Pocino v. Auger

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-NOV-2024
07:46 AM
Dkt. 79 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

PAUL LOUIS POCINO, Plaintiff-Appellant, v.
JOHANNE MURIEL AUGER; ROSA VILLONGCO FLORES;
GREGORY L. RYAN ATTORNEY AT LAW LIMITED LIABILITY
LAW COMPANY, a Hawaii limited liability company;
and
JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE
CORPORATIONS 1-10; DOE LIMITED LIABILITY COMPANIES 1-10;
and DOE GOVERNMENTAL ENTITLES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 18-1-0103 JRV)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Nakasone, JJ.)

Plaintiff-Appellant Paul Louis Pocino (Pocino) appeals
from the Amended Judgment, entered in favor of Defendant-
Appellees Rosa Villongco Flores (Flores) and Gregory L. Ryan
Attorney at Law Limited Liability Company (Ryan) (together, the
Attorney Defendants) on October 2, 2020, by the Circuit Court of
the Fifth Circuit (Circuit Court).1/ The Amended Judgment
followed the Circuit Court's July 29, 2019 "Findings of Fact and
Conclusions of Law on [the Attorney Defendants'] Supplemental
Motion to Dismiss First Amended Verified Complaint, Filed May 10,
2019" (FOFs/COLs). In the FOFs/COLs, the Circuit Court granted

1/
The Honorable Randal G.B. Valenciano presided.
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the Attorney Defendant's motion to dismiss with prejudice.2/
On appeal, Pocino contends that the Circuit Court erred
in ruling that: (1) Pocino's claims against the Attorney
Defendants were barred by the litigation privilege; and (2)
Pocino "failed to meet the elements" of his claims for abuse of
process and malicious prosecution.
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Pocino's contentions as follows.

I. Procedural Background

On July 19, 2018, Pocino filed a verified complaint
against Defendant-Appellee Johanne Muriel Auger (Auger) and the
Attorney Defendants (collectively, Defendants). Pocino alleged
that Auger, who is Pocino's former wife, and her attorney Flores
fabricated evidence to obtain a temporary restraining order
against Pocino, and published defamatory statements about him.
On October 16, 2018, the Attorney Defendants filed a
motion to dismiss the complaint based on the litigation
privilege, as well as failure to state claims for abuse of
process and malicious prosecution, pursuant to HRCP Rule
12(b)(6). During the hearing on the motion to dismiss, Pocino
asked for leave to amend the complaint, the court directed
Pocino to file a motion for leave to amend, and the court stayed
the hearing on the motion to dismiss. The court subsequently
granted Pocino's motion for leave to amend and directed the
parties to file supplemental briefs on the motion to dismiss.
On April 23, 2019, Pocino filed the First Amended
Verified Complaint (FAC), which alleged the following claims: (1)
Fraud/Fraudulent Misrepresentation; (2) Intentional Harm to
Property Interest (IHPI); (3) Intentional Infliction of Emotional
Distress (IIED); (4) Negligent Infliction of Emotional Distress

2/
The FOFs properly recount the pertinent procedural history of the
case. In deciding the Attorney Defendants' motion to dismiss, which was
brought pursuant to Hawai#i Rules of Civil Procedure (HRCP) Rule 12(b)(6), the
court did not, in accordance with applicable law, make factual findings
regarding the FAC's allegations.

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(NIED); (5) Malicious Prosecution; and (6) Abuse of Process.
On May 10, 2019, the Attorney Defendants filed their
supplemental motion to dismiss the FAC, and on May 17, 2019,
Pocino filed his supplemental memorandum in opposition. On
May 23, 2019, the Circuit Court heard the Attorney Defendants'
motion to dismiss.
On July 29, 2019, the Circuit Court entered the
FOFs/COLs. The court subsequently entered an order granting
Pocino's motion for HRCP Rule 54(b) certification and,
eventually, the Amended Judgment.

II. Discussion

In his opening brief, Pocino asks this court to
"reverse the [C]ircuit [C]ourt's order granting dismissal and
remand this case for a trial on the merits." We address the
dismissal of each of Pocino's claims below.

A. Claim for Fraud/Fraudulent Misrepresentation
In addressing Pocino's fraud claim, the Circuit Court
concluded that Pocino "has conceded that the claim for
Fraud/Fraudulent Misrepresentation should be dismissed and
therefore dismisses the claim with prejudice." Indeed, Pocino
expressly withdrew this claim in his May 17, 2019 supplemental
memorandum. Pocino also agreed during the May 23, 2019 hearing
that this claim should be dismissed.
In his opening brief, Pocino presents no point of error
or argument related to his fraud/fraudulent misrepresentation
claim. Any challenge to the dismissal of this claim has been
waived. See Hawai#i Rules of Appellate Procedure (HRAP) Rule
28(b)(4), (7).

