Ogeone v. Au ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-DEC-2023
08:20 AM
Dkt. 249 SO
NO. CAAP-XX-XXXXXXX
(Consolidated with CAAP-XX-XXXXXXX)
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
NO. CAAP-XX-XXXXXXX
GALINA OGEONE, Plaintiff-Appellant, v.
DENTIST LESLIE AU, Defendant-Appellee
AND
NO. CAAP-XX-XXXXXXX
GALINA OGEONE, Plaintiff-Appellant, v.
DENTIST LESLIE AU, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 16-1-1347 AND CIVIL NO. 16-1-1348)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Wadsworth and Nakasone, JJ.)
Plaintiff-Appellant Galina Ogeone (Ogeone), self-
represented, appeals from a Final Judgment (Judgment) entered by
the Circuit Court of the First Circuit (Circuit Court) on August
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
16, 2018.1 Ogeone also challenges, inter alia, the Circuit
Court's Order Granting Defendant Leslie Au, D.M.D.'s Motion for
Summary Judgment (Order Granting Summary Judgment), entered on
June 14, 2018.
This case arises from a dispute about the dental care
that Defendant-Appellee Dr. Leslie Au (Dr. Au) provided to
Ogeone. Ogeone was unsatisfied with the services provided and
sued Dr. Au for breach of contract and negligence. The Circuit
Court ultimately granted summary judgment in favor of Dr. Au.
Ogeone timely appealed.
On appeal, Ogeone purports to assert numerous points of
error.2 While "submissions of self-represented litigants should
be interpreted liberally[,] . . . the right of self-
representation is not [] a license not to comply with the
relevant rules of procedural and substantive law." Est. Admin.
Servs. LLC v. Mohulamu, 148 Hawai#i 10, 18, 466 P.3d 408, 416
(2020) (citations and internal quotation marks omitted).
Accordingly, we consider only those points of error that Ogeone
argued, to the extent we can discern them. See Hawai#i Rules of
Appellate Procedure (HRAP) Rule 28(b)(4), (7).
1
The Honorable Jeffrey P. Crabtree presided and entered the
Judgment in this case. The Honorable Jeannette H. Castagnetti presided over
several of the motions in this case.
2
In Plaintiff-Appellant's Statement of Points of Error filed on
October 9, 2018, Ogeone asserted 35 points of error.
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Ogeone contends that the Circuit Court: (1) erred by
failing to enter summary judgment in favor of Ogeone; (2) erred
by entering summary judgment in favor of Dr. Au because the
expert opinion attached to the Motion for Summary Judgment was
not admissible; (3) erred in granting the Motion for Summary
Judgment because Ogeone had filed a petition for writ of
mandamus, which deprived the Circuit Court of jurisdiction; (4)
erred and committed fraud by issuing a minute order scheduling a
hearing on the Motion for Summary Judgment based on a scheduling
conference that did not occur; (5) erred by failing to quash
medical records stemming from deficient subpoenas duces tecum;
(6) erred by accepting the Motion for Summary Judgment because it
was untimely filed; and (7) committed several other procedural
errors, specifically, (a) that it did not require Dr. Au to file
a reply to Ogeone's amended pretrial statement, (b) that Judge
Castagnetti should have recused herself from presiding over the
case, (c) when it designated her as a vexatious litigant, and (d)
when it entered its Order Granting Costs.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Ogeone's points of error as follows:
(1) Ogeone did not file a motion for summary judgment.
Her first point of error is thus without merit.
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(2) Hawai#i Rules of Civil Procedure (HRCP) Rule 56
outlines the standards and requirements for summary judgment.3
In cases such as this,
where the non-movant bears the burden of proof at trial, a
movant may demonstrate that there is no genuine issue of
material fact by either: (1) presenting evidence negating
an element of the non-movant's claim, or (2) demonstrating
that the non-movant will be unable to carry his or her
burden of proof at trial.
Ralston v. Yim, 129 Hawai#i 46, 57, 292 P.3d 1276, 1287 (2013)
(citation omitted). "Accordingly, in general, a summary judgment
movant cannot merely point to the non-moving party's lack of
evidence to support its initial burden of production if discovery
has not concluded." Id. at 61, 292 P.3d at 1291. In Yim, Dr.
3
HRCP Rule 56 states, in pertinent part:
Rule 56. SUMMARY JUDGMENT.
