Oral Arguments Schedule

No. SCWC-18-0000350, Thursday, October 31, 2019, 8:45 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. CHARLY HERNANE, also known as CHARLIE HERNANE, Petitioner/Defendant-Appellant.

Attorney for Petitioner/Defendant-Appellant:

Jon K. Ikenaga, Deputy Public Defender

Attorneys for Respondent/Plaintiff-Appellee:

Stephen K. Tsushima, Deputy Prosecuting Attorney

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Certificate of Recusal by Associate Justice Richard W. Pollack, filed 7/1/19.

NOTE: Order assigning Circuit Court Judge Bert I. Ayabe in place of Pollack, J., recused, filed 7/5/19.

NOTE: Order accepting Application for Writ of Certiorari, filed 8/9/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Court Judge Ayabe, in place of Pollack, J., recused.

Brief Description:

In 2011, Petitioner/Defendant-Appellant Charly Hernane, also known as Charlie Hernane, (“Hernane”) was charged with one count of Murder in the Second Degree in violation of HRS § 707-701.5. After a jury-trial, Hernane was found guilty as charged and sentenced. After the Intermediate Court of Appeals (“ICA”) vacated Hernane’s conviction and sentence and remanded his case for retrial, on March 23, 2016, this court rejected the State of Hawai i’s (“State’s”) application for certiorari. At that time, Hernane was in the State’s custody in a prison located in Arizona.  Hernane was returned to Hawai i on July 19, 2016.　　

On the date his retrial commenced, February 5, 2018,　Hernane filed a　motion to dismiss based on the State’s alleged failure to bring him to trial within 180 days of the remand minus allowable excluded periods of time, based on　Hawai i Rules of Penal Procedure (“HRPP”) Rule 48. Rule 48 sets forth categories of time periods that may be excluded from the 180 day requirement. The Circuit Court of the First Circuit (“circuit court”) denied Hernane’s motion to dismiss on the grounds that at least some portion of the time Hernane was being held in Arizona was excludable under Rule 48(c)(5) because he was　”unavailable,” and that, therefore, there was no HRPP Rule 48 violation. The Intermediate Court of Appeals affirmed, and Hernane challenges this ruling on certiorari.　　

No. SCWC-16-0000712, Thursday, October 31, 2019, 10 a.m.

GRACE CHEN, Respondent/Plaintiff-Appellee, vs. JONATHAN WILLIAM MAH, D.D.S.; JONATHAN MAH, DDS, INC., a Hawaii corporation, Petitioners/Defendants-Appellants.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for petitioner:

Mark G. Valencia of Case Lombardi & Pettit, A Law Corporation

Attorney for respondent:

Dennis W. King of Deeley, King, Pang & Van Etten

NOTE: Order accepting Application for Writ of Certiorari, filed 08/28/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

This case concerns a compensation dispute between an independent contractor dentist, Respondent/Plaintiff-Appellee Grace Chen (“Chen”), and the corporation and shareholder dentist that retained her services, Petitioners/Defendants-Appellants Jonathan Mah, DDS, Inc. (“Corporation”) and Jonathan Mah, D.D.S. (“Mah”) (collectively, “Defendants”) based on an oral agreement between Chen and Mah. Upon Chen’s motion, default was promptly entered. Approximately eight months later, after obtaining counsel, Defendants moved to set aside the entry of default. Relying on BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 549 P.2d 1147 (1976), the circuit court denied Defendants’ motion, but permitted Defendants to file an answer as to the issue of damages only. Over one year after the circuit court had denied Defendants’ motion to set aside the entry of default, default judgment as to certain claims was entered against Defendants, and a bench trial held regarding damages for the remaining claims.

Defendants unsuccessfully appealed to the ICA the circuit court’s denial of Defendants’ motion to set aside entry of default, and their motion for reconsideration and/or for a new trial. See Chen v. Mah, CAAP-16-0000712 (App. Mar. 14, 2019) (SDO). Defendants timely filed an Application for a Writ of Certiorari (“Application”) on June 27, 2019 from the May 3, 2019 Judgment on Appeal entered by the ICA pursuant to its SDO.

