C·"· '. . • i"' p w • .._ ..... _ o·. SUPERIOR COURT C? f:~.L!\H 1 ZOIB JAN 26 P 3: 07 2
5 IN THE SUPERIOR COURT OF GUAM 6
7 HSIAOWEIYU, ) CIVIL CASE NO. CV0087-16 ) ) 8 Plaintiff, ) ) DECISION AND ORDER 9 vs. ) ) 10 MEl FEI LIANG, HELEN YU HU, and ) ) HSIAO JUNG YU, ) 11 ) ) 12 ) Defendants. ) 13
15 This matter came before the Honorable Michael J. Bordallo on Defendants' Motion in Limine to Exclude Judge Elyze Iriarte as a Witness at Trial. Plaintiff Hsiao Wei Yu is 16 represented by Attorney Gary W.F. Gumataotao. Defendants Mei Fei Yu, Helen Yu Hu, and 17 Hsiao Jung Yu are represented by Attorney Geri E. Diaz. Having reviewed the arguments, 18 papers, and file herein, the Court now issues the following Decision and Order granting the 19 Defendants' motion to exclude all attorney-client communication between Defendants and Elyze Iriarte, as well as communication between Defendants and their current attorney Geri 20 Diaz. 21 BACKGROUND 22 This matter arises out of Plaintiff's February 4, 2016 Complaint, which was 23 subsequently amended on Aprill3, 2016. Defendant Helen Yu Hu filed her answer to the
24 Amended Complaint on May 4, 2016. Defendants Mei Fei Yu and Hsiao Jung Yu filed their Answer to the Amended Complaint on October 20, 2016. Plaintiff filed his Witness List on 25 August 22,2017. This list includes Judge Elyze Iriarte (former counsel for Defendant) and 26
Page 1 of 5 1 Attorney Geri Diaz (present counsel for Defendant). On September 25, 2017, Defendants filed 2 their motion to exclude Judge Iriarte as a witness. Plaintiff filed his Opposition on September 3 16, 2017. On October 16, 2017, Defendants filed their reply to Plaintiff's Opposition, in which 4 Defendants moved to additionally exclude Geri Diaz as a witness.
I. Whether testimony from Judge Elyze Iriarte or Attorney Geri Diaz is protected by the 6 attorney-client privilege pursuant to 6 G.C.A. §504(c) and relevant case law. 7 FACTS 8 I. Defendant Hu was deposed on May 22,2017. During this deposition, Defendant Hu
9 made several references to conversations she had with her legal counsel. 2. The following exchanges took place during the deposition: 10 a. Q: All right. So, what's your response to that when they cancelled your business 11 license? A: I ask my lawyer handle. Elyze Iriarte. She handle for me, so not my - I can't 12 answer. Q: Did you discuss it with Rev & Tax? Anybody there about why they cancelled the 13 license? A: Not me. My attorney. 14
15 b. Q: Has Rev & Tax told you that they will allow you to rent these units? A: No, they don't say that. 16 Q: What did they say? A: They don't say anything. They say talk to your attorney. 17 c. Q: Before we sued you, did you talk to any lawyer about your brother complaining 18 or about the government coming after you or the government coming after these people? 19 A: Oh, government give us letter, I talk to Iriarte. 20 d. Q: After you talked to the lawyer; after you talked to Elyze Iriarte, did you stop 21 renting- A:No. 22 Q: -the units? A:No, no. 23 Q: (this portion, struck from the record) A: (this portion, struck from the record) 24 Q: (this portion, struck from the record) A: (this portion, struck from the record) 25 Q: Well, that opens a door for something else. A: So, I'm the legal to do everything. 26
Page 2 of 5 1 Q:Oh. 2 A: I have attorney to protect us. 3 3. Oo August 22, 2017, Plaintiff filed his Witness List. This list includes Judge Elyze 4 Iriarte (former counsel for Defendant) and Attorney Geri Diaz (present counsel for
5 Defendant). DISCUSSION 6 I. Communications between Defendant Hu and Her Attorneys Are Protected by 7 Attorney-Client Privilege. 8 6 Guam Annotated §504(c) provides that Defendants have the right to demand that any
9 and all communications with their former and current attorneys remain confidential pursuant to attorney-client privilege. Plaintiffs contend that this right has been waived by Defendant Hu. 10 a. Defendant Hu Has Not Raised the Advice-of-Counsel Defense. 11 Plaintiff argues that Defendant has waived attorney-client privilege by raising the 12 affirmative defense of advice-of-counsel. Plaintiff is correct in his assertion that a party may 13 waive privilege by asserting an advice-of-counsel defense, thereby placing otherwise privileged information at issue. Whenever a party asserts reliance on the advice of counsel as the basis for 14 action or inaction in a particular matter, that party is deemed to have placed the attorney-client 15 relationship "in" or "at" issue. The use of this defense acts as an implied waiver of attorney- 16 client privilege, as communications between the attorney and the client must now be disclosed 17 in order to determine the validity of the defense.
