Quality Distributors v. Pacific Restaurants, LLC

• Court: Superior Court of Guam
• Decided: August 15, 2013
• Docket: CV0498-11
• Status: Unknown

Opinion

1 IN THE SUPERIOR COURT OF GUAM 2 6 3 ) Civil Case No. CV498-11 QUALITY DISTRIBUTORS, ) 4 ) Plaintiff, ) 5 vs. ) ) 6 ) DECISION AND ORDER: PACIFIC RESTAURANTS, LLC dba ) Plaintiff/Counterclaim Defendant's 7 CHILI'S GUAM and BRIAN ARTERO, ) Objection to Competency of Judge

8 ___________________________ Defendants. )) Pursuant to 7 G.C.A. § 6105(a) and§ 6107

PACIFIC RESTAURANTS, LLC dba ) 9 CHILI'S GUAM, ) ) 10 Counterclaim-Plaintiff, ) ) 11 vs. ) ) 12 QUALITY DISTRIBUTORS, ) ) 13 Counterclaim-Defendant. )

15 INTRODUCTION 16 This matter came before the Honorable Anita A. Sukola on June 6, 2013, on Plaintiff 17 Quality Distributor's Objection to Competency ofthe Honorable Maria T. Cenzon to preside as 18 judge in the above captioned case. Attorney Michael J. Berman represented Plaintiff Quality 19

20 Distributors. Attorney Joyce C.H. Tang represented Defendants Brian Artero and Pacific

21 Restaurants, LLC dba Chili's Guam. The Court now issues its written decision. 22 BACKGROUND 23 On February 8, 2013, the Honorable Maria T. Cenzon submitted a Notice of 24

25 Disqualifying Facts pursuant to 7 G.C.A § 6106. Attached to the Notice was a Memorandum

26 stipulating that, while employed as an attorney with the Law Office of Mair, Mair, Spade & 27 Thompson (hereinafter "MMST"), Judge Cenzon had "provided legal advice and/or 28 Page 1 of 7 Quality Distributors v. Pacific Restaurants, LLC dba Chili's Guam (CV 498-11) Decision and Order: On Plaintiff/Counterclaim Defendant's Objection to Competency of Judge Pursuant to 7 GCA § 6105(a) and§ 6107 consultation to Brian Artero on behalf Pacific Dining LLC ... but not on a matter relating to 1

2 dispute currently before

3 February 11, 2013, Plaintiff filed its Objection to Competency of Judge pursuant to 7 GCA § 4 6105(a) and § 6107, arguing that because the Honorable Judge was employed as an attorney 5 who had represented the Defendant in a previous matter prior to her appointment to the bench, 6

her impartiality may be subject to question. PI's Objection to Competency at,, 1-3. 7

8 On February 15, 2013, Defendants filed a Non-Objection to Appointment of Judge,

9 arguing that the law firm in which the Honorable Judge was previously employed represented 10 the Defendant in an unrelated matter and does not warrant the Judge's recusal. Defs Non- 11 Objection (Feb. 15, 2013). On February 21, 2013, Judge Cenzon submitted her Response to 12

13 Motion to Objection to Competency of Judge. In her response, the Honorable Judge indicated

14 that she did "personally meet with and communicate both in person and by email with Mr. 15 Artero in his capacity as the representative of Pacific Dining, LLC dba Lone Star Steakhouse." 16 Judge's Resp. to Mot. to Objection (Feb. 21, 2013). 17 Pursuant to 7 GCA § 61 07, the matter was brought before this Court for the 18

19 determination of Judge Cenzon's disqualification, and on May 28, 2013, this Court requested

20 for Defendant Artero to submit the invoice relating to work performed by MMST. Per the 21 Court's request, Defendant filed a Notice of Submission oflnvoices. On May 31, 2013, Plaintiff 22 filed its Response Memorandum to Defendant's Notice, arguing that Defendant's notice 23 qualifies as hearsay under Guam Rule of Evidence 802 due to the fact that it lacked a sworn 24

25 testimony. PI's Resp. Mem. To Defs Notice at 2 (May 31, 2013). Furthermore, Plaintiff

26 expressed suspicion that more invoices may be available that disclose the involvement of more 27 legal services provided by Judge Cenzon. !d. In support of this concern, Plaintiff noted that 28 Page 2 of 7 Qual1ty Distributors v. Pacific Re~LctuLaHL~, LLC dba Chili's Guam (CV 496 11) Decision and Order: On Plaintiff/Counterclaim Defendant's to Competency of Judge Pursuant to 7 GCA § 6105(a) and§ 6107 Defendant's initial statements regarding Judge Cenzon's involvement made in their Non- 1

2 Objection to Judge's Competency contradicted the Honorable Judge's assertion in her Response

3 to Motion that she had actually met with Defendant Artero personally, communicated with him 4 both in person and by email, and provided him with legal services. Judge's Resp. to Mot. to 5 Objection (Feb. 21, 2013). This Court placed the matter under advisement of June 6, 2013. 6

