DeRosa v. Association of Apartment Owners of The Golf Villas et al

Filing 80

AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re 45 Order. Signed by JUDGE LESLIE E. KOBAYASHI on 08/31/2016. (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
)
)
Plaintiff,
)
)
vs.
)
)
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
)
ENTITIES 1-100,
)
)
Defendants.
_____________________________ )
VINCENT DeROSA,

CIVIL 15-00165 LEK-KSC

AMENDED ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
On March 9, 2016, 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
their Motion for Summary Judgment (“Motion”).

[Dkt. no. 29.]

Plaintiff Vincent DeRosa (“Plaintiff”) filed his memorandum in
opposition on March 28, 2016, and Defendants filed their reply on
April 4, 2016.

[Dkt. nos. 32, 36.]

This matter came on for

hearing on April 18, 2016.
On May 3, 2016, this Court issued an entering order
ruling on the Motion (“5/3/16 EO Ruling”).

[Dkt. no. 43.]

instant Order supersedes the 5/3/16 EO Ruling.

The

After careful

consideration of the Motion, supporting and opposing memoranda,

and the arguments of counsel, Defendants’ Motion is HEREBY
GRANTED IN PART AND DENIED IN PART.

Specifically, the Motion is

DENIED WITHOUT PREJUDICE as to Plaintiff’s breach of contract
claim, and the Motion is GRANTED in all other respects.

As to

the remaining claims – breach of contract and the Haw. Rev. Stat.
§ 515-16(1) claim – any party who desires to file a motion for
summary judgment has leave to file by or before May 31, 2016.
BACKGROUND
Plaintiff filed his Complaint on January 22, 2015 in
state court.

[Notice of Removal, filed 5/7/15 (dkt. no. 1),

Decl. of David R. Major (“Major Removal Decl.”), Exh. A
(Complaint).]

Defendants removed the case based on federal

question jurisdiction.

[Notice of Removal at ¶ 2.]

The Complaint alleges that Plaintiff has a disability,
as that term is defined in the Americans with Disabilities Act
(“ADA”).

Plaintiff owns a pug named Jake, who is a certified

Emotional Support Animal (“ESA”), registered with the National
Service Animal Registry (“NSAR”).

[Complaint at ¶¶ 8-10.]

Further, Plaintiff alleges that:
“Jake” meets the ADA definition of a service dog.
The Fair Housing Amendments Act of 1988, Section
504 of the Rehabilitation Act of 1973 and Title II
of the ADA require property managers and landlords
to make reasonable accommodations to permit a
disabled handler to keep an ESA even when there is
a policy explicitly prohibiting pets.
[Id. at ¶ 11.]
2

The following facts are undisputed.

Plaintiff

previously owned a condominium unit at the Kapalua Golf Villas
(“Golf Villas”), which is part of the Kapalua Resort, a master
planned community.

[Defs.’ Separate Concise Statement of Facts

in Supp. of Motion (“Defs.’ CSOF”), filed 3/9/16 (dkt. no. 30),
at ¶¶ 1-2; Pltf.’s Separate Concise Statement of Facts in Supp.
of Mem. in Opp. (“Pltf.’s CSOF”), filed 3/28/16 (dkt. no. 33), at
¶¶ 1-2.]

The Kapalua Resort is subject to a December 29, 1976

Declaration of Covenants and Restrictions, the applicable version
of which was amended and restated, and recorded on September 30,
1987 (“Kapalua Declaration”).

[Defs.’ CSOF at ¶ 2; Pltf.’s CSOF

at ¶ 2; Defs.’ CSOF, Decl. of Alan Fleisch (“Fleisch Decl.”),1
Exh. B (Kapalua Decl.).]

The Golf Villas’s Declaration of

Horizontal Property Regime (“Golf Villas Declaration”) states
that it is subject to the Kapalua Declaration.

[Defs.’ CSOF at

¶ 4; Pltf.’s CSOF at ¶ 4; Fleisch Decl., Exh. C (Golf Villas
Decl.).]

