Olson v. Lui et al

Filing 80

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING VARIOUS MOTIONS BY DEFENDANTS 61 ; 70 ; 23 ; 33 . Signed by JUDGE ALAN C KAY on 1/6/12. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8) (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on 01/09/2012

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
Edmund C. OLSON, as Trustee of )
the Edmund C. Olson Trust No. 2,)
)
U/A Dated August 21, 1985,
)
Plaintiff, )
)
)
vs.
)
)
Abel Simeona LUI, et al.,
)
Defendants. )
)

Civ. No. 10-00691 ACK-RLP

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
DENYING VARIOUS MOTIONS BY DEFENDANTS
I. PROCEDURAL AND FACTUAL BACKGROUND1/
This action is a petition to expunge certain
nonconsensual liens from the Bureau of Conveyances of the State
of Hawai#i under Title 28, Chapter 507D of the Hawai#i Revised
Statutes.

The petition was filed by Edmund C. Olson, as trustee

of the Edmund C. Olson Trust No. 2, U/A Dated August 21, 1985
(“the Olson Trust”).

The Defendants have filed the subject

documents, which as will be described in the discussion below,
include a purported judgment lien, four deeds, and an affidavit
of geneaology.

1/

Portions of this section are taken from a previous order
of the Court’s in related cases.
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The Court has subject matter jurisdiction under 28
U.S.C. § 1332(a) because the issue in controversy exceeds the sum
or value of $75,000, exclusive of interest and costs, and is
between citizens of different states.

Venue in the District of

Hawai#i is proper under 28 U.S.C. § 1391 because the Defendants
reside in the District of Hawai#i, all or a substantial portion
of the events giving rise to the claims in this case occurred
within the District of Hawai#i and the property that is the
subject matter of this action is located in the District of
Hawai#i.

Plaintiff Edmund C. Olson, as Trustee of the Edmund C.

Olson Trust No. 2, u/a dated August 21, 1985 (“Plaintiff”) is,
and was at all times relevant hereto, the trustee of the Edmund
C. Olson Trust No. 2, u/a dated August 21, 1985, and is a citizen
of the County of Los Angeles, State of California; and Defendants
are (or were as to deceased Defendants) citizens of the state of
Hawai#i.
The real property that is the subject of this action is
all of that certain parcel of land bearing Tax Map Key Number (3)
9-5-016-006, and containing an area of 81.303 acres, more or less
(“the land”).

(2d Am. Pet. ¶ 10.)

The Olson Trust acquired

title to the land by deed from Thomas M. Okuna recorded October
25, 2005, as Document No. 2005-216739.

(2d Am Pet. Ex. A.)

copy of that deed is attached to this order as Exhibit 1.

-2-

A

The land has been the subject of several previous
actions.

(One of these previous actions, filed in 1986 and

discussed below, is the basis of the judgment lien that this
petition seeks to have expunged.)

In 1988, Thomas M. Okuna, the

predecessor in interest to the Olson Trust, obtained a decree
quieting title in his favor.

(2d Mot. Mem. Pet. Ex. 8.)

The

decision in that case “Ordered, Adjudged and Decreed” that Okuna
was “the owner in fee simple absolute” of several parcels of
land, including those involved with this action as well as Tax
Map Key Parcels (3) 9-5-016-5, 22, 23, and 25.

(Id.)

A copy of

that judgment, together with the first page of that judgment’s
Exhibit A, describing the land to which title was quieted, is
attached to this order as Exhibit 2.
In 2002, Okuna obtained a judgment of ejectment against
Defendant Abel Lui, among others, and the state court issued a
writ of possession in Okuna’s favor.

(Id. Exs. 9–10.)

For

whatever reason, this writ was never executed.
At one point, Defendant Abel Lui was convicted for
criminal trespass on the land, and his conviction, which included
a thirty-day jail sentence, was affirmed on appeal to the
Intermediate Court of Appeals.

(Id. Ex. 11.)

Finally, in 2011, in state court, the Olson Trust
obtained summary judgment, a judgment for possession/ejectment,
and a writ of possession in another ejectment action against

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those defendants that are on the land.

(Id. Exs. 12–14.)2/

The

Olson Trust has sold the land to the County of Hawai#i, but
continues to pursue this action because it has continuing
obligations to clear title to the land. (2d Mot. Mem. at 3 n.2.)
The case is now before the Court on two motions for
summary judgment filed by the Olson Trust.

(ECF Nos. 33, 70.)

