Dowkin et al v. Honolulu Police Department et al
Filing
692
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND JOINDERS THERETO re 531 Motion for Partial Summary Judgmentre 533 Motion for Partial Summary Judgmentre 539 Motion for Joinderre 540 Motion for Joinder Signed by JUDGE LESLIE E. KOBAYASHI on 06/18/2015. (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 were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SERGEANT SHERMON DEAN DOWKIN,
OFFICER FEDERICO DELGADILLO
MARTINEZ, JR., and OFFICER
CASSANDRA BENNETT HUIHUI,
)
)
)
)
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Plaintiffs,
)
)
vs.
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THE CITY AND COUNTY OF
)
HONOLULU, FORMER CHIEF OF
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POLICE BOISSE CORREA,
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CURRENT CHIEF OF POLICE
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LOUIS KEALOHA, ASSISTANT
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CHIEF MICHAEL TAMASHIRO,
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MAJOR KENNETH SIMMONS,
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MAJOR JOHN MCENTIRE,
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CAPTAIN NYLE DOLERA,
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LIEUTENANT MICHAEL SERRAO,
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LIEUTENANT DAN KWON,
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LIEUTENANT WILLIAM AXT,
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SERGEANT WAYNE FERNANDEZ,
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SERGEANT RALSTAN TANAKA,
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OFFICER COLBY KASHIMOTO,
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PAT AH LOO,
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Defendants.
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_____________________________ )
CIVIL 10-00087 LEK-RLP
ORDER GRANTING DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT AND JOINDERS THERETO
Before the Court are the following motions, both filed
on March 9, 2015: 1) Defendants Lieutenant Dan Kwon (“Kwon”) and
Sergeant Wayne Fernandez’s (“Fernandez”) Motion for Partial
Summary Judgment Against Plaintiff Sergeant Shermon Dean Dowkin
on the Sixth Cause of Action of the Third Amended Complaint
(Negligent Infliction of Emotional Distress) (“NIED Motion”); and
2) Fernandez’s Motion for Partial Summary Judgment Against
Plaintiff Officer Cassandra Bennett Huihui on the Fifth Cause of
Action of the Third Amended Complaint (Intentional Infliction of
Emotional Distress) (“IIED Motion”).
[Dkt. nos. 531, 533.]
Defendant the City and County of Honolulu (“the City”) filed a
joinder in each motion on March 10, 2014.
[Dkt. nos. 539, 540.]
On May 5, 2015, Plaintiffs Sergeant Shermon Dean Dowkin
(“Dowkin”), Officer Frederico Delgadillo Martinez, Jr.
(“Delgadillo”), and Officer Cassandra Bennett Huihui1 (“Bennett
Huihui,” all collectively “Plaintiffs”) filed a memorandum in
opposition to the NIED Motion (“NIED Opposition”), and a
memorandum in opposition to the IIED Motion (“IIED Opposition”).
[Dkt. nos. 619, 616.]
On May 11, 2015, Kwon and Fernandez filed
their reply in support of the NIED Motion, and Fernandez filed
his reply in support of the IIED Motion.
[Dkt. nos. 622, 621.]
These matters came on for hearing on May 26, 2015.
After careful consideration of the motions, supporting and
opposing memoranda, and the arguments of counsel, the NIED
Motion, the IIED Motion, and the City’s joinders thereto, are
HEREBY GRANTED for the reasons set forth below.
1
Prior to November 7, 2014, Bennett Huihui was referred to
in the case as Cassandra Bennett-Bagorio. [Dkt. no. 483.]
2
BACKGROUND
The general factual and procedural background of this
case is set forth in this Court’s May 1, 2015 order addressing
four defense motions for summary judgment (“5/1/15 Order”).
[Dkt. no. 615.]
Thus, this Court will only discuss the
background hat is relevant to the instant Motion.
I.
NIED Motion
In Count VI, Dowkin alleges an NIED claim against the
City, Kwon, and Fernandez, and Bennett Huihui alleges an NIED
claim against the City and Defendant Sergeant Ralstan Tanaka
(“Tanaka”).
[Third Amended Complaint for Compensatory, Statutory
and Punitive Damages (“Third Amended Complaint”), filed 1/17/12
(dkt. no. 221), at pg. 59.]
