DeRosa v. Association of Apartment Owners of The Golf Villas et al
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF THE COURT'S MAY 6, 2016 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, FILED ON MARCH 9, 2016, OR IN THE ALTERNATIVE, TO CERTIFY ISSUES TO HAW AII SUPREME COURT re 49 Motion for Reconsideration. Signed by JUDGE LESLIE E. KOBAYASHI on 07/20/2016. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THE ASSOCIATION OF APARTMENT )
OWNERS OF THE GOLF VILLAS;
CERTIFIED MANAGEMENT, INC.,
dba CERTIFIED HAWAII aka
ASSOCIA HAWAII; JOHN DOES 1- )
100; JANE DOES 1-100; DOE
PARTNERSHIPS 1-100 AND DOE
CIVIL 15-00165 LEK-KSC
ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF
COURT’S MAY 6, 2016 ORDER GRANTING IN PART AND DENYING IN
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, FILED ON MARCH 9,
OR IN THE ALTERNATIVE, TO CERTIFY ISSUES TO HAWAII SUPREME
On May 6, 2016, this Court issued its Order Granting in
Part and Denying in Part Defendants’ Motion for Summary Judgment
[Dkt. no. 45.1]
On May 20, 2016, Plaintiff
Vincent DeRosa (“Plaintiff”) filed a motion for reconsideration
of the 5/6/16 Order or, in the alternative, for certification of
issues to the Hawai`i Supreme Court (“Motion for
[Dkt. no. 49.]
Defendants the Association of
Apartment Owners of the Golf Villas (“AOAO”) and Certified
Management, Inc., doing business as Certified Hawaii, now known
as Associa Hawaii (“Certified,” collectively “Defendants”) filed
The 5/6/16 Order is also available at 2016 WL 2626846.
their memorandum in opposition on June 6, 2016, and Plaintiff
filed his reply on June 23, 2016.
[Dkt. nos. 66, 67.]
has considered the Motion for Reconsideration as a non-hearing
matter pursuant to Rule LR7.2(e) of the Local Rules of Practice
of the United States District Court for the District of Hawai`i
After careful consideration of the motion,
supporting and opposing documents, and the relevant legal
authority, Plaintiff’s Motion for Reconsideration is HEREBY
DENIED for the reasons set forth below.
The factual and procedural background of this case is
set forth in the 5/6/16 Order, and this Court will not repeat it
In the 5/6/16 Order, this Court dismissed Plaintiff’s bad
faith claim, prima facie tort claim, selective enforcement of
governing documents claim, and breach of fiduciary duty claim
with prejudice, and granted summary judgment in favor of
Defendants as to Plaintiff’s intentional infliction of emotional
distress (“IIED”) claim, negligent infliction of emotional
distress (“NIED”) claim, negligence claim, gross negligence
claim, Haw. Rev. Stat. § 514B–105 claim,2 racketeering claim, and
Haw. Rev. Stat. § 514B–9 claim.
This Court denied Defendants’
The 5/6/16 Order refers to Plaintiff’s NIED claim,
negligence claim, gross negligence claim, and § 514B-104 claim
collectively as “the Negligence Claims.” 2016 WL 2626846, at
motion as to Plaintiff’s breach of contract claim.
2626846, at *18.
In the Motion for Reconsideration, Plaintiff argues
that the 5/6/16 Order failed to address his claims against
He also argues that this Court erred in dismissing
his bad faith claim because: 1) there is a special relationship
between Plaintiff and both the AOAO and Certified; and 2) Haw.
Rev. Stat. § 514B-9(e), and Restatement (Third) of Property:
Servitudes §§ 6.13 and 6.14 impose a duty on Defendants to act in
He also contends that, because the Hawai`i Supreme
Court would adopt §§ 6.13 and 6.14, this Court erred in
dismissing his selective enforcement of governing documents claim
and breach of fiduciary duty claim.
If this Court is not
inclined to reconsider its rulings on Plaintiff’s claims based on
§ 6.13 and § 6.14, he argues that this Court should certify a
question to the Hawai`i Supreme Court regarding whether the
supreme court would adopt those sections.
Plaintiff also seeks reconsideration of this Court’s
ruling that his IIED claim and his Negligence Claims are time
barred because they accrued on November 30, 2012 – the date that
the AOAO filed the lien on his unit.
