Baham v. Association of Apartment Owners of Opua Hale Patio Homes et al

Filing 75

ORDER Granting Association of Apartment Owners of Opua Hale Patio Homes and Associa Hawaii fka Certified Hawaii, Inc.'s 7 Motion to Dismiss Complaint and Denying Motion For a More Definite Statement as Moot and Granting Defendant Porter McGui re Kiakona & Chow, LLP's 15 Motion to Dismiss; and Denying Jonah Kogen's 14 Motion for Summary Judgment; Plaintiff is Granted Leave to Amend. Signed by JUDGE HELEN GILLMOR on 6/18/14. (gab, )CERTIFICATE OF SERVI CEParticipants 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
)
)
)
)
Plaintiff,
)
)
)
vs.
)
)
)
ASSOCIATION OF APARTMENT OWNERS )
)
OF OPUA HALE PATIO HOMES;
PORTER MCGUIRE KIAKONA & CHOW, )
)
LLP; ASSOCIA HAWAII fka
CERTIFIED HAWAII, INC.; JONAH )
)
KOGEN,
)
)
Defendants.
)
)
)

CIV. NO. 13-00669 HG-BMK

RANDOLPH BAHAM,

ORDER GRANTING ASSOCIATION OF APARTMENT OWNERS OF OPUA HALE PATIO
HOMES AND ASSOCIA HAWAII fka CERTIFIED HAWAII, INC.’S
MOTION TO DISMISS COMPLAINT AND
DENYING MOTION FOR A MORE DEFINITE STATEMENT AS MOOT (ECF No. 7)
AND
GRANTING DEFENDANT PORTER MCGUIRE KIAKONA & CHOW, LLP’S MOTION
FOR PARTIAL DISMISSAL (ECF No. 15)
AND
DENYING JONAH KOGEN’S MOTION FOR SUMMARY JUDGMENT (ECF No. 14)
PLAINTIFF IS GRANTED LEAVE TO AMEND

Plaintiff’s suit arises from the non-judicial foreclosure of
his condominium unit at Opua Hale Patio Homes by the Association
of Apartment Owners. The Association of Apartment Owners
foreclosed on the unit based on Plaintiff’s failure to pay his
condominium association fees.

Defendants Association of Apartment Owners and Associa Hawaii’s
Motion to Dismiss and Motion for a More Definite Statement (ECF
No. 7)
Plaintiff brings suit against the Association of Apartment
Owners of Opua Hale Patio Homes and Associa Hawaii, the
condominium’s management company.
Plaintiff alleges claims against the Association of
Apartment Owners of Opua Hale Patio Homes for breach of its
governing documents, breach of contract, breach of fiduciary
duty, promissory estoppel, tortious interference with contractual
relations, negligence, and negligent and intentional infliction
of emotional distress. Plaintiff also alleges that the
Association of Apartment Owners violated Hawaii state statutes
governing condominium associations, foreclosure, debt collection,
and unfair and deceptive practices.
Plaintiff alleges claims against Associa Hawaii for tortious
interference with contractual relations, negligence, and
negligent and intentional infliction of emotional distress.
Plaintiff also alleges that Associa Hawaii violated state
statutes governing foreclosure, debt collection, and unfair and
deceptive practices.
Defendants Association of Apartment Owners of Opua Hale
Patio Homes and Associa Hawaii move to dismiss the claims alleged

2

against them and for a more definite statement as to any
remaining claims. (ECF No. 7.)
Defendants Association of Apartment Owners of Opua Hale
Patio Homes and Associa Hawaii’s Motion to Dismiss is GRANTED.
Their Motion for a More Definite Statement is DENIED AS MOOT.
Plaintiff is granted LEAVE TO AMEND claims against the
Association of Apartment Owners of Opua Hale Patio Homes and
Associa Hawaii, consistent with the rulings in this Order.

Defendant Porter McGuire Kiakona & Chow, LLP’s Motion for Partial
Dismissal (ECF No. 15)
Plaintiff alleges claims against Porter McGuire Kiakona &
Chow LLP, the law firm for the Association of Apartment Owners of
Opua Hale Patio Homes. The claims against Porter McGuire Kiakona
& Chow, LLP are for tortious interference with contractual
relations, negligence, negligent infliction of emotional
distress, unfair and deceptive practices, and violations of state
and federal debt collection laws.
Defendant Porter McGuire Kiakona & Chow, LLP moves to
dismiss the claims alleged against it, except for the claim
alleging a violation of federal debt collection law. (ECF No.
15.)

3

Defendant Porter McGuire Kiakona & Chow, LLP’s Motion for
Partial Dismissal is GRANTED. The claim for violation of federal
debt collection law remains.
Plaintiff is granted LEAVE TO AMEND claims against Porter
McGuire Kiakona & Chow, LLP, consistent with the rulings in this
Order.

Defendant Jonah Kogen’s Motion for Summary Judgment (ECF No. 14)
Plaintiff alleges various claims against Jonah Kogen, the
purchaser of the condominium unit at the foreclosure sale. The
claims against Jonah Kogen are for tortious interference with
contractual relations, prima facie tort, quiet title, and
wrongful eviction.
Defendant Jonah Kogen moves for summary judgment on the
claims alleged against him. (ECF No. 14.)
All of Plaintiff’s claims against Defendant Jonah Kogen are
DISMISSED. Plaintiff is granted LEAVE TO AMEND the claims for
quiet title and wrongful eviction, consistent with the rulings in
this Order.
Defendant Jonah Kogen’s Motion for Summary Judgment is
DENIED.

4

PROCEDURAL HISTORY

On October 29, 2013, Plaintiff Randolph Baham filed a First
Amended Complaint in the Circuit Court of the First Circuit of
the State of Hawaii. The First Amended Complaint alleges claims
against four Defendants: Association of Apartment Owners of Opua
Hale Patio Homes (“AOAO”), Porter McGuire Kiakona & Chow, LLP
(“Porter McGuire”), Associa Hawaii fka Certified Hawaii, Inc.
(“Associa”), and Jonah Kogen. (Notice of Removal Ex. A, ECF No.
1.)
On November 18, 2013, the First Amended Complaint was served
upon Porter McGuire. (Notice of Removal at ¶ 2, ECF No. 1.)
On December 6, 2013, Defendant Porter McGuire removed the
action to the Hawaii Federal District Court. The other Defendants
consented to the removal. (ECF No. 1.)
On December 12, 2013, Defendants AOAO and Associa filed
“DEFENDANTS ASSOCIATION OF APARTMENT OWNERS OF OPUA HALE PATIO
HOMES AND ASSOCIA HAWAII fka CERTIFIED HAWAII, INC.’S MOTION TO
DISMISS COMPLAINT FILED ON OCTOBER 29, 2013 AND MOTION FOR A MORE
DEFINITE STATEMENT.” (ECF No. 7.)
On December 16, 2013, Defendant Porter McGuire filed an
Answer to the Complaint, and “PORTER MCGUIRE’S MOTION FOR PARTIAL
DISMISSAL OF FIRST AMENDED COMPLAINT.” (ECF Nos. 11, 15.)

5

On the same day, Defendant Kogen filed “DEFENDANT JONAH
KOGEN’S MOTION FOR SUMMARY JUDGMENT.” (ECF No. 14.)
On February 14, 2014, Plaintiff filed Oppositions to the
three Pending Motions. (ECF Nos. 37, 38, and 40.)
On the same day, Defendants AOAO, Associa, and Kogen filed
Statements of No Position as to Defendant Porter McGuire’s Motion
for Partial Dismissal. (ECF Nos. 36 and 39.)
On February 17, 2014, Defendants AOAO and Associa filed a
Statement of No Position as to Defendant Kogen’s Motion for
Summary Judgment. (ECF No. 41.)
On February 21, 2014, Defendant Kogen filed a Reply in
Support of his Motion for Summary Judgment. (ECF No. 46.)
Defendant Kogen also filed a Statement objecting to evidence
Plaintiff submitted in Opposition to Kogen’s Motion for Summary
Judgment. Defendant Kogen claims that several paragraphs of
Plaintiff’s Declaration and Plaintiff’s Attorney’s Declaration
are inadmissible, pursuant to the Federal Rules of Evidence and
the Federal Rules of Civil Procedure. (ECF No. 47.)
On February 28, 2014, Defendants AOAO and Associa filed a
Reply in support of their Motion to Dismiss and Motion for a More
Definite Statement. (ECF No. 50.)
On the same day, Defendant Porter McGuire filed a Reply in
support of its Motion for Partial Dismissal. (ECF No. 51.)

6

On March 11, 2014, a Hearing was held on the three Pending
Motions (ECF Nos. 7, 14, and 15.)

BACKGROUND

Plaintiff Randolph Baham brings suit for claims arising from
the non-judicial foreclosure of his Condominium Unit (“Unit”) at
Opua Hale Patio Homes, a residential condominium complex on Oahu.
The Association of Apartment Owners of Opua Hale Patio Home
(“AOAO”) foreclosed upon the Unit based on Plaintiff’s failure to
pay maintenance fees, late fees, and attorneys’ fees owed to the
AOAO. (Am. Compl. at ¶ 12, ECF No. 1.) At the time of the
foreclosure sale, Plaintiff had been delinquent in making
payments to the AOAO for approximately three years. (Notice of
Default & Intent to Foreclose at pg. 10, attached as Ex. A to
Kogen’s Mot. Summ. Judgment, ECF No. 14.)
Plaintiff alleges claims against the AOAO, Associa Hawaii
fka Certified Hawaii, Inc. (“Associa”), Porter McGuire Kiakona &
Chow, LLP (“Porter McGuire”), and Jonah Kogen. Associa is the
condominium’s management company. Porter McGuire is the law firm
that represented the AOAO in the foreclosure of Plaintiff’s Unit.
Jonah Kogen is the purchaser Plaintiff’s Unit at the foreclosure
sale. (Am. Compl. at ¶¶ 3-6.)

7

According to the Complaint, in 1998, Plaintiff and his
mother acquired the Unit as joint tenants. Plaintiff alleges
that, after his mother died in December 2010, he suffered from
financial hardships and failed to make required payments to the
AOAO. (Am. Compl. at ¶¶ 9, 10.)
On September 21, 2012, the AOAO, through its attorneys at
Porter McGuire, filed a Notice of Default and Intent to
Foreclose. The Notice stated that Plaintiff was delinquent in the
amount of $19,114.45, including maintenance, late fees, and
attorneys’ fees. The Notice further estimated that Plaintiff
would owe the AOAO an additional $2561.34 for attorneys’ fees and
costs by November 20, 2012. According to the Notice, if Plaintiff
failed to pay the AOAO $21,675.79 by November 20, 2012, his unit
would be non-judicially foreclosed, pursuant to Haw. Rev. Stat.
Ch. 667. (Am. Compl. at ¶¶ 11-12; Notice of Default & Intent to
Foreclose at pg. 10, attached as Ex. A to Kogen’s Mot. Summ.
Judgment, ECF No. 14.)
Plaintiff alleges that he made multiple attempts to
negotiate a payment plan by sending letters and emails to the
AOAO. According to Plaintiff, on November 11, 2012, he offered to
pay the monthly assessment and an additional $400 per month
toward the delinquency. (Am. Compl. at ¶ 13.)
On March 19, 2013, the AOAO filed a Notice of Association’s
Non-Judicial Foreclosure Under Power of Sale. The Notice stated

8

that the AOAO would auction Plaintiff’s Unit on May 28, 2013 to
satisfy Plaintiff’s delinquency of $26,128.53. The Notice further
stated that:
THE DEFAULT MAY BE CURED NO LATER THAN THREE BUSINESS
DAYS BEFORE THE DATE OF THE PUBLIC SALE OF THE PROPERTY
BY PAYING THE ENTIRE AMOUNT WHICH WOULD BE OWED TO THE
ASSOCIATION UP TO THE DATE OF PAYMENT, PLUS THE
ATTORNEY’S FEES AND COSTS, AND ALL OTHER FEES AND COSTS
INCURRED BY THE ASSOCIATION RELATED TO THE DEFAULT,
UNLESS OTHERWISE AGREED TO BETWEEN THE ASSOCIATION AND
THE OWNER[S]. THERE IS NO RIGHT TO CURE THE DEFAULT OR
ANY RIGHT OF REDEMPTION AFTER THAT TIME. IF THE DEFAULT
IS SO CURED, THE PUBLIC SALE SHALL BE CANCELED.
(Am. Compl. at ¶ 14; Notice of Association’s Non-Judicial
Foreclosure Under Power of Sale, attached as Ex. C to Kogen’s
Mot. for Summ. Judgment, ECF No. 14.)
The Complaint states that, in mid-April, in a conversation
with Plaintiff, an AOAO Board Member, Randall Plunkett, orally
agreed to postpone the May 28, 2013 sale date. Plaintiff claims
that Plunkett instructed him to await the AOAO’s response to his
November Offer, and then submit a new offer. According to
Plaintiff, Plunkett assured Plaintiff that the AOAO would accept
Plaintiff’s new offer and agree to a payment plan to cure
Plaintiff’s delinquency. (Am. Compl. at ¶ 16.)
Plaintiff alleges that another AOAO Board Member, Joseph
Gamboa, later spoke with him and provided him with the same
information. (Am. Compl. at ¶ 16.) The Complaint does not detail
the circumstances of the conversations, nor does it address

9

whether any details regarding Plaintiff’s “new offer” were
discussed.
On or about May 6, 2013, Porter McGuire, on behalf of the
AOAO, sent Plaintiff a Letter. The Letter rejected Plaintiff’s
November 2012 Offer to pay an additional $400 per month. In the
Letter, the AOAO stated that Plaintiff owed $28,202.16, and
offered Plaintiff a payment plan that provided for the
satisfaction of the delinquency within one year. The AOAO’s
payment plan required Plaintiff to make a down payment of $10,000
by May 16, 2013, followed by monthly payments of over $1500, not
including maintenance fees. (Am. Compl. ¶ 18; Letter from Porter
McGuire to Plaintiff, dated May 6, 2013, attached as Ex. F to
Kogen’s Mot. for Summ. Judgment, ECF No. 14.)
The Letter instructed Plaintiff to accept the payment plan
by executing a copy of the Letter and returning it to Porter
McGuire with the $10,000 down payment by May 16, 2013. (Id.)
On May 14, 2013, Plaintiff submitted a counteroffer to the
AOAO, via a Letter to Porter McGuire. Plaintiff offered to pay
the monthly assessment and an additional $300 per month toward
his delinquency of $28,202.16. Plaintiff also offered to perform
volunteer work, and expressed a willingness to renegotiate his
payment plan once he secured employment. (Am. Compl. at ¶ 19;
Letter from Plaintiff to Porter McGuire, dated May 14, 2013,

10

attached as Ex. G to Kogen’s Mot. for Summ. Judgment, ECF No.
14.)
The Complaint alleges that Porter McGuire received
Plaintiff’s Counteroffer on May 16, 2013, but failed to
communicate it to the AOAO until after the May 28, 2013
foreclosure sale. (Am. Compl. at ¶¶ 20-21.)
On May 28, 2013, Plaintiff’s Unit was sold at public auction
to Defendant Jonah Kogen for $30,000. Plaintiff alleges that he
learned of the sale the following day, from Defendant Kogen. (Am.
Compl. at ¶¶ 23-24.)
According to the Complaint, at the first AOAO Board meeting
following the sale, the AOAO formally approved Plaintiff’s May
2013 Counteroffer and decided to rescind the sale to Defendant
Kogen. Plaintiff claims that the AOAO, through Porter McGuire,
attempted to rescind the sale, but Defendant Kogen refused. (Am.
Compl. at ¶¶ 25-27.)
Plaintiff claims that, due to the threat of a lawsuit from
Kogen, the AOAO and Porter McGuire decided not to rescind the
sale. (Am. Compl. at ¶ 28.)
The AOAO and Defendant Kogen subsequently executed a
Quitclaim Deed, which was recorded on September 3, 2013.
(Quitclaim Deed, attached as Ex. E to Kogen’s Mot. for Summ.
Judgment, ECF No. 14.)