The second, more recent motion involves the same documents that
were at issue in the first motion, but is updated to reflect
additional documents sought to be expunged in the second amended
petition that the Olson Trust filed on June 17, 2011.
42.)3/

(ECF No.

Indeed, at the hearing, counsel for the Olson Trust

2/

Defendants appealed that ruling and also attempted to
remove the 2011 ejectment action to this Court after summary
judgment had been entered against them. The Court remanded the
case to the state court. See Olson v. Lui, Civ. No. 11-00396
ACK-RLP, 2011 WL 5330445 (D. Haw. Nov. 4, 2011). Defendants have
appealed the Court’s remand order.
3/

The Olson Trust seeks default judgment against the Estate
of Beverly Yolanda Feleti; the Estate of Eliza Simeona; and Han
Kamakani Phua. (2d Mot. Mem. at 9 n.23.) While it is true that
these defendants failed to formally appear or file an answer (as
did other defendants, such as Abel Simeona Lui, against whom the
Olson Trust has not sought default judgment), and an entry of
default against them has been filed; several filings have been
made by the defendants who are in default or on their behalf. In
light of Defendants’ pro se status, and the intertwined interests
of Phua, the Feleti and Simeona estates, and the other defendants
in this case, the Court construes Defendants’ filings as
implicitly containing a motion to set aside the entry of default
under Federal Rule of Civil Procedure 55(c). Given the lack of
prejudice to the Olson Trust and the “strong policy underlying
the Federal Rules of Civil Procedure favoring decisions on the
merits,” Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986),
the Olson Trust’s motions for default judgment are DENIED.
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indicated that the second motion for summary judgment was
intended to supersede the first motion.

Accordingly, the first

motion for summary judgment, (ECF No. 33), is DEEMED WITHDRAWN.
Defendants have filed oppositions to each of the
motions for summary judgment, and the Court considers both
oppositions for purposes of this order.

Additionally,

Defendants, and others purporting to represent Defendants’
interests, have filed several other documents in this case.4/
These documents are all essentially oppositions to Plaintiff’s
motions for summary judgments, but some of the filings might be
construed as motions in their own right.
23, 61.)

(See, e.g., ECF Nos.

The Court therefore instructed the parties to be

prepared to discuss all pending filings at the hearing on these
motions, and intends this order as a final order resolving all
pending issues in this case.5/

4/

One person, Dianne K. Hoapili, appeared at the hearing
and has filed two documents in this case: an “Intervention
Declaration of Dianne K. Hoapili a.k.a. Kuuleimomi #O Pa#ahao (A
Shared Experience)” and a “Motion for Disclosure by Plaintiff’s
Attorneys and Director for the State of Hawai#i, Department of
Land and Natural Resources.” (ECF Nos. 68, 73.) At the hearing,
Hoapili requested that the first filing be construed as a motion
to intervene in this case. For the reasons discussed at the
hearing, and for the reasons previously expressed in Magistrate
Judge Puglisi’s order in this case denying A H Lui’s Motion to
Intervene, Hoapili’s motion to intervene, so construed, is
DENIED. In any event, even if Hoapili were allowed to intervene
in this case, the Court would deny her motions, as it finds them
to be without merit.
5/

On the day before the hearing, Defendants filed motions
(continued...)
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II. STANDARD
A.

Motion for Summary Judgment
The purpose of summary judgment is to identify and

dispose of factually unsupported claims and defenses.

See

Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

Summary

judgment is therefore appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

“A party asserting that a fact cannot be or is genuinely disputed
must support the assertion,” and can do so in either of two ways:
by “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
5/

(...continued)
seeking additional time and requesting that this case be heard by
a three-judge panel. (ECF No. 78.) For the reasons discussed at
the hearing, including that the Court finds them to be without
merit, and for the reasons that the Defendants filed oppositions
and have had ample time to prepare for the hearing and that there
is no need or asserted authority for a three judge panel or
special master (as briefly alluded to by the Defendants at the
hearing), those motions are DENIED.
Defendants also have moved the Court to set a scheduling
conference, asserting at the hearing that they have been denied
an opportunity to participate in this case. The Court
acknowledges that no formal scheduling order was entered in this
case, although the docket reflects a number of status
conferences. Defendants, however, have participated in this case
fully. They appeared at the hearing and have filed hundreds of
pages of documents in the thirteen months since this case was
filed—this even though some Defendants actively resisted service,
(ECF No. 6), and some failed to file an answer in this case. The
Court finds that Defendants’ motion to set a formal scheduling
conference is untimely and would cause an unnecessary and undue
delay to the resolution of this case. The motion is therefore
DENIED.
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information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions,
interrogatory answers, or other materials”; or by “showing that
the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”

Fed. R. Civ. P.