In the 5/1/15 Order, this Court
granted summary judgment in favor of the City and Tanaka as to
Bennett Huihui’s claim on the ground that her “NIED claim is
subject to the general rule that Chapter 386 is the exclusive
remedy for work-related injuries that are not related to sexual
harassment or sexual assault.”
[5/1/15 Order at 26.]
Kwon and
Fernandez now seek summary judgment as to Dowkin’s NIED claim
against them.
Plaintiffs allege that Kwon, Fernandez, and the other
defendants2 discriminated against Dowkin because of his race and
2
The Court will refer to all of the defendants collectively
as “Defendants.” See 5/1/15 Order at 4 (listing all Defendants).
3
retaliated against him for complaining about the discrimination.
The Third Amended Complaint alleges that: Kwon failed to respond
to Dowkin’s informal complaint about the failure to provide backup cover and the failure to provide assistance during arrests;
Kwon and Fernandez made racist comments about Dowkin; Fernandez
ordered patrol officers not to provide back-up cover or other
assistance in processing arrests for Dowkin and other members of
the driving under the influence (“DUI”) team;3 Kwon allowed
Fernandez’s order to stand, in spite of Dowkin’s protests;
Fernandez ordered Delgadillo to abandon his cover of Dowkin
during a September 14, 2007 traffic stop; Kwon failed to assist
Dowkin in the processing of the arrest of an intoxicated person
and allegedly played computer games instead; in retaliation for
the complaints Dowkin wrote about the failure to provide back-up
cover, Kwon advocated to disband the DUI team; Kwon and Fernandez
ordered Dowkin to prepare unnecessary memoranda that blemished
his personnel file; Kwon and Fernandez imposed training and
procedural requirements on Dowkin that were not required of other
officers; and Fernandez allowed racist remarks regarding AfricanAmericans to be made in Dowkin’s presence at a shift briefing.
3
Plaintiffs allege that: “In 2003, Sgt. Dowkin was assigned
to head an elite team to enforce DUI laws in District 4, which
would require Sgt. Dowkin and the officers on his team to make
potentially dangerous traffic stops of individuals under the
influence of drugs and/or alcohol.” [Third Amended Complaint at
¶ 37.] Delgadillo worked under Dowkin as a DUI team officer.
[Id. at ¶ 40.]
4
See, e.g., Third Amended Complaint at ¶¶ 61, 84-85, 88-89, 92-94,
96-97, 103, 105, 109, 132, 141.
Count VI alleges that “[b]y
committing the[se] acts . . . , Kwon and Fernandez inflicted
emotional distress on Plaintiff Dowkin resulting in physical
injury to Plaintiff Dowkin.”
[Id. at ¶ 172.]
The Third Amended
Complaint alleges that, as a result of the stress from the
accumulation of Defendants’ actions, he was hospitalized for a
heart ailment.
[Id. at ¶ 131.]
In the NIED Motion, Kwon and Fernandez argue that they
are entitled to summary judgment because: Dowkin’s NIED claim is
barred by the exclusive remedy provisions of Hawaii’s workers’
compensation law, Haw. Rev. Stat. §§ 386-3, 386-5; assuming,
arguendo, that the clam is not barred, Plaintiffs’ evidence of
his alleged heart condition is not sufficient to establish a
predicate injury for an NIED claim; and Plaintiffs have not
presented sufficient evidence to raise a genuine issue of
material fact as to the cause of his heart condition.
II.
IIED Motion
Count V alleges that:
By committing the acts and omissions described
above, Defendants Tanaka and [Officer Colby]
Kashimoto [(“Kashimoto”)] inflicted emotional
distress on all of the Plaintiffs; Defendant
[Lieutenant William] Axt [(“Axt”)] inflicted
emotional distress on Plaintiffs Dowkin and
Delgadillo; and Defendant Fernandez inflicted
emotional distress on Plaintiff Bennett-Bagorio
(regarding his intentional November 28, 2011 entry
into Ofc. Bennett-Bagorio’s secure [Honolulu
5
Police Department (“HPD”)] workplace on June 2,
2011, described in Paragraph 49 above).
[Third Amended Complaint at ¶ 167.]
The reference to
November 28, 2011 appears to be an error that should refer to
June 2, 2011, and the reference to paragraph 49 appears to be an
error that should refer to paragraph 48, which alleges:
On June 2, 2011, Defendant Fernandez, now a
civilian, gained entry into Ofc. Bennett-Bagorio’s
secure work place at HPD Central Receiving, with
the intent to cause. [sic] or with reckless
disregard that his actions would cause, Ofc.