DISCUSSION 7

8 At issue before this Court is Plaintiffs Statement of Objection to Competency of Judge

9 Cenzon Pursuant to 7 GCA § 6105(a) and §6107. It is noteworthy to mention that a statement of 10 objection is not a motion, and for this reason, the determination of a judge's disqualification 11 falls outside the usual law and motion procedural rules. People v. Johnny, 2006 Guam 10 , 9 12

(citing Urias v. Harris Farms Inc., 285 Cal.Rptr. 659, 662 (Ct. App. 1991)). Judicial 13

14 disqualification on Guam is governed by 7 GCA § 6105 and§ 6107. Section 6105 provides the

15 substantive grounds under which judges and justices are required to disqualify themselves, 16 while section 6107 provides the procedural framework required for disqualification. People v. 17 Tennessen, 2010 Guam 12 , 8. Under Johnny, disqualification is generally decided based on 18

19 two primary aspects of the challenging party's statement of objection: its formal validity and its

20 legal sufficiency. These two issues will be discussed separately. 21 A. Formal Validity of the Statement of Objection 22 The first issue this Court will address is whether the Plaintiffs Statement of Objection is 23 formally valid under § 6107. "By its terms, section 6107 requires that statements of objection 24

25 (1) 'be served ... on the Justice or Judge alleged in such statement to be disqualified,' (2) 'be

26 verified in the manner prescribed for the verification of pleadings,' and (3) 'be presented at the 27 earliest practicable opportunity .... "'Johnny, 2006 Guam 10 , 11. 28 Page 3 of 7 (,JUality Distributor·;> v. Pctci.rlc Restaurants, LLC dba Chili's Gui:lm {CV 498 11) Decision and Order: On Plaintiff/Counterclaim Defendant's Objection to Competency of Judge Pursuant to 7 GCA § 6105(a) and§ 6107 The first requirement under § 6107 is that the Judge be personally served. "Copies of 1

2 such written statements shall forthwith be served by the presenting party on each party, or his or

3 her attorney, who has appeared in the action or proceeding and on the Justice or Judge alleged 4 in such statement to be disqualified." 7 GCA § 6107 (2005). In Johnny, the Court held that an 5 objecting party is required to personally serve its statement of objection upon the challenged 6

judge. 2006 Guam 10 -J 15. In this pending matter, this Court recognizes that the case file 7

8 contains a stamp-received copy of Plaintiffs Objection to Competency. The stamp indicates

9 that the objection was "Received in Chamber" on February 12, 2013. Furthermore, in Judge 10 Cenzon's Response to Motion to Objection to Competency of Judge, the Honorable Judge 11 stipulated that she had received the motion from Counsel for the Defendant on the above 12

mentioned date. Notwithstanding the fact that the file contains no other indication of whether 13

14 Judge Cenzon was served "personally," this Court is of the opinion that, in light of the evidence

15 provided within the file, service upon the Honorable Judge was sufficient under § 61 07. 16 The next requirement under§ 6107 is that the statement of objection be "verified in the 17 manner set forth in 6 GCA § 4308." Id. The statute, in relevant part, reads as follows: 18

19 Whenever, under any law of Guam or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be 20 supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath or affidavit, in wTiting of the person 21 making the same .... [S]uch matter may, with like force and effect, be supported, 22 evidenced, established or provided by the unsworn declaration, certificate, verification or statement, in writing of such person which is subscribed by him, as 23 true under penalty of perjury, and dated .... 24 6 GCA § 4308 (2005). 25 Furthermore, the answer must also be verified in the same manner prescribed for the verification 26 of pleadings under § 4308. Van Dox v. Superior Court of Guam, 2008 Guam 7 -J 6 (citing 7 27

Page 4 of 7 Quallty Distributors v. Pacific RestauraHLb, LLC <.lLa Chili's Guam (CV 498-11) Decision and order: On Plaintiff/Counterclaim Defendant's Objection to Competency of Judge Pursuant to 7 GCA § 6105(a) and § 6107 GCA § 61 07). "If an answer is not verified, then the answer is inadequate and may be 1

2 disregarded." Id. (citing Johnny, 2006 Guam 10 1 11). In the instant case, it appears that

3 Plaintiffs Objection complies with the verification standard set forth in § 4308. Judge Cenzon's 4 answer, however, does not appear to comply with the statute, as it does not indicate that the 5 Honorable Judge declares "under penalty of perjury" that the statements made in her answer 6 were true and correct. For the aforementioned reason, this Court finds Judge Cenzon's answer 7 1 8 to be procedurally defective and, hereinafter, stricken.

