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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
11-MAY-2026
08:15 AM
Dkt. 200 MO

NOS. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX
AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

NO. CAAP-XX-XXXXXXX
NAOMI HASEGAWA; ATSUSHI MORITA; KASUMI ISHIDA;
TATSUTO EHARA; MAKOTO ISHIDA; HUN-DONG YU; TAO JIANG;
WEI JIANG; XIUJUAN LI; SONGHUA ZHANG; YIHAO XU; RUIGANG TAN,
Plaintiffs-Appellants,
and
YANLI XU; LILI WU; CHUANJIAO YU; TIANGE YANG;
XIAOMIN HUANG; PINMEI WANG; XIAOHUI WU; YUYANG JING;
LI WANG; DONG ZHANG; KE YUAN; WEI WANG; JING LIU,
Nominal Plaintiffs,
v.
ZHONG FANG AKA JOHNSON FANG; MIN HU AKA MICHELLE HU;
ZHE FANG AKA JAY FANG; YUJIA WANG AKA JIAJIA WANG;
LAMEI FANG; USA REALTY CONSTRUCTION GROUP INC.; CALIFORNIA
INVESTMENT REGIONAL CENTER LLC; CALIFORNIA REGIONAL CENTER LLC;
AMERICAN INVESTMENT IMMIGRATION FUND; WUHAN WESTERN U.S.
INVESTMENT IMMIGRATION CONSULTANT INC; HAWAII CITY PLAZA LP;
HAWAII OCEAN PLAZA LP; LOS ANGELES CITY PLAZA LP; LA VALLEY
GARDEN PLAZA LP; 9920 VALLEY BLVD LP; HAWAII OCEAN PLAZA LLC,
Defendants-Appellees,
and
DAVID R. SQUERI; SOL V. YI; GREATER PACIFIC LAW OFFICE LLLC,
Third-Party Plaintiffs/
Third-Party Counterclaim Defendants-Appellees,
v.
WEN SHENG GAO; LAW OFFICE OF WEN SHENG GAO LIMITED LIABILITY LAW
COMPANY, Third-Party Defendants/
Third-Party Counterclaimants-Appellants,
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and
JUNSUKE AARON OTSUKA; OTSUKA & ASSOCIATES, A LIMITED LIABILITY
LAW COMPANY, Third-Party Plaintiffs-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; DOE GOVERNMENTAL
UNITS 1-10, Defendants,
and
DOE THIRD-PARTY DEFENDANTS 1-100, Third-Party Defendants

NO. CAAP-XX-XXXXXXX
YANLI XU; NAOMI HASEGAWA; ATSUSHI MORITA; KASUMI ISHIDA;
TATSUTO EHARA; MAKOTO ISHIDA; HUN-DONG YU; LILI WU; TAO JIANG;
CHUANJIAO YU; TIANGE YANG; XIAOMIN HUANG; PINMEI WANG;
XIAOHUI WU; YUYANG JING; LI WANG; DONG ZHANG; KE YUAN;
WEI JIANG; XIUJUAN LI; SONGHUA ZHANG; YIHAO XU; WEI WANG;
RUIGANG TAN; JING LIU, Plaintiffs-Appellees,
v.
ZHONG FANG AKA JOHNSON FANG; MIN HU AKA MICHELLE HU; ZHE FANG
AKA JAY FANG; YUJIA WANG AKA JIAJIA WANG; LAMEI FANG;
USA REALTY CONSTRUCTION GROUP INC.; CALIFORNIA INVESTMENT
REGIONAL CENTER LLC; CALIFORNIA REGIONAL CENTER LLC;
AMERICAN INVESTMENT IMMIGRATION FUND; WUHAN WESTERN U.S.
INVESTMENT IMMIGRATION CONSULTANT INC; HAWAII CITY PLAZA LP;
HAWAII OCEAN PLAZA LP; LOS ANGELES CITY PLAZA LP;
LA VALLEY GARDEN PLAZA LP; 9920 VALLEY BLVD LP;
HAWAII OCEAN PLAZA LLC, Defendants-Appellants,
and
DAVID R. SQUERI; SOL V. YI; GREATER PACIFIC LAW OFFICE LLLC,
Third-Party Plaintiffs/Third-Party Counterclaim Defendants-
Appellees
v.
WEN SHENG GAO; LAW OFFICE OF WEN SHENG GAO
LIMITED LIABILITY LAW COMPANY, Third-Party Defendants/Third-
Party Counterclaimants-Appellees,
and
JUNSUKE AARON OTSUKA; OTSUKA & ASSOCIATES, A LIMITED LIABILITY
LAW COMPANY, Third-Party Plaintiffs-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10;
DOE GOVERNMENTAL UNITS 1-10, Defendants,
and
Doe Third-Party Defendants-1-100, Third-Party Defendants

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NO. CAAP-XX-XXXXXXX
NAOMI HASEGAWA; ATSUSHI MORITA; KASUMI ISHIDA;
TATSUTO EHARA; MAKOTO ISHIDA; HUN-DONG YU; TAO JIANG;
WEI JIANG; XIUJUAN LI; SONGHUA ZHANG; YIHAO XU; RUIGANG TAN,
Plaintiffs-Appellants,
and
YANLI XU; LILI WU; CHUANJIAO YU; TIANGE YANG;
XIAOMIN HUANG; PINMEI WANG; XIAOHUI WU; YUYANG JING;
LI WANG; DONG ZHANG; KE YUAN; WEI WANG; JING LIU,
Plaintiffs-Appellees,
v.
ZHONG FANG AKA JOHNSON FANG; MIN HU AKA MICHELLE HU;
ZHE FANG AKA JAY FANG; YUJIA WANG AKA JIAJIA WANG;
LAMEI FANG; USA REALTY CONSTRUCTION GROUP INC.; CALIFORNIA
INVESTMENT REGIONAL CENTER LLC; CALIFORNIA REGIONAL CENTER LLC;
AMERICAN INVESTMENT IMMIGRATION FUND; WUHAN WESTERN U.S.
INVESTMENT IMMIGRATION CONSULTANT INC; HAWAII CITY PLAZA LP;
HAWAII OCEAN PLAZA LP; LOS ANGELES CITY PLAZA LP; LA VALLEY
GARDEN PLAZA LP; 9920 VALLEY BLVD LP; HAWAII OCEAN PLAZA LLC,
Defendants-Appellees,
and
DAVID R. SQUERI; SOL V. YI; GREATER PACIFIC LAW OFFICE LLLC,
Third-Party Plaintiffs/
Third-Party Counterclaim Defendants-Appellees,
v.
WEN SHENG GAO; LAW OFFICE OF WEN SHENG GAO LIMITED LIABILITY LAW
COMPANY, Third-Party Defendants/
Third-Party Counterclaimants-Appellants,
and
JUNSUKE AARON OTSUKA; OTSUKA & ASSOCIATES, A LIMITED LIABILITY
LAW COMPANY, Third-Party Plaintiffs-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; DOE ENTITIES 1-10; DOE GOVERNMENTAL
UNITS 1-10, Defendants,
and
Doe Third-Party Defendants 1-100, Third-Party Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX, Consolidated with
1CCV-XX-XXXXXXX and 1CCV-XX-XXXXXXX)

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MEMORANDUM OPINION
(By: Nakasone, Chief Judge, Leonard and Wadsworth, JJ.)

