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Dela Cruz v. Quemado

Intermediate Court of Appeals of Hawaii

December 9, 2015

FLORENCIO E. DELA CRUZ, ANASTACIA A. DELA CRUZ, and JENNIFER M. RESPECIO, Plaintiffs-Appellants,
v.
IRENE B. QUEMADO, MARVIN QUEMADO, JR., BRYAN T. HIGA, Defendants-Appellees, DOE DEFENDANTS 1-100, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 08-1-1089)

Joseph P.H. Ahuna, Jr. Joseph P.K. Ahuna, III David K. Ahuna (Law Offices of Joseph P.H. Ahuna, Jr.) for Plaintiffs-Appellants.

Johnaaron Murphy Jones for Defendant-Appellee Irene B. Quemado.

NAKAMURA, C.J., FOLEY AND REIFURTH, JJ.

OPINION

FOLEY, J.

Plaintiffs-Appellants Florencio E. Dela Cruz (Florencio), Anastacia A. Dela Cruz (Anastacia), and Jennifer M. Respecio (Respecio) (collectively, Appellants) appeal from the following entered in the Circuit Court of the First Circuit[1] (circuit court):

(1) "Findings of Fact, Conclusions of Law, and Order Denying Plaintiffs' Motion for Default Judgment Against Defendant
Irene B. Quemado Filed on 5/10/2013, Notice of Entry" (FOF/COL), entered on December 2, 2013;
(2) "Order Denying Plaintiffs' Motion for Reconsideration of Findings of Fact, Conclusions of Law, and Order Denying Plaintiffs' Motion for Entry of Default Judgment Against Defendant Irene B. Quemado, " entered on January 3, 2014; and
(3) "Final Judgment, " entered on June 6, 2014. On appeal, Appellants contend the circuit court erred in:
(1) denying Appellants' motion for default judgment against Defendant-Appellee Irene Quemado (Irene);

(2) concluding that it was not reasonably foreseeable that Defendant-Appellee Marvin Quemado (Marvin) would commit a robbery; and
(3) concluding that Irene's affirmative conduct did not create the circumstances that afforded Marvin and Defendant-Appellee Brian Higa (Higa) the opportunity to commit the robbery.

I. BACKGROUND

The circuit court's undisputed findings of fact (FOFs) indicate that Florencio and Anastacia were the owners of Flor and Annie Jewelry. On June 1, 2006, Florencio and Anastacia went to Irene's home to collect money, repair a bracelet, and exchange jewelry with Irene. While Florencio and Anastacia displayed their jewelry to Irene, Irene invited her son, Marvin, to see, examine, and handle the jewelry.

Marvin examined the jewelry and asked if he could try on a gold necklace. Unknown to Florencio and Anastacia, Marvin had a criminal history of using and promoting illegal drugs, with felony convictions for possessing and promoting drugs. Irene was aware of Marvin's criminal history but did not tell Florencio and Anastacia. Florencio showed Marvin a gold necklace, and Marvin took it upstairs to try on. Marvin was gone for about twenty minutes before Irene went upstairs to check on him. Irene was gone for fifteen minutes before she and Marvin returned downstairs where Florencio and Anastacia were located. Marvin begged Irene to purchase the gold necklace for him, but she refused.

Irene then told Marvin that Florencio and Anastacia had brought with them more jewelry in a closed aluminum case. Marvin asked to see the jewelry in the aluminum case. Florencio and Anastacia opened the aluminum case and displayed the jewelry to Marvin. Marvin handled the jewelry in the aluminum case, asked the price of several pieces of jewelry, and commented that the jewelry was "expensive." Marvin then left the house.

Florencio and Anastacia attempted to leave at the same time as Marvin, but were stopped by Irene because she wanted to "talk story." Florencio and Anastacia left Irene's house around 11:55 a.m. for another appointment they had at the Golden Coin Restaurant. Florencio and Anastacia arrived at the Golden Coin Restaurant about 12:00 p.m. when they noticed they had a flat tire. Florencio and Anastacia drove to put air in the flat tire and returned to the Golden Coin Restaurant about 12:15 p.m.

When Florencio exited his vehicle and retrieved the aluminum jewelry case from the trunk, Higa pulled up behind Florencio's car in a light blue Chevrolet Blazer, jumped out of the Blazer, pulled a camouflage mask over his face, pointed a black semi-automatic handgun at Florencio, and yelled, "This is a holdup! I'll kill ...


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