11

Plaintiff alleges that he refused to vacate the unit, as he
contests the validity of the July 2013 Quitclaim Deed. (Am.
Compl. at ¶ 37.)
On September 24, 2013, Defendant Kogen filed a Complaint for
Summary Possession in the State of Hawaii District Court, No.
1RC13-1-6611, seeking a writ of possession. The action was
subsequently dismissed for lack of jurisdiction, due to the
dispute over title. (Order Dismissing Kogen’s Complaint, Nov. 25,
2013, attached as Ex. E to Plaintiff’s Opp. to Summ. Judgment,
ECF No. 40.)
On October 29, 2013, Plaintiff filed this action. Plaintiff
claims that he was lulled into inaction based on the AOAO Board
Members Plunkett and Gamboa’s representations, in individual
conversations with Plaintiff, that the foreclosure sale would be
postponed and that the AOAO would accept Plaintiff’s May 2013
Counteroffer.
Plaintiff alleges the following claims:
Claim

Alleged Against

Count I:
Breach of Governing Documents

AOAO

Count II:
Breach of Fiduciary Duty

AOAO

Count III:
Breach of Contract

AOAO

12

Count IV:
Promissory Estoppel/
Detrimental Reliance/
Negligent an Intentional
Misrepresentation

AOAO

Count V:
Violation of Haw. Rev. Stat.
Ch. 514A and 514B

AOAO

Count VI:
Tortious Interference with
Contractual Relations

AOAO
Associa
Porter Mcguire
Jonah Kogen

Count VII:
Violation of Haw Rev. Stat.
Ch. 667

AOAO
Associa

Count VIII:
Cancellation of Quitclaim Deed

AOAO
Jonah Kogen

Count IX:
Quiet Title

Jonah Kogen

Count X:
Violation of Haw. Rev. Stat.
Ch. 480D

Associa
Porter McGuire

Count XI:
Violation of Haw. Rev. Stat.
Ch. 443B

Porter McGuire

Count XII:
Violation of the Fair Debt
Collection Practices Act, 15
U.S.C. § 1692

Porter McGuire

Count XIII:
Violation of Haw. Rev. Stat.
Ch. 480

AOAO
Associa
Porter Mcguire

Count XIV:
Negligence

AOAO
Associa
Porter McGuire

Count XV:
Wrongful Eviction

Jonah Kogen

13

Count XVI:
Negligent Infliction of
Emotional Distress1

AOAO
Associa
Porter McGuire

Count XVII:
Injunctive Relief to Prohibit
Wrongful Eviction of Plaintiff

Unspecified Defendants

Count XVIII:
Declaratory Relief2

Unspecified Defendants

Count XIX:
Prima Facie Tort

AOAO
Associa
Porter McGuire
Jonah Kogen

STANDARDS OF REVIEW

I.

MOTION TO DISMISS
Federal Rule of Civil Procedure 12(b)(6) allows dismissal

where a complaint fails “to state a claim upon which relief can
be granted.” Salmon Spawning & Recovery Alliance v. Gutierrez,
545 F.3d 1220, 1225 (9th Cir. 2008). The complaint must contain
“a short and plain statement of the claim showing that the
pleader is entitled to relief.”

Fed. R. Civ. P. Rule 8(a)(2).

Rule 8 of the Federal Rules of Civil Procedure “does not require
‘detailed factual allegations,’ but it demands more than an
1

Although Count XVI is entitled “Negligent Infliction of
Emotional Distress,” the Count alleges claims for both
intentional and negligent infliction of emotional distress
against the AOAO and Associa.
2

Counts VIII, XVII, and XVIII of the Amended Complaint are
styled as separate causes of action, but they are actually
requests for specific remedies.
14

unadorned, the-defendant-unlawfully-harmed-me-accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atlantic
Corporation v. Twombly, 550 U.S. 544, 555 (2007)). A pleading
must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action.” The factual
allegations in a pleading “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555.
A complaint survives a motion to dismiss when it contains
sufficient factual matter, accepted as true, to state a claim for
relief that is plausible on its face. Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). A claim is facially plausible
when the factual content of the complaint allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged. The plausibility standard does not
require probability, but it requires “more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). A complaint that pleads facts that are
“merely consistent with” a defendant’s liability “stops short of
the line between possibility and plausibility of ‘entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557).
When considering a Rule 12(b)(6) motion to dismiss, the
Court must presume all allegations of material fact to be true
and draw all reasonable inferences in favor of the non-moving
party. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). The

15

Court need not accept as true, however, allegations that
contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998
(9th Cir. 2010)(documents attached to the complaint and matters
of public record may be considered on a motion to dismiss).

II.

MOTION FOR A MORE DEFINITE STATEMENT
Federal Rule of Civil Procedure 12(e) provides that a motion

for a more definite statement is appropriate when a pleading, to
which a responsive pleading is allowed, “is so vague or ambiguous
that the party cannot reasonably prepare a response.” Fed. R.
Civ. P. 12(e).
A motion for more definite statement is used to provide a
remedy for an unintelligible pleading rather than a correction
for lack of detail. See Comm. for Immigrant Rights of Sonoma
Cnty. v. Cnty. of Sonoma, 644 F. Supp. 2d 1177, 1191 (N.D.
Cal.2009).

When a pleading lacks detail and fails to state a

claim for relief, the pleading is properly analyzed pursuant to
Federal Rule of Civil Procedure 12(b)(6).

Wright & Miller, 5C

FEDERAL PRACTICE & PROCEDURE § 1376, at n.8 (3d ed.)
The class of pleadings that is appropriate subject for a
Rule 12(e) motion is small. The pleading must be sufficiently

16

intelligible for the court to make out one or more potentially
viable legal theories so as to survive a Rule 12(b)(6) motion to
dismiss, while also being so vague or ambiguous that the opposing
party cannot respond as permitted by Rule 8(b). A Rule 12(e)
motion may be appropriate when a plaintiff’s claims are not
divided into separate counts based on each separate transaction
or occurrence, as required by Federal Rule of Civil Procedure
10(b). Wright & Miller, 5C FEDERAL PRACTICE & PROCEDURE § 1324, at
n.54 (3d ed.).
A court may act under Rule 12(b)(6) or Rule 12(e) where a
pleading is impermissibly vague, regardless of how the motion is
denominated. 5C Fed. Prac. & Proc. Civ. §

1376, at n.8.

III. MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). To defeat
summary judgment there must be sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party.
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.
1997).
The moving party has the initial burden of "identifying for
the court the portions of the materials on file that it believes
demonstrate the absence of any genuine issue of material fact."

17

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d
626, 630 (9th Cir. 1987)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). The moving party, however, has no burden
to negate or disprove matters on which the opponent will have the
burden of proof at trial.

The moving party need not produce any

evidence at all on matters for which it does not have the burden
of proof. Celotex, 477 U.S. at 325. The moving party must show,
however, that there is no genuine issue of material fact and that
he or she is entitled to judgment as a matter of law.

That

burden is met by pointing out to the district court that there is
an absence of evidence to support the non-moving party’s case.
Id.
If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the absence
of probative evidence tending to support its legal theory.
Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282
(9th Cir. 1979). The opposing party must present admissible
evidence showing that there is a genuine issue for trial. Fed. R.
Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1049 (9th Cir. 1995). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.”
Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)).

18

The court views the facts in the light most favorable to the
non-moving party.

State Farm Fire & Casualty Co. v. Martin, 872

F.2d 319, 320 (9th Cir. 1989). Opposition evidence may consist of
declarations, admissions, evidence obtained through discovery,
and matters judicially noticed.

Fed. R. Civ. P. 56(c); Celotex,

477 U.S. at 324. The opposing party cannot, however, stand on its
pleadings or simply assert that it will be able to discredit the
movant's evidence at trial. Fed. R. Civ. P. 56(e); T.W. Elec.
Serv., 809 F.2d at 630.

The opposing party cannot rest on mere

allegations or denials. Fed. R. Civ. P. 56(e); Gasaway v.
Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir.
1994). When the non-moving party relies only on its own
affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create an
issue of material fact.

Hansen v. United States, 7 F.3d 137, 138

(9th Cir. 1993); see also Nat’l Steel Corp. v. Golden Eagle Ins.
Co., 121 F.3d 496, 502 (9th Cir. 1997).

ANALYSIS

I.

FIRST MOTION: DEFENDANTS ASSOCIATION OF APARTMENT OWNERS OF
OPUA HALE PATIO HOMES AND ASSOCIA HAWAII’S MOTION TO DISMISS
AND MOTION FOR A MORE DEFINITE STATEMENT (ECF No. 7)
Defendants Association of Apartment Owners of Opua Hale

Patio Homes (“AOAO”) and Associa Hawaii (“Associa”), the
19

condominium’s management company, move to dismiss the following
claims:
Count II:

Breach of Fiduciary Duty;

Count III:

Breach of Contract;

Count VI:

Tortious Interference with Contractual
Relations;

Count VII:

Violation of Haw. Rev. Stat. Ch. 667;

Count XIII: Violation of Haw. Rev. Stat. Ch. 480;
Count XVI:

Negligent and Intentional Infliction of
Emotional Distress; and

Count XIX:

Prima Facie Tort.

Defendant AOAO moves for a more definite statement as to the
following claims:
Count I:

Breach of Governing Documents;

Count IV: Promissory Estoppel/Detrimental Reliance/Negligent
and Intentional Misrepresentation;
Count V:

Violation of Haw. Rev. Stat. Ch. 514A and 514B;
and any remaining claims.

It is Defendants AOAO and Associa’s position that Count X
(Violation of Haw. Rev. Stat. Ch. 480D) is not directed against
the AOAO, and that the following Counts are not directed against
either of them:
Count IX:

Quiet Title;

Count XI:

Violation of Haw. Rev. Stat. Ch. 443B;

20

Count XII:

Violation of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692;

Count XV:

Wrongful Eviction;

Count XVII:

Injunctive Relief; and

Count XVIII: Declaratory Relief.
Defendants AOAO and Associa claim that Counts IX, XV, XVII,
and XVIII cannot apply to them as a matter of law and request the
court to dismiss those claims against them, with prejudice.

Defendants AOAO and Associa’s Motion does not address:
Count XIV: the negligence claims, alleged against the AOAO
and Associa; nor
Count X:

the claim for violation of Haw. Rev. Stat. Ch.
480D, alleged against Associa.

Count I: Breach of Governing Documents Claim Against the AOAO
Plaintiff, in Count I of the Amended Complaint, alleges that
the AOAO breached its governing documents. (Am. Compl. at ¶¶ 3942.) The claim is not alleged against Associa.
Defendant AOAO moves for a more definite statement of Count
I. (AOAO & Associa’s Motion at 21, ECF No. 7.)
The allegations do not specify which governing documents are
at issue, or what portions of those documents were allegedly
breached.

21

The Court finds the claim alleged in Count I lacks
sufficient detail to state a claim, and is appropriately analyzed
pursuant to Federal Rule of Civil Procedure 12(b)(6). Wright &
Miller, 5C FEDERAL PRACTICE & PROCEDURE § 1376, at n.8 (3d ed.)(the
court may act pursuant to Rule 12(b)(6) or Rule 12(e), without
regard to how the motion is denominated).
Plaintiff’s claim for breach of governing documents, alleged
in Count I of the Amended Complaint, is DISMISSED WITH LEAVE TO
AMEND as to the AOAO.

Count II: Breach of Fiduciary Duty Claim Against the AOAO
Plaintiff, in Count II of the Amended Complaint, alleges a
claim for breach of fiduciary duties against the AOAO. Plaintiff
alleges that the AOAO breached its duties by failing to promptly
review and communicate its response to Plaintiff’s payment
offers, failing to ensure that Porter McGuire’s attorneys’ fees
were reasonable, failing to ensure that Associa and Porter
McGuire postponed or cancelled the sale, and failing to rescind
the sale of the Unit to Defendant Jonah Kogen. (Am. Compl. at ¶¶
43-50.)
Count II is not alleged against Associa.
Defendant AOAO moves to dismiss on the ground that the AOAO
does not owe Plaintiff a fiduciary duty. (AOAO & Associa’s Motion
at 9-14, ECF No. 7.)

22

1.