This consolidated civil appeal1 from the Circuit Court
of the First Circuit2 (Circuit Court) challenges orders denying
the plaintiffs' attempts to disqualify the defendants' counsels,
dismissing the plaintiffs' claims against the defendants'
counsels, and imposing Rule 11 sanctions against the plaintiffs'
counsel in CAAP-XX-XXXXXXX (claims against counsels appeal); the
enforcement of the parties' subsequent settlement agreement in
CAAP-XX-XXXXXXX (settlement enforcement appeal); and the
attachment of a lien for attorney's fees in CAAP-XX-XXXXXXX
(lien appeal). We affirm.
I. BACKGROUND
The plaintiffs in the underlying lawsuit were foreign
investors in two failed development projects designed to qualify
for "EB-5"3 immigration benefits. The plaintiffs sued the two

1 We consolidated these three related appeals by order on March 5,
2025.
2 The Honorable Lisa W. Cataldo presided over all proceedings,
except for two disqualification motions, over which the Honorable James H.
Ashford presided in 2021, when he was temporarily assigned to the case.
3 EB-5 is a federal program under which foreign investors are
eligible to apply for lawful permanent residence if they meet certain
requirements. See EB-5 Immigrant Investor Program, https://www.uscis.gov/
working-in-the-united-states/permanent-workers/eb-5-immigrant-investor-
program [https://perma.cc/FQL3-E5KB] (last visited May 22, 2024); Wang v.
Fang, No. CAAP-XX-XXXXXXX, 2024 WL 3311499, at **2 n.8 (Haw. App. July 5,
2024) (SDO) (affirming orders granting the defendants' motions to expunge
multiple lis pendens, in a prior appeal arising out of this same litigation).
Under the program, qualified immigrant investors who commit to investing a
minimum amount of capital may seek entry to the United States for the purpose
of engaging in a new commercial enterprise that "will benefit the United
States economy by creating full-time employment for not fewer than 10 United
States citizens, United States nationals, or aliens lawfully admitted for
permanent residence or other immigrants lawfully authorized to be employed in
the United States." 8 U.S.C. § 1153(b)(5).

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development projects (Project Defendants),4 and nine individuals
and entities connected to the projects (Non-Project Defendants),5
(collectively, Defendants) alleging, inter alia, that the
Defendants fraudulently induced the plaintiffs' investments,
mismanaged the projects, and converted funds.
The record reflects a contentious procedural history.6
Following extensive pre-trial motions litigation from 2019 to
2022, which included the disqualification, dismissal, and
sanctions orders relevant to the claims against counsels appeal
(CAAP-XX-XXXXXXX), the parties reached a settlement in the fall
of 2022. The settlement agreement included a one-year
litigation stay, but settlement-related motions and proceedings,
and resolution of the then-pending Hawaiʻi Rules of Civil
Procedure (HRCP) Rule 11 sanctions motions against the
plaintiffs' counsel Wen Shen Gao (Gao), were excluded from the
litigation stay. In the fall of 2023, near the expiration of
the one-year litigation stay, the Defendants moved to set aside
the settlement agreement on grounds that Gao violated certain
settlement agreement terms. The plaintiffs opposed and moved to
enforce the settlement. The Circuit Court's order resolving
these settlement motions is challenged in the settlement

4 The Project Defendants are Hawaii City Plaza LP and Hawaii Ocean
Plaza LP, the Defendants-Appellees in CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX and
the Defendants-Appellants in CAAP-XX-XXXXXXX.
5 The Non-Project Defendants-Appellants are: Zhong Fang aka
Johnson Fang, Min Hu aka Michelle Hu, Zhe Fang aka Jay Fang, Yujia Wang aka
Jiajia Wang, Lamei Fang, Hawaii Ocean Plaza, LLC, USA Realty Construction
Group Inc., California Investment Regional Center LLC, California Regional
Center LLC, American Investment Immigration Fund, Wuhan Western U.S.
Investment Immigration Consultant Inc., Los Angeles City Plaza LP, LA Valley
Garden Plaza LP, and 9920 Valley Blvd LP.
6 The circuit court docket list exceeds 200 pages and contains over
2,200 docket entries.

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enforcement appeal (CAAP-XX-XXXXXXX). In 2024, the Circuit
Court allowed the Project Defendants to attach a lien for their
attorney's fees to properties subject to a superseding
settlement lien in favor of the plaintiffs. The court orders
permitting the lien are challenged in the lien appeal
(CAAP-XX-XXXXXXX).
The Project Defendants are represented by attorney
Junsuke Otsuka from the Otsuka & Associates, LLLC law firm
(Otsuka Attorneys), and the Non-Project Defendants are
represented by attorneys from the Greater Pacific Law Office
LLLC (GPL Attorneys). In the claims against counsels appeal,
the Otsuka Attorneys and the GPL Attorneys (collectively,
Attorney Defendants) were named as defendants in the Fourth
Amended Verified Complaint (Fourth Amended Complaint) until the
claims against them were dismissed.
There are two groups of plaintiffs involved in this
consolidated appeal.7 One group consists of twelve plaintiffs
represented by Gao, of the Law Office of Wen Shen Gao LLLC (Gao
LLLC), who has continuously represented them from the beginning
of the lawsuit (Gao Plaintiffs).8 The Gao Plaintiffs are parties
to all three appeals. A second group consisting of thirteen
plaintiffs, who were represented by attorneys from the O'Connor
Playdon Guben & Inouye LLP law firm (OPGI Plaintiffs)9 at the

7 Gao initially represented all of the plaintiffs when the Fourth
Amended Complaint relevant to this appeal was filed on November 20, 2020.
8 The Gao Plaintiffs are: Naomi Hasegawa, Atsushi Morita, Kasumi
Ishida, Tatsuto Ehara, Makoto Ishida, Hun-Dong Yu, Tao Jiang, Wei Jiang,
Xiujuan Li, Songhua Zhang, Yihao Xu, and Ruigang Tan.
9 The OPGI Plaintiffs are: Yanli Xu, Wei Wang, Xiaomin Huang, Dong
Zhang, Pinmei Wang, Ke Yuan, Jing Liu, Tiange Yang, Yuyang Jing, Chuanjiao
Yu, Lili Wu, Li Wang and Xiaohui Wu.

As of June 16, 2025, the OPGI firm withdrew and attorney
Christopher J. Muzzi substituted as counsel for the OPGI Plaintiffs.
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time of briefing of this appeal and formerly represented by Gao,
are only involved in the settlement enforcement appeal.
Procedural history for the claims against counsels
appeal (CAAP-XX-XXXXXXX)
In this appeal, the Gao Plaintiffs appeal from three
orders denying their motions to disqualify the GPL Attorneys and
the Otsuka Attorneys (DQ Orders), two orders granting dismissal
of their claims in Count 15 against the Otsuka Attorneys and the
GPL Attorneys (Count 15 Dismissal Orders); and the "Final
Judgment Re Count #15" (Count 15 Judgment). In this same
appeal, real parties in interest Gao and Gao LLLC appeal from
two orders imposing a $3,500.00 Rule 11 sanction against Gao.
The relevant procedural history for the DQ Orders,
Count 15 Dismissal Orders and the Rule 11 sanction orders is as
follows.
There were three actions filed below that were
consolidated into the last action, 1CCV-XX-XXXXXXX, which
underlies these appeals. On March 16, 2020, the plaintiffs were
granted leave to file an amended complaint in 1CCV-XX-XXXXXXX to
consolidate all claims.
On May 5, 2020, the plaintiffs filed the first of two
motions to disqualify the GPL Attorneys at issue in this appeal,
against the GPL Attorneys (First Motion to DQ GPL).
On October 21, 2020, the Circuit Court approved the
withdrawal of the GPL Attorneys, and substitution of the Otsuka
Attorneys as counsel for the Project Defendants. The GPL
Attorneys remained counsel for the Non-Project Defendants.
Also on October 21, 2020, the plaintiffs filed a
notice of partial withdrawal of their First Motion to DQ GPL,
withdrawing as moot their argument that the GPL Attorneys should