18 In Southern Cal. Gas Co. v. Public Utilities Com., 50 Ca1.3d 31,265 Cal.Rptr. 801 (1990), the Supreme Court of California ruled that a defendant had not waived attorney-client 19 privilege by making statements concerning legal counsel's approval of the defendant's actions. 20 The Court held that communications between the defendant and its counsel were not at issue 21 unless the defendant was to utilize a defense of good faith reliance on counsel. 22 "Nowhere in its CAM application or in the proceedings before the commission does SoCalGas state that it intends to rely on its attorneys' advice or state of mind to 23 demonstrate that it acted reasonably when it bought out the Getty contract. It was expressly stated otherwise. Because its attorneys' advice or state of mind is not in issue, 24 it has not impliedly waived its attorney-client privilege. Id. at 42.
Page 3 of 5 1 It is of note that the defendant in SoCalGas had commented on communications with its legal 2 staff and had stated that counsel had concurred with a relevant plan of action. Id. at 35. The 3 Court was not convinced that these statements were sufficient to constitute an assertion of the 4 advice-of-counsel defense.
5 Plaintiffs argument fails in the present case because Defendant has not raised the advice-of-counsel defense. Defendant Hu has filed both an Answer and an Answer to the First 6 Amended Complaint, and neither answer raises the advice-of-counsel defense. The deposition 7 transcript does not support Plaintiffs position that Defendant "attempts to rely upon advice of 8 counsel in justifying a continuing criminal enterprise." (Opposition to Defendants' Motion in
9 Limine to Exclude, Sep. 26, 2016.) In her deposition, Defendant Hu responds to several questions by stating that she talked 10 to her attorney about the relevant issues. Defendant Hu also suggested that she received 11 approval from her attorney to take certain actions. The mere mentioning of a conversation with 12 an attorney does not equate to the invocation of the advice-of-counsel defense. Plaintiff has not 13 provided any authority to support the contention that the brief statements made during Defendant Hu' s deposition constitute the raising of the advice-of-counsel defense and the 14 subsequent waiver of attorney-client privilege. 15 b. Defendant Hu Has Not Disclosed a Significant Part of Her Communication with 16 Her Attorneys to Qualify as a Waiver of Attorney-Client Privilege. 17 6 Guam Code Annotated§ 503(a) provides that attorney-client privilege is waived if the
18 holder of the privilege, without coercion, has disclosed a significant part of the communication had with his or her attorney. Defendant Hu's deposition statement was neither far reaching, 19 wide in scope, nor deep or thorough enough to be classified as significant or substantial 20 disclosure of her communications with her attorneys. 22 Based on the above, the attorney-client privilege remains intact as Defendant did not reveal a significant or substantial part of her communication with her attorneys during her 23 deposition.