The AOAO Does Not Owe a Fiduciary Duty to its
Individual Members

Hawaii law provides that “[e]ach director shall owe the
association of apartment owners a fiduciary duty in the
performance of the director’s responsibilities.” Haw. Rev. Stat.
§ 514A-82.4; Haw. Rev. Stat. § 514B-106(a)(“officers and members
of the board shall owe the association a fiduciary duty”).
The Hawaii Intermediate Court of Appeals, in interpreting
the above statutes, has held that only the individual directors
of the board may be liable for breach of fiduciary duty, but not
the association itself. Ass'n of Apartment Owners of 2987
Kalakaua ex rel. its Bd. of Dirs. v. Dubois, 190 P.3d 869 (Haw.
Ct. App. 2008)(unpublished).
In Rosczewski v. AOAO Golf Villas, No. 12-1-1014(2), a
Second Circuit Court of the State of Hawaii Judge reached the
same conclusion. (Tr. of Hearing on Motion to Dismiss, Nov. 15,
2013, attached as Ex. B to AOAO & Associa’s Motion, ECF No. 7.)
The decision in Rosczewski dismissed, with prejudice, a unit
owner’s claim for breach of fiduciary duty against an association
of apartment owners, as an association of apartment owners does
not owe a fiduciary duty to its individual members under Hawaii
law. The State Judge held that it would be illogical for the
association of apartment owners to owe a fiduciary duty to its
individual members, as the association was comprised of its
members and would then owe themselves a fiduciary obligation. The
23

State Judge refused to dismiss the breach of fiduciary duty claim
as to the individual directors, finding the issue required
further factual development. (Id. at 10.)
Plaintiff relies on Lee v. Puamana Community Ass’n, 128 P.3d
874 (Haw. 2006) for the proposition that the AOAO owes a
fiduciary duty to its individual members. In Lee, plaintiffs
alleged that a community association and its board wrongfully
transferred portions of common space to individual unit owners.
Plaintiff specifically relies on the following quote from Lee:
“[O]ther courts have stated that nonuniform amendments
and amendments that breach any fiduciary duties owed by
an association to its members are invalid unless
approved by every member whose interest is adversely
affected. See Brockway, 615 S.E.2d at 185 (“With
respect to nonuniform amendments to the declaration and
other amendments that violate the community's duties to
its members under § 6.13 of the restatement, the
restatement provides that those amendments ‘are not
effective without the approval of members whose
interests would be adversely affected unless the
declaration fairly apprises purchasers that such
amendments may be made.’”)(citing Restatement (Third)
of Property: Servitudes § 6.10).
Lee, 128 P.3d at 884.
Plaintiff’s reliance on Lee fails for two reasons. First,
the Hawaii Supreme Court in Lee specifically differentiated the
law of planned community associations, at issue in Lee, from
condominium law. Condominium law, which is at issue here, is a
creature of statute, whereas the former is primarily a creature
of common law. Lee, 128 P.3d at 888.

24

Second, Lee discussed courts that have recognized fiduciary
duties owed by an association to its members in the context of
amending an association’s bylaws in ways that do not uniformly
affect all units. Id. at 884. It is true that some courts have
recognized a fiduciary duty owed by an association when it acts
in a quasi-governmental function, such as maintenance and repair
of public areas and utilities, sanitation, or zoning. See Cohen
v. Kite Hill Community Ass’n, 142 Cal. App. 3d 642, 647-654 (Cal.
Ct. App. 1983); Ritter & Ritter, Inc. v. Churchill Condominium
Ass’n, 166 Cal. App. 4th 103, 127 (Cal. Ct. App. 2008)(failure to
remedy safety hazard in unit); Posey v. Leavitt, 229 Cal. App. 3d
1236, 1246 (Cal. Ct. App. 1991)(approval of an encroachment into
a common area that impairs the easements of other owners over the
common area).
Plaintiff’s claims, here, are not based on a quasigovernmental action of the AOAO. They are based on the AOAO’s
actions with respect to Plaintiff’s failure to pay his
maintenance fees. Plaintiff’s claims are more akin to those
brought by a lender against a borrower, a relationship in which a
fiduciary duty does not exist. Marzan v. Bank of Am., 779 F.
Supp. 2d 1140, 1153-54 (D. Haw. 2011).

25

2.

Absence of Special Circumstances Giving Rise to a
Fiduciary Duty

Plaintiff attaches an Appendix to his Opposition, describing
cases that purportedly support the position that an association
owes a fiduciary duty to individual members. (Opp. to AOAO &
Associa’s Motion at 19 n.62, App’x A, ECF No. 38.)
The cases described in the Appendix are from jurisdictions
other than Hawaii and are not binding on this court. The cases
also impose a fiduciary duty in circumstances that are inapposite
from the circumstances here, such as when an association acts in
a quasi-governmental function, or where the bylaws specifically
establish a fiduciary duty. In Sassan v. Tanglegrove Townhouse
Condo. Ass’n, 877 S.W.2d 489, 491-92 (Tex. Ct. App. 1994), for
example, the bylaws stated that the association acted as the
owner’s attorney in dealing with destroyed property and had
exclusive authority to repair the condominium. The association
was specifically acting as an agent for the unit owner in the
context of the repair. Id.
Plaintiff fails to allege special circumstances that would
establish that the AOAO owed him a fiduciary duty.

26

3.

The AOAO’s Primary Obligation is to the
Condominium Members as a Whole

Plaintiff asks the Court to find that the AOAO owes him a
fiduciary duty that trumps the interests of all the owners, as a
whole.
Even if the AOAO did owe Plaintiff a fiduciary duty, the
AOAO could not be obligated to place Plaintiff’s interests above
those interests of the members of the whole. See Chambless v.
Officers & Dirs. of Snapper Creek, 743 So. 2d 129 (Fla. Dist. Ct.
App. 1999)(granting summary judgment in favor of homeowner’s
association and its officers where association’s construction of
a guardhouse, which was desired by a majority of the community,
reduced the value of plaintiff’s property)(“[The association had]
a general obligation to protect the property of all the members
of the association, and no the property of one member in
particular, to the exclusion of the others.”); Smith v. Ridgeview
Homeowner’s Ass’n, No. 19-10-707, 2011 WL 1743787 (Minn. Ct. App.
May 9, 2011).
The statute recognizing the fiduciary duty of a director,
Haw. Rev. Stat. § 514A-82.4, specifically provides that the duty
is owed to the whole association, and not the individual members.
The AOAO’s duty to the condominium owners as a whole, to collect
Plaintiff’s unpaid assessments, would supersede any duty to
Plaintiff in this context.

27

Plaintiff fails to provide authority for his position that
the AOAO itself, as opposed to its individual directors, can be
liable for breach of fiduciary duty in the context of Plaintiff’s
claims.
Plaintiff’s claim for breach of fiduciary duty, alleged in
Count II of the Amended Complaint, is DISMISSED WITH PREJUDICE as
to the AOAO.

Count III: Breach of Contract Claim Against the AOAO
Plaintiff, in Count III of the Amended Complaint, alleges
claims for breach of contract against Defendant AOAO. Plaintiff
alleges that the AOAO breached agreements with Plaintiff to
postpone the foreclosure sale and to rescind the foreclosure
sale. (Opp. to AOAO & Associa’s Motion at 9-13, ECF No. 38.)
Plaintiff’s position is based on his beliefs that (1) a
discussion he had with an AOAO board member, Randall Plunkett, in
April 2013 created a contract to postpone the foreclosure sale
and to accept Plaintiff’s payment plan; and (2) the AOAO Board
accepted his offer, after the foreclosure sale, which created a
contract obligating the AOAO to rescind the sale.
Defendant AOAO moves to dismiss Plaintiff’s breach of
contract claims.

28

1.

Failure to Postpone the Foreclosure Sale
a.

Lack of Authority to Contract

Plaintiff alleges that, on or about April 12, 2013, AOAO
Board Member Randall Plunkett had a conversation with Plaintiff
and “promised and agreed” to postpone the date of the foreclosure
sale, and enter into a payment plan with Plaintiff. Plaintiff
alleges that another AOAO Board Member, Joseph Gamboa, and
Plaintiff had a later conversation and confirmed the information
provided by AOAO Board Member Plunkett. (Am. Compl. at ¶ 16.)
As individual board members, Plunkett and Gamboa, had no
authority to enter into an agreement on behalf of the AOAO. A
majority vote of the five-member AOAO Board would be required to
authorize any action by the AOAO with respect to the foreclosure
of Plaintiff’s Unit. As acknowledged by Plaintiff in the Amended
Complaint, the AOAO could not act without formal action by the
AOAO Board.
Plaintiff does not allege that the majority of the AOAO
Board voted to postpone the foreclosure sale. Plaintiff’s breach
of contract claims fails as a matter of law, as a valid contract
with the AOAO could not be formed simply by Plaintiff having had
discussions with two individual AOAO Board Members, Plunkett and
Gamboa.

b.

Lack of Defined Terms

29

A party seeking to establish an oral contract must prove its
existence and its terms by clear and convincing evidence.
Boteilho v. Boteilho, 564 P.2d 144 (Haw. 1977); Pedrina v. Chun,
906 F. Supp. 1377, 1418 (D. Haw. 1995) aff'd, 97 F.3d 1296 (9th
Cir. 1996). The terms of the contract must be stated with
sufficient definiteness to be enforceable. A mere expression of
intent is insufficient. Fyffe v. Hue, 310 P.3d 1050 (Haw. Ct.
App. 2010)(agreement to purchase property “subject to financing”
is legally unenforceable, as it fails to specify essential terms,
such as the time and manner of payment); Eckerle v. Deutsche Bank
Nat'l Trust, No. 10–00474, 2011 WL 4971128, at *4 (D. Haw. Oct.
18, 2011)(contract unenforceable where a plaintiff fails to
allege the specific terms of the contract).
According to the Amended Complaint, on April 12, 2013, AOAO
Board Member Plunkett “promised and agreed” to postpone the date
of the foreclosure sale. Plaintiff alleges that, pursuant to the
agreement, Plaintiff would wait until the AOAO responded to his
November 2012 offer, and submit a new offer, which the AOAO would
accept. (Am. Compl. at ¶ 16.) Plaintiff does not allege that any
terms of his “new offer” were discussed.
The alleged agreement to postpone the foreclosure sale lacks
essential terms, such as the terms of the allegedly agreed upon
payment plan.

30

Communications between Plaintiff and the AOAO, following the
alleged April 2013 agreement, support finding that essential
terms of the agreement were not reached. In a Letter from the
AOAO’s law firm to Plaintiff, dated May 6, 2013, the AOAO
rejected Plaintiff’s November 2012 offer and provided a
counteroffer. The AOAO’s counteroffer provided for the
satisfaction of Plaintiff’s $28,202.616 delinquency in one year.
Plaintiff, in a Letter to the AOAO, dated May 14, 2013,
rejected the AOAO’s counteroffer and proposed his own
counteroffer, with significantly different terms. Plaintiff
proposed that he pay $300 per month toward the delinquency and
perform volunteer work.
The difference in the terms of the payment plans proposed by
the AOAO and Plaintiff, in May 2013, undermines Plaintiff’s
assertion that he and AOAO Board Member Plunkett had agreed to a
payment plan during their April 2013 conversation.
The alleged agreement to postpone the foreclosure sale lacks
essential terms and is unenforceable. Plaintiff’s breach of
contract claim fails as a matter of law.

c.

Statute of Frauds

Pursuant to Hawaii’s Statute of Frauds, a contract for land,
or any interest therein, must be in writing and signed. Haw. Rev.
Stat. § 656-1(4). A forbearance agreement allowing a debtor

31

additional time to make a payment or cure a default before a
foreclosure sale is subject to the statute of frauds. Eckerle v.
Deutsche Bank Nat’l Trust, No. 10–00474, 2011 WL 4971128, at *3–4
(D. Haw. Oct. 18, 2011)(granting summary judgment to lender on
borrower’s claim that lender breached a loan modification
agreement by foreclosing upon his property, as the borrower
failed to produce any writing evidencing the alleged loan
modification agreement). An alleged oral forbearance agreement is
unenforceable. N. Trust, NA v. Wolfe, No. 11-00531, 2012 WL
1983339, at *22 (D. Haw. May 31, 2012)(dismissing breach of
contract claim with prejudice).
The alleged oral agreement to postpone the foreclosure sale
is subject to the statute of frauds, and is unenforceable.
Plaintiff claims that the doctrine of part performance take
his alleged agreement with AOAO Board Member Plunkett out of the
statute of frauds. (Opp. to AOAO & Associa’s Motion at 10-12, ECF
No. 38.)
In limited circumstances, the doctrine of part performance
may permit enforcement of an oral contract that the statute of
frauds requires to be in writing. The party seeking to enforce
the contract must have acted to his or her detriment in
substantial reliance on the contract. McIntosh v. Murphy, 469
P.2d 177 (Haw. 1970). The Hawaii Supreme Court has set forth
three factors for determining whether acts constituting part

32

performance are sufficient to free a promise from the statute of
fraud requirements: (1) the acts must be pursuant to the
contract; (2) the acts must be undertaken with the knowledge and
consent of the other party; and (3) the acts must be such that to
allow the other party to repudiate would be a fraud upon the
plaintiff. Pedrina v. Chun, 906 F. Supp. 1377, 1418 (D. Haw.
1995) aff'd, 97 F.3d 1296 (9th Cir. 1996)(citing Perreira v.
Perreira, 447 P.2d 667 (Haw. 1968)).
Courts, however, are reluctant to circumvent the
requirements of the statute of frauds. The doctrine of part
performance will only take a contract out of the statute of
frauds where the part performance is unequivocally referable to
the alleged parol agreement, and cannot be explained without
reference to the agreement. The acts constituting part
performance “must clearly appear to have been done in pursuance
of the contract, and to result from the contract and not from
some other relation.” Rossiter v. Rossiter, 666 P.2d 617, 621
(Haw. App. Ct. 1983)(internal quotations omitted).
Forbearance to exercise a right is good consideration for a
promise. Mere proof of forbearance by the party seeking to
enforce an agreement, however, is insufficient to remove a verbal
agreement from the statute of frauds, pursuant to the doctrine of
part performance. Forbearance must have been primarily and
substantially motivated by, and in pursuance of the oral

33

agreement. Shannon v. Waterhouse, 563 P.2d 391, 394 (Haw. 1977);
Pedrina, 906 F.Supp. at 1418.
Plaintiff claims that he acted in accordance with the terms
of his alleged agreement with AOAO Board Member Plunkett when he
awaited the rejection of his November 2012 offer and submitted a
counteroffer. (Opp. to AOAO & Associa’s Motion at 10-12, ECF No.
38.) AOAO Board Member Plunkett did not have authority to agree,
on behalf of the AOAO, to postpone the foreclosure sale of
Plaintiff’s Unit. Plaintiff cannot rely on the doctrine of part
performance, as Plaintiff fails to allege that his actions were
primarily or substantially motivated by his agreement with AOAO
Board Member Plunkett. Plaintiff also fails to allege sufficient
terms of the agreement to show part performance of those terms.
Plaintiff’s claim for breach of the alleged oral contract to
postpone the foreclosure sale is barred by the statute of frauds.

2.

Failure to Rescind the Sale

Plaintiff claims that, after the foreclosure sale, the AOAO
held a formal meeting and accepted Plaintiff’s offer to pay a
monthly amount toward the delinquency, and “perform whatever
volunteer work . . . that the AOAO might designate.” (Am. Compl.
at ¶¶ 19, 25.) Plaintiff claims that the AOAO’s acceptance of the
payment plan, after the foreclosure sale, created a contract,
which obligated the AOAO to rescind the sale.