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be disqualified due to their dual representation of the Project
Defendants and the Non-Project Defendants.
On October 22, 2020, the Circuit Court ruled that it
was denying the plaintiffs' First Motion to DQ GPL as amended,
and subsequently entered its December 9, 2020 "Order Denying
Plaintiffs' Motion for Disqualification of Attorney David R.
Squeri, Sol V. Yi, and the Greater Pacific Law Office LLLC; and
Recusal of Honorable Judge Dean E. Ochiai" (Order Denying First
DQ of GPL).
On November 18, 2020, the plaintiffs filed a second
motion to disqualify the GPL Attorneys (Second Motion to DQ
GPL).
On November 20, 2020, following multiple previous
dismissals with leave to amend, the plaintiffs filed the Fourth
Amended Complaint relevant to this appeal. The Fourth Amended
Complaint added the Attorney Defendants as defendants and
asserted claims against them in Count 15 that included
"conspiracy; unauthorized representation; malpractice[.]"
On December 23, 2020, both the GPL Attorneys and the
Otsuka Attorneys filed motions to dismiss the claims against
them set forth in Count 15 of the Fourth Amended Complaint.
On May 6, 2021, the plaintiffs filed a Motion for
Disqualification of the Otsuka Attorneys (Motion to DQ Otsuka).
On June 16, 2021, Judge Ashford conducted a hearing on
the plaintiffs' November 18, 2020 Second Motion to DQ GPL and
the plaintiffs' May 6, 2021 Motion to DQ Otsuka. Judge Ashford
denied both disqualification motions, and entered two June 29,
2021 orders denying the motions: "Order Denying Plaintiffs' 2nd
Motion for Disqualification of Attorney David R. Squeri, Sol V.
Yi, and the Greater Pacific Law Office LLLC" (Order Denying
Second DQ of GPL), and "Order Denying Plaintiffs' Motion for
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Disqualification of Attorney Junsuke A. Otsuka, and Otsuka &
Associate[s], a Limited Liability Law Company Filed May 6,
2021[Dkt. 841]" (Order Denying DQ of Otsuka). The Order Denying
Second DQ of GPL stated: "Plaintiffs failed to show that they
have standing to bring this Motion and have failed to show that
the interest of the limited partnerships at issue, [Project
Defendants] HAWAII CITY PLAZA LP and HAWAII OCEAN PLAZA LP, are
materially adverse to any of the Defendants or their respective
counsel." The Order Denying DQ of Otsuka similarly stated:
"Plaintiffs have no standing or any other grounds to disqualify
[Project]-Defendants' counsel. Plaintiffs further failed to
show that interests of the limited partnerships at issue are
materially adverse to any of the defendants or their respective
counsel."
On July 8, 2022, the Circuit Court entered the "Order
Granting GPL Attorneys' Motion to Dismiss All Claims of the 4th
Amended Complaint Made Against GPL Attorneys and for Dismissal
of GPL Attorneys as Parties to the Litigation" (GPL Count 15
Dismissal Order).
On July 15, 2022, the GPL Attorneys filed a "Motion
for Rule 11 Sanctions Against Attorney Wen Sheng Gao and His
Respective Plaintiff Clients" (Motion for Rule 11 Sanctions).
On August 4, 2022, the Circuit Court entered its
"Order Granting Defendants Junsuke Aaron Otsuka and Otsuka &
Associates, LLC's [sic] Motion to Dismiss 4th Amended Verified
Complaint Filed November 20, 2020" (Otsuka Count 15 Dismissal
Order).
On September 13, 2022, the OPGI Plaintiffs10 filed a
"Motion to Place Settlement on the Record, Discharge the

10 There was no withdrawal and substitution of counsel filed with
respect to the OPGI Plaintiffs. On July 17, 2023, Gao filed a motion to
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Discovery Master, Approve Lien for Settlement and Stay
Litigation," together with a settlement agreement (Settlement
Agreement) filed under seal.
On January 9, 2023, pursuant to the Settlement
Agreement, the Circuit Court approved a Stipulation to Stay
Litigation and Order, staying the litigation for a one-year
period from August 10, 2022 to August 10, 2023 (Litigation
Stay). The GPL Attorneys' pending Motion for Rule 11 Sanctions
and any settlement-related actions or proceedings were excluded
from the Litigation Stay.
On March 23, 2023, the Circuit Court entered an order
granting the GPL Attorneys' Motion for Rule 11 Sanctions (Order
Granting Rule 11 Sanctions).
On May 19, 2023, the Circuit Court entered a
Supplemental Order requiring Gao to pay $3,500.00 to the GPL
Attorneys as a Rule 11 sanction, within 30 days (Sanction
Order).
On June 19, 2023, the plaintiffs, Gao, and Gao LLLC
filed a Notice of Appeal, followed by a June 21, 2023 "Amended
Notice of Appeal."
On July 7, 2023, pursuant to the Count 15 Dismissal
Orders, the Circuit Court entered the Count 15 Judgment in favor
of the Attorney Defendants.
On July 10, 2023, the plaintiffs, Gao, and Gao LLLC
filed a "2nd Amended Notice of Appeal," which included the
July 7, 2023 Count 15 Judgment.

withdraw as counsel for the OPGI Plaintiffs, and on September 8, 2023 the
Circuit Court entered an order granting the withdrawal.

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On July 14, 2023 the Gao Plaintiffs (and not the OPGI
Plaintiffs), Gao, and Gao LLLC filed a "3rd Amended Notice of
Appeal."
Procedural history for the settlement enforcement
appeal (CAAP-XX-XXXXXXX)
On August 2, 2023, shortly before the August 10, 2023
expiration of the one-year Litigation Stay, the Defendants filed
a joint "Motion to Set Aside Settlement Agreement and Lift Stay
of Litigation Proceedings" (Motion to Set Aside Settlement).
On August 17, 2023, the Gao Plaintiffs filed a
"Counter-Motion to the Dkt 1541 Motion (a) to Enforce the
Settlement Agreement and Mutual Release as Dkt 1234, and or, (b)
Motion for Accounting" (Counter-Motion).
On October 13, 2023, the OPGI Plaintiffs filed a
"Motion to Enforce Settlement Agreement" (Motion to Enforce
Settlement).
On November 7, 2023, the Circuit Court entered a
single order resolving the three motions, by denying the
Defendants' Motion to Set Aside Settlement, granting in part the
Gao Plaintiffs' Counter-Motion, and granting the OPGI
Plaintiffs' Motion to Enforce Settlement (Order Enforcing
Settlement), followed by an amended order entered on November 8,
2023, titled "Amended Order (1) Denying the Motion to Set Aside
Settlement Agreement and Lift Stay of Litigation Proceedings,
Filed August 2, 2023 (Dkt. No. 1541); (2) Granting in Part,
Denying in Part the Counter-motion to the Dkt. No. 1541 Motion
(A) to Enforce the Settlement Agreement and Mutual Release as
Dkt. No. 1234, and or, (B) Motion for Accounting, Filed August
17, 2023 (Dkt. Nos. 1548-1556); and (3) Granting O'Connor
Playdon Guben & Inouye Plaintiffs' Motion to Enforce Settlement

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Agreement, Filed October 13, 2023 (Dkt. No. 1674)" (Amended
Order Enforcing Settlement).
On December 1, 2023, the Defendants filed a "Joint
Notice of Appeal" from the November 7, 2023 Order Enforcing
Settlement. An "Amended Joint Notice of Appeal" filed on
February 2, 2024 added the November 8, 2023 Amended Order
Enforcing Settlement. Only the November 8, 2023 Amended Order
Enforcing Settlement is before us, as it replaced the previous
order. We address the OGPI Plaintiffs' jurisdictional challenge
to our jurisdiction over the November 8, 2023 Amended Order
Enforcing Settlement, infra.
Procedural history for the lien appeal
(CAAP-XX-XXXXXXX)
On March 6, 2024, the Project Defendants filed a
Renewed Motion for Leave to Record Lien, to which the Gao
Plaintiffs filed a March 27, 2024 opposition.
On July 8, 2024, the Circuit Court granted the Project
Defendants' request to record a consensual lien in the amount of
$142,272.41 in favor of the Otsuka Attorneys on four real
properties owned by the Project Defendants, for past attorney's
fees due to the Otsuka Attorneys. The four real properties were
part of the six real properties subject to the settlement lien
in favor of all of the plaintiffs. The Otsuka Attorneys' lien
for their past attorney's fees was junior to the plaintiffs'
$18,946,480.00 superseding lien.
On July 26, 2024, the Gao Plaintiffs appealed from
(1) the July 8, 2024 "Order Granting in Part and Denying in Part
(1) [Project] Defendants' Renewed Motion for Leave to Record
Lien Filed on March 6, 2024 and (2) [Non-Project] Defendant
California Investment Regional Center, LLC's Joinder in
[Project] Defendants' Renewed Motion for Leave to Record Lien

