FILED UPERlOR couRT s OF @rAm l ZIHBJAN 10 PM le=l»3 2 cLE8§g-gDFCuRr 3
5 IN THE SUPERIOR COURT OF GUAM 6
7 DFS GUAM L.P., CIVIL CASE no. CV 0943-14 (Consolidated with 8 Plaintiff, CV 0094-15 and CV 0198-15) 9 v. 10 THE A.B. WON PAT INTERNATIONAL DECISION AND ORDER ON 11 AIAA'S MOTION TO DISQUALIFY AIRPORT AUTHORITY, GUAM, and DOE CIVILLE & TANG, PLLC FROM 12 DEFENDANTS 1-10, INCLUSIVE, REPRESENTING DANNY LEON 13 GUERRERO Defendants. 14
15 INTRODUCTION 16 This matter came before the Honorable Arthur R. Barcinas on January 5, 2018, upon
17 AIAA's Motion to Disqualify Civille & Tang, PLLC From Representing Danny Leon Guerrero.
18 P la intiff DFS Gua m L.P . ("DFS ") wa s repres ented by A tto rney Ma uric e S uh. A tto rneys
19 Christian Calvo and Jay D, Trickett represent Defendant A.B. Won Pat International Airport
20 A utho rity, Gua m ( "A IA A ") . A tto rneys P a tric k Civille, Dea n Ma nglo na , a nd J o yc e Ta ng
21 represented Non-Party Danny Leon Guerrero. For the reasons set forth below, having reviewed
22 the moving papers and oral argument, the Court DENIES AIAA's Motion to Disqualify Civille
23 & Tang, PLLC From Representing Danny Leon Guerrero.
24 BACKGROUND
25 The instant matter arising from a procurement dispute between DFS and A.B. Won Pat
26 Intemationad Airport Authority, Guam pertains to die representation of Non-Party Danny Leon
27 Guerrero.
28 Decision and Order on AIAA's Motion to Disqualify Civilly & Tang CV 0943-14, CV 0094-15, CV0198-15, DFS Guam LP.v. GIAA Er al.
1 AIAA filed its Motion to Disqualify Civille & Tang, PLLC From Representing Danny
2 Leon Guerrero ("Motion to Disqualify"), on December 11, 2017, requesting the Court to
3 disqualify Civille and Tang. PLLC ("C&T") from representing Danny Leon Guerrero and order 4 DFS ro retain in-conflicted counsel of Mr. Leon Guerrero's choice. Mr. Leon Guerrero filed his
5 Opposition to AIAA's Motion to Disqualify on December 26, 2017. DFS joined Mr. Leon
6 Guerrero in his Opposition the same day. On January 2, 2018, AIAA tiled its Reply to Mr. Leon
7 Guerrero's Opposition.
8 The Court heard arguments from AIAA and Mr. Leon Guerrero during a motion hearing
9 on January 5, 2018. At the conclusion of the hearing, the Court took the instant Motion to
10 Disqualify under advisement. 11 DISCUSSION
12 AIAA seeks to disqualify C&T from representing Mr. Leon Guerrero arguing that
13 C&T's conflicts in representing both DFS and Mr. Leon Guerrero requires the Court to order 14 disqualification. Motions to disqualify are strongly disfavored.See Gregory v. Bank of America,
15 207 Cad. App. ad 291, 300-01 (1989) ("[M]otions to disqualify counsel often pose the very 16 threat to the integrity of the judicial process that they purport to prevent."),Concat LP v.
17 Unilever. PLC, 350 F. Supp. 2d 796, 814 (N.D. Cal. 2004) ("Because disqualification is a
18 drastic measure, it is generally disfavored and should only be imposed when absolutely
19 necessary.").