Finally, Plaintiff argues
that this Court erred in granting summary judgment in favor of
Defendants as to his racketeering claim.
This Court has previously stated that a motion for
“must accomplish two goals. First, a motion for
reconsideration must demonstrate reasons why the
court should reconsider its prior decision.
Second, a motion for reconsideration must set
forth facts or law of a strongly convincing nature
to induce the court to reverse its prior
decision.” See Davis v. Abercrombie, Civil No.
11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D.
Hawaii June 2, 2014) (citation and internal
quotation marks omitted). This district court
recognizes three circumstances where it is proper
to grant reconsideration of an order: “(1) when
there has been an intervening change of
controlling law; (2) new evidence has come to
light; or (3) when necessary to correct a clear
error or prevent manifest injustice.” Tierney v.
Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585,
at *1 (D. Hawaii May 1, 2013) (citing School
District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262
(9th Cir. 1993)). “Mere disagreement with a
previous order is an insufficient basis for
reconsideration.” Davis, 2014 WL 2468348, at *3
n.4 (citations and internal quotation marks
Riley v. Nat’l Ass’n of Marine Surveyors, Inc., Civil No. 1400135 LEK-RLP, 2014 WL 4794003, at *1 (D. Hawai`i Sept. 25,
Plaintiff’s Motion for Reconsideration alleges that this
Court committed clear error in the 5/6/16 Order and/or that
reconsideration of the order is necessary to prevent manifest
[Reply at 5.]
Certification of Questions to the Hawai`i Supreme Court
“This court may certify a question to the
Hawai`i Supreme Court when it concerns ‘law of
Hawai`i that is determinative of the cause and
. . . there is no clear controlling precedent in
the Hawai`i judicial decisions . . . .[’]” Saiki
v. LaSalle Bank Nat’l Ass’n as Tr. for Structured
Asset Inv. Loan Trust Series 2003–BC2, Civil No.
10–00085 JMS/LEK, 2011 WL 601139, at *6 (D.
Hawai`i Feb. 10, 2011) (quoting Haw. R. App. P.
13(a)). The court, however, should not certify
questions when the answer is reasonably clear and
the court can, using its best judgment, predict
how the Hawai`i Supreme Court would decide the
issue. See id. (citing Helfand v. Gerson, 105
F.3d 530, 537 (9th Cir. 1997); Pai`Ohana v.
United States, 875 F. Supp. 680, 700 (D. Haw.
1995)). . . .
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., Civil No. 1200064 LEK-KSC, 2015 WL 419654, at *11 (D. Hawai`i Jan. 30, 2015)
(alterations in Pac. Radiation).
Claims Against Certified
The 5/6/16 Order clearly recognizes that Defendants
brought their Motion for Summary Judgment, [filed 3/9/16 (dkt.
no. 29),] on behalf of both the AOAO and Certified.
2626846, at *1.
Further, where this Court dismissed Plaintiff’s
claims, the claims were dismissed in their entirety – not only as
to the AOAO – and, where this Court granted summary judgment,
this Court did so in favor of both Defendants.
Id. at *18.
Specifically, Plaintiff argues that, although this
Court concluded that there is no special relationship that would
support a bad faith claim against the AOAO and that the AOAO did
not have a fiduciary duty to individual unit owners, this Court
should have recognized that there is a special relationship
between Plaintiff and Certified and that Certified had a
fiduciary duty to Plaintiff.
Plaintiff’s arguments are
Plaintiff is correct that this Court stated:
Although the Hawai`i Supreme Court has never
expressly addressed whether it would recognize a
bad faith claim in the context of the relationship
between an apartment owner and the apartment
owners’ association, this Court predicts that the
supreme court would decline to do so because of
the lack of a special relationship.
5/6/16 Order, 2016 WL 2626846, at *3 (emphasis added).
there is no basis to find that a special relationship exists
between an apartment owner and the agent for the apartment
owners’ association where there is no special relationship
between the owner and the association itself.
therefore concluded that “the relationship between Plaintiff and
Defendants [was not] the type of special relationship that
supports a bad faith claim.”
Id. (emphasis added).
Similarly, although this Court discussed the principle
that, under Hawai`i law, an owners’ association does not owe a
fiduciary duty to its members, there is no basis to conclude that
the agent for the owners’ association owes a fiduciary duty to
the owners where the association itself does not owe such a duty.