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File [sic] March 21, 21024" (Order Granting Lien Recording) and
(2) the July 9, 2024 "Order Regarding Attorney's Lien" (Lien
Order) (collectively, lien orders).
II. DISCUSSION
A. The Claims Against Counsels Appeal, CAAP-XX-XXXXXXX
The Gao Plaintiffs, Gao, and Gao LLLC raise the
following points of error, contending the Circuit Court erred
by: (1) denying the Gao Plaintiffs' two motions to disqualify
the GPL Attorneys due to GPL's "concurrent representation of
conflicting interests in the same litigation" that allegedly
violated Hawaiʻi Rules of Professional Conduct (HRPC) Rules 1.7
and 1.9; (2) denying the Gao Plaintiffs' motion to disqualify
the Otsuka Attorneys because of "conflicting interests in
violation of [HRPC] Rule 1.8(f)"; (3) granting the GPL
Attorneys' and Otsuka Attorneys' motions to dismiss the claims
against the Attorney Defendants under Hawai‘i Rules of Civil
Procedure (HRCP) Rule 12(b)(6) "when the pleading was sufficient
under fair notice standard [sic] and supported by the evidence";
and (4) imposing the "clearly erroneous" Rule 11 sanction
against Gao, which was an "extreme injustice" because the GPL
Attorneys were "allegedly committing violations of ethical
rules." (Underscoring and italics omitted.)
1. Motions to disqualify the GPL Attorneys
The Gao Plaintiffs argue their two motions to
disqualify the GPL Attorneys should have been granted because
the GPL Attorneys could not concurrently represent both the
Project Defendants and the Non-Project Defendants; and that
having entered an appearance for all defendants, the GPL
Attorneys could not then remain as counsel for any of them

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without violating HRPC Rule 1.9(a).11 The Gao Plaintiffs assert
standing to seek disqualification because they were limited
partners of the Project Defendants bringing derivative claims.
The record reflects that the GPL Attorneys recognized
that the Defendants' interests may potentially conflict. In
2019, the GPL Attorneys sought court approval via motion, to
make a Special Appearance for the Project Defendants, to
represent all of the defendants only while procedural motions
were addressed, and thereafter to only represent the Non-Project
Defendants. The Circuit Court approved the request for such
limited Special Appearance in a January 3, 2020 order. The
Circuit Court later approved the withdrawal of the GPL Attorneys
and the substitution of the Otsuka Attorneys as Project
Defendants' counsel on October 21, 2020. The Fourth Amended
Complaint was filed on November 20, 2020.
Here, the record reflects that the GPL Attorneys'
concurrent representation of all of the Defendants occurred
prior to an answer being filed to any of the complaints, and
prior to any cross-claims among the co-defendants being due.
See HRCP Rule 12(a)(1) (requiring an answer to a complaint be
filed twenty days after service); Rule 13(g) (allowing pleading
of cross-claims). The Gao Plaintiffs' contention that there was
an actual conflict during this period of concurrent
representation in the preliminary stages of this litigation is

11 HRPC Rule 1.9, "Conflict of Interest: Former Client," prohibits
representation of a client whose interests conflict with a former client.
Subsection (a) provides:

A lawyer who has formerly represented a client in a matter
shall not thereafter represent another person in the same
or a substantially related matter in which that person's
interests are materially adverse to the interests of the
former client unless the former client consents after
consultation, and confirms in writing.

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therefore unpersuasive. Further, by the time the Circuit Court
ruled on the First Motion to DQ GPL on October 22, 2020, the GPL
Attorneys were no longer representing both the Project
Defendants and the Non-Project Defendants, and the plaintiffs
had withdrawn their argument that the GPL Attorneys should be
disqualified due to dual representation.
Citing Hawaii Revised Statutes (HRS) § 425E-402,12 the
Gao Plaintiffs argue that their consent was required for the
Project Defendants to retain the GPL Attorneys because general
partners may bind a partnership only for acts undertaken in the
ordinary course of business. The Non-Project Defendants, citing
HRS § 425E-302,13 respond that as "allegedly limited partners,
not managing partners nor general partners," the plaintiffs had
"no authority to make any decisions on behalf of [the
Projects][.]"
The Gao Plaintiffs provide no authority supporting
their contention that retention of counsel to defend a lawsuit
is not an act taken by general partners for carrying on in the
ordinary course of business. See HRS § 425E-402(b). The Gao
Plaintiffs' status as limited partners did not confer authority
to object to the counsel who was retained, nor was their consent
required. See HRS §§ 425E-402(b) and 425E-302. We conclude the
circuit court14 did not abuse its discretion in denying the

12 HRS § 425E-402(b) (2004) states: "An act of a general partner
which is not apparently for carrying on in the ordinary course the limited
partnership's activities or activities of the kind carried on by the limited
partnership binds the limited partnership only if the act was actually
authorized by all the other partners."
13 HRS § 425E-302 (2004) states: "A limited partner shall not have
the right or the power as a limited partner to act for or bind the limited
partnership."
14 Judge Cataldo entered the Order Denying First DQ of GPL. Judge
Ashford entered the Order Denying Second DQ of GPL.

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disqualification motions, and we affirm the Order Denying First
DQ of GPL and the Order Denying Second DQ of GPL. See Hussey v.
Say, 139 Hawai‘i 181, 185, 384 P.3d 1282, 1286 (2016) (reviewing
trial court's denial of a motion for disqualification for abuse
of discretion).
2. Motion to Disqualify the Otsuka Attorneys
The Gao Plaintiffs argue that the Otsuka Attorneys
were not acting in the interests of the Project Defendants by
opposing the plaintiffs' motion for an injunction; and that the
Otsuka Attorneys were being improperly compensated from the same
account used to pay the GPL Attorneys.
The argument that the Otsuka Attorneys were not acting
in the interests of the Project Defendants by opposing the
injunction motion was not presented to the Circuit Court and is
waived. See Haw. Ventures, LLC v. Otaka, Inc., 114 Hawai‘i 438,
500, 164 P.3d 696, 758 (2007) ("As a general rule, if a party
does not raise an argument at the circuit court level, that
argument will be deemed to have been waived on appeal[.]"
(citations and brackets omitted)).
For the reasons discussed supra, because the Gao
Plaintiffs' consent to the retention of counsel was not
required, their consent to the manner in which the Otsuka
Attorneys were being paid was also not required. See HRS
§§ 425E-402(b) and 425E-302. Nor did the Gao Plaintiffs' status
as limited partners give them standing to object to the manner
in which the Otsuka Attorneys were paid by the general partner.
The circuit court15 did not abuse its discretion in denying the
disqualification motion, and we affirm the Order Denying DQ of
Otsuka. See Hussey, 139 Hawai‘i at 185, 384 P.3d at 1286.