B. Claims for IHPI, IIED, and NIED – Litigation Privilege
Pocino appears to contend that the Circuit Court erred
in dismissing his IHPI, IIED, and NIED claims based on the
litigation privilege. In response, the Attorney Defendants argue
that the FAC "only alleges acts that occurred during Flores'
representation of Auger, which were all related to her
representation." They assert that the Circuit Court therefore

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properly applied the litigation privilege in dismissing the IHPI,
IIED, and NIED claims.
In Kahala Royal Corp. v. Goodsill Anderson Quinn &
Stifel, 113 Hawai#i 251, 151 P.3d 732 (2007), the Hawaii Supreme
Court held that a litigation privilege applied to bar claims of
intentional interference with contractual relations and
intentional interference with prospective economic advantage
against attorneys who had represented parties adverse to the
plaintiff in prior arbitration-related proceedings. Id. at 266-
73, 151 P.3d at 747-54. The court ruled that these claims were
barred because the complainants failed to allege that the
attorney defendants acted outside the scope of their
lawyer-client relationship, and failed to set forth factual
allegations from which actual malice might reasonably be said to
exist. Accordingly, there were no allegations that the attorney
defendants possessed a desire to harm, independent of the desire
to protect their client, and acted for personal gain or ill will.
Id. at 271, 151 P.3d at 752.
Although Kahala Royal concerned the application
of the litigation privilege to claims for tortious interference
with contractual relations, the court's reasoning was not
confined to such claims. The Court relied in part on the
decision in Clark v. Druckman, 624 S.E.2d 864 (W. Va. 2005),
which held that "the litigation privilege is generally applicable
to bar a civil litigant's claim for civil damages against an
opposing party's attorney if the alleged act of the attorney
occurs in the course of the attorney's representation of an
opposing party and is conduct related to the civil action."
Kahala Royal, 113 Hawai#i at 269, 151 P.3d at 750 (quoting Clark,
624 S.E.2d at 871); see Isobe v. Sakatani, 127 Hawai#i 368, 384-
85, 279 P.3d 33, 49-50 (App. 2012) (construing Kahala Royal); see
also Domingo v. James B. Nutter & Co., 153 Hawai#i 584, 617-18,
543 P.3d 1, 34-35 (App. 2023) (applying the litigation privilege
to, inter alia, an IIED claim). The litigation privilege
recognized in Kahala Royal has been held not to apply to certain
claims for fraud, abuse of process, and malicious prosecution.
See Isobe, 127 Hawai#i at 384-85, 279 P.3d at 49-50 (abuse of

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process and malicious prosecution); Domingo, 153 Hawai#i at 618,
543 P.3d at 35 (fraud).
As relevant here, the Circuit Court found in FOF 11:

At the hearing on the matter, . . . [Pocino] conceded
that the litigation privilege applies as to the claims for
[IHPI], [IIED], and [NIED], but drew a line regarding
actions that happened during litigation and those that
happened post-litigation. [Pocino] claimed that the
litigation ended on July 22, 2016 when the temporary
restraining order was filed, and thus an August 19, 2016
letter sent by Flores to Auger's new counsel was outside of
the litigation privilege.

This unchallenged FOF is binding on appeal. See Okada
Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 458, 40 P.3d
73, 81 (2002). By conceding that the litigation privilege
applies to his IHPI, IIED, and NIED claims, Pocino waived these
claims as to the Attorney Defendants, except to the extent these
claims were based on the "post-litigation" August 19, 2016 letter
sent by Flores to Auger's new counsel.
Addressing Pocino's narrowed argument, the Circuit
Court concluded in COL 4:

The Court declines to set a "bright-line" rule about
what constitutes actions taken during litigation or post-
litigation. The Court further finds that the allegations
described in the FAC are protected by the litigation
privilege. See Kahala Royal[], 113 Hawai#i [at] 269, 151
P.3d [at] 750 . . . . And therefore, dismisses the
remaining allegations in the Complaint with prejudice.