(b) For defending party. A party against whom a claim
. . . is asserted or a declaratory judgment is sought may
move with or without supporting affidavits for a summary
judgment in the party's favor as to all or any part thereof,
provided, however, that a motion seeking relief under this
rule shall be filed and served no less than 50 days before
the date of the trial unless granted permission by the court
and for good cause shown.
. . . .
(e) Form of affidavits; further testimony; defense
required. Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters therein.
Sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or
served therewith. The court may permit affidavits to be
supplemented or opposed by depositions, answers to
interrogatories, or further affidavits. When a motion for
summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere
allegations or denials of the adverse party's pleading, but
the adverse party's response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial. If the adverse
party does not so respond, summary judgment, if appropriate,
shall be entered against the adverse party.
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Yim, a dentist, moved for summary judgment and argued that
Ralston could not meet his burden of proof at trial. Id. In
support of his motion for summary judgment, Dr. Yim attached two
of Ralston's responses to interrogatories that stated that
Ralston would provide expert reports when they became available.
Id. The supreme court held that the Intermediate Court of
Appeals had properly vacated the trial court's entry of summary
judgment because, in part, the discovery deadline had not passed
when the court granted the motion for summary judgment. Id. at
61-63, 292 P.3d at 1291-93 (citing Exotics Hawaii-Kona, Inc. v.
E.I. Du Pont De Nemours & Co., 116 Hawai#i 277, 286-87, 172 P.3d
1021, 1030-31 (2007) (because there was no time left for the
parties to obtain and present expert opinions, the proper
analysis was whether the non-moving party was unable to offer
proof at trial, rather than whether the non-moving party failed
to place proof on the record).
Here, the Circuit Court entered the Order Granting
Summary Judgment after the deadlines for discovery, naming of
witnesses, and expert reports had passed. Indeed, the court
repeatedly extended deadlines to give Ogeone an opportunity to
obtain an expert opinion to rebut Dr. Au's Motion for Summary
Judgment. Therefore, the issue before the court was whether
Ogeone had identified a genuine issue of material fact as to
whether she would be able to offer proof at trial to support her
claims. See Yim, 129 Hawai#i at 60-61, 292 P.3d at 1290-91.
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Ogeone's argument that her expert witness's declaration
created a genuine issue of material fact is not supported by the
record. Dr. Laporte did not opine that Dr. Au had breached any
relevant standard of care or caused the alleged injuries. He
thus did not "set forth specific facts showing that there is a
genuine issue for trial." HRCP Rule 56(e). Ogeone presented no
evidence that indicated she would be able to establish at trial
that Dr. Au breached a relevant standard of care, even after
being afforded multiple opportunities to do so.
We also reject Ogeone's argument that the Circuit Court
should not have considered Dr. Finzen's declaration because it
was inadmissible. It is well established that expert witnesses
may consider inadmissible evidence when forming their opinions.
See Hawai#i Rules of Evidence (HRE) Rule 703; see also Hale Mua
Props., LLC v. Liu, No. 27859, 2009 WL 1507312, *1 (Haw. App. May
29, 2009) (SDO) (affirming the trial court's entry of summary
judgment, and noting that the expert witness did not authenticate
documents and that those documents were certified copies of
public records attached to the motion for summary judgment).
Here, Dr. Finzen reviewed, inter alia, Ogeone's dental
records, documents filed during the litigation, and Ogeone's
discovery responses. He noted in his opinion that he had
reviewed Ogeone's records from Dr. Au, as well as her previous
dentists. He opined that Dr. Au had not breached any standard of
care generally accepted by the dental community. Dr. Finzen's
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
declaration was admissible, and the bases for his opinion were
appropriate. See id.Accordingly, we conclude that the Circuit Court did not
err in granting summary judgment in favor of Dr. Au.
(3) Ogeone argues that the Circuit Court erred in
conducting a May 17, 2018 hearing on the Motion for Summary
Judgment because its jurisdiction had been divested by Ogeone's
Petition for Writ of Mandamus. Notably, the Judgment and the
Order Granting Summary Judgment were both entered after the
supreme court had denied the Petition for Writ of Mandamus.