34

Even if the majority of the AOAO Board had voted to accept
Plaintiff’s payment plan after the May 28, 2013 foreclosure sale,
a valid contract was not formed.
Haw. Rev. Stat. § 667-97(d) provides that a default may be
cured “no later than three business days before the date of the
public sale of the unit . . . There is no right to cure the
default or any right of redemption after that time.” Haw. Rev.
Stat. § 667-97(d)(emphasis added). A default may cured by paying
the entire amount owed to the association, including attorney’s
fees and costs, unless otherwise agreed to between the
association and unit owner. Id.
Plaintiff’s default was not cured within the time permitted
by the statute, three days prior to the foreclosure sale. After
the foreclosure sale occurred, Plaintiff had no right to cure the
default or enter an agreement with the AOAO regarding the
default. See Brubach v. OneWest Bank, No. 11-5044, 2012 WL
3065318 (W.D. Wash. July 27, 2012)(no right to cure default after
statutory time period expires under California’s non-judicial
foreclosure statute); Brandrup v. ReconTrust Co., N.A., 303 P.3d
301, 306 (Or. 2013)(no right to cure default or redeem property
after nonjudicial foreclosure sale under Oregon law).
Plaintiff’s alleged payment plan with the AOAO also lacks
sufficient definiteness to create a legally enforceable contract.

35

There is no basis for Plaintiff’s claim that the AOAO breached an
obligation to rescind the foreclosure sale.
Plaintiff places great weight on his allegation that the
AOAO initially sought to rescind the sale to Defendant Kogen, but
later opted to complete the sale. An initial attempt to rescind
the sale by the AOAO does not create a legal obligation to
rescind the sale.
Plaintiff fails to allege a claim for breach of contract
based on the AOAO’s failure to rescind the sale to Defendant
Kogen.

Plaintiff’s claims for breach of contract, alleged in Count
III of the Amended Complaint, fail as a matter of law. The claims
are DISMISSED WITH PREJUDICE as to the AOAO.

Count IV: Promissory Estoppel/Detrimental Reliance/Negligent and
Intentional Misrepresentation Claims Against the AOAO

Plaintiff, in Count IV of his Amended Complaint, alleges a
claim for “Promissory Estoppel/Detrimental Reliance/Negligent and
Intentional Misrepresentation” against the AOAO. (Am. Compl. at ¶
55-60.) The claim is not alleged against Associa.
Defendant AOAO moves for a more definite statement as to
Count IV.
36

Plaintiff attempts to allege at least three different causes
of action in Count IV of the Amended Complaint. One of the
claims, the intentional misrepresentation claim, must be pled
with particularity, pursuant to Federal Rule of Civil Procedure
9(b). Plaintiff fails to identify the factual basis for each
cause of action.
Plaintiffs claims for promissory estoppel, detrimental
reliance, and negligent and intentional misrepresentation,
alleged in Count IV of the Amended Complaint, are DISMISSED WITH
LEAVE TO AMEND as to the AOAO. Plaintiff must separate and flesh
out the various claims alleged in Count IV, as required by
Federal Rule of Civil Procedure 10(b), to permit Defendant AOAO
to meaningful respond to the claims.

Count V: Claims for Violation of Haw. Rev. Stat. Ch. 514A and
514B Against the AOAO
Plaintiff, in Count V of the Amended Complaint, alleges
violations of the Hawaii statutes governing condominium
associations, Haw. Rev. Stat. Chs. 514 A and 514B. (Am. Compl. at
¶¶ 61-64.) Count V is not alleged against Associa.
Defendant AOAO moves for a more definite statement as to
Count V.
Plaintiff fails to identify which statutory provisions the
AOAO has allegedly violated. Plaintiff’s broad and vague
allegations fail to state a claim.
37

Plaintiff’s claim for violations of Haw. Rev. Stat. Ch. 514A
and 514B, alleged in Count V of the Amended Complaint, are
DISMISSED WITH LEAVE TO AMEND as to the AOAO. Plaintiff must
allege the specific statutory provisions that the AOAO has
violated and the factual basis for the alleged violations.

Count VI: Tortious Interference with Contractual Relations Claims
Against the AOAO and Associa
Plaintiff, in his Opposition, conceded that the claims for
tortious interference with contractual relations alleged in Count
VI of the Amended Complaint are not charged against the AOAO and
Associa. Plaintiff’s Opposition states that the tortious
interference claims are directed toward Defendants Porter McGuire
and Kogen. (Opp. at 30, ECF No 38.)
Plaintiff’s claims for tortious interference with
contractual relations, alleged in Count VI of the Amended
Complaint, are DISMISSED WITH PREJUDICE as to Defendants AOAO and
Associa.

Count VII: Violation of Haw. Rev. Stat. Ch. 667 Claims Against
the AOAO and Associa
Plaintiff, in Count VII of his Amended Complaint, alleges
that Defendants AOAO and Associa violated Haw. Rev. Stat. Ch.
667. Plaintiff claims that, as a result of the violation, the
foreclosure sale is void. (Am. Compl. at ¶¶ 73-81.)
38

1.

Wrongful Foreclosure Arising from a Violation of
the Statutes Governing Foreclosure by a
Condominium Association

Defendants AOAO and Associa claim that the section of Haw.
Rev. Stat. Ch. 667 governing foreclosure by a condominium
association, Haw. Rev. Stat. §§ 667-91 to 667-104, cannot provide
Plaintiff with an independent cause of action. (AOAO & Associa’s
Motion at 20, ECF No. 7.)
Courts have construed alleged violations of Haw. Rev. Stat.
Ch. 667 as wrongful foreclosure claims. See Swartz v. City
Mortg., Inc., 911 F.Supp.2d 916, 947 (D. Haw. 2012); Dias v. Fed.
Nat’l Mortgage Ass'n, No. 12-00394, 2013 WL 6894453, at *11 (D.
Haw. Dec. 31, 2013). It is true that Swartz and Dias alleged
violations of a different section of Haw. Rev. Stat. Ch. 667, and
not the section governing foreclosures by a condominium
association, Haw. Rev. Stat. §§

667-91 to 667-104. There has

been no ruling, however, that limits a plaintiff from bringing a
wrongful foreclosure claim based on such a violation.

2.

Failure to Allege a Violation of Haw. Rev. Stat.
Ch. 667

Although it might be possible to allege a wrongful
foreclosure claim based on a violation of Haw. Rev. Stat. §§
667-91 to 667-104, Plaintiff fails to allege a violation of the
statutes by the AOAO and Associa.

39

The Complaint generally alleges that the AOAO violated the
statute by completing the non-judicial foreclosure, despite the
alleged agreements to postpone and rescind the foreclosure sale.
(Am. Compl. at ¶¶ 75-82.) The alleged agreements were not legally
enforceable and cannot support a violation of Haw. Rev. Stat. Ch.
667.
Plaintiff claims that the AOAO and Associa violated Haw.
Rev. Stat. Ch. 667 by failing to provide an accurate itemization
of Plaintiff’s delinquency. (Am. Compl. at ¶ 74.)
Plaintiff fails to allege the factual basis for the
assertions and fails to identify how the assertions establish a
violation of Haw. Rev. Stat. 667.
Plaintiff’s claims for violation of Haw. Rev. Stat. Ch. 667,
alleged in Count VII of the Amended Complaint, are DISMISSED WITH
LEAVE TO AMEND as to Defendants AOAO and Associa. An amended
claim cannot be based on the alleged agreements to postpone or
rescind the foreclosure sale.

Count VIII: Request for Cancellation of Quitclaim Deed as to the
AOAO and Associa
Plaintiff, in Count VIII of the Amended Complaint, requests
an adjudication that the Quitclaim Deed conveying the Unit to
Defendant Kogen is void. (Am. Compl. at ¶¶ 83-84.)

40

Defendants AOAO and Associa move to dismiss the claim, as
cancellation of a quitclaim deed is not an independent cause of
action. (Opp. to AOAO & Associa’s Motion at 20-21, ECF No. 7.)
Plaintiff’s request for cancellation of the Quitclaim Deed
is a form of relief that may be awarded if Plaintiff prevails on
a claim that voids the foreclosure sale and the conveyance of the
Unit to Defendant Kogen. Cancellation of quitclaim deed is not an
independent cause of action. See Kekona v. Abastillas, 150 P.3d
823, 831 (2006)(cancellation of quitclaim deed may be appropriate
remedy for prevailing on a claim for fraud); OneWest Bank FSB v.
Hoilien, 279 P.3d 79 (Haw. Ct. App. 2012)(denying appellant’s
request for cancellation of quitclaim deed, as foreclosure sale
of appellant’s property was not void).
Plaintiff’s claim for cancellation of quitclaim deed,
alleged in Count VIII of the Amended Complaint, IS NOT A CAUSE OF
ACTION.

Count IX: Quiet Title Claim Against the AOAO and Associa
Plaintiff’s quiet title claim, alleged in Count IX of the
Amended Complaint, is not alleged against Defendants AOAO and
Associa.
Defendants AOAO and Associa do not claim to have title to
Plaintiff’s Unit.

41

Plaintiff’s claim for quiet title, alleged in Count IX of
the Amended Complaint, is DISMISSED WITH PREJUDICE as to
Defendants AOAO and Associa.

Count X: Violation of Haw. Rev. Stat. Ch. 480D Claim Against
Associa
Plaintiff, in Count X of his Amended Complaint, alleges a
claim for violation of Haw. Rev. Stat. Ch. 480D against Defendant
Associa. Count X is not alleged against Defendant AOAO.
Haw. Rev. Stat. 480D regulates the conduct of debt
collectors in collecting consumer debt. A debt collector is
defined as any person who “in the regular course of business
collects or attempts to collect consumer debts owed or due or
asserted to be owed or due to the collector.” Haw. Rev. Stat. §
480D-2. The statute prohibits debt collectors from engaging in
unfair and deceptive practices, including the use of threats or
attempting to collect unauthorized fees. Haw. Rev. Stat. § 480D3.
Plaintiff alleges that Associa violated Haw. Rev. Stat. Ch.
480D by attempting to recoup unreasonable attorneys’ fees
relating to the foreclosure. Plaintiff claims that the attempt to
recoup unreasonable attorneys’ fees violates Haw. Rev. Stat. Ch.
514A and 514B, and is an attempt to collect an unauthorized debt.
(Am. Compl. at ¶¶ 93-101.)

42

Defendant Associa, in its Reply, asserts that it is not
subject to Haw. Rev. Stat. Ch. 480D because it is not the one to
whom the debts are owed. The defense was not raised in Associa’s
Motion. (AOAO & Associa’s Reply at 3 n.1, ECF No. 50.)
Plaintiff has not had the opportunity to respond to
Associa’s assertion. The Court finds it inappropriate to dismiss
the claim on that ground.
The Court, however, has dismissed Plaintiff’s claims for
violations of Haw. Rev. Stat. Ch. 514A and 514B (Count V). Those
claims provided the basis for Plaintiff’s position that he was
charged unreasonable attorneys’ fees in connection with the
AOAO’s collection attempts. As Plaintiff’s Haw. Rev. Stat. Ch.
480D claim in Count X is based upon the alleged violation of the
statutes governing the AOAO’s ability to recoup reasonable
attorneys’ fees, Count X suffers from the same deficiencies.
Plaintiff’s claim for violation of Haw. Rev. Stat. Ch. 480D,
alleged in Count X of the Amended Complaint, is DISMISSED WITH
LEAVE TO AMEND as to Defendant Associa.

Counts XI and XII: Violations of State and Federal Collection
Laws, Haw. Rev. Stat. Ch. 443B and 15 U.S.C. § 1692, Claims
Against the AOAO and Associa
Plaintiff’s claims for violations of state and federal
collection laws, Haw. Rev. Stat. Ch. 443B (Count XI) and 15
U.S.C. § 1692 (Count XII),

are not alleged against Defendants

43

AOAO and Associa. Defendants AOAO and Associa request the claims
alleged in Counts XI and XII be dismissed against them, with
prejudice, to prevent the possibility that Plaintiff may later
pursue those claims. (AOAO and Associa’s Reply at 4, ECF No. 50.)
Haw. Rev. Stat. Ch. 443B regulates the conduct of collection
agencies. A collection agency is defined as any person who
collects or attempts to collect for another person, claims or
money due on accounts for a commission, fixed fee, or a portion
of the sums so collected. Haw. Rev. Stat. § 443B-1.
The Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692, prohibits abusive debt collection practices. 15 U.S.C. §
1692(e). A debt collector, pursuant to the FDCPA, is one who
regularly collects, or attempts to collect, debt owed or due to
another. 15 U.S.C. § 1692a(6).
Neither statute appears to regulate the AOAO’s activities,
as the AOAO does not attempt to collect debt owed to another
person. See Moore v. Nat'l City Mortg. Co., No. 09-00461, 2010 WL
914334 (D. Haw. Mar. 15, 2010)(an AOAO is not a debt collector
under the FDCPA). As to Defendant Associa, Plaintiff fails to
provide any factual basis for finding that Associa was engaged in
collection efforts.
Defendants’ request for dismissal with prejudice, however,
was raised in their Reply and Plaintiff has not had an

44

opportunity to respond. The Court finds it inappropriate to
dismiss the claims with prejudice at this time.
Defendants AOAO and Associa’s request for a dismissal with
prejudice of the claims alleged in Counts XI and XII is DENIED.
The claims alleged in Counts XI and XII, are DISMISSED WITH LEAVE
TO AMEND as to Defendants AOAO and Associa.
If Plaintiff chooses to amend the causes of action dismissed
without prejudice, Plaintiff must clearly identify which claims
are brought against which defendants, and the factual basis for
each claim. If Plaintiff alleges violations of Haw. Rev. Stat.
Ch. 443B and 15 U.S.C. § 1692 against Defendants AOAO and Associa
in an amended complaint, Defendants may move to dismiss the
claims at that time.

