Ogeone v. Au

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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
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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.

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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.

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(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.

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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.

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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

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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

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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.

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(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

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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

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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

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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.

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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[.]"

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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

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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

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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[.]"

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