In Hawai#i, it is well-settled that "a writ of mandamus
is not intended to supersede the legal discretionary authority of
the trial courts, cure a mere legal error, or serve as a legal
remedy in lieu of normal appellate procedure." Vitale v. Ochiai,
SCPW-XX-XXXXXXX, 2020 WL 3441233, *1 (Haw. June 23, 2020) (Order)
(citing Honolulu Advertiser, Inc. v. Takao, 59 Haw. 237, 241, 580
P.2d 58, 62 (1978)). To that end, "[t]he extraordinary writ of
mandamus is appropriate to confine an inferior tribunal to the
lawful exercise of its proper jurisdiction[,] . . . [b]ut
mandamus may not be used to perform the office of an appeal."
State ex rel. Marsland v. Ames, 71 Haw. 304, 306, 788 P.2d 1281,
1283 (1990) (citations and internal quotation marks omitted).
Other jurisdictions have concluded that a petition for
writ of mandamus does not divest the trial court of jurisdiction
to continue to conduct hearings. See, e.g., Kellogg v. Watts
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Guerra LLP, 41 F.4th 1246, 1259 (10th Cir. 2022) (holding that
"[T]he filing of a mandamus petition didn't divest the district
court of jurisdiction"); Nascimento v. Dummer, 508 F.3d 905, 910
(9th Cir. 2007) ("[P]etitions for extraordinary writs do not
destroy the district court's jurisdiction in the underlying
case."); Clark v. Taylor, 627 F.2d 284, 288 (D.C. Cir. 1980)
("[T]he trial court had not lost its jurisdiction because the
appellate court was entertaining an application for writ of
mandamus."); Ex parte Steinberg, 330 So.3d 813, 816 (Ala. 2021)
("The filing of a petition for the writ of mandamus does not
divest the trial court of jurisdiction or stay the case.")
(citation and internal quotation marks omitted); Byrd-Green v.
State, 40 So.3d 848, 848-49 (Fla. Dist. Ct. App. 2010) (holding
that filing a petition for a writ of mandamus did not divest the
trial court of jurisdiction to rule on motions before it).
We similarly conclude that the filing of the petition
for writ of mandamus did not divest jurisdiction of the case from
the Circuit Court.
(4) Ogeone argues that the Circuit Court erred by
issuing a "fraud" minute order regarding the date of a hearing on
Dr. Au's Motion for Summary Judgment. The argument is without
merit. While it is unclear what relief she seeks in this point
of error, it is apparent that a status conference was held on
April 18, 2018, and that the court had the authority to schedule
a hearing and issue a minute order reflecting that decision.
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
(5) Ogeone argues that Dr. Au falsified subpoenas
duces tecum for Ogeone's medical records, and that the Circuit
Court erred by declining to quash the subpoenas. Upon review of
the record, it appears that subpoenas with properly completed
Return of Service sections were filed with the Circuit Court on
February 10, 2017. Those subpoenas complied with HRCP Rule 4.
While it remains unclear what caused additional filings, minus
the completed Return of Service sections, a few minutes later, it
is clear that valid subpoenas were filed with the court.
Accordingly, we cannot conclude that the court's decision not to
quash the subpoenas was "'plainly arbitrary and without support
in the record.'" See Bank of Hawaii v. Shaw, 83 Hawai#i 50, 59,
924 P.2d 544, 553 (App. 1996) (citation omitted).
Ogeone further argues that the Circuit Court erred in
declining to quash the subpoenas because they did not comply with
state and federal privacy laws, citing generally to the Health
Insurance Portability and Accountability Act (HIPAA) and Hawaii
Revised Statutes (HRS) § 323C, which was repealed in 2001. See
2001 Haw. Sess. Laws Act 244, § 2 at 638. Ogeone did not specify
how the subpoenas violated HIPAA, and we thus disregard the
argument. See HRAP Rule 28(b)(4), (7). However, we address the
issue to the extent it overlaps with other arguments we are able
to discern.
Privacy regarding health-related information is
protected by HIPAA, as well as the Hawai#i State Constitution and
9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the relevant case law. In Cohan v. Ayabe, 132 Hawai#i 408, 415-
16, 322 P.3d 948, 955-56 (2014), the supreme court noted that
HIPAA provides a "federal floor of privacy protections" in
addition to the Hawai#i State Constitution's protections against
disclosure of private health information outside of the
underlying litigation. The supreme court stated that while
HIPAA's protections can be complex, "Hawaii's protection of a
person's health information is based on an overarching
constitutional principle of informational privacy that prohibits
the disclosure of health information outside the underlying
litigation without a showing of a compelling state interest."
