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Sung Kim v. Lisa Henry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 9, 2012

SUNG KIM, PLAINTIFF-APPELLANT,
v.
LISA HENRY, A/K/A LISA LAMATTINA, DEFENDANT-RESPONDENT, AND BLAKE HENRY, A/K/A "JOHN" PAULELLA, FIRST NAME UNKNOWN; RENATA PAULELLA, DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-350-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2012 -

Before Judges Waugh and St. John.

Plaintiff Sung Kim appeals the October 19, 2011 order of the Law Division dismissing her complaint for failure to prosecute. She also appeals several interlocutory orders issued prior to the dismissal. We affirm the interim orders, but reverse the order of dismissal and remand for further proceedings consistent with this opinion.

I.

This case involves a relatively simple claim for property damage to Kim's car resulting from an accident involving a vehicle allegedly owned by defendants Lisa and Blake Henry and driven by defendant Renata Paulella, who was employed by the Henrys as a live-in nanny at the time of the accident. The Henrys, through their attorney, attempted to settle the claim several times, both before and after the filing of suit. Kim declined the settlement offers, refusing to sign releases requested as part of the settlement and insisting on payment for diminished value, interest, and costs.

Kim, who has represented herself throughout this litigation, filed a complaint against the Henrys and Paulella in the Special Civil Part in October 2008. After an answer was filed by the defendants, Kim withdrew the complaint on February 2, 2009.

On February 6, Kim filed a complaint in the Law Division against the same defendants, alleging property and consequential damages. Defense counsel filed an answer on behalf of the Henrys, but took the position that Paulella had not been properly served. The claims against Paulella were subsequently dismissed for failure to prosecute because she had not been served. R. 1:13-7.

In November 2009, the Henrys moved for summary judgment, arguing that Blake Henry was not an owner of the vehicle and that Kim could not prove that Paulella was acting as their agent at the time of the accident. By order dated January 8, 2010, the judge granted the motion as to Blake Henry, but denied it as to Lisa Henry. He also ordered that Lisa Henry appear for a deposition within forty-five days.

During subsequent motion practice, the judge entered orders

(1) extending discovery and denying Kim's application to reinstate the claim against Paulella (February 19, 2010 order),

(2) denying Kim's motion to file an amended complaint to add her daughter as a plaintiff, to reinstate the claim against Paulella, and to compel a videotaped deposition of Blake Henry (March 26, 2010 order), (3) extending discovery and scheduling arbitration (April 20, 2010 order), and (4) denying reconsideration of issues previously raised by Kim (July 28, 2010 order).

At the February 18, 2010 oral argument, which was Kim's first appearance in court, the following exchange took place:

THE COURT: Ms. Kim, I have your papers. This is your application, is there anything you'd like to say in addition to what you have in your paperwork?

UNIDENTIFIED FEMALE: Um --THE COURT: No, ma'am, you cannot speak for her. She filed the papers, she's proceeding pro se, she has to speak. Are you an attorney?

UNIDENTIFIED FEMALE: No.

THE COURT: Ms. Kim?

MS. KIM: Yes, ask my daughter.

THE COURT: I understand it's your daughter ma'am, but she can't represent you. She's not an attorney.

UNIDENTIFIED FEMALE: She doesn't understand the proceeding, so she has nothing to --THE COURT: Well, she filed the paperwork in English -- I imagine it's her paperwork, isn't it?

UNIDENTIFIED FEMALE: Correct.

THE COURT: So, she can speak English, is that right?

UNIDENTIFIED FEMALE: Right.

THE COURT: All right. If I need an interpreter I can ask for one, but if she filed this paperwork, she has the ability to speak English. Ma'am? Ms. Kim, do you speak English?

MS. KIM: No.

THE COURT: You don't speak English?

MS. KIM: Yes, I -- this English is --THE COURT: Okay. Is there anything you want to add to the paperwork that you filed in connection with your matter?

MS. KIM: Can you repeat the question?