The Kapalua Declaration therefore contains numerous

covenants and restrictions that encumbered the title to
Plaintiff’s Golf Villas unit.

[Defs.’ CSOF at ¶ 5; Pltf.’s CSOF

at ¶ 5.]
The claims in this case arise from: the AOAO’s refusal
to grant Plaintiff an exception to what the AOAO asserts is a no-

1

Alan Fleisch is the president of the AOAO, and its
custodian of records. [Fleisch Decl. at ¶¶ 1, 3.]
3

pets policy in the Golf Villas’s governing documents; and alleged
retaliation by the AOAO and its agent, Certified, for Plaintiff’s
opposition to a Golf Villas remediation project and for his
filing of a disability discrimination complaint against the AOAO
with the Hawai`i Civil Rights Commission (“HCRC”) and the United
States Department of Housing and Urban Development (“HUD”).
Plaintiff’s Complaint does not set forth his claims as
numbered counts.

He lists them in one paragraph:

The actions and omissions of the AOAO and
Certified constitute retaliation, bad faith,
selective enforcement of the governing documents,
negligence, gross negligence, breach of contract,
breach of fiduciary duty, negligent and
intentional emotional distress, prima facie tort,
racketeering, and violations of [Haw. Rev. Stat.]
§§ 515-16(1), 515-16(6), 514B-9, 514B-105, 514B105 [sic] and [Haw. Admin. R.] §§ 12-46-301, 1246-310(1) and 12-46-310(6).
[Complaint at ¶ 29.]

The Complaint seeks the following relief: a

declaratory judgment that Defendants violated § 515-16(1) and
(6), § 12-46-301, and § 12-46-310(1) and (6); “[j]ust
compensation including general, special, and punitive damages[;]”
attorneys’ fees and costs; and any other appropriate relief.
[Id. at pg. 8.]
In the instant Motion, Defendants argue that all of
Plaintiff’s claims should be dismissed with prejudice or this
Court should grant summary judgment in Defendants’ favor.

4

DISCUSSION
I.

Procedural Issues
In his memorandum in opposition, Plaintiff asks that he

be allowed to continue discovery, pursuant to Fed. R. Civ. P.
56(d), before this Court rules on the Motion.
2.]

[Mem. in Opp. at

In an April 13, 2016 entering order (“4/13/16 EO”), this

Court denied Plaintiff’s request because he failed to follow the
requirements for a Rule 56(d) request.

[Dkt. no. 37.]

This Court also notes that Plaintiff failed to include
a declaration or affidavit authenticating his exhibits.

Although

Plaintiff submitted a declaration, [Decl. of Vincent DeRosa
(“Plaintiff Declaration”), filed 3/28/16 (dkt. no. 34),] it is
not sufficient to authenticate any of his exhibits.

In the

4/13/16 EO, this Court informed the parties that it would not
consider any exhibits that were not properly authenticated.
However, out of fairness, this Court recognizes that: several of
Plaintiff’s exhibits are documents that are included among
Defendants’ exhibits; some of Plaintiff’s other exhibits are
described – although not specifically identified according to
exhibit number – in his declaration; and still more of
Plaintiff’s exhibits could have been authenticated by Plaintiff
because they are correspondence either from him or to him.
This Court does not condone Plaintiff’s failure to
follow the applicable rules, and this Court could rightly refuse
5

to take Plaintiff’s exhibits into account because of the lack of
authentication.

However, this Court, in its discretion, declines

to strike Plaintiff’s exhibits, and it has taken his exhibits
into account in considering Defendants’ Motion.

Even though this

Court has considered Plaintiff’s exhibits, they do not establish
a genuine issue of material fact for trial.2

See Fed. R. Civ. P.

56(a) (“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”).
This Court now turns to the merits of the Motion.
II.