Count XIII: Violation of Haw. Rev. Stat. Ch. 480 Claim Against
the AOAO and Associa
Plaintiff, in Count XIII of the Amended Complaint, alleges
claims against Defendants AOAO and Associa for unfair and
deceptive practices in violation of Haw. Rev. Stat. Ch. 480. The
claims are based on Defendants’ alleged violations of state and
federal debt collection law. (Am. Compl. at ¶¶ 111-15.)
Section 480-2 of the Hawaii Revised Statutes outlaws
“unfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce.” Haw. Rev.
Stat. § 480-2(a).
45

Plaintiff’s unfair and deceptive practices claim is
insufficiently pled against Defendants AOAO and Associa, as it is
based upon the alleged violations of state and federal debt
collection law, which the Court has found insufficient.
Defendants AOAO and Associa seek dismissal with prejudice of
the unfair and deceptive practices act claim. Defendants claim
that they cannot be subject to Haw. Rev. Stat. Ch. 480, as they
do not engage in trade or commerce with Plaintiff. Defendants
rely on Cieri v. Leticia Query Realty, 905 P.2d 29 (Haw. 1995).
In Cieri, the Hawaii Supreme Court interpreted “trade or
commerce” as being within the “business context.” 905 P.2d at 3739. Transactions that are strictly private in nature are not
subject to Haw. Rev. Stat. § 480-2. The determination of whether
a transaction occurs in a business context must be determined on
a case-by-case basis by analyzing the transaction at issue. Id.
In Dalesandro v. Longs Drug Stores Cal., Inc., 383 F. Supp.
2d 1244 (D. Haw. 2005), the court held that a pharmacy was not
engaged in trade or commerce within the meaning of § 480-2.
subject. The dispute concerned negotiating the production of
documents for settlement purposes. The court held that the
dispute arose in the context of settlement and preparation for
litigation, which is distinct from the business context. The
court analyzed whether the parties had engaged in similar
transactions in the past, the motivation for the transaction, and

46

whether one party had a considerable advantage over the other.
Dalesandro, 383 F. Supp. 2d at 1250-51.
Hawaii courts have not addressed the definition of trade or
commerce with respect to a condominium or homeowner’s
associations.
Condominium associations have the power to engage in a
variety of activities. The determination as to whether a
condominium association is engaged in trade or commerce depends
upon the context in which the dispute occurred.
The court cannot find that a condominium association does
not engage in trade or commerce as a matter of law.
Plaintiff’s unfair and deceptive practices act claims,
alleged in Count XIII of the Amended Complaint, are DISMISSED
WITH LEAVE TO AMEND as to Defendants AOAO and Associa. Plaintiff
must sufficiently set forth the factual basis for the alleged
violations of state and federal debt collection law, and how
those violations also provide him with a cause of action under
Haw. Rev. Stat. 480.

Count XIV: Negligence Claims Against the AOAO and Associa
Plaintiff, in Count XIV of his Amended Complaint, alleges
negligence claims against Defendants AOAO and Associa.
A successful negligence claim must satisfy the following
four elements:

(1) a duty, or obligation, recognized by the law,

47

requiring the actor to conform to a certain standard of conduct,
for the protection of others against unreasonable risks; (2) a
failure on the actor's part to conform to the standard required;
(3) a reasonably close causal connection between the conduct and
the resulting injury; (4) actual loss or damage resulting to the
interests of another. Ono v. Applegate, 612 P.2d 568, 538–39
(Haw. 1980).

1.

Plaintiff’s Negligence Claims Based on the Alleged
Agreements to Postpone and Rescind the Foreclosure
Sale

Plaintiff alleges that Defendants AOAO and Associa breached
their duties to Plaintiff by failing to postpone the foreclosure
sale and failing to rescind the foreclosure sale. (Am. Compl. at
¶ 118.) Plaintiff’s claims are based on his erroneous belief that
the AOAO entered into valid agreements to postpone and rescind
the foreclosure sale.
Defendants AOAO and Associa do not specifically address
Count XIV, but their arguments supporting dismissal of
Plaintiff’s claims for breach of contract and breach of fiduciary
duty are relevant.
Plaintiff has failed to plausibly allege the existence of
any agreement or legal duty to postpone or rescind the
foreclosure sale.

48

In Northern Trust, NA v. Wolfe, No. 11-00531 LEK, 2012 WL
1983339 (D. Haw. May 31, 2012), a borrower brought a negligence
claim against a lender for failing to postpone a foreclosure
sale. The borrower claimed that a loan broker had represented
that the borrower’s request for a loan modification would be
accepted and the that the lender would not foreclose while the
loan modification request was pending. The court, in Northern
Trust, dismissed the negligence claim, as lenders generally owe
no duty of care to their borrowers and the loan broker was not
acting as the lender’s agent. N. Trust, NA v. Wolfe, CIV. 1100531 LEK, 2012 WL 1983339 (D. Haw. May 31, 2012).
Plaintiff here has not presented a plausible basis for his
claim that AOAO Board Member Plunkett acted as an agent for the
AOAO and had the authority to enter into a valid agreement to
postpone the foreclosure sale. Plaintiff also fails to present a
plausible basis for his claim that the AOAO had authority to
agree to rescind the sale to Defendant Kogen. Defendants AOAO and
Associa did not breach any duty by proceeding with the sale of
Plaintiff’s Unit.
Plaintiff’s negligence claims based on the AOAO and
Associa’s duty to postpone and/or rescind the foreclosure sale,
alleged in Count XIV of the Amended Complaint, are DISMISSED WITH
LEAVE TO AMEND. Plaintiff has failed to allege the existence of

49

any duty owed to Plaintiff by the AOAO or Associa to postpone
and/or rescind the foreclosure sale.

2.

Plaintiff’s Negligence Claim Based on Unreasonable
Attorneys’ Fees

Plaintiff alleges that Defendants AOAO and Associa
negligently failed to ensure that Porter McGuire’s attorneys’
fees and costs associated with the non-judicial foreclosure were
reasonable. (Am. Compl. at ¶ 118.)
Defendants AOAO and Associa’s arguments supporting dismissal
of Plaintiff’s claims for violation of the Hawaii statutes
governing condominium associations, Haw. Rev. Stat. Chs. 514A and
514B, are relevant. Plaintiff’s allegations are conclusory and do
not plausibly allege that Defendants AOAO and Associa owed
Plaintiff a duty to ensure that Porter McGuire’s fees were
reasonable. Plaintiff also fails to plausibly allege that the
fees were unreasonable, and constitute a breach of a duty owed by
Defendants AOAO and Associa.
Plaintiff’s negligence claim based on unreasonable
attorneys’ fees, alleged in Count XIV of the Amended Complaint,
is DISMISSED WITH LEAVE TO AMEND as to Defendants AOAO and
Associa.

50

Count XV: Wrongful Eviction Claim Against the AOAO and Associa
Plaintiff’s wrongful eviction claim, alleged in Count XV of
the Amended Complaint, is not alleged against Defendants AOAO and
Associa. There are no facts alleged that support finding that
Defendants AOAO and Associa were involved in the alleged
threatened eviction.
Plaintiff’s claim for wrongful eviction, alleged in Count XV
of the Amended Complaint, is DISMISSED WITH PREJUDICE as to
Defendants AOAO and Associa.

Count XVI: Intentional and/or Negligent Infliction of Emotional
Distress Claims Against the AOAO and Associa
Plaintiff, in Count XVI of the Amended Complaint, alleges
claims for intentional and negligent infliction of emotional
distress against Defendants AOAO and Associa. (Am. Compl. at ¶¶
127-28.)

1.

Intentional Infliction of Emotional Distress

The elements of intentional infliction of emotional distress
(“IIED”), pursuant to Hawaii law, are: (1) that the act allegedly
causing the harm was intentional or reckless, (2) that the act
was outrageous, and (3) that the act (4) caused extreme emotional
distress to another. Enoka v. AIG Hawaii Ins. Co., Inc., 128 P.3d
850, 872 (Haw. 2006). The term “outrageous” has been construed to

51

mean “without just cause or excuse and beyond all bounds of
decency.” Id. (citing Lee v. Aiu, 936 P.2d 655, 670 n. 12
(1997)). Acting with tortious or criminal intent, or intent to
inflict emotional distress, does not necessarily rise to the
level of outrageousness required for an IIED claim. Soone v. KyoYa Co., Ltd., 353 F. Supp. 2d 1107, 1116 (D. Haw. 2005)(citing
Ross v. Stouffer Hotel Co. Ltd., 879 P.2d 1037, 1048 (Haw.
1994)).
The term “extreme emotional distress” includes, “inter alia,
mental suffering, mental anguish, nervous shock, and other highly
unpleasant mental reactions.” Enoka, 128 P.3d at 872 (internal
quotations omitted).

a.

Failure to Allege “Outrageous” Conduct

Plaintiff does not dispute that the AOAO had the right to
assess fees and could foreclose as a result of failure to pay
those fees. Plaintiff, in his Opposition, claims that Defendants’
conduct was outrageous because he lost his home “after being
promised at least twice that he would be allowed to keep his
home.” (Opp. to AOAO & Associa’s Motion at 27, ECF No. 38.)
Foreclosure proceedings generally do not rise to the level
of extreme and outrageous conduct to support an IIED claim. In
Doran v. Wells Fargo Bank, No. 11–00132, 2011 WL 5239738, at
*10–11 (D. Haw. Oct.31, 2011), for example, a plaintiff alleged a

52

claim for IIED based, in part, on defendant cancelling his loan
modification and foreclosing upon his property. The defendant had
represented that plaintiff was pre-qualified for the loan
modification. The court dismissed the IIED claim, as such conduct
was not outrageous. Doran, 2011 WL 5239738, at *11; see also
Almaden v. Peninsula Mortgage, Inc., No. 12-00390, 2012 WL
6738512, at *10 (D. Haw. Dec. 31, 2012)(dismissing IIED claim
alleging that defendant lied about a loan modification and
subsequently foreclosed); Uy v. Wells Fargo Bank, N.A., No.
10–00204, 2011 WL 1235590, at * 14 (D. Haw. Mar. 28, 2011)); but
see Bass v. Ameriquest Mortg. Co., No. 09–00476, 2010 WL 3025167,
at *10–11 (D. Haw. Aug. 3, 2010)(denying summary judgment as to
an IIED claim where the plaintiff asserted that the defendant
“forged her signature on the 2006 loans, refused to honor [her]
right of cancellation of the loans when she discovered the
forgeries, and commenced foreclosure proceedings against [her]
when she failed to make her loan payments”).
Plaintiff here alleges that he has suffered and continues to
suffer emotional distress “[a]s a direct, proximate and
foreseeable result of the AOAO’s . . . and Associa’s negligent or
intentional acts, which are outrageous.” (Am. Compl. at ¶ 128.)
Such generalized and conclusory allegations fail to satisfy the
requirements of Federal Rule of Civil Procedure 8.

53

Plaintiff fails to allege the existence of special
circumstances that would support a claim of outrageous conduct by
Defendants AOAO and Associa relating to the foreclosure of
Plaintiff’s Unit.

b.

Failure to Allege “Extreme Emotional
Distress”

Plaintiff’s Amended Complaint generally alleges that
Defendants’ actions caused him to suffer “emotional distress,”
but does not provide any further details. (Am. Compl. at ¶ 128.)
In Velasco v. Sec. Nat. Mortgage Co., No. 10-00239, 2011 WL
2117008 (D. Haw. May 24, 2011), the district court held that a
plaintiff failed to allege extreme emotional distress arising
from the foreclosure of his home, where plaintiff allegedly
suffered “lost sleep, constant worry, and grief from loss of
their property.” The court held that:
Given that foreclosures happen regularly and that
Plaintiffs' reaction to the foreclosure is typical of
any individual who has had their house foreclosed,
reasonable men and women in civilization are often
expected to endure these hardships and the anxiety that
follows.
Velasco, 2011 WL 2117008, at *12; Franco v. Fed. Nat’l Mortg.
Ass'n, No. 10-00735, 2011 WL 1842970, at *11 (D. Haw. May 13,
2011)(same).

54

Plaintiff here fails to allege that he suffered “extreme
emotional distress” caused by Defendants AOAO and Associa’s
conduct.

Plaintiff’s IIED claims fail, as Plaintiff has not alleged
any actions or omissions by Defendants AOAO and Associa that rise
to the level of outrageous, nor has Plaintiff alleged extreme
emotional distress. Such defects may possibly be cured by
amendment.
Plaintiff’s IIED claims, alleged in Count XVI of the Amended
Complaint, are DISMISSED WITH LEAVE TO AMEND as to Defendants
AOAO and Associa.

2.

Negligent Infliction of Emotional Distress

The elements of a claim for negligent infliction of
emotional distress (“NIED”), pursuant to Hawaii law, are:
(1) that the defendant engaged in negligent conduct; (2) that the
plaintiff suffered serious emotional distress; and (3) that such
negligent conduct of the defendant was a legal cause of the
serious emotional distress. Wood v. Greenberry Fin. Servs., Inc.,
907 F.Supp.2d 1165, 1186 (D. Haw. 2012). An NIED claim is merely
a negligence claim alleging a wholly psychic injury. Duty and
breach of duty are essential elements of an NIED claim and are

55

analyzed utilizing ordinary negligence principles. Kahoohanohano
v. Dep't of Human Servs., 178 P.3d 538, 582 (Haw. 2008).
Pursuant to Haw. Rev. Stat. § 663-8.9, a party cannot bring
an NIED claim “if the distress or disturbance arises solely out
of damage to property or material objects,” unless the emotional
distress results in physical injury to or mental illness of the
person who experiences the emotional distress. Haw. Rev. Stat. §
663-8.9; Doe Parents No. 1 v. Dep't of Educ., 58 P.3d 545, 580-81
(Haw. 2002). Requiring physical injury or mental illness as a
predicate injury for an NIED claim attempts to avoid the
possibility of trivial or fraudulent claims due to the subjective
nature of assessing purely psychological injury, while promoting
the purpose of negligence law. Id. at 579.
The Hawaii Supreme Court has carved out exceptions to the
predicate injury requirement in cases that provide “the requisite
assurance that plaintiff's psychological distress is trustworthy
and genuine.” Doe Parents No. 1, 58 P.3d at 581. No physical
manifestation of a psychological injury is required for an NIED
claim where a reasonable person, normally constituted, would be
unable to adequately cope with the mental stress engendered by
the circumstances of the case. Kahoohanohano, 178 P.3d at 582.
Such claims have been permitted where a plaintiff alleged actual
exposure to HIV-positive blood, mishandling of a corpse, and
negligent placement of a child in an environment with a child

56

molester. Freeland v. Cnty. of Maui, No. 11-00617, 2013 WL
6528831 (D. Haw. Dec. 11, 2013)(summarizing Hawaii Supreme Court
cases).
Defendants AOAO and Associa claim that Plaintiff’s NIED
claims are barred by the physical injury and mental illness
requirement, pursuant to Haw. Rev. Stat. § 663-8.9.
Plaintiff’s claims, as alleged in the Amended Complaint,
arise solely from the alleged injury to his property. Plaintiff
does not allege that he has suffered physical injury or mental
illness as a result of Defendants’ alleged conduct, as required
by Haw. Rev. Stat. § 663-8.9. The Court finds that no exceptions
to the physical injury requirement apply here.
Plaintiff, in his Opposition, claims that his emotional
distress did not arise “solely” from the damage to his property.
(Opp. at 25, ECF No. 38.) Contrary to Plaintiff’s assertion, no
physical injury is alleged in the Amended Complaint.
Plaintiff’s NIED claims, alleged in Count XVI of the Amended
Complaint, are DISMISSED WITH LEAVE TO AMEND as to Defendants
AOAO and Associa. An amended NIED claim must meet the predicate
injury requirements of Haw. Rev. Stat. § 663-8.9, and
sufficiently allege a breach of a duty that caused the injury.