THE COURT: Yes. I've read your papers over in connection with your motion to amend the complaint and extend the discovery. Is there anything else you would like to say in connection with this matter?

MS. KIM: You mean, like, anything more?

THE COURT: Anymore, yes ma'am.

(no audible response)

THE COURT: You're shaking your head no, there's nothing more you want to add?

(no audible response)

It is our understanding that the "unidentified female" speaker in the transcript was Kim's daughter.

Non-binding arbitration took place on September 28, 2010. Lisa Henry was found one hundred percent liable and ordered to pay the damages claimed by Kim. Although Lisa Henry renewed the offer to settle the claim, Kim again refused to settle. Kim rejected the arbitration award and filed an application for a trial de novo.

Kim moved for an order barring further requests for a release. That motion was argued on October 29, 2010. The transcript of the argument reflects that the judge heard the motion twice. The matter was called and defense counsel entered an appearance. There was no indication that Kim was present. The judge apparently decided to proceed without Kim because she had not arrived by 9:28 a.m., although that was not made explicit on the record. Defense counsel told the judge she had not filed written opposition, but wanted to oppose the motion orally. The judge heard her oral opposition and ruled on the motion, finding that it was frivolous. The judge also discussed some procedural matters with defense counsel.

Kim arrived in court just after the judge's ruling. The following exchange then took place:

THE COURT: All right. Thanks. Sung Kim?

MS. KIM: Yes.

THE COURT: Have a seat right up here, please. This is the matter of Sung Kim versus Henry . . . . Who is Sung Kim? UNIDENTIFIED FEMALE: Sorry?

THE COURT: Sung Kim, in the black jacket?

MS. KIM: Yes.

THE COURT: Thank you. Can I have your appearances for the record, please? [DEFENSE COUNSEL]: Your Honor, [Defense Counsel] here . . . for the defendant, Lisa Henry.

THE COURT: Okay. I'll hear any further discussion on the motion brought by Sung Kim. Ms. Kim, anything you'd like to say? UNIDENTIFIED FEMALE: Yeah, we'd like to amend the second --THE COURT: No, no. You don't represent her. Are you an attorney, ma'am? UNIDENTIFIED FEMALE: No, but I do have a Power of Attorney executed --THE COURT: That doesn't matter. She needs to have an attorney here this morning, or if she's going to represent herself, that's fine, she can speak.

THE COURT: . . . . Miss Kim, is there anything else you'd like to say this morning with regard to your application today?

(no audible response)

THE COURT: No? All right. Let me hear from counsel.

Defense counsel then restated her argument and the judge again denied the motion.

On November 9, 2010, Lisa Henry filed a motion to reopen discovery, set a date for her deposition, and limit attendance at the deposition to the named parties and their attorneys. Kim opposed the motion, citing the short notice and her unavailability on the date selected by defense counsel. She also requested that the motion be adjourned until she could obtain a transcript of the October 29 argument, during which statements had been made prior to her arrival about her conduct at the arbitration. The judge denied the adjournment and ordered that Lisa Henry's deposition take place on December 15. Kim did not attend the deposition.

On November 29, Kim filed a motion seeking to remove her case from the trial calendar, reinstate her complaint against Paulella, and add a claim of unjust enrichment against the Henrys. She also sought reconsideration of the July 28 order, which had denied reconsideration of the January 8 order dismissing the complaint as to Blake Henry. That motion was denied by order dated December 17, 2010.

Lisa Henry filed a motion for summary judgment returnable on the trial date of January 18, 2011. She argued that Kim failed to present any evidence that an agency relationship existed between her and Paulella. She further argued that she was in no way negligent.

Kim sought a trial adjournment on January 5, 2011. In her letter she wrote:

Plaintiff is also seeking permission to allow a friend or family member to sit with her at trial to translate. [Plaintiff] has limited English skills and found it very difficult to follow the proceedings at prior appearances and could not participate. [Plaintiff] is seventy-five years old and hiring a translator would be financially prohibitive.