Claims Subject to Dismissal
Even though Defendants titled their motion “Motion for

Summary Judgment,” they argue that some of Plaintiff’s claims
should be dismissed because, based upon the allegations of the
Complaint, those claims fail as a matter of law.

This Court will

therefore apply the dismissal standards in considering those
claims.

See Fed. R. Civ. P. 12(b)(6) (“failure to state a claim

upon which relief can be granted”); Levitt v. Yelp! Inc., 765
F.3d 1123, 1135 (9th Cir. 2014) (stating that, in order to
survive a Rule 12(b)(6) motion to dismiss, a plaintiff’s “factual
allegations must suggest that the claim has at least a plausible

2

This Court has found that there is a genuine issue of
material fact for trial regarding Plaintiff’s breach of contract
claim, see infra Section IV.C, but that is because neither party
presented evidence on that particular aspect of the claim.
6

chance of success” (alteration, citation, and internal quotation
marks omitted)).
A.

Bad Faith
Under Hawai`i law, the tort of bad faith is also known

as breach of the duty of good faith and fair dealing.

Because

this Court has supplemental jurisdiction over Plaintiffs’ state
law claims, it must apply Hawai`i substantive law to those
claims.

See Mason & Dixon Intermodal, Inc. v. Lapmaster Int’l

LLC, 632 F.3d 1056, 1060 (9th Cir. 2011).

This Court has

recognized that:
When interpreting state law, a federal court is
bound by the decisions of a state’s highest court.
Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422,
427 (9th Cir. 2011). In the absence of a
governing state decision, a federal court attempts
to predict how the highest state court would
decide the issue, using intermediate appellate
court decisions, decisions from other
jurisdictions, statutes, treatises, and
restatements as guidance. Id.; see also
Burlington Ins. Co. v. Oceanic Design & Constr.,
Inc., 383 F.3d 940, 944 (9th Cir. 2004) (“To the
extent this case raises issues of first
impression, our court, sitting in diversity, must
use its best judgment to predict how the Hawai`i
Supreme Court would decide the issue.” (quotation
and brackets omitted)).
Evanston Ins. Co. v. Nagano, 891 F. Supp. 2d 1179, 1189 (D.
Hawai`i 2012) (some citations omitted).

This Court has stated:

Hawai`i courts have recognized that “every
contract contains an implied covenant of good
faith and fair dealing that neither party will do
anything that will deprive the other of the
benefits of the agreement.” Best Place, Inc. v.
Penn Am. Ins. Co., 82 Hawai`i 120, 123-24, 920
7

P.2d 334, 337-38 (1996) (citations omitted).
“Good faith performance ‘emphasizes faithfulness
to an agreed common purpose and consistency with
the justified expectations of the other party.’”
Hawaii Leasing v. Klein, 5 Haw. App. 450, 456, 698
P.2d 309, 313 (1985) (quoting Restatement (Second)
of Contracts § 205 cmt. a (1981)). This district
court, however, has observed that:
Hawai`i courts have not recognized a separate
tort cause of action for bad faith or breach
of the duty of good faith and fair dealing
based upon any type of contract in any
circumstances. Moreover, in Francis v. Lee
Enterprises, Inc., 89 Hawai`i 234, 971 P.2d
707, 711–12 (1999), the Hawai`i Supreme Court
stressed the importance that claims of bad
faith be limited to “the insurance context or
situations involving special relationships
characterized by elements of fiduciary
responsibility, public interest, and
adhesion.” The Hawai`i Supreme Court stated
that the limitation on the tort of bad faith
was important due to the fact that recovery
in tort was very different from contractual
remedies. Id. at 712–13. Accordingly, the
Hawai`i Supreme Court stated that Hawai`i law
will not allow a recovery in tort “in the
absence of conduct that (1) violates a duty
that is independently recognized by
principles of tort law and (2) transcends the
breach of the contract.” Id. at 717.
Sung v. Hamilton, 710 F. Supp. 2d 1036, 1050 (D.
Hawai`i 2010).
Flynn v. Marriott Ownership Resorts, Inc., No. CV 15-00394 LEKBMK, 2016 WL 843251, at *21-22 (D. Hawai`i Feb. 29, 2016).
The instant case does not arise from the insurance
context, nor is the relationship between Plaintiff and Defendants
the type of special relationship that supports a bad faith claim,
such as “an innkeeper, a common carrier, a lawyer, [or] a

8

doctor.”

