NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 13 2023

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

EVAN AULD-SUSOTT, as Trustee for No. 21-17078 (1) Irrevocable Life Insurance Trust of John L. Susott & Kathryn C. Susott UAD D.C. No. 1:20-cv-00270-LEK-RT 8/17/1988 as Restated, Exempt Trust fbo Daniel C. Susott, & (2) Irrevocable Life MEMORANDUM* Insurance Trust of John L. Susott & Kathryn C. Susott UAD 8/17/1988 as Restated,Non- Exempt Trust FBO Daniel C. Susott; JOHN

L. SUSOTT,

Plaintiffs-Appellees, v.

LAURYN GALINDO; DANIEL C.

SUSOTT,

Defendants-Appellants.

Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding Argued and Submitted February 17, 2023 Honolulu, Hawaii

Before: BEA, COLLINS, and LEE, Circuit Judges.

Plaintiffs Evan Auld-Susott and John Susott (“Plaintiffs”) successfully

obtained substantial judgments in California state court against Defendant Daniel

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Susott (“Daniel”). Contending that the judgments remain unsatisfied even after the

recording of judgment liens against one of Daniel’s properties, Plaintiffs have

sought to impose a constructive trust on a condominium in Honolulu that Daniel

first transferred to Defendant Lauryn Galindo (“Galindo”) in 2010, before

Plaintiffs’ California state lawsuits were filed. Plaintiffs had filed an earlier federal

action in 2016 against Galindo only, and in that suit they succeeded in obtaining a

ruling in 2019 that voided the 2010 transfer as a fraudulent conveyance, thereby

returning title to the condominium to Daniel. However, the district court declined

to impose a constructive trust on the property in its 2019 ruling, because it

concluded that a return of the property to Daniel would be a sufficient remedy that

would make the condominium available for enforcement of the judgments. But

within days of the ruling undoing the transfer to Galindo, Daniel simply deeded the

property back to Galindo. Plaintiffs thereupon brought this action against both

Galindo and Daniel in 2020. The district court ultimately granted summary

judgment to Plaintiffs, voided the 2019 deed from Daniel to Galindo, imposed a

constructive trust on the condominium, and appointed a trustee. This appeal

followed.

1. The district court erred in finding that collateral estoppel barred Daniel

from relitigating matters decided in the 2016 lawsuit against Galindo.

Because the 2016 federal lawsuit rested on diversity jurisdiction, and there is

2 no sense in which Hawaii prelusion law is “incompatible with federal interests,”

Hawaii law governs the preclusive effect of the 2019 judgment rendered in that

case. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508–09 (2001).

Under Hawaii law, a person is bound by a prior judgment only if that person was a

party to the prior suit or is in privity with such a party. Dorrance v. Lee, 976 P.2d

904, 910 (Haw. 1999); cf. Taylor v. Sturgell, 553 U.S. 880, 892–93 (2008)

(applying a similar rule in federal preclusion law). In finding that Daniel was in

privity with Galindo as a matter of law, the district court relied on the premise that

their interests with respect to the prior 2016 action against Galindo “were identical;

each wanted the transfer of property found valid.” This was error.

A mere commonality of interests is insufficient to establish privity under

Hawaii law. Rather, there must be a sufficient showing “that the relationship

between the one who is a party of record and another is close enough to include

that other within the res adjudicata.” In re Herbert M. Dowsett Tr., 791 P.2d 398,

402 (Haw. Ct. App. 1990) (citations and internal quotation marks omitted).

Plaintiffs bore the burden of establishing such a relationship between Daniel and

Galindo. See id. at 402–03. They failed to carry that burden.

There has been no showing that Daniel “had the same opportunity” as

Galindo “to control the [prior] proceedings,” nor has it been shown that Galindo

was “appointed” to represent Daniel’s “interests by any valid procedure.” Lingle v.

3 Haw. Gov’t Emps. Ass’n, 111 P.3d 587, 596 (Haw. 2005); see also Bush v. Watson,

918 P.2d 1130, 1136–37 (Haw. 1996) (holding that even a person’s participation as

an amicus curiae in a suit was insufficient to establish privity absent a showing that

“the nonparty and party had the same practical opportunity to control the course of

the proceedings”). Although the district court’s 2019 ruling noted the close,

almost familial relationship between Galindo and Daniel, a “close family

relationship, without more, ‘is not enough to bind a nonparty to a judgment.’” In

re Dowsett Tr., 791 P.2d at 403 (citation omitted). And, finally, this is not a

situation in which Daniel—the original owner—can be characterized as a

successive property owner whose rights to the property derive from a grant from

the losing litigant. Cf. Tibbetts v. Damon, 17 Haw. 203, 205 (1905) (“So far as

estoppel by former judgment is concerned, a grantee is in privity with his grantor,

but the converse is not true that a grantor is in privity with his grantee.”). The prior

litigation simply voided Galindo’s interests in the property, leaving in place

Daniel’s pre-existing rights. In short, Plaintiffs failed to establish that, as a matter

of law, Galindo “adequately represented the interests and properly protected the

rights” of Daniel in the prior litigation. In re Dowsett Tr., 791 P.2d at 402–03

(identifying these factors as “major considerations in privity analysis”).1

1 If we were to apply federal preclusion principles, we would, for similar reasons, reach the same conclusion that Susott is not bound by Galindo’s loss in the prior litigation. See Taylor, 553 U.S. at 893–98, 904.

4 2. The district court did not abuse its discretion in denying Defendants’

motions to disqualify Judge Kobayashi under 28 U.S.C. § 455(a). Defendants have

not alleged that the judge was biased due to an “extrajudicial source,” but instead

rely only on her rulings and comments during the course of the entire litigation.

To prevail on such a theory, Defendants had to show that the judge’s rulings and

comments “display a deep-seated favoritism or antagonism that would make fair

judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). The

district court properly concluded that this high standard had not been met. The

district court obviously did not view Defendants’ conduct with favor, but that is

not enough to warrant recusal. Cf. id. at 550–51 (stating that a judge is not

“recusable for bias” merely because, after hearing the evidence of the defendant’s

behavior at trial, the judge is “exceedingly ill disposed towards the defendant, who

has been shown to be a thoroughly reprehensible person”). While the judge’s

criticisms here were often pointed, it was not an abuse of discretion to conclude

that they were not “so extreme as to display clear inability to render fair

judgment.” Id. at 551.

3. Because the district court’s summary judgment ruling placed critical

reliance on its application of preclusion principles, we must vacate that summary

judgment as to Daniel. Galindo, however, is bound by the findings made in

connection with the 2019 judgment. Nonetheless, because the district court’s

5 ultimate conclusions and remedy were predicated on its across-the-board

application of preclusion principles, we vacate the district court’s summary

judgment in its entirety, leaving it to that court on remand to reexamine in the first

instance the extent to which summary judgment may be warranted given that

preclusion principles apply only as against Galindo.2

VACATED AND REMANDED.3

2 Our vacatur of the summary judgment, which takes effect upon the issuance of this court’s mandate, necessarily vitiates the grounds on which the existing constructive trust rests. Nothing in our decision, however, should be construed as expressing a view as to whether or not, in light of our decision, the district court on remand could properly provide interim relief with respect to the property at issue pending further proceedings. Any such matter would appropriately be raised in the district court in the first instance. 3 Defendants’ motion to supplement the record on appeal is denied as moot.

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