The Circuit Court did not err in so ruling. The FAC
alleged generally that "[o]n or about August 19, 2016, [the
Attorney Defendants], in concert with Auger, published false
statements to others in writing that, inter alia, [Pocino] is
'dangerous', 'manipulative' and 'retaliatory' and that [the
Attorney Defendants], in concert with Auger, planned to make
further false and disparaging statements about [Pocino] to others
in the future." (Capitalization altered.) However, Pocino, like
the complainants in Kahala Royal, did not allege that the
Attorney Defendants were acting outside of the scope of their
attorney-client relationship in making these alleged statements,
did not allege facts from which actual malice might reasonably be
said to exist, and did not allege that the Attorney Defendants
acted for personal gain or with ill-will toward Pocino. Based on

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the allegations in the FAC, Attorney Defendants' alleged conduct
was related to Flores's representation of Auger in the TRO case –
litigation that continued through at least June 28, 2017, when
this court decided Pocino's appeal. See Auger v. Pocino, No.
CAAP-XX-XXXXXXX, 2017 WL 2797657, at *1 (Haw. App. June 28,
2017).3/ Thus, accepting the allegations of the FAC as true and
viewing them in a light most favorable to Pocino, see Kahala
Royal, 113 Hawai#i at 266, 151 P.3d at 747, we conclude that the
Circuit Court did not err in dismissing Pocino's IHPI, IIED, and
NIED claims based on the litigation privilege.4/

C. Claim for Abuse of Process
Pocino contends that the Circuit Court erred in
dismissing his abuse-of-process claim. He argues, based on the
allegations in the FAC, that the Attorney Defendants "maliciously
initiated a false and meritless TRO proceeding without probable
cause by fraudulently fabricating evidence, and for the ulterior
purpose of depriving [Pocino} of his life, liberty, and property,
all of which has a direct affect on [Pocino's] legal rights."
"[T]here are two essential elements in a claim for
abuse of process: (1) an ulterior purpose and (2) a wilful act in
the use of the process which is not proper in the regular conduct
of the proceeding." Young v. Allstate Ins. Co., 119 Hawai#i 403,
412, 198 P.3d 666, 675 (2008) (quoting Chung v. McCabe Hamilton &
Renny, Co., 109 Hawai#i 520, 529, 128 P.3d 833, 842 (2006)). As
to the second element, the supreme court ruled in Young that the
defendant must be alleged to have committed a willful act that is
not proper in the regular conduct of the proceeding, i.e., that
is "distinct from the use of process per se." Id. at 416, 198
P.3d at 679. The willful act alleged in Young, using lowball
settlement offers to punish the claimant and "send a message" to
other claimants, did not satisfy the second element because

3/
We take judicial notice of Plaintiff-Appellee Johanne Auger's
Withdrawal and Substitution of Counsel, filed on February 8, 2017, in CAAP-16-
0000582, in which Flores withdrew and James A. Stanton was substituted in as
Auger's counsel.
4/
We do not reach the question of whether Hawai #i law recognizes an
IHPI claim.

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offers to settle are "proper" in the regular conduct of
proceedings. Id. at 414, 198 P.3d at 677.
The supreme court emphasized that "more is required
than the issuance of the process itself." Id. at 415, 198 P.3d
at 678. The court rejected "case law in other jurisdictions that
have expanded the tort of abuse of process to encompass
circumstances in which there was no act apart from the issuance
of process." Id. These cases included Nienstedt v. Wetzel, 651
P.2d 876, 880 (Ariz. Ct. App. 1982), which held that filing a
motion for a protective order that was premised on factual
misrepresentations was a use of legal process that lacked
justification – a standard the supreme court expressly
"decline[d] to follow." Id. at 415, 98 P.3d at 679.
Here, the Circuit Court concluded in COL 5:
The Court further finds that [Pocino] has failed to meet the
elements of an abuse of process claim. . . . [Pocino] has
failed to meet the second element of an abuse of process
claim because the allegations alleged in the [FAC] were part
of the regular process, and there was no separate action
alleged that was outside the regular conduct of the
proceedings.

The Circuit Court did not err in so ruling. In the
FAC, Pocino alleged that the "TRO Petition" was a "willful,
wanton, and malicious act that evidences the criminal disregard
of Auger, [and the Attorney Defendants] for civil
responsibility." (Capitalization altered.) Pocino thus appears
to allege that the Defendants committed an abuse of process by
filing and litigating the TRO Petition based on false
information. However, Pocino did not allege that assisting Auger
with the TRO Petition was a willful act "distinct from the use of
process per se." Young, 119 Hawai#i at 416, 198 P.3d at 679.
Accepting Pocino's allegations as true and viewing them in a
light most favorable to him, we conclude that the Circuit Court
did not err in dismissing Pocino's abuse-of-process claim.