See id. at *22 (quoting Best Place, 82 Hawai`i at 131,

920 P.2d at 345).

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.
This Court therefore CONCLUDES that Plaintiff’s bad
faith claim fails to state a claim upon which relief can be
granted and must be DISMISSED.

Further, this Court CONCLUDES

that the dismissal must be WITH PREJUDICE because it is not
possible for Plaintiff to cure the defect in the bad faith claim
by amendment.

See Sonoma Cty. Ass’n of Retired Emps. v. Sonoma

Cty., 708 F.3d 1109, 1118 (9th Cir. 2013) (“As a general rule,
dismissal without leave to amend is improper unless it is clear
. . . that the complaint could not be saved by any amendment.”
(brackets, citation, and internal quotation marks omitted)).

The

Motion is GRANTED as to the bad faith claim.
B.

Prima Facie Tort Claim
Defendants next argue that Plaintiff’s prima facie tort

claim is not cognizable under Hawai`i law.

Plaintiff relies on

Metzler Contracting Co. v. Stephens, Civil No. 07-00261 LEK, 2009
WL 1046666, at *5 (D. Hawai`i Apr. 17, 2009), in which this Court
predicted that the Hawai`i Supreme Court would “recognize a

9

separate cause of action for prima facie tort under facts
virtually identical to” Giuliani v. Chuck, 1 Haw. App. 379, 620
P.2d 733 (Ct. App. 1980).

In Metzler, this Court pointed out

that, in Giuliani, the Hawai`i Intermediate Court of Appeals
(“ICA”) “did not recognize prima facie tort as an alternative to
another well-recognized cause of action.”
*5.

2009 WL 1046666, at

Plaintiff argues that the Hawai`i Supreme Court would allow

him to pursue a prima facie tort claim in this case because, like
Giuliani, “Plaintiff does not assert the claim for prima facie
tort as an alternative to another well-recognized cause of
action.”

[Mem. in Opp. at 16.]
Plaintiff’s argument is misplaced.

This Court again

predicts, for the reasons stated in Metzler, that the Hawai`i
Supreme Court would only recognize a prima facie tort claim in
cases with facts that are virtually identical to Giuliani.
Metzler, 2009 WL 1046666, at *5.

See

In Giuliani, the plaintiffs

entered into an agreement to purchase residential property from
the defendant.

They did not complete the sale because of

disputes regarding the sale documents, and the defendant’s
attorney deemed the plaintiffs’ deposit forfeited, alleging that
the plaintiffs breached the agreement.

The plaintiffs filed suit

to rescind the contract and to obtain the return of their
deposit.

Giuliani, 1 Haw. App. at 381, 620 P.2d at 735.

The ICA

held that “the amended complaint [was] sufficient to state a

10

cause of action for intentional harm to a property interest, a
cognizable cause of action sounding in tort,” but it was
insufficient to allege any other cause of action.

Id. at 386,

620 P.3d at 738 (citing Restatement, Second, Torts § 871).3

This

Court cannot find that the facts of this case are virtually
identical to Giuliani.

This Court therefore predicts that the

Hawai`i Supreme Court would not recognize a prima facie tort
claim under the facts of this case.
This Court CONCLUDES that Plaintiff’s prima facie tort
claim fails to state a claim upon which relief can be granted.
Further, this Court CONCLUDES that it is not possible for
Plaintiff to cure the defects in this claim by amendment.