According to Kim, her adjournment request was denied by court personnel in a telephone message on January 13.

On January 18, the judge called the case for trial. The following colloquy occurred:

THE COURT: . . . . Is Sung Kim here? . . . Sung Kim? Anybody? [DEFENSE COUNSEL]: She's here, Your Honor. THE COURT: Ma'am, you want to have a seat up here? If no one answers, I'm going to dismiss the complaint. If nobody answers the complaint, it'll be dismissed. You want to be heard?

THE COURT: I'll give it one more shot. Sung Kim, you want to answer my call of the case?

(No audible response)

THE COURT: What's the story here, Ma'am? Your daughter, who speaks English, can respond for you to my call. Are you going to respond?

(No audible response)

THE COURT: All right. I'm going to dismiss the complaint for failure to prosecute, based upon the fact that there are people in court, they will not respond to the complaint, it's dismissed. . .. .

THE COURT: . . . . For the record, there were two Asian Americans in the courtroom, one of them who I can identify as Sung Kim, the other as her daughter. I called the case several times. No one responded to the complaint. Defense counsel is here, ready to proceed. I don't know what the idea is from plaintiff or plaintiff's daughter. The fact is, there's not been a response to the complaint. Several times it's been called this morning, I'm going to dismiss the complaint for lack of prosecution, pursuant to Rule 1:2-4.

According to Kim, earlier that morning, her daughter made several requests to court personnel for an interpreter. She further contends that, when the judge called her case, she raised her hand but the judge refused to acknowledge her presence. Neither of those events is reflected in the transcript, although we note that defense counsel informed the judge that Kim was present in court when he called the case.

Although the judge did not enter an order of dismissal, Kim filed a notice of appeal. After a temporary remand, the final order of dismissal was entered on October 19, 2011.*fn1

II.

On appeal, Kim argues that the trial judge erred in failing to provide an interpreter and in dismissing the complaint when she refused to proceed without one at the trial call. She also challenges the interim orders including those dismissing Paulella and Blake Henry as defendants and denying her motions for reconsideration.

We begin our discussion with the issue of whether the judge should have provided an interpreter.

Although Kim's briefs are written in English, apparently with considerable assistance from an attorney, law student, or paralegal, our review of the transcripts convinces us that her ability to speak and converse in English is minimal at best. That difficulty is illustrated by the transcript excerpts quoted above. Kim attempted to have her daughter speak for her, but the judge correctly declined to allow the daughter to do so because she was neither an attorney nor a certified court interpreter. See Kasharian v. Wilentz, 93 N.J. Super. 479, 482 (App. Div.) ("nominal representatives . . . of the persons in beneficial interest, not themselves lawyers, should not be permitted to conduct legal proceedings in court"), certif. denied, 48 N.J. 447 (1967); R. 1:21-1; Standards for Delivering Interpreting Services in the New Jersey Judiciary, Standard 1.3 ("The judiciary should use only interpreters registered with the New Jersey Administrative Office of Courts"), promulgated by Administrative Directive #3-04 (Mar. 22, 2004), http://www. judiciary.state.nj.us/directives/personnel/dir_03_04.pdf.

However, Standard 1.1 provides that "[a]ll people, including persons with limited proficiency in English, should have equal access to court proceedings, programs and services" (emphasis added). The Comment to Standard 1.1 further provides:

An interpreter should ordinarily be presumed necessary for any person covered by Standard

1.2 when either that person or that person's attorney represents that such person is unable to understand or communicate readily in the English language. That presumption, however, may be rebutted by a showing of substantial evidence to the contrary made to the presiding judge of the appropriate division or that judge's designee. As a practical matter, requests for interpreting services are denied infrequently.

Standard 1.2 provides, in relevant part:

The judiciary should generally assign interpreters to interpret all phases of court-connected proceedings for any person with limited proficiency in English who is a named party in the proceeding . . . , as well as for witnesses during their testimony. Such phases include, most critically, those proceedings for which a transcript may be made, but also, when necessary, court-ordered arbitration and mediation . . . . Interpreters should be provided whenever a failure of communication may have significant negative repercussions.