Bennett-Bagorio to suffer severe and extreme
emotional distress, and Ofc. Bennett-Bagorio did,
in fact, suffer severe and extreme emotional
distress as a result. Although not authorized,
Defendant Fernandez gained entry to Ofc. BennettBagorio’s secure work place with the aid and
agreement of officers of Defendant City, thus
conspiring to cause Ofc. Bennett-Bagorio to suffer
harm.
[Id. at ¶ 48.]
The Court will refer to this incident as “the
Receiving Desk Incident.”
At the time of the Receiving Desk
Incident, Plaintiffs had already filed this action, and Fernandez
was one of the named defendants.
See First Amended Complaint for
Compensatory, Statutory and Punitive Damages and for Injunctive
Relief Prohibiting Illegal and Life-Threatening Racial and Gender
Discrimination and Retaliation, filed 3/30/10 (dkt. no. 5), at
¶ 17.
In the IIED Motion, Fernandez argues that he is
entitled to summary judgment as to Bennett Huihui’s IIED claim
because she cannot present facts that would support an IIED
6
claim.
Her response to the relevant defense discovery request
shows that he did not interact with her at all on June 2, 2011;
all he did was walk behind her.
Fernandez argues that no
reasonable person could find that merely walking behind someone
rises to the level of outrageous conduct necessary to support an
IIED claim.
He therefore argues that this Court can rule on the
outrageousness issue as a matter of law.
DISCUSSION
I.
NIED Motion
The Hawai`i Workers’ Compensation Law provides:
The rights and remedies herein granted to an
employee . . . on account of a work injury
suffered by the employee shall exclude all other
liability of the employer to the employee, . . .
at common law or otherwise, on account of the
injury, except for sexual harassment or sexual
assault and infliction of emotional distress or
invasion of privacy related thereto, in which case
a civil action may also be brought.
Haw. Rev. Stat. § 386-5.
In the 5/1/15 Order, this Court rejected Bennett
Huihui’s arguments that: § 386-5 only barred her from bringing an
NIED claim based on the incident which was the subject of her
workers’ compensation claim; and she could pursue NIED claims
based on other contemporaneous incidents which were not included
in her workers’ compensation claim.
This Court stated: “Bennett
Huihui cites no authority for the proposition that a claimant can
intentionally omit a known work-related injury from a workers’
7
compensation claim in order to file a civil action based upon
that injury.”
[5/1/15 Order at 23.]
In the NIED Motion,
Plaintiffs present a similar argument regarding the remaining
portions of Count VI.
They argue that:
In this case, it would be unfair to prevent Sgt.
Dowkin from pursuing his claims in the Sixth Cause
of Action despite the willful and wanton
misconduct perpetrated against him by the
defendants just because his physical and emotional
injuries have not prevented him from working;
especially in light of the fact that there is no
potential for double recovery.
[NIED Opp. at 11-12.]
Nothing in § 386-5 suggests that employees
are only limited to the remedies available under Chapter 386 when
their work injuries prevent them from working.
Chapter 386 does
not allow employees to elect between pursing workers’
compensation remedies or NIED claims.
Further, based on the same analysis that this Court set
forth in the 5/1/15 Order regarding Bennett Huihui’s NIED claim,
even if Hawai`i law did allow Dowkin to make such an election,
his claim would still fail as a matter of law.4
His NIED claim
does not fall within the § 386-5 exception for claims alleging
the infliction of emotional distress related to sexual harassment
or sexual assault, and this Court has predicted that the Hawai`i
Supreme Court would hold that the exception to the exclusivity
4
This Court has recognized that it has supplemental
jurisdiction pursuant to 28 U.S.C. § 1367 over Plaintiffs’ state
law claims, and therefore Hawai`i substantive law applies to the
analysis of those claims. [5/1/15 Order at 24 n.11.]
8
rule for IIED claims arising from discrimination in violation of
§ 378–2 does not apply to NIED claims.
See 5/1/15 Order at 23-
26.
Thus, This Court FINDS that there are no genuine issues
of material fact regarding Dowkin’s NIED claim and CONCLUDES that
Kwon and Fernandez are entitled to summary judgment as to
Count VI because, as a matter of law, Dowkin’s claim is barred by
§ 386-5.