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C·"· '. . • i"' p w • .._ ..... _ o·. SUPERIOR COURT C? f:~.L!\H 1 ZOIB JAN 26 P 3: 07 2
5 IN THE SUPERIOR COURT OF GUAM 6
7 HSIAOWEIYU, ) CIVIL CASE NO. CV0087-16 ) ) 8 Plaintiff, ) ) DECISION AND ORDER 9 vs. ) ) 10 MEl FEI LIANG, HELEN YU HU, and ) ) HSIAO JUNG YU, ) 11 ) ) 12 ) Defendants. ) 13
15 This matter came before the Honorable Michael J. Bordallo on Defendants' Motion in Limine to Exclude Judge Elyze Iriarte as a Witness at Trial. Plaintiff Hsiao Wei Yu is 16 represented by Attorney Gary W.F. Gumataotao. Defendants Mei Fei Yu, Helen Yu Hu, and 17 Hsiao Jung Yu are represented by Attorney Geri E. Diaz. Having reviewed the arguments, 18 papers, and file herein, the Court now issues the following Decision and Order granting the 19 Defendants' motion to exclude all attorney-client communication between Defendants and Elyze Iriarte, as well as communication between Defendants and their current attorney Geri 20 Diaz. 21 BACKGROUND 22 This matter arises out of Plaintiff's February 4, 2016 Complaint, which was 23 subsequently amended on Aprill3, 2016. Defendant Helen Yu Hu filed her answer to the
24 Amended Complaint on May 4, 2016. Defendants Mei Fei Yu and Hsiao Jung Yu filed their Answer to the Amended Complaint on October 20, 2016. Plaintiff filed his Witness List on 25 August 22,2017. This list includes Judge Elyze Iriarte (former counsel for Defendant) and 26
Page 1 of 5 1 Attorney Geri Diaz (present counsel for Defendant). On September 25, 2017, Defendants filed 2 their motion to exclude Judge Iriarte as a witness. Plaintiff filed his Opposition on September 3 16, 2017. On October 16, 2017, Defendants filed their reply to Plaintiff's Opposition, in which 4 Defendants moved to additionally exclude Geri Diaz as a witness.
I. Whether testimony from Judge Elyze Iriarte or Attorney Geri Diaz is protected by the 6 attorney-client privilege pursuant to 6 G.C.A. §504(c) and relevant case law. 7 FACTS 8 I. Defendant Hu was deposed on May 22,2017. During this deposition, Defendant Hu
9 made several references to conversations she had with her legal counsel. 2. The following exchanges took place during the deposition: 10 a. Q: All right. So, what's your response to that when they cancelled your business 11 license? A: I ask my lawyer handle. Elyze Iriarte. She handle for me, so not my - I can't 12 answer. Q: Did you discuss it with Rev & Tax? Anybody there about why they cancelled the 13 license? A: Not me. My attorney. 14
15 b. Q: Has Rev & Tax told you that they will allow you to rent these units? A: No, they don't say that. 16 Q: What did they say? A: They don't say anything. They say talk to your attorney. 17 c. Q: Before we sued you, did you talk to any lawyer about your brother complaining 18 or about the government coming after you or the government coming after these people? 19 A: Oh, government give us letter, I talk to Iriarte. 20 d. Q: After you talked to the lawyer; after you talked to Elyze Iriarte, did you stop 21 renting- A:No. 22 Q: -the units? A:No, no. 23 Q: (this portion, struck from the record) A: (this portion, struck from the record) 24 Q: (this portion, struck from the record) A: (this portion, struck from the record) 25 Q: Well, that opens a door for something else. A: So, I'm the legal to do everything. 26
Page 2 of 5 1 Q:Oh. 2 A: I have attorney to protect us. 3 3. Oo August 22, 2017, Plaintiff filed his Witness List. This list includes Judge Elyze 4 Iriarte (former counsel for Defendant) and Attorney Geri Diaz (present counsel for
5 Defendant). DISCUSSION 6 I. Communications between Defendant Hu and Her Attorneys Are Protected by 7 Attorney-Client Privilege. 8 6 Guam Annotated §504(c) provides that Defendants have the right to demand that any
9 and all communications with their former and current attorneys remain confidential pursuant to attorney-client privilege. Plaintiffs contend that this right has been waived by Defendant Hu. 10 a. Defendant Hu Has Not Raised the Advice-of-Counsel Defense. 11 Plaintiff argues that Defendant has waived attorney-client privilege by raising the 12 affirmative defense of advice-of-counsel. Plaintiff is correct in his assertion that a party may 13 waive privilege by asserting an advice-of-counsel defense, thereby placing otherwise privileged information at issue. Whenever a party asserts reliance on the advice of counsel as the basis for 14 action or inaction in a particular matter, that party is deemed to have placed the attorney-client 15 relationship "in" or "at" issue. The use of this defense acts as an implied waiver of attorney- 16 client privilege, as communications between the attorney and the client must now be disclosed 17 in order to determine the validity of the defense.