Counts XVII and XVIII: Request for Injunctive Relief and
Declaratory Relief Against the AOAO and Associa

57

Count XVII, requesting injunctive relief, and Count XVIII,
requesting declaratory relief, are not causes of action. Both are
remedies that may be awarded to Plaintiff if he prevails on other
claims.

Count XIX: Prima Facie Tort Claims Against the AOAO and Associa
Plaintiff, in Count XIX of his Amended Complaint, alleges
that Defendants AOAO and Associa committed a prima facie tort.
Defendants AOAO and Associa claim that Hawaii law does not
recognize prima facie tort as a cause of action.
The Hawaii Supreme Court has not addressed the issue of
whether prima facie tort is an actionable claim under Hawaii law.
Metzler Contracting Co. LLC v. Stephens, No. 07-00261 LEK, 2009
WL 1046666 (D. Haw. Apr. 17, 2009).
Plaintiff relies on Giuliani v. Chuck, 620 P.2d 733, 738
(Haw. Ct. App. 1980) and Metzler Contracting Co. LLC v. Stephens,
2009 WL 1046666 (D. Haw. Apr. 17, 2009) to support his claim that
prima facie tort is a recognized cause of action under Hawaii
law.
In Giuliani, plaintiffs alleged that a defendant had
intentionally and improperly refused to return their $1,000
deposit. The Hawaii Intermediate Court of Appeals held that the
plaintiffs had sufficiently pled a cause of action, sounding in
tort, for intentional harm to a property interest. Giuliani, 620

58

P.3d at 738. The Court of Appeals, in recognizing the sufficiency
of the plaintiffs’ claim, relied on § 871 of the Restatement
Second of Torts. Section 871 provides:
One who intentionally deprives another of his legally
protected property interest or causes injury to the
interest is subject to liability to the other if his
conduct is generally culpable and not justifiable under
the circumstances.
Restatement Second of Torts § 871 (1979).
In Metzler, the Hawaii federal district court discussed
whether Giuliani supports finding that Hawaii law recognizes
prima facie tort as a separate cause of action. The Metzler court
explained that, although Giuliani appears to cite § 871 as a
separate tort, no other Hawaii case cites Giuliani or § 871 for
that proposition. The Metzler court predicted that the Hawaii
Supreme Court would only recognize a separate cause of action for
prima facie tort under facts virtually identical to Giuliani,
where no alternative well-recognized cause of action existed to
remedy the alleged harm. Metzler Contracting Co. LLC v. Stephens,
2009 WL 1046666, at *5 (D. Haw. Apr. 17, 2009)(prima facie tort
cannot be pled as an alternative to a defamation claim).
Plaintiff here does not include any specific allegations to
support his claim for prima facie tort. Plaintiff vaguely alleges
that the “conduct of all Defendants constitutes a prima facie
tort, entitling Plaintiff to damages.” (Am. Compl. at ¶ 136.)

59

Plaintiff’s prima facie tort claim is futile. The support
for recognizing the claim under Hawaii law is based on one
intermediate appellate court decision, issued over thirty years
ago. Even if such a claim was viable, the circumstances of
Plaintiff’s case would not give rise to a prima facie tort claim
against Defendants AOAO and Associa. Other well-recognized causes
of action exist to remedy the alleged harm.
Plaintiff’s claim for prima facie tort, alleged in Count
XIX, is DISMISSED WITH PREJUDICE as to Defendants AOAO and
Associa.

SUMMARY OF THE COURT’S RULINGS AS TO THE AOAO AND ASSOCIA’S
MOTION TO DISMISS AND FOR A MORE DEFINITE STATEMENT (ECF No. 7)
Claims Against the AOAO
The following claims are DISMISSED WITH PREJUDICE as to
Defendant AOAO:
Count II:

Breach of Fiduciary Duty;

Count III:

Breach of Contract;

Count VI:

Tortious Interference with Contractual
Relations;

Count IX:

Quiet Title;

Count XV:

Wrongful Eviction; and

Count XIX:

Prima Facie Tort.

60

The following claims are DISMISSED WITH LEAVE TO AMEND as to
Defendant AOAO:
Count I:

Breach of Governing Documents;

Count IV:

Promissory Estoppel/Detrimental Reliance/
Negligent and Intentional Misrepresentation;

Count V:

Violation of Haw. Rev. Stat. Ch. 514A and
514B;

Count VII:

Violation of Haw. Rev. Stat. Ch. 667;

Count XI:

Violation of Haw. Rev. Stat. 443B;

Count XII:

Violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692;

Count XIII:

Violation of Haw. Rev. Stat. Ch. 480;

Count XIV:

Negligence; and

Count XVI:

Intentional and Negligent Infliction of
Emotional Distress.

Claims Against Associa
The following claims are DISMISSED WITH PREJUDICE as to
Defendant Associa:
Count VI:

Tortious Interference with Contractual
Relations;

Count IX:

Quiet Title;

Count XV:

Wrongful Eviction; and

Count XIX:

Prima Facie Tort.

The following claims are DISMISSED WITH LEAVE TO AMEND as to
Defendant Associa:
61

Count VII:

Violation of Haw. Rev. Stat. Ch. 667;

Count X:

Violation of Haw. Rev. Stat. Ch. 480D;

Count XI:

Violation of Haw. Rev. Stat. 443B;

Count XII:

Violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692;

Count XIII:

Violation of Haw. Rev. Stat. Ch. 480;

Count XIV:

Negligence; and

Count XVI:

Intentional and Negligent Infliction of
Emotional Distress.

Counts Requesting Remedies
The following Counts request specific remedies, but do not
allege causes of action:
Count VIII:
Count XVII:

Injunctive Relief; and

Count XVIII:

II.

Cancellation of Quitclaim Deed;

Declaratory Relief.

SECOND MOTION: DEFENDANT PORTER MCGUIRE KIAKONA & CHOW,
LLP’S MOTION FOR PARTIAL DISMISSAL (ECF No. 15)
Plaintiff’s Amended Complaint alleges eight counts against

Defendant Porter McGuire Kiakona & Chow, LLP (“Porter McGuire”),
the law firm for the Association of Apartment Owners of Opua Hale
Patio Homes (“AOAO”):
Count VI:

Tortious Interference with Contractual
Relations);

62

Count X:

Violation of Haw. Rev. Stat. Ch. 480D;

Count XI:

Violation of Haw. Rev. Stat. Ch. 443B;

Count XII:

Violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692;

Count XIII:

Violation of Haw. Rev. Stat. Ch. 480;

Count IV:

Negligence;

Count XVI:

Negligent Infliction of Emotional Distress;
and

Count XIX:

Prima Facie Tort.

Defendant Porter McGuire does not move to dismiss Count XII,
alleging a violation of the Fair Debt Collection Practices Act,
15 U.S.C. § 1692. Porter McGuire moves to dismiss the seven other
claims.

Legal Standard for Porter McGuire’s Motion for Partial Dismissal
Defendant Porter McGuire moves for partial dismissal,
pursuant to Federal Rule of Civil Procedure 12(b)(6). As
Defendant Porter McGuire has filed an Answer (ECF No. 11), the
Court construes the Motion as one for judgment on the pleadings,
pursuant to Federal Rule of Civil Procedure 12(c). Rule 12(c)
permits a party to move for judgment on the pleadings after the
pleadings are closed.

The Rule 12(c) standard is functionally

identical to the Rule 12(b)(6) standard. Dworkin v. Hustler
Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).

63

Judgment on the pleadings “is properly granted when there is
no issue of material fact in dispute, and the moving party is
entitled to judgment as a matter of law.” Fleming v. Pickard, 581
F.3d 922, 925 (9th Cir. 2009). All material allegations contained
in the nonmoving party’s pleadings are accepted as true, while
the allegations made by the moving party that have been denied
are assumed to be false. Hal Roach Studios v. Richard Feiner &
Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). The district
court’s review on a Rule 12(c) motion is generally limited to the
contents of the pleadings. If the court reviews matters outside
the pleadings, the motion is treated as one for summary judgment.
See Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th
Cir. 2004); Fed. R. Civ. P. 12(d). The court may consider
documents attached to the complaint, documents incorporated by
reference in the complaint, or matters subject to judicial
notice, without converting the motion to dismiss into a motion
for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668,
688 (9th Cir. 2001).
A court that grants a Rule 12(c) motion has discretion to
dismiss the case or enter judgment. See Lonberg v. City of
Riverside, 300 F.Supp.2d 942, 945 (C.D. Cal. 2004). Dismissal
with leave to amend is appropriate if the pleadings may be cured
by further factual enhancement. See Sprint Telephony PCS, L.P. v.
County of San Diego, 311 F.Supp.2d 898, 903 (S.D. Cal. 2004);

64

Whitson v. Bumbo, No. 07-05597, 2009 WL 1515597, at *8 (N.D. Cal.
Apr. 16, 2009).

Count VI: Tortious Interference with Contractual Relations
Plaintiff alleges, in Count VI of his Amended Complaint,
that Porter McGuire tortiously interfered with Plaintiff’s
contractual relations with the AOAO. Plaintiff claims that Porter
McGuire interfered with the alleged oral contract to postpone the
foreclosure sale. Plaintiff also claims that Porter McGuire
interfered with the alleged contract to rescind the foreclosure
sale, created by the AOAO’s acceptance of Plaintiff’s payment
plan. Plaintiff points to Porter McGuire’s failure to rescind the
sale to Defendant Kogen and the recording of documents that
completed the sale. (Am. Compl. at ¶¶ 65-72.)

1.

Attorney’s Immunity from Tortious Interference
with Contractual Relations

Defendant Porter McGuire claims that it cannot be found
liable for tortious interference with the AOAO’s contracts, as it
was acting as the AOAO’s attorney. (Porter McGuire’s Motion at 57, ECF No. 15.)
In Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel,
151 P.3d 732 (Haw. 2007), the Hawaii Supreme Court discussed
circumstances in which an attorney may be liable for tortious
65

interference with contractual relations. The Hawaii Supreme Court
held that such a claim must allege that the attorney acted
outside the scope of their lawyer-client relationship, and must
set forth factual allegations from which actual malice may
reasonably be said to exist. A claim is only viable where an
attorney possessed a desire to harm, independent of the desire to
protect his or her client, and acted for personal gain or ill
will. Kahala Royal Corp., 151 P.3d at 750-52.
Although the Kalaha decision concerned the application of
the litigation privilege to claims for tortious interference with
contractual relations, the court’s reasoning is not confined to
conduct in the course of a judicial proceeding. The Hawaii
Supreme Court relied, in part, on the decision in Schott v.
Glover, 440 N.E.2d 376 (Ill. App. Ct. 1983):
Under certain circumstances, a third party may be
privileged purposely to bring about a breach of
contract between other parties. This privilege occurs
where the third party acts to protect a conflicting
interest which is considered to be of equal or greater
value than that accorded the contractual rights involved.
The fiduciary duty owed by an attorney to his client is
such an interest. Although incorrect advice as to a
client's contractual obligations might cause that
client to become liable to a third party in contract,
it does not follow that the attorney would also be
liable to that party. To impose such liability on an
attorney would have the undesirable effect of creating
a duty to third parties which would take precedence
over an attorney's fiduciary duty to his client.
Kahala Royal Corp.,151 P.3d 732, 750-51 (2007)(quoting Schott,
440 N.E.2d at 379).
66

Plaintiff does not allege that Defendant Porter McGuire
acted outside the scope of their lawyer-client relationship with
the AOAO. The Amended Complaint alleges that Defendant Porter
McGuire served as the AOAO’s law firm and agent. (Am. Compl. at
¶ 4.) Plaintiff fails to set forth factual allegations from which
Porter McGuire can be said to have acted with actual malice, or
possessed a desire to harm independent of the desire to protect
its client, the AOAO.
Plaintiff claims, in his Opposition, that Defendant Porter
McGuire acted outside the scope of its representation of the AOAO
when it failed to rescind the foreclosure sale to Defendant
Kogen. Plaintiff claims that Porter McGuire, at that point,
placed Defendant Kogen’s interest over the interests of its
client, the AOAO. (Opp. at 11, ECF No. 37.)
Plaintiff’s allegations do not support his claim that Porter
McGuire was acting outside the scope of its representation of the
AOAO. To the contrary, Plaintiff’s allegations demonstrate that
Defendant Porter McGuire represented the AOAO in advising the
AOAO how to proceed with the foreclosure sale and issues raised
by the foreclosure sale. According to the Amended Complaint,
Defendant Kogen threatened to bring a lawsuit if the sale was
rescinded, and Porter McGuire advised the AOAO to proceed with
the sale to Defendant Kogen. (Am. Compl. at ¶¶ 26-28.)

67

Plaintiff fails to allege circumstances giving rise to a
claim for tortious interference with contractual relations
against Defendant Porter McGuire. Based on Plaintiff’s
allegations, Porter McGuire’s conduct is privileged from such a
claim.

2.

Failure to Allege the Existence of a Contract

The Hawaii Supreme Court has set forth the elements of a
claim for interference with contractual relations as follows:
(1) a contract between the plaintiff and a third party;
(2) the defendant's knowledge of the contract;
(3) the defendant's intentional inducement of the third
party to breach the contract;
(4) the absence of justification on the defendant's part;
(5) the subsequent breach of the contract by the third
party; and
(6) damages to the plaintiff.
Weinberg v. Mauch, 890 P.2d 277, 287 (Haw. 1995). A claim for
breach of contract must exist to support a claim for tortious
interference with contractual relations. Bodell Const. Co. v.
Ohio Pac. Tech, Inc., 458 F. Supp. 2d 1153, 1162-63 (D. Haw.
2006).
Plaintiff’s claims for tortious interference of contractual
relations alleges interference with (1) Plaintiff’s alleged oral

68

agreement with AOAO Board Member, Randall Plunkett, to postpone
the foreclosure sale, and (2) the alleged agreement to rescind
the foreclosure sale based on the AOAO Board’s “formal
acceptance” of Plaintiff’s offer, after the foreclosure sale to
Defendant Kogen.
Plaintiff has failed to allege the existence of a contract
between himself and the AOAO. As discussed in the section
dismissing Plaintiff’s claim for breach of contract against the
AOAO, alleged in Count III, Plaintiff’s oral agreement violates
the statute of frauds and was not entered into by a party with
authority to bind the AOAO. As to the alleged agreement to
rescind the foreclosure sale, the AOAO lacked authority to accept
Plaintiff’s payment plan after the Unit had already been sold.
The alleged acceptance did not create a contract obligating the
AOAO to rescind the sale to Defendant Kogen.
Plaintiff also fails to allege that Porter McGuire had
knowledge of the alleged oral agreement to postpone the
foreclosure sale. Plaintiff, instead, alleges that the “Board and
Associa apparently failed to communicate effectively with Porter
McGuire and ensure that the Sale Date and Sale were postponed.”
(Am. Compl. at ¶ 17.)
Plaintiff cannot allege the essential elements of a claim
against Porter McGuire for tortious interference with contractual
relations.