Accord

Barber v. Ohana Military Communities, LLC, Civil No. 14-00217 HGKSC, 2014 WL 3529766, at *13-14 (D. Hawai`i July 15, 2014)
(concluding that the plaintiffs’ prima facie tort claim was
futile and dismissing the claim with prejudice because “[t]he
circumstances of [the] case would not give rise to a prima facie
tort claim”).

The Motion is GRANTED insofar as the prima facie

tort claim is DISMISSED WITH PREJUDICE.

3

According to the ICA, the Restatement (Second) of Torts
§ 871 stated: “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.”
Giuliani, 1 Haw. App. at 386, 620 P.2d at 738.

11

C.

Selective Enforcement of Governing Documents
Plaintiff cites Restatement (Third) of Property:

Servitudes §§ 6.13 and 6.14 and Haw. Rev. Stat. §§ 514B-9 and
514B-10 as the legal authority for his claim alleging selective
enforcement of the governing documents.

However, Plaintiff has

not cited, nor is this Court aware of, any case in which the
Hawai`i Supreme Court has adopted §§ 6.13 and 6.14 and recognized
a cause of action for selective enforcement under those sections.
Further, Plaintiff has not cited, nor is this Court aware of, any
case in which the Hawai`i Supreme Court has recognized that an
apartment owner may bring a selective enforcement claim pursuant
to §§ 514B-9 and 514B-10.

Based upon this lack of precedent,

this Court predicts that the Hawai`i Supreme Court would not
recognize a cause of action for selective enforcement pursuant to
these sections.
This Court CONCLUDES that Plaintiff’s selective
enforcement claim fails to state a claim upon which relief can be
granted, and that it is not possible for Plaintiff to cure the
defects in this claim by amendment.

The Motion is GRANTED

insofar as the claim for selective enforcement of the governing
documents is DISMISSED WITH PREJUDICE.
D.

Breach of Fiduciary Duty
Plaintiff argues that, based on Restatement (Third) of

Property: Servitudes §§ 6.13 and 6.14, the board of directors of
12

an apartment owners’ association owes a fiduciary duty to all
members of the association, not just to the association itself.
Plaintiff also argues that, in Lee v. Puamana Community Ass’n,
109 Hawai`i 561, 128 P.3d 874 (2006), the Hawai`i Supreme Court
recognized that an owners’ association owes a fiduciary duty to
its members.
In Lee, the Hawai`i Supreme Court did state that “other
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.”
omitted).

Id. at 571, 128 P.3d at 884 (citations

However, the issue of whether an owners’ association

owes fiduciary duties to individual owners was not before the
supreme court in Lee.

It made that statement in discussing

exceptions to the general rule that an “amendment made pursuant
to a general amendment provision will be upheld.”
128 P.3d at 883-84.

Id. at 570-71,

This district court has concluded that Lee

did not recognize that an owners’ association owes a fiduciary
duty to its individual members.

See Baham v. Ass’n of Apartment

Owners of Opua Hale Patio Homes, Civ. No. 13-00669 HG-BMK, 2014
WL 2761744, at *9-10 (D. Hawai`i June 18, 2014).

This Court

agrees with the analysis in Baham, where the district court
stated that the plaintiff’s claims were “based on the AOAO’s
actions with respect to [his] failure to pay his maintenance

13

fees,” and therefore his claims were “more akin to those brought
by a lender against a borrower, a relationship in which a
fiduciary duty does not exist.”

Id. at *10.

Thus, this Court CONCLUDES that Plaintiff’s
relationship with Defendants was not the type of relationship
that gave rise to a fiduciary duty.4

This Court CONCLUDES that

Plaintiff’s claim for breach of fiduciary duty fails to state a
plausible claim for relief, and it is not possible for Plaintiff
to cure the defects in this claim by amendment.

The Motion is

GRANTED insofar as the claim for breach of fiduciary duty is
DISMISSED WITH PREJUDICE.
E.

Statute of Limitations

Defendants argue that several of Plaintiff’s claims
should be dismissed with prejudice because they are barred by the
statute of limitations.