20 For the Court to address AIAA's arguments, AIAA must demonstrate that the agency 21 holds the requisite standing to bring the instant Motion to Disqualify. "Standing is a threshold
22 jurisdictional matter." Guam Image Consultants, 2004 Guam 15 'II 17 (citingBrewer v. Lewis, 23 989 F.2d 1021, 1025 (9th Cir. l993)). "The requirements for Article IH standing, necessary for
24 any party to seek relief from a federal court, are that the party have personally suffered an 25 'injury in fact,' which is causally related to the conduct in issue and redressable by a favorable
26 decision of the court." Colver v. Smith, 50 F.Supp. 2d, 966, 968 (CD. Cal. 1999)
27 (quotingLucan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (l992)). Standing doctrine
28 "embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as
Page 2 of 5 Decision and Order on AIAA's Motion to Disqualify Civilly & Tang CV 0943-14, CV 0094-15, CV 0198-15,DFS Guam L.P. v. GIAA et al.
1 the general prohibition on a litigant's raising another person's legal rights.. " Allen v. W right,
2 468 U.S. 737, 751 (1997)."The burden is on the party seeking relief to establish these 3 'irreducible constitutional minimum' elements with respect to the particular issues the party
4 wishes to have decided." Colver, 50 F. Supp. 2d at 968 (citingLucan, 504 U.S. at 560-61).
5 The Guam Supreme Court has not yet given authority for .the Court to follow with
6 regards to the issue of standing to bring a motion for attorney disqualification. Many district
7 courts of the Ninth Circuit look to the precedent set in Colver v. Smith, and rely on the
8 principles it articulated. See S.E,C. v. King Chuen Tang, 831 F. Supp. ad 1130, 1143 (N.D. Cal 9 2011) (listing cases applying the principles summarized in Colver). Like those other courts, the
10 Court relies on the findings and reasoning of the Colder court as persuasive authority. 11 The Colver court engaged in a com prehensive survey of the case law of other
12 jurisdictions. Colver, 50 F.supp. at 969-71. The court concluded that the "majority view is that
13 only a current or former client of an attorney has standing to complain of that attorney's 14 representation of interests adverse to that current of the former client." The Colyer court 15 found persuasive authority for the majority view in one of the leading cases for the majority
16 view, In re Yarn Processing Patent Validity Litig., 530 F.2d 83 (5th Cir. 1976). The Colder 17 court also recognized a minority exception to the general rule "where the ethical breach so 18 infects the litigation in which disqualification is sought that it impacts the moving pony's
19 interest in a just and lawful determination of her claims", a non-client may meet the standing
20 requirements to bring a motion to disqualify based upon a third-party conflict or other ethical 21 violation. Lt; "Courts have invoked the exception in Colver where particular facts have
22 established that the party seeldng disqualification had a personal stake beyond the general 23 interest in the fair administration of justice." Tang, 831 F. SUPP- 2d at 1143.
24 AIAA has not presented any evidence that the Airport Authority ever retained C&T as 25 legal counsel. Therefore, under the majority rule, AIAA lacks standing to bring their Motion to
26 Disqualify. However, in its Reply, AIAA argues that the minority exception recognized in 27 Colver grants AIAA standing to bring their motion. AIAA alleges that: Through C&T's representation of Mr. Leon Guerrero, DFS and its counsel 28 Gibson Dunn have injected false evidence into the record that cannot be examined
Page 3 of 5 Decision and Order on AIAA's Motion to Disqualify C ivilly & Tan g CV 0943-14, CV 0094-15, CV 0198-15, D F S Guam L.P. v. GIAA et a l.
by [A]IAA and this court because C&T has controlled the flow of information l from Mr. Leon Guerrero to [A]IAA and the Coup under the guise of "attorney- 2 client privilege" and "common interest" between DFS and Mr. Leon Guerrero.
3 AIAA Reply 3 (Jan. 2, 2018). AIAA accuses C&T, DFS, and Gibson Dunn of using "C&T's
4 representation of Mr.
