DR.
MARIANA
COOK-HUYNH'S
MOTION
TO
DISMISS
Page
6
arising
from
any
medical,
surgical
or
dental
treatment,
omission
or
operation
shall
be
commenced
with
one
(1)
year
from
the
date
when
the
injury
is
first
discovered..."
The
Hocogs
state
that
their
claims
arose
from
the
delivery
of
their
son
on
February
27-28,
2024.
Pls.'
Opp'n
at
7.
Dr.
Cook-Huynh
states
in
her
motion
to
dismiss
that
the
statute
of
limitations
began
on
February
27,
2024.
Def.'s
Mot.
Dismiss
at
8.
Per
the
one-year
statute
of
limitations,
the
Hocogs
'
claims
would
expire
on
February
27,
2025.
This
means
that
if
Defendant
Dr.
Cook-Huynh
was
not
properly
served
before
February
27,
2025,
the
statute
of
limitations
has
expired.
According
to
10
GCA
§lOl05,
"a
claim
shall
be
waived
and
forever
barred
as
against
a
respondent
if
on
the
date
the
demand
is
served
the
applicable
statute
of
limitations
would
bar
the
claim."
10
GCA
§10105.
Therefore,
the
Hocogs
must
have
served
the
demand
for
arbitration
before
February
27,
2025,
for
the
claim
to
still
be
valid.
As
just
found,
the
demand
was
never
sewed.
The
Court
recognizes
the
implications
of
this
determination.
It
understands
that
this
presents
the
Hocogs
with
the
inability
to
litigate
their
claims.
While
the
Court
can
sympathize
with
the
Hocogs,
it
cannot
waive
the
requirement
of
proper
service.
D.
Attorney
Smith
is
warned
to
adhere
with
the
Guam
Rules
of
Professional
Conduct.
Under
the
Guam
Rules
of
Professional
Conduct,
a
lawyer
has
duties
of
competence
and
diligence
when
representing
their
clients.
See
Guam
R.
Prof'l
Conduct
1.1,
1.3.
The
duty
of
competence
requires
a
lawyer
to
exercise
the
"legal
knowledge,
sldll,
thoroughness,
and
preparation
reasonably
necessary
for
the
representation."
The
duty
of
diligence
requires
a
lawyer
to
act
"with
reasonable
diligence
and
promptness
in
representing
a
client."
Attorney
Smith
made
no
less
than
eleven
erroneous
citations
in
his
Opposition
brief.
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CV0140-25
DECISION
AND
ORDER
GRANTING
DEFENDANT
DR.
MARIANA
COOK-I-IUYNH'S
MOTION
TO
DISMISS
Page
7
These
amount
to
a
violation
of
his
ethical
responsibilities,
and
have
wasted
this
Court's
time
and
resources,
not
to
mention
that
of
his
clients.
The
Court
found
at
least
three
instances
of
Attorney
Smith
citing
incorrect
statutes
or
cases,
six
instances
of
providing
quotations
that
did
not
exist
in
the
cases
he
cited,
three
instances
of
misstating
a
statute
or
holding
of
a
case,
and
one
instance
of
citing
to
a
case
that
does
not
exist.
More
specifically,
Attorney
Smith
made
the
following
misstatements
in
his
Opposition:
"Additionally,
under
7
GCA
§lOl05,
failure
to
arbitrate
does
not
automatically
extinguish
the
cause
of
action."
Pls.'
Opp'n
at
5.
However,
7
GCA
§lOl05
does
not
exist.
The
Court
recognizes
Attorney
Smith
could
be
referencing
10
GCA§
10105.
"'A
defendant
cannot
invoke
a
statutory
prerequisite
to
shield
itself
from
litigation
while
simultaneously
refusing
to
participate
in
that
very
process.'
Brown
v
Dillard
iv,
Inc.,
430
F.3d
1004,
1012
lath
Cir.
2005)."
Pls.'
Opp'n
at
5.
This
quote
cannot
be
found
in
the
case
cited.
"An
employer
who
imposes
arbitration
as
a
condition
of
employment,
represents
to
employees
that
arbitration
is
their
only
recourse,
and
then
refuses
to
arbitrate
when
the
employee
attempts
to
do
so
have
waived
its
right
to
compel
arbitration."
Pls.'
Opp'n
at
5
(citing
Brown,
430
F.3d
1004).
This
quote
cannot
be
found
in
the
case
cited.
"As
held
in
Brown
v
Dillard
iv,
Inc.,
.
.:
'A
party
cannot
rely
on
arbitration
to
bar
litigation
while
refusing
to
participate
in
arbitration."'
Pls.'
Opp'n
at
6.
This
quote
cannot
be
found
in
the
case
cited.
"Westcon
Construction
Corp.
u
County
of
Sacramento,
152
Cal.
App.
4th
183
(2007):
'The
doctrine
of
substantial
compliance
is
an
equitable
doctrine
that
excuses
technical
imperfections
in
compliance
with
a
statute
when
the
purpose
of
the
statute
is
nonetheless
fulfilled.
It
is
not
intended
to
defeat
actions
but
to
avoid
forfeitures,
and
it
will
be
applied
only
where
there
is
actual
compliance
in
respect
to
the
substance
essential
to
every
reasonable
objective
of
the
statute.'
(Westcon,
152
Cal.
App.
4th
at
199.)"
Pls.'
Opp'n
at
6,
7.
This
quote
cannot
be
found
in
the
case
cited.
"As
the
California
Court
of
Appeal
held:
'Where
a
statute
requires
pre-litigation
alternative
dispute
resolution,
courts
have
applied
the
doctrine
of
substantial
compliance
IF
?