69

Plaintiff’s claims for tortious interference with
contractual relations, alleged in Count VI of his Amended
Complaint, are DISMISSED WITH PREJUDICE as to Defendant Porter
McGuire.

Count X: Violation of Haw. Rev. Stat Ch. 480D
Plaintiff, in Count X of the Amended Complaint, alleges that
Defendant Porter McGuire included unreasonable and unsupported
fees in support of its collection efforts, in violation of Haw.
Rev. Stat. Ch. 480D.
Chapter 480D specifically covers “debt collectors,” which
are defined as “any person, who is not a collection agency, and
who in the regular course of business collects or attempts to
collect consumer debts owed or due or asserted to be owed or due
to the collector.” Haw. Rev. Stat. § 480D–2.
Defendant Porter McGuire moves to dismiss on the ground that
Haw. Rev. Stat. § 480D-2 limits the definition of a debt
collector as one who collects debts owed to the collector.
(Porter McGuire’s Motion at 7, ECF No. 15.)
Plaintiff’s allegations are based on debt owed to the AOAO
and not Porter McGuire.
Plaintiff’s claims for violation of Haw. Rev. Stat. Ch.
480D, alleged in Count X of his Amended Complaint, are DISMISSED
WITH PREJUDICE as to Defendant Porter McGuire.
70

Count XI: Violation of Haw. Rev. Stat. Ch. 443B
Plaintiff, in Count XI of the Amended Complaint, alleges
that Defendant Porter McGuire violated Haw. Rev. Stat. Ch. 443B.
Section 443B–1 defines a “collection agency” as one who
offers to undertake, holds oneself out as being able to
undertake, or does undertake to collect for another person,
claims or money due on accounts or other forms of indebtedness
for a commission, fixed fee, or a portion of the sums so
collected. A collection agency does not include licensed
attorneys at law acting within the scope of their profession.
Haw. Rev. Stat. § 443B–1.
Plaintiff alleges that Porter McGuire’s attorneys were
acting outside the scope of their profession for the purposes of
Haw. Rev. Stat. § 443B-1. (Am. Compl. at ¶ 103.)
Plaintiff’s conclusory assertion is undermined by the other
allegations in the Amended Complaint. According to the Amended
Complaint, Porter McGuire worked as the AOAO’s law firm in
attempting to collect Plaintiff’s delinquency. (Am. Compl. at
¶ 4.)
Plaintiff relies on cases analyzing claims for violation of
the federal Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692. (Opp. to Porter McGuire’s Motion at 21-23, ECF No.
37.)

71

The FDCPA differs in scope from Hawaii’s debt collection
laws. See Flores v. Rawlings Co., LLC, 177 P.3d 341, 348 (Haw.
2008).

The fact that Porter McGuire may be considered a debt

collector for the purposes of the FDCPA does not mean that Porter
McGuire was acting outside the scope of the attorney exception to
Haw. Rev. Stat. § 443B-1. Goray v. Unifund CCR Partners, No. 0600214, 2007 WL 4260017 (D. Haw. Dec. 4, 2007)(granting summary
judgment in favor of attorney defendants on claim for violation
of Haw. Rev. Stat. 443B, as defendants were acting as attorneys,
but granting judgment on the FDCPA claims on other grounds).
Plaintiff’s claim for a violation of Haw. Rev. Stat. Ch.
443B, alleged in Count XI of the Amended Complaint, is DISMISSED
WITH PREJUDICE as to Defendant Porter McGuire.

Count XIII: Violation of Haw. Rev. Stat. Ch. 480
Plaintiff, in Count XIII of the Amended Complaint, alleges
that Defendant Porter McGuire engaged in unfair and deceptive
acts and practices (“UDAP”), in violation of Haw. Rev. Stat. Ch.
480. (Am. Compl. ¶¶ 111-15.)
Defendant Porter McGuire move to dismiss, as Haw Rev. Stat.
Ch. 480 only applies to entrepreneurial aspects of a lawyer’s
business. Defendant further claims that the Hawaii Supreme Court
has exclusive regulatory jurisdiction over an attorney’s
professional practice. (Porter McGuire’s Motion at 10-14.)

72

Defendant’s assertion is overbroad. An attorney may be
subject to Haw. Rev. Stat. Ch. 480 for certain violations of the
Fair Debt Collection Practices Act (“FDCPA”), so long as a
plaintiff can show actual damages. Haw. Rev. Stat. § 480-13;
Johnson v. Ass'n of Apartment Owners of Ke Aina Kai Townhomes,
No. 06-00106, 2006 WL 7136685, at *11 (D. Haw. Aug. 25, 2006).
Plaintiff’s UDAP claim is based upon Porter McGuire’s
alleged violation of the FDCPA and Hawaii’s state debt collection
law, Haw. Rev. Stat. Chs. 443 and 480D. Plaintiff’s state debt
collection claims have been dismissed, but the FDCPA claim
remains.
Plaintiff’s UDAP claim, however, fails to allege actual
injury arising from the alleged violation of the FDCPA.
Plaintiff’s UDAP claim, alleged in Count XIII, is DISMISSED WITH
LEAVE TO AMEND as to Defendant Porter McGuire. Plaintiff’s UDAP
claim cannot be based on the alleged violations of Hawaii’s state
debt collection laws.

Count XIV: Negligence
Plaintiff, in Count XIV of the Amended Complaint, alleges a
claim for negligence against Defendant Porter McGuire. Plaintiff
claims that Porter McGuire breached its duty to Plaintiff by
failing to relay his offer to the AOAO in a timely fashion,
failing to postpone or cancel the foreclosure sale, failing to

73

rescind the sale, and completing the foreclosure sale. (Am.
Compl. at ¶ 119.)
The existence of a duty is a question of law. Buscher v.
Boning, 159 P.3d 814, 823 (Haw. 2007). Pursuant to Hawaii law, an
attorney owes no duty to its client’s adversary or non-client.
Id. at 832. The Hawaii Supreme Court, in Buscher, held that the
existence of such a duty would create an unacceptable conflict of
interest:
Not only with the adversary’s interests interfere with
the client’s interests, the attorney’s justifiable
concern with being sued for negligence would
detrimentally interfere with the attorney clientrelationship
.
Id. at 832 (quoting Myers v. Cohen, 687 P.2d 6, 15 (Haw. Ct. App.
1984).
Hawaii cases have only recognized the existence of an
attorney’s duty to a non-client where the attorney's employment
constitutes a third-party beneficiary contract, such as in the
context of will drafting. Blair v. Ing, 21 P.3d at 465–68.
Plaintiff’s allegations do not fall within the limited
exception.
Plaintiff claims that he and the AOAO reached an agreement,
whereby they were no longer adversaries. Plaintiff claims that
Porter McGuire, at that point, owed duties to Plaintiff. (Opp. to
Porter McGuire’s Motion at 10, ECF No. 37.)

74

Plaintiff’s assertion is unsupported by law. Plaintiff,
through efforts to settle his delinquency, did not become a
client of Porter McGuire to whom Porter McGuire owed any duties.
In Johnson v. Ass'n of Apartment Owners of Ke Aina Kai
Townhomes, No. 06-00106, 2006 WL 7136685 (D. Haw. Aug. 25, 2006),
a plaintiff brought a negligence claim against a condominium
association’s legal counsel. The court dismissed the claim, as
any remedy must be sought against the condominium association,
and not its attorneys. Id.
Plaintiff’s negligence claim, alleged in Count XIV of the
Amended Complaint, is DISMISSED WITH PREJUDICE as to Defendant
Porter McGuire.

Count XVI: Negligent Infliction of Emotional Distress
Plaintiff, in Count XVI of the Amended Complaint, alleges a
claim for negligent infliction of emotional distress (“NIED”)
against Defendant Porter McGuire. Plaintiff does not allege a
claim for intentional infliction of emotional distress against
Porter McGuire. (Opp. to Porter McGuire’s Motion at 2, ECF No.
37.)
Plaintiff’s NIED claim against Porter McGuire fails for the
same reasons as the NIED claims against the AOAO and Associa.
Plaintiff fails to allege physical injury or mental illness, as
required by Haw. Rev. Stat. § 663-8.9. Plaintiff’s NIED claim
75

against Porter McGuire also fails, as Porter McGuire owed no
duties to Plaintiff, who was not a client of the law firm.
Johnson v. Ass'n of Apartment Owners of Ke Aina Kai Townhomes,
No. 06-00106, 2006 WL 7136685 (D. Haw. Aug. 25, 2006).
Plaintiff’s NIED claim, alleged in Count XVI of the Amended
Complaint, is DISMISSED WITH PREJUDICE as to Porter McGuire.

Count XIX: Prima Facie Tort
Plaintiff, in Count XIX of the Amended Complaint, alleges a
claim for prima facie tort against Defendant Porter McGuire.
Plaintiff’s claim for prima facie tort against Porter
McGuire is futile for the same reasons as the prima facie tort
claim brought against Defendants AOAO and Associa. Giuliani v.
Chuck, 620 P.2d 733, 738 (Haw. Ct. App. 1980); Metzler
Contracting Co. LLC v. Stephens, 2009 WL 1046666 (D. Haw. Apr.
17, 2009).
Plaintiff’s claim for prima facie tort, alleged in Count XIX
of the Amended Complaint, is DISMISSED WITH PREJUDICE as to
Defendant Porter McGuire.

Claims Not Specifically Alleged Against Porter McGuire in the
Amended Complaint

76

The Parties disagree as to whether the Amended Complaint
alleges certain claims against Porter McGuire, even though Porter
McGuire is not specifically identified in those Counts.
Plaintiff, in his Opposition to Porter McGuire’s Motion for
Partial Dismissal, claims that Porter McGuire generally aided and
abetted the AOAO’s alleged “various violations of its
contractual, statutory, and fiduciary duties.” (Opp. at 4, ECF
No. 37.)
It is unclear which claims Plaintiff intended to allege
against Porter McGuire. The following Counts of Plaintiff’s
Amended Complaint, however, do not allege claims against
Defendant Porter McGuire, based on a theory of direct liability
or aiding and abetting:
Count I:

Breach of Governing Documents;

Count II:

Breach of Fiduciary Duty;

Count III:

Breach of Contract;

Count IV:

Promissory Estoppel/ Detrimental
Reliance/Negligent and Intentional
Misrepresentations;

Count V:

Violation of Haw. Rev. Stat. Chs. 514A and
514B;

Count VII:

Violation of Haw. Rev. Stat. Ch. 667;

Count VIII:

Cancellation of Quitclaim Deed;

Count IX:

Quiet Title;

Count XV:

Wrongful Eviction;

77

Count XVII:

Injunctive Relief; and

Count XVIII:

Declaratory Relief.

Defendant Porter McGuire moves to dismiss the above claims
with prejudice.

1.

Claims that Cannot Be Alleged

Plaintiff cannot state claims for aiding and abetting the
AOAO in the claims alleged in Counts II, III, IX, and XV. Those
claim were dismissed with prejudice as to the AOAO. As such
claims are not viable against the AOAO, Porter McGuire cannot be
liable for aiding and abetting the AOAO in the alleged claims.
Counts II, III, IX, and XV of the Amended Complaint are
DISMISSED WITH PREJUDICE as to Defendant Porter McGuire.
Counts VIII, XVII, and XVIII request specific remedies,
including cancellation of quitclaim deed, declaratory relief, and
injunctive relief. They do not set forth causes of action.

2.

Claims that May Possibly Be Alleged

Plaintiff may attempt to allege claims against Porter
McGuire for aiding and abetting the violations charged against
the AOAO in Counts I, IV, V, and VII of the Amended Complaint.
Those claims were dismissed against the AOAO with leave to amend,
as Plaintiff failed to allege sufficient facts in support of each
claim as to the AOAO. Without sufficient facts, the court finds
78

it premature to rule whether Porter McGuire could possibly be
liable for aiding and abetting the AOAO in the alleged violations
in Counts I, IV, V, and VII.
To bring a claim against Porter McGuire for aiding and
abetting the AOAO in the alleged violations in Counts I, IV, V,
and VII, Plaintiff must specifically allege a claim for aiding
and abetting the AOAO in each violation and allege sufficient
facts in support of each claim with sufficient plausibility to
survive a motion to dismiss. Such a claim against Porter McGuire
must be cognizable against Porter McGuire acting as the AOAO’s
attorney.
Plaintiff is granted LEAVE TO AMEND the claims alleged in
Counts I, IV, V, and VII of the Amended Complaint as to Defendant
Porter McGuire.

SUMMARY OF COURT’S RULINGS AS TO PORTER MCGUIRE’S MOTION FOR
PARTIAL DISMISSAL (ECF No. 15)
The following claim against Defendant Porter McGuire
SURVIVES:
Count XII:

Violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692.

The following claims are DISMISSED WITH PREJUDICE as to
Defendant Porter McGuire:
Count II:

Breach of Fiduciary Duty;
79

Count III:

Breach of Contract;

Count VI:

Tortious Interference with Contractual
Relations;

Count IX:

Quiet Title;

Count X:

Violation of Haw. Rev. Stat. 480D;

Count XI:

Violation of Haw. Rev. Stat. Ch. 443B;

Count XIV:

Negligence;

Count XV:

Wrongful Eviction;

Count XVI:

Negligent Infliction of Emotional Distress;
and

Count XIX:

Prima Facie Tort.

The following Counts request specific remedies, but DO NOT
ALLEGE CAUSES OF ACTION:
Count VIII:

Cancellation of Quitclaim Deed;

Count XVII:

Injunctive Relief; and

Count XVIII:

Declaratory Relief.

The following claims are DISMISSED WITH LEAVE TO AMEND as to
Defendant Porter McGuire:
Count I:

(Aiding and Abetting) Breach of Governing
Documents;

Count IV:

(Aiding and Abetting) Promissory
Estoppel/Detrimental Reliance/ Negligent and
Intentional Misrepresentation;

80

Count V:

(Aiding and Abetting) Violation of Haw. Rev.
Stat. Chs. 514A and 514B; and

Count VII:

(Aiding and Abetting) Violation of Haw. Rev.
Stat. Ch. 667, and

Count XIII:

Haw. Rev. Stat. 480.