56(c)(1).
“A fact is ‘material’ when, under the governing
substantive law, it could affect the outcome of the case.

A

‘genuine issue’ of material fact arises if ‘the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.’”

Thrifty Oil Co. v. Bank of Am. Nat’l Trust & Sav.

Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).6/

Conversely,

where the evidence could not lead a rational trier of fact to
find for the nonmoving party, no genuine issue exists for trial.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citing First Nat’l Bank v. Cities Serv. Co., 391
U.S. 253, 289 (1968)).
The moving party has the burden of persuading the court
as to the absence of a genuine issue of material fact.

Celotex,

477 U.S. at 323; Miller v. Glenn Miller Prods., 454 F.3d 975, 987

6/

Disputes as to immaterial facts do “not preclude summary
judgment.” Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d
1472, 1483 (9th Cir. 1986).
-7-

(9th Cir. 2006).

The moving party may do so with affirmative

evidence or by “‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support the
nonmoving party’s case.”

Celotex, 477 U.S. at 325.7/

Once the

moving party satisfies its burden, the nonmoving party cannot
simply rest on the pleadings or argue that any disagreement or
“metaphysical doubt” about a material issue of fact precludes
summary judgment.

See Celotex, 477 U.S. at 324; Matsushita

Elec., 475 U.S. at 586; Cal. Architectural Bldg. Prods., Inc. v.
Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).8/

7/

When the moving party would bear the burden of proof at
trial, that party must satisfy its burden with respect to the
motion for summary judgment by coming forward with affirmative
evidence that would entitle it to a directed verdict if the
evidence were to go uncontroverted at trial. See Miller, 454
F.3d at 987 (quoting C.A.R. Transp. Brokerage Co. v. Darden
Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000)). When the
nonmoving party would bear the burden of proof at trial, the
party moving for summary judgment may satisfy its burden with
respect to the motion for summary judgment by pointing out to the
court an absence of evidence from the nonmoving party. See id.
(citing Celotex, 477 U.S. at 325).
8/

Nor will uncorroborated allegations and “self-serving
testimony” create a genuine issue of material fact. Villiarimo
v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002);
see also T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626, 630 (9th Cir. 1987); Johnson v. Wash. Metro. Area
Transit Auth., 883 F.2d 125, 128 (D.C. Cir. 1989) (“The removal
of a factual question from the jury is most likely when a
plaintiff’s claim is supported solely by the plaintiff’s own
self-serving testimony, unsupported by corroborating evidence,
and undermined either by other credible evidence, physical
impossibility or other persuasive evidence that the plaintiff has
deliberately committed perjury.”), cited in Villiarimo, 281 F.3d
at 1061.
-8-

The nonmoving party must instead set forth “significant probative
evidence” in support of its position.

T.W. Elec. Serv., Inc. v.

Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)
(quoting First Nat’l, 391 U.S. at 290).

Summary judgment will

thus be granted against a party who fails to demonstrate facts
sufficient to establish an element essential to his case when
that party will ultimately bear the burden of proof at trial.
See Celotex, 477 U.S. at 322.
When evaluating a motion for summary judgment, the
court must construe all evidence and reasonable inferences drawn
therefrom in the light most favorable to the nonmoving party.
See T.W. Elec. Serv., 809 F.2d at 630–31.9/

Accordingly, if

“reasonable minds could differ as to the import of the evidence,”
summary judgment will be denied.
B.

Anderson, 477 U.S. at 250–51.

Special Considerations for a Pro Se Litigant
A pro se litigant’s pleadings must be read more

liberally than pleadings drafted by counsel.

Haines v. Kerner,

404 U.S. 519, 520–21 (1972); Wolfe v. Strankman, 392 F.3d 358,
362 (9th Cir. 2004); Eldridge v. Block, 832 F.2d 1132, 1137 (9th
Cir. 1987).

When a plaintiff proceeds pro se and technically

violates a rule, the court should act with leniency toward the

9/

At the summary judgment stage, the court may not make
credibility assessments or weigh conflicting evidence. See
Anderson, 477 U.S. at 249; Bator v. Hawaii, 39 F.3d 1021, 1026
(9th Cir. 1994).
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pro se litigant.

Draper v. Coombs, 792 F.2d 915, 924 (9th Cir.

