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Perrone v. Gao

Intermediate Court of Appeals of Hawaii

January 30, 2014

PAUL PERRONE, Plaintiff-Appellee,
GENBAO GAO, Defendant-Appellant



On the briefs:

Anthony "T.J." Quan for Defendant-Appellant.

Chief Judge Robert D. Eheler, Jr. and John R. Remis, Jr. for Plaintiff-Appellee.

Nakamura, C.J., Foley and Fujise, JJ.


Defendant-Appellant Genbao Gao (Gao) appeals from the January 3, 2012 Judgment, the October 18, 2012 Amended Judgment, and the November 25, 2011 "Findings of Fact, Conclusions of Law and Order" (FOFs/COLs/Order) all entered in the Circuit Court of the First Circuit[1] (circuit court). The judgments were entered in favor of Plaintiff-Appellee Paul Perrone (Perrone), whose May 19, 2009 Complaint asserts defamation claims against Gao.

On appeal, Gao contends the circuit court erred by:

(1) issuing a default judgment against Gao on September 3, 2010;
(2) denying Gao's motion for directed verdict by order issued on October 24, 2011, his motion for renewed motion for judgment as a matter of law on February 6, 2012, and failing to "reverse[] the harsh sanction of default [judgment;]" and
(3) awarding Perrone special, general, and punitive damages.


Gao was employed by the State of Hawai'i as a statistician since 1996. In 2003, he was transferred to the Crime Prevention and Justice Assistance Division of the Department of the Attorney General of the State of Hawai'i (CPJAD). On May 19, 2009, Perrone, Gao's supervisor at CPJAD, filed a Complaint alleging that Gao had been publishing defamatory statements against him since 2005. Perrone's Complaint stated in relevant part:

8. Beginning in or about 2005, [Gao] began publishing statements defaming [Perrone] and injuring [Perrone's] professional reputation, to wit:
a) [Gao] falsely claimed Plaintiff maintained a personal Web site on a State-funded Internet account of the CPJAD and thereby committed theft;
b) [Gao] falsely claimed [Perrone] arrived hours late to work;
c) [Gao] falsely claimed [Perrone] did not know how to conduct research;
d) [Gao] falsely accused [Perrone] of criminally assaulting him and initiated a police investigation thereof at the CPJAD;
e) [Gao] falsely accused [Perrone] of racial discrimination against him at the CPJAD[.]

On June 26, 2009, Gao filed an answer to Perrone's Complaint and asserted counterclaims, alleging Perrone violated the Hawai'i Whistleblowers Protection Act, Hawai'i Revised Statutes (HRS) Chapter 378 et seq., and claimed that he was entitled to relief for Perrone's negligent and intentional inflictions of emotional distress and defamation of Gao. Perrone filed an answer to Gao's counterclaim on November 27, 2009.

On March 18, 2010, Perrone filed a "Motion To Compel Discovery And For Sanctions Against [Gao] And For Attorney's Fees And Costs" (Motion to Compel Discovery), which included default against Gao. Perrone's counsel, John R. Remis, Jr. (Remis) declared that he had noticed Gao through his counsel, Greg I. Nishioka (Nishioka) with a Hawai'i Rules of Civil Procedure (HRCP) Rule 34 "Request for Answers to Interrogatories and a Request for Protection of Documents, " due December 31, 2009. Remis declared that he sent a letter to Nishioka on January 8, 2010, requesting a response by January 15, 2010. Having received no response, Remis sent another letter to Nishioka on January 28, 2010, which requested a response by February 5, 2010. No response had been produced as of March 2, 2010.

On April 8, 2010, the circuit court held a hearing on Perrone's Motion to Compel Discovery. Nishioka stated that Gao "refused to sign off until he really looks it [the answer to Perrone's discovery request] over" and that Gao filed no opposition because he intended to comply with the discovery request. Also at the hearing, Perrone's co-counsel, Robert D. Eheler, Jr. (Eheler), referred to Nishioka as a "phantom lawyer" because, save for a some emailed responses and one phone call, Eheler and Remis "didn't hear from [Nishioka] at all" prior to filing their answer to Gao's June 26, 2009 counterclaim. The circuit court imposed a $250 sanction on Gao, ordered him to provide requested answers and documents within ten calendar days from April 8, 2010 (April 18, 2010), and denied Perrone's motion for default judgment against Gao. On May 17, 2010, the circuit court filed an order to this effect.

On April 19, 2010, Gao provided answers to Perrone's interrogatories, but responded to only two of Perrone's document requests. Nishioka, Gao's counsel, told Perrone's counsel that the documents would be delivered to the copy center on May 3, 2010. Perrone's counsel alleged that these documents were not available as of May 28, 2010 ...

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