15 Judge Ashford entered the Order Denying DQ of Otsuka.

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3. Dismissal of Count 15 Claims Against Attorney
Defendants
The Gao Plaintiffs challenge the Count 15 Dismissal
Orders, arguing that the Fourth Amended Complaint adequately
alleged claims against the Attorney Defendants for conspiracy,
unauthorized representation, and legal malpractice.
Count 15, set forth in paragraphs 477 to 531 of the
128-page Fourth Amended Complaint, alleged that the Attorney
Defendants conspired with their clients to unlawfully sell the
remaining assets of the Project Defendants; engaged in
unauthorized representation of the Project Defendants without
the plaintiffs' consent as limited partners; and committed legal
malpractice.
"A circuit court order granting a motion to dismiss is
reviewed de novo." Civil Beat Law Ctr. for the Pub. Int., Inc.
v. City & Cnty. of Honolulu, 144 Hawai‘i 466, 474, 445 P.3d 47,
55 (2019) (citing Hungate v. Law Off. of David B. Rosen,
139 Hawai‘i 394, 401, 391 P.3d 1, 8 (2017)). Dismissal is not
proper unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of plaintiff's claim that would
entitle him or her to relief. Id. The allegations of the
complaint are viewed in the light most favorable to the
plaintiff and deemed to be true. Id. "However, 'the court is
not required to accept conclusory allegations on the legal
effect of the events alleged.'" Id. (quoting Hungate,
139 Hawai‘i at 401, 391 P.3d at 8).
A party asserting a civil conspiracy claim must allege
that the conspirators had a criminal or unlawful purpose for
their concerted action or that the alleged conspirators used
criminal or unlawful means to accomplish a lawful objective.
Miyashiro v. Roehrig, Roehrig, Wilson & Hara, 122 Hawaiʻi 461,
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482, 228 P.3d 341, 362 (App. 2010). There can be no civil claim
based upon conspiracy alone, and the plaintiff must allege an
underlying actionable claim. Yoneji v. Yoneji, 137 Hawaiʻi 299,
311, 370 P.3d 704, 716 (App. 2016). "Claims by a civil litigant
against the opposing party's counsel are also generally barred
by litigation privilege." Greenspon v. Deutsche Bank Nat'l Tr.
Co., 158 Hawaiʻi 39, 49, 583 P.3d 812, 822 (2026) (citation
omitted).
Conspiracy claim. The Gao Plaintiffs argue that they
adequately pled their conspiracy claim in paragraphs 254-276,
287-296, and 491-499 in the Fourth Amended Complaint. These
paragraphs use conclusory language to set forth purported facts,
and the conduct alleged therein refers to actions taken by the
Attorney Defendants to defend against the plaintiffs' claims.
Such alleged conduct falls within the protection of the
litigation privilege. See id.; Kahala Royal Corp. v. Goodsill
Anderson Quinn & Stifel, 113 Hawaiʻi 251, 271, 151 P.3d 732, 752
(2007) (lawyers' conduct in managing inspection and review of
partnership books and records fell within the qualified
litigation immunity privilege where complaint did not allege
facts to indicate that the lawyers possessed a desire to harm
independent of the desire to protect their client). There was
no allegation that the Attorney Defendants engaged in unlawful
acts or acted with their clients at the time that the investor
funds were allegedly converted, misapplied or misappropriated.
See Yoneji, 137 Hawai‘i at 311, 370 P.3d at 716. Therefore, the
Circuit Court did not err in dismissing the civil conspiracy
claim. Cf. Domingo v. James B. Nutter & Co., 153 Hawaiʻi 584,
607-08, 543 P.3d 1, 24-25 (App. 2023) (attorney who presented a
materially false attorney affirmation in support of client's
foreclosure complaint may be held liable to plaintiff).
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Unauthorized representation claim. The Gao Plaintiffs
contend this claim, which expressly references HRS § 425E-402 as
its legal basis, was adequately pled in paragraphs 510 to 518 of
the Fourth Amended Complaint. In addition to being barred by
the litigation privilege, we conclude the unauthorized
representation claim was not viable because, as set forth supra,
the plaintiffs' consent to retain counsel against the
plaintiffs' claims was not required under HRS § 425E-402. See
Greenspon, 158 Hawaiʻi at 49, 583 P.3d at 822.
Legal malpractice claim. The Fourth Amended Complaint
did not allege there was an attorney-client relationship between
the plaintiffs and any of the Attorney Defendants, a necessary
element for a legal malpractice claim. Thomas v. Kidani,
126 Hawaiʻi 125, 129, 267 P.3d 1230, 1234 (2011) (citation
omitted).
We conclude the Circuit Court did not err when it
dismissed the Count 15 claims against the GPL Attorneys and the
Otsuka Attorneys, and we affirm the Count 15 Dismissal Orders
and Count 15 Judgment. See Civil Beat Law Ctr. for the Pub.
Int., Inc., 144 Hawai‘i at 474, 445 P.3d at 55.
4. Rule 11 Sanction Against Gao
The Circuit Court's March 23, 2023 Order Granting Rule
11 Sanctions reflects that it reviewed three separate motions
for sanctions, and only granted one motion, "Motion 3" filed
July 15, 2022. The Circuit Court explained why it granted the
"Motion 3" request for Rule 11 sanctions in the following
unchallenged findings set forth in its order:

C. Motion 3.

Plaintiffs' Fourth Amended Complaint ("4th AC"), which
was filed in November 2020, asserted a claim against
defense counsel for conspiracy, unauthorized representation

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and malpractice. The 4th AC was filed before the June 2021
hearing on the disqualification motions, which Judge
Ashford denied. However, the GPL Attorneys presented [Gao]
with Motion 3 in accordance with HRCP 11(c)(1) six months
after that decision. As such, at the time counsel was
notified that the GPL Attorneys intended to file Motion 3
if counsel did not dismiss Count 15, [Gao] had the benefit
of Judge Ashford's rationale and ruling on the
disqualification motions.

The specific allegations related to Count 15 are
generally the same as those made in the various motions to
disqualify counsel, particularly Motion 2. Specifically,
Plaintiffs claimed that defense counsel "failed to follow
very basic ethical rules to deal with the material conflict
of interests;" there was no consent to representation; and
counsel "failed to perform competently and diligently as
related to duties owed to [the Project Defendants][.]"
Plaintiffs also sought punitive damages against all defense
counsel. At the hearing, [Gao] indicated that since the
filing of the disqualification motions and the 4th AC, he
had learned a lot and gained experience, and assured the
Court he would be very cautious in the future about taking
any similar action.

. . . .

4. Plaintiffs filed their 4th AC and their
second motion to disqualify the GPL Attorneys within a
couple of days of each other. In their Opposition to
Motion 3, Plaintiffs claim that the GPL Attorneys were sued
because they made "numerous misrepresentations," violated
[HRPC Rules] 1.7, 1.8(f), 1.9, 1.13(g), 3.3 and 3.4 as well
as certain sections of HRS ch. 425E. However, as of June
2021, Plaintiffs were on notice that the Court found they
had no standing to assert such claims – under either the
HRPC or HRS ch. 425E – and there was no basis to disqualify
defense counsel. The Court's ruling made clear that
Plaintiffs had not articulated any basis to sue defense
counsel for the same conduct.

a. [Gao] asserts that he made
reasonable inquiry regarding Count 15 in part by speaking
to unnamed "senior litigation attorneys and retired
judges." Such broadly described inquiry with unnamed
individuals is insufficient to establish that his inquiry
was reasonable. This is particularly true because
Plaintiffs' arguments underlying Count 15 were rejected
three times by the Court by June 2021. Counsel's research
efforts are similarly unavailing – nowhere in the
Opposition does counsel attempt to argue why, based on
existing law in Hawaii, a court should adopt the holdings
of extra-jurisdictional cases. In other words, counsel
fails to articulate "a nonfrivolous argument for the
extension, modification, or reversal of existing law or the

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establishment of new law." HRCP 11(b)(2); Gold v.
Harrison, 88 Hawai‘i 94, 99, 962 P.2d 353, 358 (1998).

b. Moreover, the HRPC are not a basis
for a legal claim against an attorney:

Violation of a Rule should not itself give rise to a
cause of action against a lawyer nor should it create
any presumption in such a case that a legal duty has
been breached. In addition, violation of a Rule does
not necessarily warrant any other nondisciplinary
remedy, such as disqualification of a lawyer in
pending litigation. The Rules are designed to
provide guidance to lawyers and to provide a
structure for regulating conduct through disciplinary
agencies. They are not designed to be a basis for
civil liability. Furthermore, the purpose of the
Rules can be subverted when they are invoked by
opposing parties as procedural weapons. . . .

Preamble [7].

c. Further, given the arguments raised
in the disqualification motions, it was not necessary for
Plaintiffs to assert these arguments in the 4th AC to
preserve the issues for appeal as counsel argued in his
opposition.

In light of the foregoing, the Court finds that Count
15 was frivolous and the inclusion of Count 15 in the 4th AC
violated Rule 11.

. . . .

Given the repetition of the filings and arguments,
and the refusal to dismiss Count 15 despite Judge Ashford's
rulings, the Court believes sanctions are appropriate as
related to Motion 3.