18 In Southern Cal. Gas Co. v. Public Utilities Com., 50 Ca1.3d 31,265 Cal.Rptr. 801 (1990), the Supreme Court of California ruled that a defendant had not waived attorney-client 19 privilege by making statements concerning legal counsel's approval of the defendant's actions. 20 The Court held that communications between the defendant and its counsel were not at issue 21 unless the defendant was to utilize a defense of good faith reliance on counsel. 22 "Nowhere in its CAM application or in the proceedings before the commission does SoCalGas state that it intends to rely on its attorneys' advice or state of mind to 23 demonstrate that it acted reasonably when it bought out the Getty contract. It was expressly stated otherwise. Because its attorneys' advice or state of mind is not in issue, 24 it has not impliedly waived its attorney-client privilege. Id. at 42.
Page 3 of 5 1 It is of note that the defendant in SoCalGas had commented on communications with its legal 2 staff and had stated that counsel had concurred with a relevant plan of action. Id. at 35. The 3 Court was not convinced that these statements were sufficient to constitute an assertion of the 4 advice-of-counsel defense.
5 Plaintiffs argument fails in the present case because Defendant has not raised the advice-of-counsel defense. Defendant Hu has filed both an Answer and an Answer to the First 6 Amended Complaint, and neither answer raises the advice-of-counsel defense. The deposition 7 transcript does not support Plaintiffs position that Defendant "attempts to rely upon advice of 8 counsel in justifying a continuing criminal enterprise." (Opposition to Defendants' Motion in
9 Limine to Exclude, Sep. 26, 2016.) In her deposition, Defendant Hu responds to several questions by stating that she talked 10 to her attorney about the relevant issues. Defendant Hu also suggested that she received 11 approval from her attorney to take certain actions. The mere mentioning of a conversation with 12 an attorney does not equate to the invocation of the advice-of-counsel defense. Plaintiff has not 13 provided any authority to support the contention that the brief statements made during Defendant Hu' s deposition constitute the raising of the advice-of-counsel defense and the 14 subsequent waiver of attorney-client privilege. 15 b. Defendant Hu Has Not Disclosed a Significant Part of Her Communication with 16 Her Attorneys to Qualify as a Waiver of Attorney-Client Privilege. 17 6 Guam Code Annotated§ 503(a) provides that attorney-client privilege is waived if the
18 holder of the privilege, without coercion, has disclosed a significant part of the communication had with his or her attorney. Defendant Hu's deposition statement was neither far reaching, 19 wide in scope, nor deep or thorough enough to be classified as significant or substantial 20 disclosure of her communications with her attorneys. 22 Based on the above, the attorney-client privilege remains intact as Defendant did not reveal a significant or substantial part of her communication with her attorneys during her 23 deposition. Also, she did not knowingly, willfully, and/or voluntarily intend to waive the 24 privilege and, more importantly, although she did consult with her attorneys regarding this case, 25
Page 4 of 5 1 she has never pled the advice of counsel as an affirmative defense which would lead to a waiver 2 of her right to keep her conversations with her attorney confidential and privileged. 3 For the reasons set forth above, the Court GRANTS THE DEFENDANTS' MOTION IN 4 LIMINE TO EXCLUDE JUDGE ELYZE IRIARTE AND ATTORNEY GERI DIAZ AS
6 SO ORDERED, this dayofpc= 2017. 7
10 Judge, Superior Court of Guam
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