The Comment to Standard 1.2 further provides, in part, that "[a] basic tenet of justice is equal access. There can be no equal access if the ability to comprehend is compromised by language barriers. At any proceeding on the record before a judge or hearing officer, interpreters must be used if a language barrier exists." See also Daoud v. Mohammad, 402 N.J. Super. 57, 60 (App. Div. 2008).

In State ex rel. R.R., 79 N.J. 97, 116 (1979), which predates the 2004 adoption of Administrative Directive #3-04, the Supreme Court held that "[a]n interpreter should never be appointed unless necessary to the conduct of a case." The Court further held that "[t]he decision as to whether an interpreter is required -- i.e., as to whether a witness' natural mode of communication is unintelligible -- is a matter primarily entrusted to the sound discretion of the trial court." Id. at 117. The trial judge's "decision in this regard will not be disturbed on appeal unless an abuse of discretion is manifest." Ibid.

In determining whether the use of an interpreter is "necessary," we must be guided by the Judiciary's current policy concerning the provision of interpreters, which has changed considerably since R.R. was decided in 1979. The Preface to Directive #3-04 provides that its "standards govern cases in Superior Court." Since the adoption and implementation of the interpreting standards, interpreters are routinely available to assist litigants whose ability to communicate in English is "limited." Standard 1.1. Indeed, according to the language of the Comment to Standard 1.1, an interpreter is "ordinarily [to] be presumed necessary for any person . . . unable to understand or communicate readily in the English language" (emphasis added).

As already noted, it is apparent from the transcripts in this case that Kim was having considerable difficulty communicating orally with the judge, even with respect to her ability to speak English. By the time of the trial call in January 2011, Kim had informed the court by letter that she had "limited English skills and found it very difficult to follow the proceedings at prior appearances and could not participate." Although she was not entitled to have a friend or family member translate for her, which is what she had requested in her letter, we conclude that court personnel should have arranged for the presence of a Korean interpreter at the trial.

Undoubtedly, Kim would have been better advised to respond to the judge when he called the case for trial, at which time she could have reiterated her request for an interpreter herself or through her daughter. Although Rule 1:2-4(a)(c) allows a trial judge to dismiss a complaint for failure of a plaintiff to appear for trial "without just excuse," it is well established that such a severe sanction should be imposed sparingly. See Gonzalaz v. Safe & Sound Sec. Corp., 185 N.J. 100, 115-16 (2005); Rabboh v. Lamattina, 312 N.J. Super. 487, 492-93 (App. Div. 1998), certif. denied, 160 N.J. 88 (1999) (citing cases).

Under all of the circumstances of this case, we conclude that the interests of justice are best served by vacation of the order of dismissal and remand for a trial on the merits, at which time a Korean interpreter should be made available to interpret for Kim as she presents her case and testifies.*fn2

We have carefully reviewed the interim orders on appeal in light of the arguments made by the parties, the record on appeal, and the applicable law. We find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

As we have noted, Kim's language difficulty relates to her in-court communications rather than her written submissions. The latter are apparently prepared for her by one or more people who are proficient in English. We see no error in the dismissal of the claims against Paulella, who was not properly served, and Blake Henry, who was apparently not an owner of the accident vehicle, or in the judge's denial of the motions for reconsideration. We also see no abuse of discretion in the judge permitting defense counsel to argue the October 10 motion when Kim failed to appear on time. It was done in open court and on the record. Once Kim arrived, the motion was argued again. The judge's ruling was not erroneous. Consequently, we affirm all of the interim orders. We see no evidence of judicial bias.

In summary, we reverse the order dismissing the complaint as to Lisa Henry and remand for further proceedings consistent with this opinion. We affirm the remaining orders on appeal.

Affirmed in part, reversed in part, and remanded.


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