See Fed. R. Civ. P. 56(a) (stating that a party is
entitled to summary judgment “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”).
The NIED Motion is
therefore GRANTED.
II.
IIED Motion
A.
Scope of Bennett Huihui’s IIED Claim
The first issue that this Court must address is the
scope of Bennett Huihui’s IIED claim against Fernandez.
Plaintiffs urge this Court to reject Fernandez’s argument that
the claim is limited to the Receiving Desk Incident.
They
emphasize that the incident was the culmination of all of
Fernandez’s discriminatory and retaliatory actions against
Bennett Huihui.
It is Plaintiffs’ position that Count V
incorporates all of the incidents alleged in the Third Amended
Complaint against Fernandez.
In particular, Plaintiffs argue
that the basis of Bennett Huihui’s IIED claim against Fernandez
9
includes the issuance of “a specific order, in direct violation
of HPD policy, to the officers of the First Watch in District 4
that they were not to provide backup cover for the DUI team (Sgt.
Dowkin and Ofc. Delgadillo).”
[Third Amended Complaint at ¶ 43.]
Plaintiffs emphasize that this Court has ruled that whether
Tanaka’s failure to provide Bennett Huihui with back-up cover
during the October 18, 2010 “Porky’s Incident”5 was sufficiently
outrageous to support an IIED claim is an issue of fact for the
jury.
See 5/1/15 Order at 42-43 (denying Tanaka’s motion for
summary judgment as to Bennett Huihui’s IIED claim).
They argue
that Tanaka’s failure to provide Bennett Huihui with back-up
cover during the Porky’s Incident was the result of the influence
of Fernandez, Kashimoto, and Axt.
[IIED Opp. at 12.]
The only paragraph of Count V that makes a specific
factual allegation regarding Fernandez is paragraph 167, which
asserts that he inflicted emotional distress on Bennett Huihui
during the Receiving Desk Incident.
It is true that the previous
paragraph states that “Plaintiffs reallege and incorporate by
reference every allegation stated herein.”
Complaint at ¶ 166.]
[Third Amended
However, while paragraph 167’s allegations
against Tanaka, Kashimoto, and Axt are general and are consistent
with the incorporation of the preceding paragraphs, the specific
5
This Court described the Porky’s Incident in the 5/1/15
Order at pages 6 and 10 to 13.
10
reference to a single incident involving Fernandez is
inconsistent with such incorporation.
Plaintiffs offer, inter alia, Bennett Huihui’s
deposition testimony as support for their argument that the scope
of her IIED claim against Fernandez is broader than just the
Receiving Desk Incident.
[Pltfs.’ Separate Concise Statement of
Facts in Supp. of IIED Opp. (“Pltfs.’ IIED CSOF”), filed 5/4/15
(dkt. no. 618), Decl. of Counsel, Exh. A (excerpts of trans. of
4/5/11-4/7/11 depo. of Officer Cassandra Bennett-Bagorio
(“Bennett Huihui Depo.”)).]
During her deposition, Bennett
Huihui testified extensively about Fernandez’s orders that she
not assist or provide back-up cover to the DUI team, and the
consequences that she suffered when she disobeyed those orders.
See, e.g., id. at 42, 48, 64-66, 80-81.
Although Plaintiffs’
counsel was aware of this testimony when they drafted the Third
Amended Complaint, they still chose language that specifically
limited Bennett Huihui’s IIED claim against Fernandez to the
Receiving Desk Incident.
If counsel intended to base Bennett
Huihui’s IIED claim on all previous allegations regarding
Fernandez, counsel could have used the same general language that
they used to describe the IIED claims against Tanaka, Kashimoto,
and Axt.
Further, in interpreting Plaintiffs’ IIED claim, which
arises under state law, the Court must apply the common principle
11
in Hawai`i law that a specific provision controls over a general
one.
Cf. Baqui v. Burlington Ins. Co., Civil No. 10–00774
LEK–BMK, 2011 WL 1254084, at *8 (D. Hawai`i Mar. 31, 2011)
(noting that, when a general provision of a contract conflicts
with specific provisions, “the ‘specific controls the general’”
(quoting Kaiser Hawaii Kai Dev. Co. v. Murray, 49 Haw. 214, 227,
412 P.2d 925, 932 (1966))); Kinkaid v. Bd. of Review of City &
Cnty. of Honolulu, 106 Hawai`i 318, 323, 104 P.3d 905, 910 (2004)
(“When faced with a plainly irreconcilable conflict between a
general and a specific statute concerning the same subject
matter, this court invariably favors the specific.” (citations
and internal quotation marks omitted)).