Defendants presented the following five questions in their Application:

1. Did the ICA gravely err in failing to set aside the circuit court’s entry of default, where (1) the record shows the circuit court failed to analyze all twelve causes of action in the Complaint regarding meritorious defenses and the record contains substantial evidence of a meritorious defense to one or more causes of action; and (2) the circuit court failed to consider the lulling of a pro se party into inaction by engaging in months of discovery and communications before and after obtaining an entry of default, then using a long delay to help justify a purported failure to defend the case.

 2. Did the ICA gravely err in creating new law in Hawaii by affirming the circuit court’s finding of a fiduciary relationship in an independent contractor relationship?

3. Did the ICA gravely err in creating new law in Hawaii by permitting the circuit court to apply the law regarding employers and employees to an independent contractor relationship?

4. Did the ICA gravely err in allowing the circuit court to pierce the corporate veil and hold a shareholder liable for the purported acts of a corporation without any allegation or finding of alter ego/piercing the corporate veil?

5. Did the ICA gravely err in adopting scripted findings that turned what amounted to an advocate’s trial brief into findings of [f]act and conclusions of law?

Certiorari was granted on August 28, 2019 and the parties were ordered to file supplemental briefs addressing the following question:

Is a movant filing a motion to set aside entry of default under Hawai i Rules of Civil Procedure Rule 55(c) required to show (1) that the non-defaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that the default was not the result of inexcusable neglect or a wilful act?

No. SCWC-18-0000420, Thursday, October 31, 2019, 11:15 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. WELDEN MANUEL, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for petitioner:

William H. Jameson Jr., Deputy Public Defender

Attorney for respondent:

Loren J. Thomas, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 09/03/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

Petitioner/Defendant-Appellant Welden Manuel(Manuel) was charged with assault in the second degree after he stabbed the complaining witness (CW) in the chest during an altercation.

At trial, Manuel claimed self-defense. At the close of trial, the Circuit Court of the First Circuit (circuit court) instructed the jury on assault in the second degree, assault in the third degree, and assault in the third degree by mutual affray. The jury convicted Manuel of assault in the second degree.

On appeal to the Intermediate Court of Appeals (ICA), Manuel argued that the circuit court should have also instructed the jury on reckless endangering in the second degree because, he argued, it is a lesser included offense of assault in the second degree. The ICA affirmed the conviction, and held that the circuit court’s failure to instruct the jury on reckless endangering in the second degree was harmless error.

In Manuel’s application for writ of certiorari, he asks whether the ICA gravely erred when it concluded that the circuit court did not commit plain error by failing to instruct the jury on reckless endangering in the second degree.

Courts in the Community

No. SCWC-18-0000454, Thursday, Nov. 14, 2019, 10 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. CELESTE BAKER, Petitioner/Defendant-Appellant.
The above-captioned case has been set for argument on the merits at:

Waipahu High School Gymnasium
94-1211 Farrington Highway
Waipahu, HI 96797

Attorney for petitioner:

Taryn R. Tomasa, Deputy Public Defender

Attorney for respondent:

Chad Kumagai, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 08/30/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

On October 26, 2017, Celeste Baker was issued a traffic citation for leaving the scene of an accident involving vehicle damage, in violation of Hawai i Revised Statutes (HRS) § 291C-13. At trial, the complaining witness testified that she was involved in a traffic accident while driving eastbound on Kamehameha Hwy. near the bus stop at Blaisdell Park. After both drivers pulled their cars to the side of the road, the complaining witness stated, Baker would not provide the required information and they got into an argument. They agreed to move their vehicles to another location because they were holding up traffic. The complaining witness testified that Baker never appeared at the agreed-upon location.

Baker testified that her car did not hit the complaining witness’s vehicle, that they agreed to meet at a location different than the complaining witness had testified to, and that the complaining witness did not appear at the agreed-upon location. Baker also testified that she called the police after the complaining witness did not appear at that location.

Officer Brandon Kam testified that he responded to a call made by Baker in the area of Pearlridge regarding the incident–which had occurred about 25 minutes earlier. Baker reported to him that she was being accused of colliding with another vehicle and that the occupants of the other vehicle were being hostile to her and had asked for money. Officer Kam related that he then received an update from dispatch about a “fled type case” and ceased talking to Baker so that he could get further clarification. Officer Kam also testified that he did not observe any damage to Baker’s vehicle.