/.=
:'
e
.
1'
L'
k._:...=
r
m
CV0140-25
DECISION
AND
ORDER
GRANTING
DEFENDANT
DR.
MARIANA
COOK-I-IUYNH'S
MOTION
TO
DISMISS
Page
8
so
long
as
the
statutory
purpose
has
been
met
and
the
adverse
party
was
not
prejudiced.'
-
Diaz
u
Bukey
195
Cal.
App.
4th
315
(2001),
review
granted
and
dismissed,
262
P.3d
1007
(Cal.
201l)."
Pls.'
Opp'n
at
7,
8.
Diaz
was
vacated
by
the
California
Supreme
Court
in
Diaz
u
Bukey,
287
P.3d
67
(Cal.
2012),
which
Attorney
Smith
fails
to
note.
Moreover,
262
P.3d
1007
is
the
citation
for
an
unrelated
Hawaii
criminal
case.
"'Dismissal
is
not
warranted
where
the
party
seeking
judicial
relief
has
substantially
complied
with
the
administrative
prerequisites
and
made
a
good
faith
effort
to
exhaust
available
remedies.'
Westcon
Construction
Corp.
v
Courtly
of
Sacramento,
152
Cal.
App.
4th
183
(2007)."
Pls.'
Opp'n
at
8.
This
quote
cannot
be
found
in
the
case
cited.
"In
Moylan
v
Citizens
Security
Bank,
2015
Guam
36,
and
Lin
SHR
Construction
Co.
u
Acetown,
Inc.,
2023
Guam
18,
the
Guam
Supreme
Court
recognized
emotional
distress
and
familial
damages
as
compensable
in
tort."
Pls.'
Opp'n
at
10.
Lin
SHR
Construction
Co.
u
Acetown,
Inc.
is
not
a
Guam
Supreme
Court
case,
it
is
a
Superior
Court
case
that
was
before
Judge
Terlaje.
2023
Guam
18
is
the
citation
for
an
unrelated
criminal
case,
People
v
Aidan.
"Under
7
GCA
§ll306(a)
and
11038(3),
service
of
process
may
be
made
by
delivering
a
copy
of
the
Summons
and
Complaint
to
an
agent
authorized
by
appointment
or
by
law
to
receive
service
of
process."
Pls.'
Opp'n
at
11.
7
GCA§
ll306(a)
sets
the
statute
of
limitations
for
"assault,
battery,
false
imprisonment,
seduction
of
a
person
below
the
age
of
legal
consent,
or
for
injury
to,
or
for
the
death
of,
a
person
caused
by
the
wrongful
act
or
neglect
of
another,"
it
does
not
discuss
service
of
process.
7
GCA§
11038(3)
does
not
exist.
7
GCA
§
11308
sets
the
statute
of
limitations
for
injuries
arising
from
medical
malpractice.
"In
Penthouse
Inf
'I,
Ltd
v
Playboy
Enters.,
Inc.,
663
F.2d
371,
383
(Zd
Cir.
1981),
the
court
held
that
a
principal
is
stopped
from
denying
the
authority
of
an
agent
when
the
principal
permits
the
agent
to
appear
to
have
such
authority,
and
a
third
party
reasonably
relies
on
it."
Pls.'
Opp'n
at
11.
Penthouse
Inf
'I,
Ltd
does
not
discuss
the
issue
of
estoppels
based
on
apparent
authority.
"In
In
re
Application
of
Santos,
2001
Guam
1
1116,
the
Supreme
Court
of
Guam
emphasized
that
procedural
rules
must
be
applied
to
secure
substantive
justice."
Id
at
13.
2001
Guam
1
is
a
criminal
case,
People
v
Chargualaf
The
Court
is
in
the
process
of
reviewing
Attorney
Smith's
misconduct
in
his
Opposition
and
will
take
appropriate
measures
in
a
separate
Order
or
proceeding.
:
;
s
Q
'I
1*
Lr
,.
;
,.<
I
I
5
u
x
u
l
\-
r
I
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it*
b
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"1
!H
I
e
e
I
11
l_
.
I'
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"w,
L
'...
111.
Huynh
in
compliance
with
Guam
law
and
Rule
4.
Therefore,
Dr.
Cook-Huynh's
motion
to
CVOl40-25
dismiss
is
GRANTED?
A
Partial
Judgment
shall
issue.
Appearing
Attorneys:
Mark
S.
Smith,
Esq.,
Law
Offices
of
Mark
S.
Smith,
P.C.,
for
Plaintiffs
Ron
&
Tiffany
Hocog
Anita
P.
Arcola,
Esq.,
Arriola
Law
Firm,
LLC,
for
Defendant
Dr.
Mariana
Cook-Huynh
Phillip
Tories,
Esq.,
Tories
Law
Group,
for
Defendant
Guam
Memorial
Hospital
Authority
2
Having
dismissed
Dr.
Cook-I-Iuynh
from
this
action,
the
Court
declines
to
rule
on
other
issues
raised
in
her
motion.
The
Hocogs
fail
to
demonstrate
that
they
served
their
arbitration
demand
upon
Dr.
Cook-
CONCLUSION
AND
ORDER
SO
ORDERED
this
11
August
2025.
DECISION
AND
ORDER
GRANTING
DEFENDANT
DR.
MARIANA
COOK-HUYNH'S
MOTION
TO
DISMISS
~\
I
1
_/
.'=\
*\
1.
=
Ir
-.
,
\
t
HOI*
.
V
_
ZE
M.
IRIARTE
Judge,*Superior
Court
of
Guam
Page
9
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