1986); Pembrook v. Wilson, 370 F.2d 37, 39–40 (9th Cir. 1966).
However, “a pro se litigant is not excused from knowing the most
basic pleading requirements.”

Am. Ass’n of Naturopathic

Physicians v. Hayhurst, 227 F.3d 1104, 1107–08 (9th Cir. 2000).
The district court must observe additional requirements
when considering a motion for summary judgment or a pleading
construed as such against a pro se prisoner litigant.

In such a

case, the court must ensure that a pro se prisoner, as the nonmoving party, is afforded affirmative notice of the requirements
and consequences of Federal Rule of Civil Procedure 56.

Anderson

v. Angelone, 86 F.3d 932, 934-935 (9th Cir. 1996); Klingele v.
Eikenberry, 849 F.2d 409, 411 (9th Cir. 1988).

However, the

additional notification requirement does not extend to nonprisoner pro se litigants.

Rand v. Rowland, 154 F.3d 952, 956

(9th Cir. 1998); Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th
Cir. 1986).
III. DISCUSSION
A.

The Statutory Framework
The Hawai#i State Legislature has found:
that there is a problem with the recording at
the land court or the bureau of conveyances
of invalid instruments which purport to
affect the property interests of various
persons, including but not limited to
government officers and employees. These
instruments, which have no basis in fact or
law, have a seriously disruptive effect on
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property interests and title. They appear on
title searches and other disclosures based on
public records, and are costly and
time-consuming to expunge. When they so
appear, they may obstruct a property owner’s
ability to transfer title or obtain title
insurance and financing.
Haw. Rev. Stat. § 507D-1.

Because the “bureau of conveyances

does not have the discretionary authority to refuse to record
instruments so long as those instruments comply with certain
minimal format requirements,” the legislature found “that it is
necessary and in the best interests of the State and private
parties to legislatively provide a means to relieve this problem,
and to limit the circumstances in which nonconsensual common law
liens shall be recognized in this State and to remedy the filing
of frivolous financing statements.”

Id.

Among the remedies provided is a legal action to have
invalid nonconsensual liens expunged.

See Haw. Rev. Stat.

§ 507D-4 (“Any party in interest in real or personal property
which is subject to a claim of nonconsensual common law lien, who
believes the claim of lien is invalid, may file a petition in the
appropriate circuit court to contest the validity of that
purported lien”); id. § 507D-7 (“If the circuit court finds the
purported lien invalid, it shall order the registrar to expunge
the instrument purporting to create it, and order the lien
claimant to pay actual damages, costs of suit, and reasonable

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attorneys’ fees.”).10/

This action was filed pursuant to those

statutes.
B.

The “Judgment” in Civ. No. 86-1083
The first document to address is the document entitled

“Subpoena, Restraining Order, Notice, Order and Judgment in a
Civil Case,” recorded July 30, 2008, as Document No. 2008-121458.
(2d Am. Pet. Ex. G.)11/

The document contains copies of several

filings from a case that was filed in this district court in
1986, Simeona v. Okuna, Civ. No. 86-1083.
The Court has reviewed the record in Simeona v. Okuna,
and takes judicial notice of its contents.
201.

See Fed. R. Evid.

The initiating document in that case was called a “Common

Law Lien of Attachment and Demand At-Law (Common Law),” and was
filed on November 26, 1986.12/

That case was dismissed on May 5,

1987, for lack of prosecution, lack of service, lack of

10/

At the hearing, Defendants questioned whether this Court,
sitting in diversity, may assume the role of a Hawai#i state
circuit court, that is, whether the circuit court has exclusive
jurisdiction over petitions to expunge nonconsensual common law
liens. Nothing in Chapter 507D confers exclusive jurisdiction on
the state circuit court and precludes a federal court sitting in
diversity from hearing this case, and in any event, “state law
may not control or limit the diversity jurisdiction of the
federal courts.” Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1315
(9th Cir. 1982).
11/

The first page of this document is attached to this order
as Exhibit 3.
12/

The document references the 1983 quiet title action
filed by Okuna, indicating the Simeona plaintiffs’ awareness of
that action.
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jurisdiction, and failure to attend.

The Simeona plaintiffs had

failed to appear for at least three hearings, on March 19, April
3, and April 10, 1987.

The latter two hearings concerned an

order to show cause why the complaint should not be dismissed,
which was issued after the Simeona plaintiffs failed to appear at
the March 19 scheduling conference.