At the conclusion of trial, Baker was found guilty. On appeal Baker argued that there was insufficient evidence to sustain the conviction because she pulled over immediately, reported the incident to the police, and provided the required information to Officer Kam. Baker also contended that the charge against her was flawed because it did not allege the statutory requirement that “Every such stop shall be made without obstructing traffic more than is necessary.” This omission, argued Baker, resulted in the State failing to provide adequate notice of the charge, failing to sufficiently allege an adequate charge, and causing prejudice to her because of an inability to prepare a defense. The State’s evidence also failed to prove this omitted allegation, contended Baker. For all these reasons, Baker concluded that the conviction must be vacated.

The Intermediate Court of Appeals (ICA) held that the charge was not deficient because the State did not need to prove as an element that “Baker knew the stop was made without obstructing traffic more than is necessary.’” The ICA reasoned that the phrase was, instead, an “explanatory clause.” The ICA also determined that there was sufficient evidence to support the conviction.

On certiorari review, Baker contends that the ICA erred in its rulings, and that even if the ICA was correct, the charge should be dismissed as a de minimis infraction under HRS § 702-236, based on plain error.

No. SCWC-18-0000332, Thursday, November 21, 2019, 8:45 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. ISRAEL VEGA MALAVE, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for petitioner:

Emmanuel G. Guerrero of the Law Offices of Emmanuel G. Guerrero, LLLC

Attorney for respondent:

Sonja P. McCullen, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 09/27/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

Defendant Israel Vega Malave was convicted after trial in family court of two counts of Sexual Assault in the First Degree based on the alleged sexual abuse of his stepdaughter.

On certiorari, Malave asks this court to determine whether the ICA erred in holding that: (1) the family court had jurisdiction over his case pursuant to Hawai i Revised Statutes (HRS) §　571-14(a)(1); and (2) that there was no rational basis in the record to support the family court instructing the jury on the lesser included offense of Sexual Assault in the Third Degree.

No. SCWC-15-0000329, Thursday, November 21, 2019, 10 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. YOKO KATO, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for petitioner:

Myron H. Takemoto

Attorney for respondent:

Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 07/31/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

Brief Description:

Yoko Kato was charged with attempted murder in the second degree. At trial, the complaining witness (CW) testified that on October 25, 2013, she was biking to meet a woman named Ai Akanishi, whom she had previously messaged on a social networking application but had never met. The CW stated that she arrived at the address that Akanishi provided at around 9:45 pm, and saw a person, who she thought might be Akanishi’s boyfriend. When the CW asked where she could park her bicycle, the man directed her to a dark corner of the parking lot, where the CW was stabbed multiple times. She ran to a coffee shop and the authorities were called.

The CW testified that she knew Kato and that both of them had a romantic relationship with a man named David Miller at different times. Kato’s roommate testified that she saw Miller and Kato drinking together at Kato’s apartment on the night of the incident at around 7:30 pm. An employee of the convenience store across the street from the scene testified that he saw Kato in the store that evening at around 11:00 pm.

At a pretrial hearing, Miller asserted a Fifth Amendment privilege on all questions regarding alleged past physical abuse of Kato and a pending temporary restraining order she had against him. Miller was later called to testify at trial by the defense. Defense counsel sought to elicit testimony from Miller of a motive to murder the CW, which the circuit court did not allow, because the court found no nexus connecting Miller to the crime. At the conclusion of the evidence, the jury was instructed on the included offense of reckless endangering in the second degree–which Kato was found guilty of.

On appeal, Kato argued that the circuit court erred by precluding her from adducing evidence that Miller had a motive to commit the crime charged and by not compelling him to testify over his assertion of his Fifth Amendment privilege. Kato also contended that there was no basis to instruct the jury on the reckless endangering offense, and that there was not substantial evidence to support the conviction of this offense.

The Intermediate Court of Appeals rejected all of Kato’s contentions and affirmed her conviction. On certiorari review, Kato contends that the ICA erred in all of these rulings.