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FILED UPERlOR couRT s OF @rAm l ZIHBJAN 10 PM le=l»3 2 cLE8§g-gDFCuRr 3
5 IN THE SUPERIOR COURT OF GUAM 6
7 DFS GUAM L.P., CIVIL CASE no. CV 0943-14 (Consolidated with 8 Plaintiff, CV 0094-15 and CV 0198-15) 9 v. 10 THE A.B. WON PAT INTERNATIONAL DECISION AND ORDER ON 11 AIAA'S MOTION TO DISQUALIFY AIRPORT AUTHORITY, GUAM, and DOE CIVILLE & TANG, PLLC FROM 12 DEFENDANTS 1-10, INCLUSIVE, REPRESENTING DANNY LEON 13 GUERRERO Defendants. 14
15 INTRODUCTION 16 This matter came before the Honorable Arthur R. Barcinas on January 5, 2018, upon
17 AIAA's Motion to Disqualify Civille & Tang, PLLC From Representing Danny Leon Guerrero.
18 P la intiff DFS Gua m L.P . ("DFS ") wa s repres ented by A tto rney Ma uric e S uh. A tto rneys
19 Christian Calvo and Jay D, Trickett represent Defendant A.B. Won Pat International Airport
20 A utho rity, Gua m ( "A IA A ") . A tto rneys P a tric k Civille, Dea n Ma nglo na , a nd J o yc e Ta ng
21 represented Non-Party Danny Leon Guerrero. For the reasons set forth below, having reviewed
22 the moving papers and oral argument, the Court DENIES AIAA's Motion to Disqualify Civille
23 & Tang, PLLC From Representing Danny Leon Guerrero.
24 BACKGROUND
25 The instant matter arising from a procurement dispute between DFS and A.B. Won Pat
26 Intemationad Airport Authority, Guam pertains to die representation of Non-Party Danny Leon
27 Guerrero.
28 Decision and Order on AIAA's Motion to Disqualify Civilly & Tang CV 0943-14, CV 0094-15, CV0198-15, DFS Guam LP.v. GIAA Er al.
1 AIAA filed its Motion to Disqualify Civille & Tang, PLLC From Representing Danny
2 Leon Guerrero ("Motion to Disqualify"), on December 11, 2017, requesting the Court to
3 disqualify Civille and Tang. PLLC ("C&T") from representing Danny Leon Guerrero and order 4 DFS ro retain in-conflicted counsel of Mr. Leon Guerrero's choice. Mr. Leon Guerrero filed his
5 Opposition to AIAA's Motion to Disqualify on December 26, 2017. DFS joined Mr. Leon
6 Guerrero in his Opposition the same day. On January 2, 2018, AIAA tiled its Reply to Mr. Leon
7 Guerrero's Opposition.
8 The Court heard arguments from AIAA and Mr. Leon Guerrero during a motion hearing
9 on January 5, 2018. At the conclusion of the hearing, the Court took the instant Motion to
10 Disqualify under advisement. 11 DISCUSSION
12 AIAA seeks to disqualify C&T from representing Mr. Leon Guerrero arguing that
13 C&T's conflicts in representing both DFS and Mr. Leon Guerrero requires the Court to order 14 disqualification. Motions to disqualify are strongly disfavored.See Gregory v. Bank of America,
15 207 Cad. App. ad 291, 300-01 (1989) ("[M]otions to disqualify counsel often pose the very 16 threat to the integrity of the judicial process that they purport to prevent."),Concat LP v.
17 Unilever. PLC, 350 F. Supp. 2d 796, 814 (N.D. Cal. 2004) ("Because disqualification is a
18 drastic measure, it is generally disfavored and should only be imposed when absolutely
19 necessary.").
