United States District Court, D. Hawaii
STERLING G. HIGASHI, Appellant,
HALE TAKAZAWA, Appellee.
ORDER GRANTING APPELLEE'S MOTION FOR RULE 8020
“JUST DAMAGES” FOR MERITLESS APPEAL
E. Kobayashi United States District Judge
Hale Takazawa (“Appellee”) filed his Motion for
Rule 8020 “Just Damages” for Meritless Appeal
(“Motion”) on July 30, 2017. [Dkt. no. 16.]
Plaintiff-Appellant Sterling G. Higashi
(“Appellant”) filed his memorandum in opposition
on August 14, 2017. [Dkt. no. 18.] Appellee filed his reply
on August 27, 2017 and a supplemental exhibit to the Motion
(“Supplemental Exhibit”) on September 8, 2017.
[Dkt. nos. 22, 24.] The Court finds this matter suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of
the Local Rules of Practice of the United States District
Court for the District of Hawai`i (“Local
Entering Order filed on September 5, 2017, the Court granted
the Motion (“9/5/17 EO Ruling”). [Dkt. no. 23.]
The instant Order supersedes the 9/5/17 EO Ruling.
Appellee's Motion is hereby granted because the Court
concludes that Appellant's appeal was frivolous.
background of this matter is set forth in this Court's
July 20, 2017 Order Affirming the Bankruptcy Court's: (1)
Order Granting Plaintiff's Motion for Rule 37(c)(2)
Expenses; and (2) Order Denying Defendant's Objections to
Certain Items of Plaintiff's Bill of Costs
(“7/20/17 Order”), [dkt. no. 15,  and this
Court's July 19, 2017 Order Affirming the Bankruptcy
Court's Findings of Fact and Conclusions of Law and the
Judgment in Higashi v. Takazawa, CV 16-00368 LEK-RLP
(“CV 16-00368 Order”). 2017 WL 3075130.
facts pertinent to the matter at hand are as follows: in the
underlying matter, the creditor for Appellant's business
required Appellant's wife, Victoria Higashi, to sign the
promissory note at issue in the litigation. This note was
tendered for payment and, when Appellant did not pay it and
Appellee was assigned the promissory note by the creditor,
Appellee demanded payment. In its Findings of Fact and
Conclusions of Law (“FOF/COL”) issued on June 7,
2016, the bankruptcy court found that Appellant had forged
his wife's signature on the note and concluded that
Appellant's debt was non-dischargeable. The FOF/COL was
affirmed on appeal. CV 16-00360 Order, 2017 WL 3075130, *9.
August 15, 2016, the bankruptcy court issued its Order
Granting Plaintiff's Motion for Rule 37(c)(2) Expenses
(“Rule 37(c)(2) Order”) and its Order Denying
Defendant's Objections to Certain Items of
Plaintiff's Bill of Costs (collectively “Sanctions
Orders”). The bankruptcy court concluded Appellant had
no reasonable basis to deny the request for admission that he
had forged his wife's signature, and ordered Appellant to
pay $19, 662.30 for reasonable expenses (including
attorney's fees) and $2, 946.94 for taxable costs
incurred by Appellee to prove the fact of the forgery.
7/20/17 Order, 2017 WL 3097771, at *1.
appealed from the Sanctions Orders. This appeal was denied
and the sanctions were affirmed. Appellee then filed the
instant Motion, under Fed.R.Bankr.P. 8020(a), seeking damages
and costs for defending the Sanctions Orders appeal and
asserting damages of $3, 821.99 incurred in attorney's
fees. [Suppl. Exh. at 5.]
Bankr. P. 8020(a) governs awards of damages and costs
incurred in a frivolous appeal and provides, in relevant
part, that “[i]f the district court . . . determines
that an appeal is frivolous, it may . . . award just damages
and single or double costs to the appellee.” Motions
for damages under Rule 8020(a) are governed by the same
standard applicable to a Fed. R. App. P. 38
An appeal is frivolous “if the results are obvious, or
the arguments of error are wholly without merit.”
George v. City of Morro Bay (In re George), 322 F.3d
586, 591 (9th Cir. 2003) (quoting Maisano v. United
States, 908 F.2d 408, 411 (9th Cir. 1990)). “[A]
finding of bad faith is not necessary to impose
sanctions” for a frivolous appeal, though bad faith may
counsel in favor of the court exercising its discretion to
grant sanctions. United States v. Nelson (In re
Becraft), 885 F.2d 547, 549 (9th Cir. 1989).
Ly v. Che, 601 F. App'x 494, 496-97 (9th Cir.
2015) (alteration in Ly) (applying Rule 38 standard
to a Rule 8020(a) motion).
purpose of awarding damages is “to penalize an
appellant who takes a frivolous appeal and to compensate the
injured appellee for the delay and added expense of defending
the district court's judgment.” Burlington N.
R.R. Co. v. Woods, 480 U.S. 1, 7 (1987) (Rule 38
context). “The award of fees and costs under Rule 38 .
. . may not include the fees and costs regarding the