This Court has considered the parties’

exhibits in ruling on the issue of whether those claims are
barred by the statute of limitations.

4

This Court will therefore

In addition, Haw. Rev. Stat. § 514B-106(a) states that
“officers and members of the board shall owe the association a
fiduciary duty.” In interpreting this provision and a similar
provision in Haw. Rev. Stat. Chapter 514A, the ICA “has held that
only the individual directors of the board may be liable for
breach of fiduciary duty, but not the association itself.”
Baham, 2014 WL 2761744, at *9 (citing 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)). Thus, even if Plaintiff
could bring a claim for breach of fiduciary duty, it would be
against the individual officers and members of the AOAO’s Board
of Directors (“the Board”), not against the AOAO itself.
14

apply the summary judgment standard to those claims.

See

Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.
2010) (stating that “generally the scope of review on a motion to
dismiss for failure to state a claim is limited to the
Complaint”).
III. Evidence Before the Court
The Kapalua Declaration states: “No house pets or other
animals shall be kept on any Lot or in any Apartment on a
Multiple Family Residential Lot or in a Condominium Unit except
where otherwise permitted by the Association Rules or a
Supplemental Declaration.”
§ 1(a)(6).]

[Kapalua Decl. at 26, art. V,

In addition, the Golf Villas’s House Rules (“House

Rules”) states:
“No house pets or other animals shall be kept on
any Lot or in any Apartment on a Multiple Family
Residential Lot or in a Condominium Unit except
where otherwise permitted by the Association Rules
or a Supplemental Declaration.” Page 26, Article
V, Section 1, part (6), KRA CC&R’s.
[Fleisch Decl., Exh. D (House Rules) at 3, § B-3.]

Thus,

Defendants assert that pets are not allowed at the Golf Villas.
[Mem. in Supp. of Motion at 3.]

Plaintiff’s position is that

Haw. Rev. Stat. § 514B-156 requires that a policy prohibiting
owners from keeping pets must be in the association’s bylaws, and
the Golf Villas bylaws (“Bylaws”) did not have such a provision.
Plaintiff therefore argues the no-pets provision in the House
Rules is invalid, and the AOAO did not have the authority to
15

require him to give up Jake, even if Jake was a pet.

If this

Court concludes that the no-pets provisions in the House Rules
and the Kapalua Declaration alone are enforceable, Plaintiff
argues that they must be read to include an exception for
disabled persons.
Plaintiff states that, after purchasing his unit, he
ran for a seat on the Board, and he publicly opposed a large
renovation/remediation projection.

[Decl. of Vincent DeRosa

(“Pltf. Decl.”), filed 3/28/16 (dkt. no. 34), at ¶¶ 7-8.]

After

doing so, he “began to be harassed, discriminated against, and
retaliated against by the Board.”

[Id. at ¶ 8.]

Plaintiff

alleges that the AOAO enforced the no-pets provision against him
in retaliation for his opposition to the renovation project.
Defendants present evidence that, in June 2011, the
AOAO became aware that Plaintiff and his wife were keeping a dog
at the Golf Villas.

The AOAO, through its general manager,

informed Plaintiff that it was a violation of the governing
documents and requested that he not keep the dog there.

The AOAO

later learned that Plaintiff continued to keep a dog there.
[Fleisch Decl. at ¶¶ 16-18.]

The general manager sent Plaintiff

a letter, dated June 23, 2011, regarding the no-pets policy
(“6/23/11 AOAO Letter”).

It stated, inter alia:

If you have a pet on property it must be removed
immediately. Per the House Rules, this letter
serves as your first warning. If you have a pet
on property and it is not removed by Friday
16

June 24, 2011 you may incur fines as defined in
the Kapalua Golf Villas House Rules.
[Fleisch Decl., Exh. E.]
Plaintiff responded in a letter dated June 24, 2011
(“6/24/11 Plaintiff Letter”).