This Court therefore concluded that “Plaintiff’s relationship
with Defendants was not the type of relationship that gave rise
to a fiduciary duty.”
Id. at *6 (emphasis added).
Thus, in the 5/6/16 Order, this Court did consider
Plaintiff’s claims against Certified and ruled against him.
the extent that Plaintiff’s Motion for Reconsideration is based
on the alleged failure to consider Plaintiff’s claims against
Certified, the motion is DENIED.
Arguments Considered in the Underlying Motion
The remaining arguments that Plaintiff raises in the
Motion for Reconsideration are all arguments that this Court
considered and rejected in ruling on the underlying Motion for
Plaintiff merely disagrees with this Court’s
rulings, and that is not a sufficient basis for reconsideration.
See Davis, 2014 WL 2468348, at *3 n.4.
Plaintiff’s Motion for
Reconsideration is DENIED to the extent that it argues: there is
a special relationship between Plaintiff and the AOAO and between
Plaintiff and Certified; an apartment owner may bring claims
pursuant to § 514B-9; an apartment owner may bring claims
pursuant to Restatement of Servitudes §§ 6.13 and 6.14;
Plaintiff’s IIED and the Negligence Claims accrued when Plaintiff
paid the lien on February 4, 2013 instead of when the lien was
filed; and Plaintiff presented sufficient evidence to raise a
triable issue of fact as to his racketeering claim.
III. Request to Certify Questions
In the Motion for Reconsideration, Plaintiff only
requests certification of “the issue of the Hawaii Supreme
Court’s position on Restatement Section 6.13 and 6.14.”3
in Supp. of Motion for Reconsideration at 10.]
However, in his
Reply, in addition to reiterating that this Court should certify
the question of whether an apartment owner can bring a claim for
selective enforcement of the governing documents, Plaintiff
argues that certification of several other issues would be
appropriate: whether the relationship between an apartment owner
and the owners’ association supports a bad faith claim; whether
the Hawai`i Supreme Court would recognize a prima facie tort
claim in facts such as in this case; and whether there is a
cognizable claim under § 514B-9.
[Reply at 4-5.]
First, this Court notes that it is not required to
consider Plaintiff’s requests for certification that he raised
for the first time in the Reply.
See Local Rule LR7.4 (“Any
argument raised for the first time in the reply shall be
However, for the sake of completeness, this
Court has considered all of Plaintiff’s requests for
Sections 6.13 and 6.14 primarily supported Plaintiff’s
selective enforcement of governing documents claim.
Plaintiff is correct that, for each of the issues that
he has raised, this Court noted in the 5/6/16 Order that there
was no Hawai`i case law directly addressing the issue and, if the
Hawai`i Supreme Court were to adopt Plaintiff’s position, the
issue would arguably be determinative of the claim related to
However, this district court will not certify a
question to the Hawai`i Supreme Court where the district court
can reasonably predict how the supreme court would decide that
Saiki, 2011 WL 601139, at *6.
As to each of the issues
that Plaintiff asks this Court to certify, this Court has already
reviewed the relevant legal authority and concluded that it is
possible to reasonably predict how the Hawai`i Supreme Court
would decide that issue.
This Court therefore CONCLUDES that it
is not necessary to certify any of Plaintiff’s proposed questions
to the Hawai`i Supreme Court.
To the extent that the Motion for
Reconsideration requests that this Court certify questions, the
motion is DENIED.
On the basis of the foregoing, Plaintiff’s Motion for
Reconsideration of the Court’s May 6, 2016 Order Granting in Part
and Denying in Part Defendant’s Motion for Summary Judgment,
Filed on March 9, 2016, or in the Alternative, to Certify Issues
to Hawaii Supreme Court, filed May 20, 2016, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 20, 2016.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
VINCENT DEROSA VS. THE ASSOCIATION OF APARTMENT OWNERS OF THE
GOLF VILLAS, ET AL; CIVIL 15-00165 LEK-KSC; ORDER DENYING
PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE COURT’S MAY 6, 2016
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, FILED ON MARCH 9, 2016, OR IN THE ALTERNATIVE,
TO CERTIFY ISSUES TO HAWAII SUPREME COURT
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