(Bold emphases added) (footnote and internal docket citations
omitted).
Real parties in interest Gao and Gao LLLC argue "[t]he
sanction was inappropriate because the Attorney Matters [(i.e.,
the challenged orders in the claims against counsels appeal)]
have not been properly adjudicated, especially, the partners'
right under HRS 425E-402(b) have [sic] not been addressed in the
proceedings." Gao and Gao LLLC contend the "Sanction Order was
clearly an abuse of discretion because of the erroneous view of

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the laws [sic][,]" where the Circuit Court "refused to address
the partners' right under HRS [§] 425E-402(b)." Gao has not
challenged the Circuit Court's pertinent finding that Judge
Ashford had already rejected the "HRS ch. 425E" argument in the
"June 2021 hearing on the disqualification motions, which Judge
Ashford denied." We have also rejected the HRS § 425E-402(b)-
based argument supra. Gao and Gao LLLC also generally claim
that the DQ Orders "have been extremely detrimental[.]" Gao and
Gao LLLC raise no other arguments regarding the Order Granting
Rule 11 Sanctions or to the sanction amount in the Sanction
Order. See Hawai‘i Rules of Appellate Procedure (HRAP) Rule
28(b)(7) ("Points not argued may be deemed waived.").
Here, the Circuit Court's Order Granting Rule 11
Sanctions carefully set forth its reasoning explaining why Gao's
inclusion of the Count 15 claim against the Attorney Defendants
in the Fourth Amended Complaint was frivolous under the
circumstances, and violated HRCP Rule 11(a)(2). We conclude the
Circuit Court acted within its discretion in imposing the
$3,500.00 sanction against Gao. See Gap v. Puna Geothermal
Venture, 106 Hawai‘i 325, 331, 104 P.3d 912, 918 (2004) ("All
aspects of a HRCP Rule 11 determination should be reviewed under
the abuse of discretion standard." (citation omitted)). We thus
affirm the Order Granting Rule 11 Sanctions and the Sanction
Order.
B. The Settlement Enforcement Appeal, CAAP-XX-XXXXXXX.
We first address our jurisdiction over the Defendants'
settlement enforcement appeal, which was contested by the OPGI
Plaintiffs in their jurisdictional counterstatement. We
previously denied the OPGI Plaintiffs' counterstatement, which
we construed as a motion to dismiss the appeal for untimeliness,
in an August 29, 2024 order.
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Under the collateral order doctrine, an interlocutory
order may be appealable if the order "[(1)] conclusively
determine[s] the disputed question, [(2)] resolve[s] an
important issue completely separate from the merits of the
action, and [(3)] [is] effectively unreviewable on appeal from
final judgment." Siangco v. Kasadate, 77 Hawai‘i 157, 161, 883
P.2d 78, 82 (1994) (citation omitted).
We have jurisdiction to review the November 8, 2023
Amended Order Enforcing Settlement as an appealable collateral
order, where the order conclusively determined the question of
whether the Settlement Agreement should be enforced or set aside
due to breach; resolved an important issue separate from and
collateral to the merits of the underlying litigation; and where
the order would be effectively unreviewable on an appeal from a
final judgment, because the Settlement Agreement's enforcement
would result in a stipulated dismissal and not a final judgment.
See id.; Cook v. Surety Life Ins., Co., 79 Hawai‘i 403, 408,
903 P.2d 708, 713 (App. 1995) (holding that "an order enforcing
a settlement agreement is a collateral order which is
appealable").
The Defendants challenge the Circuit Court's November
8, 2023 Amended Order Enforcing Settlement, contending that the
Circuit Court erred by (1) "finding that [Gao's] actions" "did
not amount to a material breach of the Settlement Agreement";
and (2) granting the motions to enforce the settlement and
denying the Defendants' Motion to Set Aside the Settlement.16

16 We have reordered, restated, and consolidated the points of error
for clarity.

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1. Three alleged breaches by Gao
Defendants argue there were three material breaches by
Gao that justified rescission of the Settlement Agreement rather
than enforcement: (1) breach of confidentiality17 by Gao,
(2) breach of Section III.Q. of the Settlement Agreement18 by
Gao, and (3) breach of the Litigation Stay by Gao's appeal of
the Count 15 Dismissal Orders.
The Circuit Court's November 8, 2023 Amended Order
Enforcing Settlement concluded that none of the three challenged
actions by Gao "amount[ed] to a material breach[,]" reasoning as
follows:

[No breach of confidentiality by Gao]

(a) Defendants have not submitted any evidence that
convinces this Court that the post-Settlement Agreement
actions of Plaintiffs' counsel Gao impacted the ability to
obtain financing. . . . Rather, the evidence establishes
that issues involving the project – including this
litigation and the claims against Defendants – were public
and readily accessible in news stories published two years
before the Settlement Agreement was executed. . . .
Further, Plaintiffs' extensive pre-Settlement Agreement
court filings, which are publicly available, provided
additional information and characterizations about
Defendants' alleged wrongdoing. . . .

[No breach of Section III.Q. by Gao]

17 The "Confidentiality" section of the Settlement Agreement
generally provided that: "No Settling Party shall disclose or use the terms
of the Settlement Documents, other than the facts that settlement has been
reached"; "No Settling Party shall disclose or use any of the non-public
information of the other Settling Party that is obtained through the two EB-5
Immigration Investor Programs related to the Properties"; and that "Investors
and their counsel shall not disclose any confidential information pertaining
to the [projects] or the Defendants learned through [sic] or in the course of
the Lawsuits."
18 Section III.Q. of the Settlement Agreement contained a non-
solicitation clause applicable to the plaintiffs' counsel, which stated:
"Each attorney for the Plaintiffs agrees, warrants, and represents that they
will not make contact with (regarding the LP-Projects) and/or solicit any of
the other, non-Settling Party, investors of Hawaii Ocean Plaza LP or Hawaii
City Plaza LP [(Project Defendants)] from now and forever."

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(b) The parties have submitted emails to the Court
regarding negotiations related to the Settlement Agreement
and specifically section III.Q. While defense counsel
objects to the Court's consideration of emails submitted by
Mr. Gao, without opposition, defense counsel sought the
Court's review of the same types of communications. Given
the issues raised and argued by counsel, the Court has
considered all emails. The Court does not find sufficient
evidence to identify a material breach of section III.Q.,
and credits Mr. Gao's declaration on the matter. The
evidence does not establish that Mr. Gao "made contact"
with other non-settling investors in the project or sought
to solicit them – and specifically, any of the three people
alleged to have been a part of the subject WeChat
session. . . .

[No breach of the litigation stay by Gao's appeal of the
Count 15 Dismissal Orders]

(c) As to a stay of litigation, which was mentioned
in the Settlement Agreement . . . , the Court finds that
Mr. Gao's appeal of the Court's sanction order –
CAAP-23-400 – does not constitute a material breach of the
Settlement Agreement. As made clear in Dkt. No. 1284, the
stay did "not bar any proceeding and/or motion regarding
the pending Rule 11 Motions and/or any issues or matters
related to the said Rule 11 Motions against attorney [Gao]
and/or [Gao LLLC]." The appeal concerns the Court's
sanction order and other orders that were addressed in and
formed the basis of that sanction order. As such, the
Court finds that the appeal is a proceeding regarding the
Rule 11 motions and/or involves issues or matters related
to the Rule 11 Motions. . . .

(Headers and emphases added) (internal docket citations and
brackets omitted).
Alleged breach of confidentiality. Regarding this
alleged breach, the Defendants do not dispute the Circuit
Court's finding that news stories about this lawsuit were
"public and readily accessible" "two years before the Settlement
Agreement was executed[,]" which the Defendants' Opening Brief
acknowledges "may be true." The Defendants specifically argue
that Gao allegedly breached "the confidentiality agreement by
disclosing the terms of the settlement agreement directly to the
non-settling investors" in a "WeChat Meeting[,]" and claim that

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such disclosure "is a direct and material breach of the
confidentiality of the Settlement Agreement." In their Opening
Brief, the Defendants point to defendant Zhong Fang's
Declaration (Fang Declaration) to support their claim of Gao's
"direct and material breach" of "confidentiality," and cite no
other evidence.
The pertinent portion of the Fang Declaration stated:

5) Upon information and belief, on or about June
6, 2023, Attorney Wen Sheng Gao participated in the
creation of a multi-person group on the platform "WeChat"
("WeChat Meeting") with the intention of holding a meeting
and/or communicating with investors who were not parties to
this instant lawsuit ("Non-Party Investors").