20 For the Court to address AIAA's arguments, AIAA must demonstrate that the agency 21 holds the requisite standing to bring the instant Motion to Disqualify. "Standing is a threshold
22 jurisdictional matter." Guam Image Consultants, 2004 Guam 15 'II 17 (citingBrewer v. Lewis, 23 989 F.2d 1021, 1025 (9th Cir. l993)). "The requirements for Article IH standing, necessary for
24 any party to seek relief from a federal court, are that the party have personally suffered an 25 'injury in fact,' which is causally related to the conduct in issue and redressable by a favorable
26 decision of the court." Colver v. Smith, 50 F.Supp. 2d, 966, 968 (CD. Cal. 1999)
27 (quotingLucan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (l992)). Standing doctrine
28 "embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as
Page 2 of 5 Decision and Order on AIAA's Motion to Disqualify Civilly & Tang CV 0943-14, CV 0094-15, CV 0198-15,DFS Guam L.P. v. GIAA et al.
1 the general prohibition on a litigant's raising another person's legal rights.. " Allen v. W right,
2 468 U.S. 737, 751 (1997)."The burden is on the party seeking relief to establish these 3 'irreducible constitutional minimum' elements with respect to the particular issues the party
4 wishes to have decided." Colver, 50 F. Supp. 2d at 968 (citingLucan, 504 U.S. at 560-61).
5 The Guam Supreme Court has not yet given authority for .the Court to follow with
6 regards to the issue of standing to bring a motion for attorney disqualification. Many district
7 courts of the Ninth Circuit look to the precedent set in Colver v. Smith, and rely on the
8 principles it articulated. See S.E,C. v. King Chuen Tang, 831 F. Supp. ad 1130, 1143 (N.D. Cal 9 2011) (listing cases applying the principles summarized in Colver). Like those other courts, the
10 Court relies on the findings and reasoning of the Colder court as persuasive authority. 11 The Colver court engaged in a com prehensive survey of the case law of other
12 jurisdictions. Colver, 50 F.supp. at 969-71. The court concluded that the "majority view is that
13 only a current or former client of an attorney has standing to complain of that attorney's 14 representation of interests adverse to that current of the former client." The Colyer court 15 found persuasive authority for the majority view in one of the leading cases for the majority
16 view, In re Yarn Processing Patent Validity Litig., 530 F.2d 83 (5th Cir. 1976). The Colder 17 court also recognized a minority exception to the general rule "where the ethical breach so 18 infects the litigation in which disqualification is sought that it impacts the moving pony's
19 interest in a just and lawful determination of her claims", a non-client may meet the standing
20 requirements to bring a motion to disqualify based upon a third-party conflict or other ethical 21 violation. Lt; "Courts have invoked the exception in Colver where particular facts have
22 established that the party seeldng disqualification had a personal stake beyond the general 23 interest in the fair administration of justice." Tang, 831 F. SUPP- 2d at 1143.
24 AIAA has not presented any evidence that the Airport Authority ever retained C&T as 25 legal counsel. Therefore, under the majority rule, AIAA lacks standing to bring their Motion to
26 Disqualify. However, in its Reply, AIAA argues that the minority exception recognized in 27 Colver grants AIAA standing to bring their motion. AIAA alleges that: Through C&T's representation of Mr. Leon Guerrero, DFS and its counsel 28 Gibson Dunn have injected false evidence into the record that cannot be examined
Page 3 of 5 Decision and Order on AIAA's Motion to Disqualify C ivilly & Tan g CV 0943-14, CV 0094-15, CV 0198-15, D F S Guam L.P. v. GIAA et a l.
by [A]IAA and this court because C&T has controlled the flow of information l from Mr. Leon Guerrero to [A]IAA and the Coup under the guise of "attorney- 2 client privilege" and "common interest" between DFS and Mr. Leon Guerrero.
3 AIAA Reply 3 (Jan. 2, 2018). AIAA accuses C&T, DFS, and Gibson Dunn of using "C&T's
4 representation of Mr. Leon Guerrero to create false evidence involving material issues that may
5 affect the outcome of this entire lawsuit." at 5. C&T and DFS prepared and tiled a
6 declaration that had Mr. Leon Guerrero admitting to illegal or tortuous actions that were
7 "objectively, demonstrably false". AIAA Mot. 6 (Dec. ll, 2017).