III. THIRD MOTION: DEFENDANT JONAH KOGEN’S MOTION FOR SUMMARY
JUDGMENT (ECF No. 14)

Plaintiff alleges the following claims against Defendant
Jonah Kogen, the purchaser of the Unit at the foreclosure sale:
Count VI:

Tortious Interference with Contractual
Relations;

Count VIII:

Cancellation of Quitclaim Deed;

Count IX:

Quiet Title;

Count XV:

Wrongful Eviction;

Count XVII:

Injunctive Relief;

Count XVIII:

Declaratory Relief; and

Count XIX:

Prima Facie Tort.

Defendant Kogen moves for summary judgment on those claims.

Counts That Do Not Purport to Allege a Cause of Action

81

Counts VIII, XVII, and XVIII request specific forms of
relief, but do not allege separate causes of action.

Count VI: Tortious Interference with Contractual Relations
Plaintiff’s claim against Jonah Kogen for tortious
interference with contractual relations fails for the same reason
as the tortious interference claim against Porter McGuire.
Plaintiff has failed to allege the existence of a valid contract
between himself and the AOAO. As a valid contract did not exist,
Defendant Kogen cannot be liable for tortiously interfering in
the relations created by the contract. Weinberg v. Mauch, 890
P.2d 277, 287 (Haw. 1995); Bodell Const. Co. v. Ohio Pac. Tech,
Inc., 458 F. Supp. 2d 1153, 1162-63 (D. Haw. 2006).
Plaintiff’s claim for tortious interference with contractual
relations, alleged in Count VI of the Amended Complaint, is
DISMISSED WITH PREJUDICE as to Defendant Kogen.

Count XIX: Prima Facie Tort
Plaintiff, in Count XIX of the Amended Complaint, alleges a
claim for prima facie tort against Defendant Jonah Kogen.
Plaintiff’s claim for prima facie tort against Jonah Kogen
is futile for the same reasons as the prima facie tort claim
brought against Defendants AOAO, Associa, and Porter McGuire.
Hawaii law does not recognize a claim for prima facie tort in the
82

circumstances present here. Giuliani v. Chuck, 620 P.2d 733, 738
(Haw. Ct. App. 1980); Metzler Contracting Co. LLC v. Stephens,
2009 WL 1046666 (D. Haw. Apr. 17, 2009).
Plaintiff’s claim for prima facie tort, alleged in Count XIX
of the Amended Complaint, is DISMISSED WITH PREJUDICE as to
Defendant Kogen.

Counts IX and XV: Quiet Title and Wrongful Eviction
Plaintiff’s claims for quiet title and wrongful eviction,
alleged in Counts IX and XV of the Amended Complaint, are brought
solely against Defendant Kogen. Plaintiff’s claims are based on
his position that, although Defendant Kogen purchased the
Condominium Unit at the foreclosure sale, Defendant Kogen does
not rightfully own the Unit.

1.

Insufficient Allegations to Support Claims

Plaintiff has failed to allege a basis for voiding the
foreclosure sale. Plaintiff, however, has been granted leave to
amend claims that may provide a basis for voiding the foreclosure
sale to Defendant Kogen, such as his claim for violation of Haw.
Rev. Stat. Ch. 667, alleged against the AOAO and Associa. In re
Kekauoha-Alisa, 674 F.3d 1083, 1089 (9th Cir. 2012).
83

As Plaintiff’s Amended Complaint has not set forth a basis
for Plaintiff’s position that Defendant Kogen is not the rightful
owner of the Unit, there is no support for the quiet title and
wrongful eviction claims. Those claims, alleged in Counts IX and
XV of the Amended Complaint, are DISMISSED WITH LEAVE TO AMEND as
to Defendant Kogen.

2.

Summary Judgment is Premature

Defendant Kogen, in support of his Motion for Summary
Judgment, has submitted evidence relating to the non-judicial
foreclosure of the Unit. Plaintiff has also submitted evidence,
relating to Defendant Kogen’s efforts to gain possession of the
Unit.
The Court finds that it is premature to grant judgment on
Plaintiff’s claims for quiet title and wrongful eviction. The
lack of clarity of Plaintiff’s allegations in the Amended
Complaint contributes to the Court’s difficulty in deciding
Defendant Kogen’s Summary Judgment Motion at this time.
Plaintiff’s Amended Complaint is complex, in that it alleges
nineteen causes of action against multiple parties, all related
to the allegedly unlawful sale of his Unit to Defendant Kogen.

84

The Court has permitted Plaintiff to amend various claims alleged
against the AOAO, Associa, and Porter McGuire.
Before granting judgment in favor Defendant Kogen, the Court
must first determine whether Plaintiff can allege a viable claim
for violation of Haw. Rev. Stat. Ch. 667 or some other basis for
voiding the foreclosure sale to Defendant Kogen. In re KekauohaAlisa, 674 F.3d 1083, 1089 (9th Cir. 2012)(violation of Haw. Rev.
Stat. Ch. 667 voided foreclosure sale).
Defendant Kogen raises several objections to the evidence
submitted by Plaintiff in opposition to summary judgment. Kogen
asserts that several paragraphs of Plaintiff’s Declarations and
two exhibits are inadmissible. (ECF Nos. 46 and 47.)
The Court does not reach the issue of Defendant’s
evidentiary objections at this time, as the rulings in this Order
do not rely on the evidence to which Defendant Kogen objects.
Defendant Kogen’s Motion for Summary Judgment (ECF No. 14)
is DENIED. Defendant Kogen may move again for summary judgment if
Plaintiff files an Amended Complaint, in compliance with this
Order.

SUMMARY OF THE COURT’S RULINGS AS TO THE CLAIMS AGAINST DEFENDANT
KOGEN
The following claims are DISMISSED WITH PREJUDICE as to
Defendant Kogen:

85

Count VI:

Tortious Interference with Contractual
Relations; and

Count XIX:

Prima Facie Tort.

The following Counts request specific remedies, but do not
allege separate causes of action:
Count VIII:

Cancellation of Quitclaim Deed;

Count XVII:

Injunctive Relief; and

Count XVIII:

Declaratory Relief.

The following claims are DISMISSED WITH LEAVE TO AMEND as to
Defendant Kogen:
Count IX:
Count XV:

IV.

Quiet Title and
Wrongful Eviction.

LEAVE TO AMEND
Plaintiff requests leave to amend to allege claims against

individual directors of the AOAO Board, Randall Plunkett and
Joseph Gamboa. Plaintiff claims that Plunkett and Gamboa
represented that the foreclosure sale would be postponed and that
he relied upon those representations. (Opp. to AOAO & Associa’s
Motion at 19 n.60, ECF No. 38.)

86

Plaintiff’s request is GRANTED. Plaintiff shall be permitted
to allege claims against Plunkett and Gamboa, in their individual
capacities.
Plaintiff may file a Second Amended Complaint by July 25,
2014. The Second Amended Complaint must conform to the rulings
contained in this Order. The Second Amended Complaint may add
Plunkett and Gambia as defendants, and may reallege those claims
that have been dismissed with leave to amend. The Second Amended
Complaint must clearly set forth who each claim is directed
against and the specific factual basis for each claim.

CONCLUSION

RULINGS ON CLAIMS AGAINST DEFENDANTS AOAO & ASSOCIA
Defendants Association of Apartment Owners of Opua Hale
Patio Homes and Associa’s Motion to Dismiss (ECF No. 7) is
GRANTED. Their Motion for a More Definite Statement (ECF No. 7)
is DENIED AS MOOT. The Court’s rulings as to each Defendant are
as follows:

The following claims are DISMISSED WITH PREJUDICE as to the
AOAO:
Count II:

Breach of Fiduciary Duty;
87

Count III:

Breach of Contract;

Count VI:

Tortious Interference with Contractual
Relations;

Count IX:

Quiet Title;

Count XV:

Wrongful Eviction; and

Count XIX:

Prima Facie Tort.

The following claims are DISMISSED WITH LEAVE TO AMEND as to
the AOAO:
Count I:

Breach of Governing Documents;

Count IV:

Promissory Estoppel/Detrimental Reliance/
Negligent and Intentional Misrepresentation;

Count V:

Violation of Haw. Rev. Stat. Ch. 514A and
514B;

Count VII:

Violation of Haw. Rev. Stat. Ch. 667;

Count XI:

Violation of Haw. Rev. Stat. 443B;

Count XII:

Violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692;

Count XIII:

Violation of Haw. Rev. Stat. Ch. 480;

Count XIV:

Negligence; and

Count XVI:

Intentional and Negligent Infliction of
Emotional Distress.

The following claims are DISMISSED WITH PREJUDICE as to
Associa:
Count VI:

Tortious Interference with Contractual
Relations;
88

Count IX:

Quiet Title;

Count XV:

Wrongful Eviction; and

Count XIX:

Prima Facie Tort.

The following claims are DISMISSED WITH LEAVE TO AMEND as to
Associa:
Count VII:

Violation of Haw. Rev. Stat. Ch. 667;

Count X:

Violation of Haw. Rev. Stat. Ch. 480D;

Count XI:

Violation of Haw. Rev. Stat. 443B;

Count XII:

Violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692;

Count XIII:

Violation of Haw. Rev. Stat. Ch. 480;

Count XIV:

Negligence; and

Count XVI:

Intentional and Negligent Infliction of
Emotional Distress.

The following Counts against the AOAO and Associa do not
allege a cause of action:
Count VIII:

Cancellation of Quitclaim Deed;

Count XVII:

Injunctive Relief; and

Count XVIII:

Declaratory Relief.

RULINGS ON CLAIMS AGAINST DEFENDANT PORTER MCGUIRE KIAKONA &
CHOW, LLP

89

Defendant Porter McGuire’s Motion for Partial Dismissal (ECF
No. 15) is GRANTED.

The following claim against Defendant Porter McGuire
SURVIVES:
Count XII:

Violation of the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692.

The following claims are DISMISSED WITH PREJUDICE as to
Defendant Porter McGuire:
Count II:

Breach of Fiduciary Duty;

Count III:

Breach of Contract;

Count VI:

Tortious Interference with Contractual
Relations;

Count IX:

Quiet Title;

Count X:

Violation of Haw. Rev. Stat. 480D;

Count XI:

Violation of Haw. Rev. Stat. Ch. 443B;

Count XIV:

Negligence;

Count XV:

Wrongful Eviction;

Count XVI:

Negligent Infliction of Emotional Distress;
and

Count XIX:

Prima Facie Tort.

The following Counts against Porter McGuire do not allege a
cause of action:

90

Count VIII:

Cancellation of Quitclaim Deed;

Count XVII:

Injunctive Relief; and

Count XVIII:

Declaratory Relief.

The following claims are DISMISSED WITH LEAVE TO AMEND as to
Defendant Porter McGuire:
Count I:

(Aiding and Abetting) Breach of Governing
Documents;

Count IV:

(Aiding and Abetting) Promissory
Estoppel/Detrimental Reliance/ Negligent and
Intentional Misrepresentation;

Count V:

(Aiding and Abetting) Violation of Haw. Rev.
Stat. Chs. 514A and 514B; and

Count VII:

(Aiding and Abetting) Violation of Haw. Rev.
Stat. Ch. 667, and

Count XIII:

Haw. Rev. Stat. 480.

RULINGS ON THE CLAIMS AGAINST DEFENDANT JONAH KOGEN
Defendant Kogen’s Motion for Summary Judgment (ECF No. 14)
is DENIED.

The following claims are DISMISSED WITH PREJUDICE as to
Defendant Kogen:
Count VI:

Tortious Interference with Contractual
Relations; and

91

Count XIX:

Prima Facie Tort.

The following Counts against Defendant Kogen do not allege a
cause of action:
Count VIII:

Cancellation of Quitclaim Deed;

Count XVII:

Injunctive Relief; and

Count XVIII:

Declaratory Relief.

The following claims are DISMISSED WITH LEAVE TO AMEND as to
Defendant Kogen:
Count IX:

Quiet Title; and

Count XV:
Wrongful Eviction.
PLAINTIFF’S REQUEST TO AMEND
Plaintiff’s request to amend is GRANTED. Plaintiff may file
a Second Amended Complaint by July 25, 2014. The Second Amended
Complaint must conform to the rulings contained in this Order.
The sole remaining claim is Count XII, alleging a violation
of 15 U.S.C. § 1692, against Porter McGuire.
Plaintiff is granted leave to amend as follows:
Claim

Leave to Amend As to

Count I:
Breach of Governing Documents

AOAO
Porter McGuire

Count IV:
Promissory Estoppel/
Detrimental Reliance/
Negligent an Intentional
Misrepresentation

AOAO
Porter McGuire

92

Count V:
Violation of Haw. Rev. Stat.
Ch. 514A and 514B

AOAO
Porter McGuire

Count VII:
Violation of Haw Rev. Stat.
Ch. 667

AOAO
Associa
Porter McGuire

Count IX:
Quiet Title

Jonah Kogen

Count X:
Violation of Haw. Rev. Stat.
Ch. 480D

Associa

Count XI:
Violation of Haw. Rev. Stat.
Ch. 443B

AOAO
Associa

Count XII:
Violation of the Fair Debt
Collection Practices Act, 15
U.S.C. § 1692

AOAO
Associa

Count XIII:
Violation of Haw. Rev. Stat.
Ch. 480

AOAO
Associa
Porter McGuire

Count XIV:
Negligence

AOAO
Associa

Count XV:
Wrongful Eviction

Jonah Kogen

Count XVI:
Negligent and Intentional
Infliction of Emotional
Distress

AOAO
Associa

IT IS SO ORDERED.

DATED:

Honolulu, Hawaii, June 18, 2014.

93

/s/ Helen Gillmor
Helen Gillmor
United States District Judge

______________________________________________________________
RANDOLPH BAHAM v.ASSOCIATION OF APARTMENT OWNERS OF OPUA HALE
PATIO HOMES; PORTER MCGUIRE KIAKONA & CHOW, LLP; ASSOCIA HAWAII
fka CERTIFIED HAWAII, INC.; JONAH KOGEN, Civ. No. 13-00669 HGBMK; ORDER GRANTING ASSOCIATION OF APARTMENT OWNERS OF OPUA HALE
PATIO HOMES AND ASSOCIA HAWAII fka CERTIFIED HAWAII, INC.’S
MOTION TO DISMISS COMPLAINT AND DENYING MOTION FOR A MORE
DEFINITE STATEMENT AS MOOT (ECF No. 7) AND GRANTING DEFENDANT
PORTER MCGUIRE KIAKONA & CHOW, LLP’S MOTION FOR PARTIAL DISMISSAL
(ECF No. 15) AND DENYING JONAH KOGEN’S MOTION FOR SUMMARY
JUDGMENT (ECF No. 14); PLAINTIFF IS GRANTED LEAVE TO AMEND

94