This Court therefore
concludes that the specific limitation in paragraph 167 of
Bennett Huihui’s IIED claim against Fernandez to the Receiving
Desk Incident controls over the general language in paragraph 166
incorporating the allegations in all previous paragraphs.
Thus,
this Court CONCLUDES that Bennett Huihui’s IIED claim against
Fernandez is not based on either his involvement in the denial of
back-up cover or any other incident beyond the Receiving Desk
Incident.6
This Court emphasizes that its ruling that Bennett
6
This Court notes that its ruling is consistent with the
prior orders issued by Chief United States District Judge
Susan Oki Mollway, who previously presided over this case.
Chief Judge Mollway never interpreted Bennett Huihui’s IIED claim
against Fernandez to extend beyond the Receiving Desk Incident.
For example, in a July 3, 2012 order that, inter alia, denied
(continued...)
12
Huihui’s IIED claim against Fernandez is limited to the Receiving
Desk Incident does not apply to any of Bennett Huihui’s other
claims against Fernandez.
B.
Merits of Bennett Huihui’s IIED Claim
The standards that this Court applies when reviewing
Plaintiffs’ IIED claims are set forth in the 5/1/15 Order at
pages 36 to 38.
During discovery, Bennett Huihui described the
Receiving Desk Incident as follows:
Defendant Fernandez was later permitted to further
inflict emotional distress upon me by being
allowed entry into my “secure” workplace in
Central Receiving after Defendant Fernandez had
retired from the Department.
On June 2, 2011, about 1100 hours, in the course
of my duty assigned to Central Receiving, I was
confronted by Wayne Fernandez, who had retired
from Honolulu Police Department and brought a
pizza into the facility for other employees.
Although I tried my hardest to avoid him,
Fernandez subsequently walked behind me making his
presence known.
I feel that Fernandez [sic] actions were
deliberate to intimidate and harass me at my new
work assignment. He is retired from HPD and
should not be in this secured facility
6
(...continued)
Plaintiffs leave to file a fourth amended complaint, Chief Judge
Mollway noted that the Third Amended Complaint “added a claim for
IIED by Bennett–Bagorio against Fernandez based upon an alleged
visit he made to HPD’s Central Receiving on June 2, 2011.” Dkt.
no. 338 at 8, available at 2012 WL 2577572.
13
I feel that he was obviously trying to make his
presence known and reestablish his authoritative
connection with the staff at [the Central
Receiving Desk].
His actions caused me emotional distress as I had
a difficult time completing my shift. I felt
unsafe and physically ill. I tried to hide my
tears from my co-workers by retreating to the
adult sally port.
I was assured there was a “good faith agreement”
from the defendants, including Wayne Fernandez, in
lieu of a formal Injunction Against Harassment.
It is clear that the Department cannot protect me.
[Fernandez’s Concise Statement of Facts in Supp. of IIED Motion
(“Fernandez’s IIED CSOF”), filed 3/9/15 (dkt. no. 534), Aff. of
Cary Tanaka, Exh. A (Bennett Huihui’s Responses to the City’s
First Request for Answers to Interrogs., dated 10/17/11 (“Bennett
Huihui Interrogs.”)) at 12-13.]
Bennett Huihui also stated in an
affidavit that Fernandez “came to my place of work to retaliate
and harass me when I was recovering [from the Porky’s Incident]
on light duty.”
[Pltfs.’ IIED CSOF, Aff. of Cassandra Bennett
Huihui (“Bennett Huihui Aff.”) at ¶ 4.k.7]
The Ninth Circuit has stated:
Self-serving affidavits may be cognizable on
motions for summary judgment if they go beyond
conclusions and include facts that would be
admissible in evidence, see United States v.
Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999),
but “a conclusory, self-serving affidavit, lacking
detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material
7
The Bennett Huihui Affidavit is not dated, but it was
notarized on February 20, 2015. [Bennett Huihui Aff. at pg. 13.]
14
fact,” FTC v. Publ’g Clearing House, Inc., 104
F.3d 1168, 1171 (9th Cir. 1997); see also
Rodriguez v. Airborne Express, 265 F.3d 890, 902
(9th Cir. 2001) (summary judgment inappropriate
where plaintiff set forth facts directly relevant
to claim with “great specificity”); McLaughlin [v.