The minutes of the April 10

hearing reflect that the case would be dismissed, and a “Report
and Recommendation to Dismiss” the case was filed on April 14,
1987.
Although they failed to serve the defendants in that
case with the initiating document or appear at the hearings, the
Simeona plaintiffs filed a number of documents, both before and
after it was dismissed, including the following:
(1) A “Restraining Order/Public Notice and Warning of
Trespass/Notice of Eviction,” filed on July 9, 1987;
(2) A “Notice of Error Quae Coram Nobis Resident,”
filed on July 8, 1987;
(3) A “Judicial Notice of Writ of Execution,” filed on
April 27, 1987;
(4) A “Judicial Notice and/or Writ of Prohibition and
Caveat,” also filed on April 27, 1987;
(5) A “Judicial Notice, Constructive Notice, Special
Appearnce Notice, At-Law, and Demand that the Court Proceed
Lawfully,” filed on April 9, 1987;

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(6) A “Notice of Special Appearance, and Demand that
the Court Proceed Lawfully,” filed on April 2, 1987;
(7) A “Notice Denying Ex Post Facto Scheduling
Conference,” filed on March 18, 1987;
(8) A “Notice of Special Appearance,” also filed on
March 18, 1987; and
(9) An “Entry of Default Judgment,” and a memorandum in
support, filed on January 12, 1987.
The “Judicial Notice of Writ of Execution” stated that
the district court had decided the case on January 12, 1987, and
awarded the plaintiffs $2,500,000.

This statement is plainly

incorrect, given that the case was dismissed for lack of
prosecution several months later.

The “Entry of Default” was

filed by the Simeona plaintiffs, not by the court.

No judgment

against the defendants in that case was ever entered by the
court.
case.

The Simeona plaintiffs, Rhoda and Eliza Simeona, lost the
The “Judicial Notice of Writ of Execution” is nonetheless

the basis of the judgment lien that is one of the subjects of
this action.
The Court concludes that the document entitled
“Subpoena, Restraining Order, Notice, Order and Judgment in a
Civil Case,” Document No. 2008-121458, (2d Am. Pet. Ex. G), is an
invalid nonconsensual common law lien.
§ 507D-7.

See Haw. Rev. Stat.

The Olson Trust is entitled to have the document

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expunged.

The motion for summary judgment is therefore GRANTED

as to this document.
C.

The Four Deeds
The Court now turns to the four deeds at issue in this

case, that is:
(1) the deed from Abel Simeona Lui, as grantor, to
Beverly Yolanda Feleti, as grantee (the “Lui/Feleti Deed”),
recorded January 14, 2002, as Document No. 2002-006264 (2d Am.
Pet. Ex. B);
(2) the deed from Beverly Yolanda Feleti, as grantor,
to Abel Simeona Lui, as grantee (the “Feleti/Lui Deed”), recorded
January 14, 2002, as Document No. 2002-006265 (2d Am. Pet. Ex.
C);
(3) the deed from Abel Simeona Lui, as grantor, to Han
Kamakani Phua, as grantee (the “Lui/Phua Deed”), recorded March
12, 2004 as Document No. 2004-051779 (2d Am. Pet. Ex. D); and
(4) the deed from Han Kamakani Phua, as grantor, to
Abel Simeona Lui, as grantee (the “Phua/Lui Deed”), recorded
March 12, 2004, as Document No. 2004-051780 (2d Am. Pet. Ex.
E).13/
The first question concerning these documents is
whether section 507D-7 applies to them.

13/

Under the ordinary

The first page of each of these documents is attached as
an exhibit to this order. (See Exs. 4–7.)
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definition of the word “lien,” it would be questionable whether
section 507D-7 is applicable to the four deeds.

See Black’s Law

Dictionary 1006 (9th ed. 2009) (defining “lien” as a “legal right
or interest that a creditor has in another’s property, lasting
[usually] until a debt or duty that it secures is satisfied”).
Yet “lien” is a defined term in the statute, and the definition
is broad enough to encompass the deeds.

See Haw. Rev. Stat.

§ 507D-2 (“‘Lien’ means a recorded instrument that creates an
encumbrance on or affects title or ownership of property.”).

The

findings and purpose of the statute are also sufficiently broad
to cover the deeds.

See id. § 507D-1 (“The legislature finds

that there is a problem with the recording at the land court or
the bureau of conveyances of invalid instruments which purport to
affect the property interests of various persons.”).