8 AIAA's brings disturbing allegations to the Court. If the allegations are true, the Court
9 would have no choice to find that C&T, DFS, and Gibson Dunn committed unethical and,
10 possibly, criminal conduct. Also, if true, the allegations would prove the requisite ethical breach
to grant standing to AIAA. Therefore, the Court elects to further examine the AIAA's
12 arguments under the minority approach.
13 As the party bringing the Motion to Disqualify, AIAA holds the burden to prove its
14 standing. On pages three, four and five of its Motion, AIAA inserts sixteen bullet points
15 showing "facts [that] can be summarized as follows: C&T convinced a third party witness, Mr.
16 Leon Guerrero, to let them prepare a declaration for him to sign that would involve admissions
17 by Mr. Leon Guerrero of wrongdoing for the benefit of their other client, DFS." AIAA Mot. 5,
18 The Court has reviewed AIAA's Motion and Reply, as well as the accompanying declaration
19 tiled by Attorney Christian Cad vo. AIAA repeatedly uses language such as "[o]bjectively, it is
20 beyond dispute. ", at 6, "objectively, demonstrablyfalse", L, "impossible to square", lg,
21 and "create false evidence", AIAA Reply 5. Although AIAA would like the Court to agree that
22 the submitted exhibits and facts all point to one escapable conclusion, the Court is not
23 persuaded by AIAA's use of such language. AIAA may cite to facts, but the Court finds that
24 AIAA's conclusion that C&T, DFS, and Gibson Dunn manufactured and submitted false
25 evidence requires the Court to make inferences not fully supported by the evidence. Rather, it
26 appears to the Court that AIAA seeks a factual finding based entirely upon its opinions and its
27 perception of the facts. The Court is especially reluctant to make such inferences as AIAA's
28 conclusion requires the Court to find criminal wrongdoing. As of the drafting of this decision
Page 4 of S Decision and Order on AIAA's Motion to Disqualify Civille & Tang CV 0943-14, CV 0094-15, CV 0198-15; DFS Guam L.P. v. GIAA Er al.
l and order, the Court is unaware of any criminal charges that were brought against C&T, DFS, or 2 Gibson Dunn. Therefore, the Court declines to make the factual finding that C&T, DFS, and 3 Gibson Dunn engaged in unethical or criminal conduct. 4 The minority exception carves out potential standing based upon third-party conflict or 5 other ethical violations. AIAA failed its burden of proof in demonstrating the existence of such 6 third-party conflict or ethical violations that would impact AIAA's interest in a just and lawful 7 determination of its claims. Therefore, the Court finds that AIAA, under both the majority and 8 minority views discussed in Covle and its progeny, lacks standing to file the instant Motion to 9 Disqualify. Accordingly, the Court DENIES AIAA's Motion to Disqualify Civille & Tang, 10 PLLC From Representing Danny Leon Guerrero. 11 CONCLUSION 12 For the reasons set forth above, AIAA failed its burden of proof in demonstrating the 13 existence of such third-party conflict or ethical violations that would impact AIAA's interest in 14 a just and lawful determination of its claims. Therefore, the Court finds that AIAA, under both 15 the majority and minority views discussed in Covle and its progeny, lacks standing to file the 16 instant Motion to Disqualify. Accordingly, the Court DENIES AIAA's Motion to Disqualify 17 Civilly & Tang, PLLC From Representing Danny Leon Guerrero, 18
19 IT IS SO ORDERED this JAN 1 I] ams
21 I
22 ( / _ HONORABLE ARTHUR R. BARCINAS 23 Judge, Superior Court of Guam 24
26 ssavlce vIA COURT
27 ggggggm 28
r I Page 5 of S