6) Upon information and belief, the following was
discussed at the said WeChat Meeting:

a. In the above-described meeting over "WeChat",
Attorney Gao suggested that a new lawsuit
should be filed against me and the other
Defendants as the EB-5 Projects will be taken
over by a third-party if the refund does not go
through.
b. Attorney Gao told the other investors that if
they do not initiate the lawsuit, the project
developer will not refund, and the project will
be taken over by a third-party. This
unnecessary behavior has caused panic amongst
the Non-Party Investors.
c. Attorney Gao requested that the Non-Party
Investors grant him permission to initiate a
new lawsuit against me and the other
Defendants.

(Emphases added.)
The Fang Declaration, upon which the Defendants rely
as their supporting evidence, does not show what confidential
terms Gao allegedly disclosed during the WeChat meeting.
Defendants do not explain how the Fang Declaration's "[u]pon
information and belief"-based description of the WeChat meeting
constituted an illegal disclosure of confidential settlement
terms. See HRAP Rule 28(b)(7). We conclude the Circuit Court's

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conclusion to reject breach on this ground was not wrong. See
Kahawaiolaa v. Hawaiian Sun Invs., Inc., 146 Hawai‘i 424, 432,
463 P.3d 1081, 1089 (2020) (holding that whether a breach was a
material breach to warrant rescission is a conclusion of law
reviewable de novo).
Alleged breach of Section III.Q. The Defendants'
argument for the claim of Section III.Q. breach is based on
Gao's "act of organizing a meeting over the platform 'WeChat'
and inviting the non-settling investors to participate in said
meeting." They again rely on the Fang Declaration and also
point to Gao's declaration, claiming that Gao did "not deny that
he initiated a WeChat meeting" within that declaration.
The Defendants' reliance on Gao's declaration is
unpersuasive, because the absence of a statement of denial is
not evidence.
As for the Defendants' reliance on the Fang
Declaration, the OPGI Plaintiffs raise a valid objection to its
admissibility.19 The OPGI Plaintiffs argue "Mr. Fang's
Declaration is hearsay, based on 'information and belief' as
Mr. Fang provides no direct or actual knowledge of what Attorney
Gao said, if anything, at the WeChat session."
Evidence submitted for or against a motion to enforce
settlement must comply with the same standard as a motion for
summary judgment, and must be admissible. McKenna v. Ass'n of
Apartment Owners of Elima Lani, 148 Hawai‘i 233, 239, 470 P.3d
1110, 1116 (2020). To be admissible under this standard, a
declaration "must be based on personal knowledge of the
matter[.]" Adams v. CDM Media USA, Inc., 135 Hawai‘i 1, 28,

19 The OPGI Plaintiffs lodged a hearsay objection below, in their
opposition to the Defendants' Motion to Set Aside Settlement.

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346 P.3d 70, 97 (2015). A declaration that "indicates that the
basis for the information" is from an "external source" does not
demonstrate that the statements are based on the declarant's
personal knowledge, and is not admissible. Id. at 29, 346 P.3d
at 98.
Here, the record reflects that the pertinent
paragraphs of the Fang Declaration were not based on Fang's
personal knowledge, and the specific assertions about the WeChat
meeting were made "[u]pon information and belief[.]" The Fang
Declaration does not indicate that Fang was present at the
WeChat meeting, and does not explain the basis for Fang's belief
as to what occurred at the WeChat Meeting and who initiated it.
On this record, we conclude that the Circuit Court's
determination that Section III.Q. was not breached, was not
wrong.20 See Kahawaiolaa, 146 Hawai‘i at 432, 463 P.3d at 1089.
Alleged breach of the Litigation Stay. The Defendants
argue that the Gao Plaintiffs' appeal of the Count 15 Dismissal
Orders in the claims against counsels appeal breached the
Litigation Stay, because the Litigation Stay only permitted
appeal of the Rule 11 motions. They claim the Gao Plaintiffs'
appeal of the Count 15 Judgment "is a clear violation" of the
Litigation Stay and Settlement Agreement.
The Litigation Stay excepted from its scope of
coverage "any proceeding and/or motion regarding the pending
Rule 11 Motions and/or any issues or matters related to the said
Rule 11 Motions against [Gao] and/or [Gao LLLC][.]" (Emphasis
added) (footnote omitted).

20 Because we conclude that the Circuit Court's conclusion of no
material breach of Section III.Q. of the Settlement Agreement was correct, we
do not address the Defendants' remaining argument regarding the
enforceability of Section III.Q. under HRPC Rule 5.6.

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Although the Litigation Stay did not specifically
mention the Count 15 claims against the Attorney Defendants, the
plaintiffs' refusal to withdraw those Count 15 claims was the
basis for the Circuit Court's imposition of sanctions against
Gao. As such, the Count 15 Dismissal Orders and Count 15
Judgment were "issues or matters related to" the Rule 11 motions
and were properly excluded from the Litigation Stay. The
Circuit Court's conclusion that the Litigation Stay did "not
bar" litigation of "other orders that were addressed in and
formed the basis of th[e] sanction order" was correct. See id.
2. Rulings on the settlement enforcement motions
As the Circuit Court correctly concluded the
Settlement Agreement was not materially breached, its denial of
Defendants' Motion to Set Aside Settlement and grant of the
plaintiffs' motions to enforce settlement were not error. See
McKenna, 148 Hawai‘i at 239, 470 P.3d at 1116 (reviewing grant or
denial of a motion to enforce settlement de novo). We thus
affirm the November 8, 2023 Amended Order Enforcing Settlement.
C. The Lien Appeal, CAAP-XX-XXXXXXX.
We first address our jurisdiction over the Gao
Plaintiffs' lien appeal, which was contested by the Project
Defendants.
We have jurisdiction to review the lien orders, where
the orders conclusively determined the disputed question of
whether the Project Defendants would be permitted to record a
consensual lien on the Project Defendants' properties that were
subject to the Settlement Agreement, and resolved an important
issue of payment for the Project Defendants' outstanding legal
fees, separate from the merits of the underlying action. See
Siangco, 77 Hawai‘i at 161, 883 P.2d at 82. In addition, we
conclude the lien orders would be effectively unreviewable where
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no final judgment would be entered, because the plaintiffs'
claims were settled and secured by the plaintiffs' superseding
lien to which the subject lien was subordinate. Cf. Lathrop v.
Sakatani, 111 Hawai‘i 307, 311 n.8, 141 P.3d 480, 484 n.8 (2006)
(noting that "[a]n order expunging a lis pendens is immediately
appealable . . . under the collateral order doctrine" because
"if the movant had to wait until final judgment on the
underlying claim, the realty could be sold before the issue was
resolved, thereby rendering the order unreviewable" (citing
Knauer v. Foote, 101 Hawai‘i 81, 85, 63 P.3d 389, 393 (2003)).
The Gao Plaintiffs raise four points of error (POEs)
challenging the lien orders, some of which are waived: (1) the
Otsuka Attorneys' "'Attorney Lien' was not authorized by HRS
[§] 507-81"; (2) the Otsuka Attorneys' "'Attorney Lien' was in
violation of HRPC Rule 1.8(a)&(i)"; (3) the Circuit Court lacked
jurisdiction to decide the attorney's lien because the "Attorney
Matters" (i.e., the orders at issue in the claims against
counsels appeal) were "pending subject matters" on appeal; and
(4) there was "no supporting evidence . . . to establish that
the [Project Defendants] were in debt" to the Otsuka Attorneys
and that the Otsuka Attorneys were "entitled to collect the debt
from the properties of the [Project Defendants]."21
POE 4 is waived. The Gao Plaintiffs' March 27, 2024
opposition does not reflect this contention. See Haw. Ventures,
LLC, 114 Hawai‘i at 500, 164 P.3d at 758. Nor does the Opening
Brief indicate where this specific argument was raised before
the Circuit Court. See HRAP Rule 28(b)(4)(ii) and (iii).

21 We have restated the POEs for clarity. The POEs do not comply
with HRAP Rule 28(b)(4)(ii) and (iii), but some of the required record
references are available in other sections in the Opening Brief.