Liu], 849 F.2d [1205,] 1206 [(9th Cir. 1988)]
(nonmoving party survived summary judgment where
he relied on sworn affidavit that included
specific factual averments, sworn answers to
interrogatories, and payroll documentation
supporting his factual allegations).
Burchett v. Bromps, 466 F. App’x 605, 607 (9th Cir. 2012).
Plaintiffs have not identified any evidence which
supports Bennett Huihui’s subjective belief that, on June 2,
2011, Fernandez came to the Receiving Desk to intimidate, harass,
or retaliate against her.
In fact, Bennett Huihui stated that
Fernandez brought a pizza to the facility for other employees.
[Bennett Huihui Interrogs. at 13.]
Plaintiffs have not
identified any evidence which supports Bennett Huihui’s
subjective belief that Fernandez “walked behind” her to
intimidate, harass, or retaliate against her.
This Court finds
that Bennett Huihui’s conclusory, self-serving statements in her
interrogatory response and affidavit are insufficient to create a
genuine issue of material fact as to whether Fernandez intended
to cause her emotional distress during the Receiving Desk
Incident.
15
Even viewing the record in the light most favorable to
Plaintiffs,8 the evidence merely indicates that, on June 2, 2011:
1) Fernandez came to the HPD facility to bring pizza to other
employees; 2) he entered a secured area even though he was
retired from HPD at the time; 3) he walked behind Bennett Huihui;
and 4) there was a “good faith agreement” in place between
Plaintiffs and Defendants in lieu of a preliminary injunction.
Whether Fernandez’s conduct under these circumstances was
sufficiently outrageous to support an IIED claim is for this
Court to decide because reasonable people would not differ as to
this issue.
See Young v. Allstate Ins. Co., 119 Hawai`i 403,
429, 198 P.3d 666, 692 (2008) (“The question whether the actions
of the alleged tortfeasor are unreasonable or outrageous is for
the court in the first instance, although where reasonable people
may differ on that question it should be left to the jury.”
(citation and quotation marks omitted)).
This Court cannot find
that Fernandez’s conduct was “so outrageous in character, and so
extreme in degree, as to go beyond all bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community.”
See Ross v. Stouffer Hotel Co. (Hawai`i) Ltd., Inc.,
8
This district court has stated that, in considering a
motion for summary judgment, “[a]ll evidence and inferences must
be construed in the light most favorable to the nonmoving party.”
Maui Elec. Co. v. Chromalloy Gas Turbine, LLC, Civil No. 12–00486
SOM–BMK, 2015 WL 1442961, at *4 (D. Hawai`i Mar. 27, 2015)
(citing T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626, 631 (9th Cir. 1987)).
16
76 Hawai`i 454, 465 n.12, 879 P.2d 1037, 1048 n.12 (1994)
(quoting Restatement (Second) of Torts § 46, cmt. d. (1965)).
This Court concludes that Plaintiffs cannot establish
one of the required elements of Bennett Huihui’s IIED claim
against Fernandez.
This Court therefore FINDS that there is no
genuine issue of material fact and that Fernandez is entitled to
summary judgment as to Bennett Huihui’s IIED claim against him.
Fernandez’s IIED Motion is GRANTED.
CONCLUSION
On the basis of the foregoing, Kwon and Fernandez’s
Motion for Partial Summary Judgment Against Plaintiff Sergeant
Shermon Dean Dowkin on the Sixth Cause of Action of the Third
Amended Complaint (Negligent Infliction of Emotional Distress),
and Fernandez’s Motion for Partial Summary Judgment Against
Plaintiff Officer Cassandra Bennett Huihui on the Fifth Cause of
Action of the Third Amended Complaint (Intentional Infliction of
Emotional Distress), both filed March 9, 2015, are HEREBY
GRANTED.
Further, the City’s joinders in the motions, both filed
on March 10, 2015, are HEREBY GRANTED as joinders of simple
agreement.
IT IS SO ORDERED.
17
DATED AT HONOLULU, HAWAII, June 18, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
SERGEANT SHERMAN DEAN DOWKIN, ET AL. VS. THE CITY AND COUNTY OF
HONOLULU, ET AL; CIVIL 10-00087 LEK-RLP; ORDER GRANTING
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND JOINDERS THERETO
18
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