9 The final requirement under § 6107 is that the Statement of Objection be presented in a 10 timely fashion. "[C]ourts have held that a challenged judge may strike a statement of objection 11 if it is not presented at the 'earliest practicable opportunity."' Johnny, 2006 Guam 10 1 15 12

(citing People v. Berman, 4 P.2d 226, 228 (Cal.Dist.Ct.App. 1931)). In the instant case, Judge 13

14 Cenzon submitted her Notice of Disqualifying Facts on February 8, 2013. The Plaintiff

15 submitted its Objection to Competency of Judge the following business day, February 11, 2013. 16 Plaintiffs Objection was then received by Judge Cenzon's chambers on February 12 2013. In 17 light of the aforementioned facts, this Court is of the opinion that Plaintiffs Statement of 18

19 Objection was presented at the earliest practicable opportunity pursuant to § 6107.

20 Based on the foregoing, this Court finds that Plaintiffs Statement of Objection to 21 Judge's Competency is formally valid under § 6107. Furthermore, because Judge Cenzon's 22 answer was not verified in the same manner prescribed for the verification of pleadings, this 23 Court finds the Honorable Judge's answer stricken, signifying the Judge's consent to 24

25 disqualification.

27 1 Under Van Dox, the Court held that Judge Unpingco's failure to verify his answer in the manner prescribed for the verification of pleadings was deemed as consent to his disqualification. 28 Page 5 of 7 (,Juality IJistributon> v. PaclLi.c Rt=::;Laurants, LLC dba Chili's Guam (CV 49G 11) Decision and Order: on Plaintiff/Counterclaim Defendant's Objection to Competency of Judge Pursuant to 7 GCA § 6105(a) and§ 6107 B. Legal Sufficiency of Statement of Objection 1

2 The next issue this Court will address is whether the Plaintiffs Statement of Objection is

3 legally sufficient under 7 GCA § 6107. Notwithstanding the fact that Judge Cenzon's answer to 4 Plaintiffs Objection was stricken by this Court, the substantive merits of the case must still be 5 taken into consideration. In Johnny, the Supreme Court of Guam ruled that a "statement of 6 objection which fails to allege any facts that would serve as grounds for disqualification under 7

8 Guam law is defective." 2006 Guam 10 ~ 19.

9 Plaintiff cites to 7 GCA § 6105(a) as grounds for Judge Cenzon's disqualification. The 10 applicable statute reads as follows: 11 § 6105. Grounds for Disqualification. 12 (a) Any Judge shall disqualify himself or herself in any proceeding in which 13 his or her impartiality might reasonably be questioned, but if, following 14 complete disclosure to all parties in the proceeding of the reasons for disqualification, all parties agree to having the Judge continue to sit in the 15 proceedings, he or she need not disqualify himself or herself. 16 7 GCA § 61 05(a) (2005). 17 In the instant case, Plaintiff argues that because Judge Cenzon represented Defendant Artero as 18 an attorney in private practice prior to being assigned to the case at hand, her impartiality might 19

20 reasonably be questioned. Defendant argues that the case in which the Honorable Judge

21 represented Defendant Artero has no relation to the matter before this Court. It is Plaintiffs 22 position, however, that the previous case and the current case involve similar issues regarding 23 contract interpretation and terms of an agreement. 24

In reviewing the facts and procedural history of this case, it is the opinion of this Court 25

26 that Plaintiffs Statement of Objection is legally sufficient and sets forth reasonable grounds for

27 the disqualification of Judge Cenzon. Under Dizon v. Superior Court, while no actual showing 28 Page 6 of 7 Quality Distributo.r::; v. Pcu.:i[lc Re::;Lctu!.'anLs, LLC dba Chili's Guam (CV 490~11) Decision and Order: On Plaintiff/Counterclaim Defendant's Objection to Competency of Judge Pursuant to 7 GCA § 6105(a) and§ 6107 of bias is necessary for recusal, it is the appearance of bias or prejudice which should be of 1

2 concern. 1998 Guam 3 ~ 8 (citing Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147,

3 1154 (1994)). "[A] reasonable person standard must [also] be applied to determine whether 4 recusal is necessary." ld. Notwithstanding the fact that Judge Cenzon previously represented 5 Defendant Artero in a matter unrelated to the instant case, the fact that the Honorable Judge 6

represented said Defendant in a case regarding a similar issue and while Defendant was acting 7

8 in his capacity as the representative of Pacific Dining, LLC leads this Court to believe that a

9 reasonable person may find the appearance of bias or prejudice present in this case. 10 In the interest of justice, and for the reasons stipulated above, this Court finds that 11 recusal of Judge Cenzon from presiding over this pending matter is appropriate. 12

CONCLUSION 13

14 By preponderance of the evidence and based on the foregoing reasons, this Court

15 ACCEPTS Plaintiffs Statement of Objection as valid and STRIKES Judge Cenzon's unverified 16 Response to Statement of Objection. Accordingly, this Court GRANTS Plaintiffs Objection to 17 the Competency of the Honorable Maria T. Cenzon to preside as judge in the above captioned 18

19 case.

20 SO ORDERED this / $' day of AUGUST, 2013. 21

24 HONORABLE ANITA A. SUKOLA Judge, Superior 25

28 Page 7 of 7 Quality Distributors v. Pc!c:.Lf.Lc Restaurants, LLC dba Chili's Guo.m (C Decision and Order: On Plaintiff/Counterclaim Defendant's Objection to Competency of Judge Pursuant to 7 GCA § 6105(a) and§ 6107