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Dela Cruz v. Quemado

Intermediate Court of Appeals of Hawai'i

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, and DOE DEFENDANTS 1-100, Defendants

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

On the briefs: 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

Page 935

[137 Hawai'i 37] 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 Riga (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.

Page 936

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 [137 Hawai'i 38] 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, Riga 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 you!" Riga then fired a round at Florencio from five to seven feet away, but missed.

Florencio grabbed the aluminum jewelry case in an attempt to protect his jewelry from Higa. Higa shoved the gun into Florecio's stomach and fired a second round, but this time the gun malfunctioned. Higa grabbed the aluminum jewelry case from Florencio and then almost ran Florencio over as he sped away in his Blazer.

Irene was not present nor involved in the robbery.[2] At the time of the robbery, Anastacia was sitting in her car talking to her daughter, Respecio, on a cellular phone. Anastacia witnessed the robbery and Respecio, from over the phone, heard the commotion associated with Florencio, her father, being robbed.

Higa and Marvin were later apprehended, arrested, and indicted in federal court for counts of Conspiracy to Commit a Hobbs Act Robbery, Hobbs Act Robbery, and. Using and Carrying a Firearm During and In Relation to a Crime of Violence. Higa and Marvin pled guilty to those three charges. Higa and Marvin were sentenced to imprisonment and ordered to pay restitution to Florencio and Anastacia. The U.S. District Court for the District of Hawai'i filed a Judgment in favor of Florencio and Anastacia, finding Higa and Marvin jointly and severally liable for restitution in the amount of $558,085.42.

On May 30, 2008, Appellants filed a civil complaint against Irene, Marvin, and Higa. The complaint alleged, inter alia, that Irene was jointly and severally liable for ...


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