Id. at 416, 322 P.3d at 956. There, the challenged subpoena
would have required the petitioner-appellant to acknowledge that
the health information released could be "re-disclosed by the
recipient . . . and may no longer be protected under the federal
privacy regulations." Id. at 410, 322 P.3d at 950 (emphasis
omitted). The supreme court granted the writ of mandamus and
directed the trial court, in part, to order a qualified
protective order for the authorized release of health information
be restricted to the underlying litigation. See id. at 423, 322
P.3d at 963; see also Brende v. Hara, 113 Hawai#i 424, 430-31,
153 P.3d 1109, 1115-16 (2007) (holding that personal health
information is "highly personal and intimate" and that placing
medical conditions at issue during litigation waives privilege
for purposes of that litigation, but not beyond); HRE Rule
10
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
504(d)(3) (stating that "[t]here is no [physician-patient]
privilege under this rule as to a communication relevant to the
physical, mental, or emotional condition of the patient in any
proceeding in which the patient relies upon the condition as an
element of the patient's claim or defense[.]").
Here, Ogeone's health information was not at risk of
being disclosed outside of the underlying litigation. Unlike in
Cohan, the subpoenas did not require Ogeone to waive her right to
have any disclosed medical information used outside of the
underlying litigation. At a hearing regarding discovery, it was
confirmed that any authorization for medical records signed by
Ogeone would only be used in connection with the subpoenas. The
Circuit Court's decision not to quash the subpoenas was not
"'plainly arbitrary and without support in the record.'" See
Shaw, 83 Hawai#i at 59, 924 P.2d at 553 (citation omitted).
(6) Ogeone argues that the Circuit Court erred in
granting the Motion for Summary Judgment because it was untimely.
Ogeone claims that the Motion for Summary Judgment was untimely
because it was served on her less than 50 days before the trial
date, in violation of HRCP Rule 56. She further argues that the
court's decision to permit the untimely filing was error and
evidence of bias.
When a defending party files for summary judgment, the
motion must be "filed and served no less than 50 days before the
date of the trial unless granted permission by the court and for
11
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
good cause shown." HRCP Rule 56(b). Here, the Motion for
Summary Judgment was timely lodged and filed in compliance with
the Amended Trial Setting Status Conference Order entered on
August 31, 2017. Thus, Ogeone's argument is without merit.
(7) Ogeone raises several procedural errors.
First, Ogeone claims that the Circuit Court erred in
granting the Motion for Summary Judgment because Dr. Au did not
file a reply to Ogeone's amended pretrial statement. Rules of
the Circuit Courts of the State of Hawai#i (RCCH) Rule 12(h)
(2016)4 requires that defendants file a responsive pretrial
statement "within 60 days of the filing of the first pretrial
statement." (Emphasis added). It does not require that a
defendant file a responsive pretrial statement to each amended
pretrial statement submitted by a plaintiff. This argument is
without merit.
Second, Ogeone claims that the Circuit Court erred when
it denied her motion for Judge Castagnetti to be recused. Ogeone
claims that it was error when Judge Castagnetti was reassigned
4
At the relevant time, RCCH Rule 12 stated, in pertinent part:
Rule 12. READY CIVIL CALENDAR.
. . . .
(h) Responsive pretrial statement. Every defendant
shall file a "Responsive Pretrial Statement", served as
required by Rule 5 of the Hawai#i Rules of Civil Procedure,
that sets forth the same kind of information required in the
pretrial statement within 60 days of the filing of the first
pretrial statement.
. . . .
(j) Amending pretrial statements. Pretrial
statements must be continually amended in the same manner in
which answers to interrogatories must be amended.
12
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
and claims, without citing authority, that "she had to be
recused" instead.
The only argument that Ogeone made was that Judge
Castagnetti was biased because she had presided over another case
in which Ogeone was the plaintiff and had issued adverse rulings
in that case. "Recusal decisions reflect not only the need to
secure public confidence through proceedings that appear
impartial, but also the need to prevent parties from too easily
obtaining the disqualification of a judge, thereby potentially
manipulating the system for strategic reasons, perhaps to obtain
a judge more to their liking." Kondaur Cap. Corp. v. Matsuyoshi,
150 Hawai#i 1, 9, 496 P.3d 479, 487 (App. 2021) (citation,
brackets, and internal quotation marks omitted). Even assuming
this issue was not rendered moot by the reassignment of the case,
adverse rulings alone are an insufficient ground to remove a
judge.