D. Claim for Malicious Prosecution
Pocino contends that the Circuit Court erred in
dismissing his malicious prosecution claim. He argues, based on
the allegations in the FAC, that the TRO proceeding was

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terminated in his favor, it was initiated without probable cause,
and it was initiated with malice based on fabricated evidence to
deprive Pocino of his life, liberty, and property.
There are three essential elements in a malicious
prosecution claim: "(1) that the prior proceedings were
terminated in the plaintiff's favor; (2) that the prior
proceedings were initiated without probable cause; and (3) that
the prior proceedings were initiated with malice." Arquette v.
State, 128 Hawai#i 423, 433, 290 P.3d 493, 503 (2012) (quoting
Myers v. Cohen, 67 Haw. 389, 391, 688 P.2d 1145, 1148 (1984); see
Isobe, 127 Hawai#i at 378, 279 P.3d at 43.
Here, the Circuit Court concluded in COL 6:

The Court further finds that [Pocino] has failed to
meet the elements of a malicious prosecution claim. . . . .
Plaintiff has failed to alleged [sic] conduct that is
outside the regular scope of the proceedings and thus do
[sic] not meet the second and third elements of malicious
prosecution.

We first note that the Circuit Court did not conclude,
and the Attorney Defendants do not argue on appeal, that Pocino
failed to allege sufficient facts to satisfy the first element of
his malicious prosecution claim – i.e., that the relevant prior
proceeding was terminated in Pocino's favor. We therefore do not
address this issue.
As to the second and third elements, it appears that
the Circuit Court conflated the second element of an abuse-of-
process claim, i.e., a wilful act in the use of the process which
is not proper in the regular conduct of the proceeding (see
supra), with the second and third elements of a malicious
prosecution claim, i.e., that the prior proceeding was initiated
without probable cause and with malice. The factual allegations
supporting the respective elements of these claims may overlap,
but the elements themselves are not synonymous.
In Arquette, the supreme court explained that
"[p]robable cause in a malicious prosecution action depends 'not
on the actual state of the facts but upon the honest and
reasonable belief of the party commencing the action.'" 128
Hawai#i at 434, 290 P.3d at 504 (quoting Brodie v. Haw. Auto.

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Retail Gasoline Dealers Ass'n, 2 Haw. App. 316, 318, 631 P.2d
600, 602 (1981). The court reiterated the test for determining
probable cause for the filing of a lawsuit, as set forth in the
Restatement (Second) of Torts § 675 (1977). Id. (quoting Brodie,
2 Haw. App. at 318, 631 P.2d at 602). Similarly, under the
Restatement, an attorney who initiates a civil proceeding for a
client or takes steps in the proceeding is not liable if the
attorney has probable cause for their action. Restatement,
supra, § 674, cmt d. "If, however, the attorney acts without
probable cause for belief in the possibility that the claim will
succeed, and for an improper purpose, . . . he is subject to the
same liability as any other person." Id.
"[I]n order to establish the element of malice for a
malicious prosecution claim, a plaintiff must show inter alia
that the defendant initiated the prior proceeding with the
intent, without justification or excuse, to commit a wrongful act
and the emphasis is on the misuse of criminal or civil actions as
a means for causing harm." Arquette, 128 Hawai#i at 437, 290
P.3d at 507 (quoting Isobe, 127 Hawai#i at 388, 279 P.3d at 53).
Here, Pocino alleged that the representations made by
Auger and the Attorney Defendants in connection with the TRO
proceeding were made without probable cause and with malice.
More specifically, he alleged that "Flores added . . . fabricated
evidence and false misrepresentations to Auger's sworn statement
to induce the presiding judge to grant the restraining order
against [Pocino] to [Pocino]'s detriment, and to give Auger
immediate and sole possession of the Marital Residence, with the
intent to deprive [Pocino] of his life, liberty and property."
(Capitalization altered.) Pocino alleged, for example, that
Flores fraudulently fabricated the statement in Auger's sworn
statement that "[s]ometime in November 2014, [Pocino] tried to
run [her] over with his truck . . . ." Pocino also alleged that
Flores "engaged in the suborning of perjury in the TRO Petition
Trial on numerous occasions"; he identified the trial dates and
the substance of the allegedly false statements.
For purposes of Pocino's motion to dismiss, we must
accept these allegations as true and view them in a light most

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