The Court

therefore concludes that section 507D-7 is applicable to the four
deeds, as well as the affidavit of genealogy (discussed infra).
The Court further concludes that the deeds are invalid
nonconsensual common law liens, which the Olson Trust is entitled
to have expunged.

Defendants, and others who have filed

documents in this case, make several arguments based on
inheritance and/or paper title as to why Okuna’s title to the
land was invalid, or why Defendants retain an interest in the
land.

But Okuna’s clear title to the land has been conclusively

determined by the state court.

Moreover, Defendants, or at least

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Lui, have previously lost several other actions in that court
concerning the land at issue.

(2d Am. Pet. Exs. 8–14.)

Defendants cannot relitigate in this Court any claim that could
have been addressed in the prior state-court actions.

See

Tortorello v. Tortorello, 113 Haw. 432, 439, 153 P.3d 1117, 1124
(2007) (“[T]he judgment of a court of competent jurisdiction is a
bar to a new action in any court between the same parties or
their privies concerning the same subject matter, and precludes
the relitigation, not only of the issues which were actually
litigated in the first action, but also of all grounds of claim
and defense which might have been properly litigated in the first
action but were not litigated or decided.”) (emphasis omitted)
(quoting Bremer v. Weeks, 104 Haw. 43, 53–54, 85 P.3d 150, 160–61
(2004)).14/

Accordingly, Defendants are barred from relitigating

these issues in this Court or raising them for the first time.
The Olson Trust’s motions for summary judgment are GRANTED as to
the four deeds.
The Genealogy

D.

14/

Defendants have not argued in this Court, nor shown, that
they gained title to the land via adverse possession. Any such
claim would be precluded, as it should have been raised, if at
all, in the prior proceedings; adverse possession can be a
defense to ejectment. See, e.g., Keamalu v. Luhau, 7 Haw. 324,
325 (1888) (“[A] plaintiff in ejectment need not show possession
within twenty years if he shows title and no adverse possession
is proved.”); see also Tortorello, 153 P.3d at 1124.
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The final document at issue is the “Affidavit of
Genealogy,” recorded June 10, 2004, as Document No. 2004-117405.
(2d Am. Pet. Ex. F.)15/

The Court finds that the document

“purport[s] to affect the property interests of various persons”
in the subject property, in that it asserts that the geneaology
is “attached” to the property.

Haw. Rev. Stat. § 507D-1.

The

genealogy therefore falls within the purview of section 507D-7.
For the same reasons discussed above, the Court finds that the
Olson Trust is entitled to have the genealogy expunged.

The

Olson Trust’s motions for summary judgment are therefore GRANTED
as to the genealogy.
Whether the Liens Were Frivolous

E.

The statute provides additional remedies for purported
liens that are frivolous, including a $5,000 minimum award and
the ability to “issue appropriate injunctive relief.”
Stat. § 507D-7(a), (b).

Haw. Rev.

The statute defines “frivolous” as

“without any basis in law or fact.”

While the various liens in

this case were invalid, the Court finds that at least some of
them had a basis in fact: the Defendants believed they had an
interest in the property through their genealogy and Lui, and
perhaps others, had been on the land at some point in time.16/

15/

The entirety of this document is attached to this order
as Exhibit 8.
16/

The record does not reflect whether anyone was on the
(continued...)
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Moreover, although this factor is not determinative, the Court
notes that the deeds were all recorded before the Olson Trust
purchased the property.

In any event, the Court finds that the

liens were not frivolous for purposes of section 507D-7 (with the
qualification noted in footnote 16).
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Plaintiff’s
motion for summary judgment.

The Court will enter an order

directing the registrar to expunge the instruments at issue.
Haw. Rev. Stat. § 507D-7(a).
attorneys’ fees.

See id.

See

Plaintiff is AWARDED costs and

To the extent that any of Defendants’

filings may be construed as motions for summary judgment or other
relief in their own right, rather than as oppositions to
Plaintiff’s motions, such motions are DENIED.

16/

(...continued)
land when Civ. No. 86-1083 was filed; but in any event, the
record reflects that the plaintiffs in that case are now either
incapacitated or deceased, so neither heightened penalties nor
injunctive relief seem necessary or appropriate against them.
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IT IS SO ORDERED.
DATED:

Honolulu, Hawai#i, January 6, 2012.

________________________________
Alan C. Kay
Sr. United States District Judge

Olson v. Lui, Civ. No. 10-00691 ACK-RLP: Order Granting Plaintiff’s Motion for
Summary Judgment and Denying Various Motions by Defendants

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