Third, Ogeone argues that the Circuit Court erred when
it found that she was a vexatious litigant because she did not
cooperate in the discovery process.
HRS § 634J-1(3) (2016) defines "vexatious litigant" as
a plaintiff who "[i]n any litigation while acting in propria
persona, files, in bad faith, unmeritorious motions, pleadings,
or other papers, conducts unnecessary discovery, or engages in
other tactics that are frivolous or solely intended to cause
unnecessary delay[.]"
13
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
In Trs. of Est. of Bishop v. Au, the supreme court held
that trial courts are required to make a specific finding of bad
faith to conclude that a litigant is "vexatious" under HRS §
634J-1(2) or (3). 146 Hawai#i 272, 281, 463 P.3d 929, 938
(2020). The supreme court additionally held that "a court
imposing a vexatious litigant order under HRS chapter 634J is
required to make findings that set forth, with reasonable
specificity, the perceived misconduct, including a finding of bad
faith when applicable, and the authority under which the sanction
is imposed." Id. at 283, 463 P.3d at 940. Because the trial
court had failed to make such reasonably specific findings in
that case, the supreme court held that the vexatious litigant
sanction was deficient under HRS § 634J-1(2) and (3). Id.
Here, the Circuit Court designated Ogeone a vexatious
litigant pursuant to HRS § 634J-1(3), and thus was required to
make a finding of bad faith and make reasonably specific
findings. Id. In supporting its designation in its Order
Granting in Part and Denying in Part [the Motion for Sanctions],
the Circuit Court stated:
The Court finds that during the instant litigation,
while acting in propria persona, Plaintiff filed, in bad
faith, unmeritorious motions, pleadings, or other papers,
conducted unnecessary discovery, or engaged in other tactics
that were frivolous or solely intended to cause unnecessary
delay. H.R.S. [§] 634J-1(3). Plaintiff is, therefore,
designated as a vexatious litigant pursuant to H.R.S. [§]
634J.
Ogeone declined to provide a transcript of the November
7, 2017 hearing on Dr. Au's Motion for Sanctions. A transcript
14
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
is required "[w]hen an appellant desires to raise any point on
appeal that requires consideration of the oral proceedings before
the court appealed from[.]" HRAP Rule 10(b)(1)(A). Without the
transcript, we are unable to evaluate the extent to which the
Circuit Court made more specific findings about the merits of
Ogeone's filings and why she was a vexatious litigant at that
hearing. See Bettencourt v. Bettencourt, 80 Hawai#i 225, 230-31,
909 P.2d 553, 558-59 (1995) ("The burden is upon appellant in an
appeal to show error by reference to matters in the record, and
he or she has the responsibility of providing an adequate
transcript.") (citations, internal brackets, and quotations marks
omitted). It appears that the court found that Ogeone acted in
bad faith by filing unmeritorious motions, pleadings, or other
papers, conducted unnecessary discovery, and engaged in other
tactics that were frivolous or solely intended to cause
unnecessary delay. On the record before us, we cannot conclude
that the court abused its discretion in designating Ogeone as a
vexatious litigant. See Ek v. Boggs, 102 Hawai#i 289, 294, 75
P.3d 1180, 1185 (2003).
Fourth, Ogeone argues that the Circuit Court erred in
granting Dr. Au's Motion for Costs before the Judgment had been
entered. Ogeone's argument that the HRCP Rule 54 requires that a
motion for costs or attorneys' fees be submitted only after the
entry of judgment is not supported by the operative language or
any other authority brought to this court's attention. In
15
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
addition, Ogeone declined to provide transcripts relevant to the
Motion for Costs and we are unable to review the merits of her
argument as to the reasonableness of the court's decision.5 See
HRAP Rule 10(b)(1)(A); Bettencourt, 80 Hawai#i at 230, 909 P.2d
at 558.
For these reasons, the Circuit Court's August 16, 2018
Judgment is affirmed.
DATED: Honolulu, Hawai#i, December 12, 2023.
On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Galina Ogeone,
Plaintiff-Appellant Pro Se. /s/ Clyde J. Wadsworth
Associate Judge
John Burke,
Steven E. Tom, /s/ Karen T. Nakasone
(Burke McPheeters Bordner & Associate Judge
Estes),
for Defendant-Appellee.
5
For example, HRS § 607-9(b) permits courts to charge for costs
"including but not limited to . . . other incidental expenses . . . deemed
reasonable by the court[.]"
16