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Further, the argument in POE 2 based on HRPC Rule 1.8(a) was
also not raised below and is waived. The argument based on HRPC
Rule 1.8(i) was made below, and we address it.
(1) The Gao Plaintiffs argue that the "[Otsuka
Attorneys]' 'Attorney Lien' was not authorized by HRS [§] 507-
81" because "[i]n the records [sic], [Otsuka Attorneys] made
clear that the 'Attorney Lien' was not authorized by the
statute." While it is not clear what point the Gao Plaintiffs
are trying to make with this argument, some of the verbiage they
use reflects a misapprehension of what the record shows.
Here, the Project Defendants (not the Otsuka
Attorneys) requested a consensual lien for their fees owed to
the Otsuka Attorneys. The Lien Order at issue was not a
statutory attorney's lien under HRS § 507-81, for which the
Otsuka Attorneys themselves would have had to file a "notice of
claim" of an attorney's lien to enforce. See HRS § 507-81(f)
(2018).22 The July 8, 2024 Order Granting Lien Recording
permitted the recording of "[t]he proposed consensual attorney's
lien" and stated the lien "shall have a legal effect of a
consensual lien[.]" The July 9, 2024 Lien Order similarly
states: "The certified copy of this order has the legal effect
of being consensual [sic] attorney's lien executed by the
Grantors [(the Project Defendants)], which may be recorded in
the Bureau of Conveyance, State of Hawaii." Because the lien
orders were for a consensual lien, they were not governed by HRS
§ 507-81 and did not need to be "authorized" by that statute as
the Gao Plaintiffs contend.

22 HRS § 507-81, entitled "Attorney's lien upon actions and
judgments," provides in pertinent part: "(f) To be enforceable under this
section, a notice of claim of the attorney's lien shall be filed with the
court or arbitrator, as the case may be."

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(2) The Gao Plaintiffs' argument that the lien orders
violated HRPC Rule 1.8(i) is conclusory and difficult to
discern. They argue that the lien orders "are granting [the
Otsuka Attorneys] to take [sic] the clients' property
interests[,]" "which are protected by the TRO in the
proceedings" and "which are the subject matters of litigation"
that the Otsuka Attorneys are "conducting on behalf" of the
Project Defendants. They claim that for this reason, the lien
orders are "ethical violations" of HRPC Rule 1.8(i).
HRPC Rule 1.8(i) generally prohibits a lawyer from
acquiring any proprietary interest in the subject matter of
litigation, but sets forth an exception in subsection (1),
permitting that a lawyer "may . . . acquire a lien authorized by
law" to secure the lawyer's fee.23
Here, while the lien in favor of the Otsuka Attorneys
granted them an interest in the Project Defendants' properties
that were part of the "subject matter of litigation," the record
reflects that the exception in HRPC Rule 1.8(i)(1) applied,
where the consensual lien was specifically permitted by the
Circuit Court's lien orders. The Order Granting Lien Recording
noted that other than permitting the recording of the consensual
lien at issue, the "temporary restraining order" pursuant to its

23 HRPC Rule 1.8(i) provides:

(i) A lawyer shall not acquire a proprietary interest in the
cause of action or subject matter of litigation the
lawyer is conducting for a client, except that the
lawyer may:

(1) acquire a lien authorized by law to secure the
lawyer's fees or expenses; and

(2) contract with a client for a reasonable contingent
fee in a civil case.

(Emphases added.)
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September 10, 2020 order granting an injunction "remains in
effect." The Gao Plaintiffs' contention that the lien orders
violated HRPC Rule 1.8(i) lacks merit.
(3) The Gao Plaintiffs' argument supporting their
contention that the Circuit Court lacked jurisdiction to decide
the lien orders because the claims against counsel appeal
(CAAP-XX-XXXXXXX) was pending, is not a typical jurisdictional
challenge. The Gao Plaintiffs explain that: "[t]he legal
nature and consequences of the alleged misconduct of [(the
Otsuka Attorneys)] are subject matters in the appellate case No.
CAAP-XX-XXXXXXX that the trial Court did not have the
jurisdictional power to decide this [sic] is not an ordinary
award of attorney fees."
The Gao Plaintiffs' characterization of the lien
orders as "not an ordinary award of attorney's fees[,]" is
inapt. The lien orders were not an "award" of attorney's fees
but concerned a court-approved attachment of a consensual lien
for attorney's fees.
The Gao Plaintiffs rely on the same arguments we have
already rejected in their claims against counsel appeal. In any
event, we conclude the Circuit Court had jurisdiction over the
lien orders, because "notwithstanding the general effect of the
filing of a notice of appeal, the trial court retains
jurisdiction to determine matters collateral or incidental to
the judgment." Bank of N.Y. Mellon as Tr. for
Certificateholders of CWABS Inc., Asset-Backed Certificates,
Series 2007-11 v. Colton, 146 Hawai‘i 577, 581, 463 P.3d 1234,
1238 (App. 2020) (citation and brackets omitted). Here, the
lien orders were collateral to DQ Orders and the Count 15
Judgment appealed from in CAAP-XX-XXXXXXX, and the Circuit Court

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retained jurisdiction to decide the request to record the
consensual lien and to enter the orders. See id.
III. CONCLUSION
For the foregoing reasons, we resolve this
consolidated appeal as follows.
With respect to the claims against counsels appeal in
CAAP-XX-XXXXXXX filed by the Gao Plaintiffs, and real parties in
interest Gao and Gao LLLC, we affirm the following First Circuit
Court orders and judgment: (1) December 9, 2020 Order Denying
First DQ of GPL; (2) June 29, 2021 Order Denying Second DQ of
GPL; (3) June 29, 2021 Order Denying DQ of Otsuka; (4) July 8,
2022 GPL Count 15 Dismissal Order; (5) August 4, 2022 Otsuka
Count 15 Dismissal Order; (6) March 23, 2023 Order Granting Rule
11 Sanctions; (7) May 19, 2023 Sanction Order; and (8) July 7,
2023 Count 15 Judgment.
With respect to the settlement enforcement appeal in
CAAP-XX-XXXXXXX jointly filed by the Project Defendants and the
Non-Project Defendants, we affirm the First Circuit Court's
November 8, 2023 Amended Order Enforcing Settlement.
With respect to the lien appeal in CAAP-XX-XXXXXXX
filed by the Gao Plaintiffs, we affirm the First Circuit Court's
(1) July 8, 2024 Order Granting Lien Recording; and the (2)
July 9, 2024 Lien Order.
DATED: Honolulu, Hawai‘i, May 11, 2026.
On the briefs:
/s/ Karen T. Nakasone
Wen Sheng Gao,
Chief Judge
for Gao Plaintiffs-Appellants
and for Third-Party
/s/ Katherine G. Leonard
Defendants/Third-Party
Associate Judge
Counterclaimants-Appellants
Gao and Gao LLLC in
/s/ Clyde J. Wadsworth
CAAP-XX-XXXXXXX and
Associate Judge
CAAP-XX-XXXXXXX;
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for Gao Plaintiffs-Appellees
and for Third-Party
Defendants/Third-Party
Counterclaimants-Appellees Gao
and Gao LLLC in
CAAP-XX-XXXXXXX

David R. Squeri,
Carlos Reyes,
for Non-Project Defendants-
Appellees and for Third-Party
Plaintiffs/Third-Party
Counterclaim Defendants-
Appellees Squeri, Yi, and GPL,
LLLC in CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX;
for Non-Project Defendants-
Appellants and for Third-Party
Plaintiffs/Third-Party
Counterclaim Defendants-
Appellees Squeri, Yi, and GPL,
LLLC in CAAP-XX-XXXXXXX

Jerrold K. Guben,
for OPGI Nominal Plaintiffs
in CAAP-XX-XXXXXXX;
for OPGI Plaintiffs-Appellees
in CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX

Junsuke Aaron Otsuka,
for Project Defendants-
Appellees and for Third-Party
Plaintiffs-Appellees Otsuka
and Otsuka, LLLC in
CAAP-XX-XXXXXXX and
CAAP-XX-XXXXXXX;
for Project Defendants-
Appellants and for Third-Party
Plaintiffs-Appellees Otsuka
and Otsuka, LLLC in
CAAP-XX-XXXXXXX