The letter referred to

“Jake DeRosa” as his “pet” and “family member.”

[Id., Exh. F.5]

He argued that the Bylaws and Declarations did not prohibit pets
on the property, and he pointed out that attempts by the Board to
restrict having pets on the property failed.

Plaintiff asserted

that other persons had their pets on the property.

He stated,

“[o]bviously and short of being service animals, which it is my
understanding these pets are not, if these owners have been
allowed to keep pets at the Villas I deserve the same right as a
member in good standing.”

[Id.]

The 6/24/11 Plaintiff Letter

did not mention that Plaintiff has a disability, nor did it refer
to Jake as either a service dog or an ESA.
Plaintiff states that, when he purchased his unit in
the Golf Villas in October 2009, he had owned Jake for
approximately ten years.

Further, when he purchased his unit, he

was aware that other unit owners had pets.

According to

Plaintiff, those owners did not appear to be disabled and were

5

The Court notes that Defendants’ Exhibit F is not signed,
nor does the name “Vincent DeRosa” appear on it at all.
Plaintiff, however, does not dispute that Exhibit F is his
response to the 6/23/11 AOAO Letter. [Defs.’ CSOF at ¶ 13;
Pltf.’s CSOF at ¶ 13.]
17

allowed to keep their pets.

In addition, there were “doggy

stations” at the Kapalua Resort.

Thus, when he purchased his

unit, Plaintiff believed pets were allowed.
¶¶ 2-5.]

[Pltf. Decl. at

Plaintiff submits evidence that, by the time the

dispute over Jake started, the AOAO had already granted a waiver
of the purported no-pets policy to at least one other Golf Villas
owner.

[Pltf.’s CSOF, Exh. 4 (letter dated 4/19/10 to

Sandy Rogers from Joan Mayo, General Manager, offering a waiver
for Ms. Rogers’s cat; Ms. Rogers accepted the conditions of the
waiver on 4/22/10).]
Philip Lahne, Esq., counsel for the AOAO, sent
Plaintiff a letter, dated July 1, 2011, responding to his request
to keep Jake on the property (“7/1/11 AOAO Letter”).

The letter

stated that, in light of the relevant provisions of the governing
documents, the Board had no authority to allow him to keep a dog
at the property, even if the Board were willing to do so – which
it was not.

[Fleisch Decl., Exh. G.]

The letter demanded that

Plaintiff
immediately remove any and all dogs or other
animals from The Golf Villas. If you fail to do
so, our office may be instructed to take legal
action to compel your compliance with this demand.
If such action is necessary, you will be liable
for all of the Association’s fees and costs
incurred therein, including reasonable attorneys’
fees, in accordance with § 514B-157, Hawai`i
Revised Statutes.
[Id. at 2.]

18

Caroline Peters Belsom, Esq., responded to the 7/1/11
AOAO Letter on Plaintiff’s behalf in a letter dated July 22, 2011
(“7/22/11 Plaintiff Letter”).

[Fleisch Decl., Exh. H.]

The

letter stated that Jake is a certified ESA, registered with the
NSAR.6

The letter further stated that “[t]he emotional support

Jake provides has been formally prescribed and deemed necessary
to Mr. DeRosa who is referred to as the confirmed disabled
handler. . . .

Mr. DeRosa is also able to produce documentation

from both his treating physician and treating therapist as to
their prescriptions for Jake as a necessary ESA.”

[Id. at 2.]

The letter asserted that Plaintiff has a disability as defined in
the ADA and that Jake is a service dog as defined in the ADA.
[Id.]

It requested that the AOAO “cease and desist from all

enforcement attempts under the subject house rule” and “grant him
the reasonable accommodation required under the law.”

[Id. at

4.]
In response to the instant Motion, Plaintiff states
that he has been receiving on-going treatment for alcohol
addiction for many years, and that he is also being treated for
an adjustment disorder and anxiety.

He had previously been

prescribed tranquilizers for his anxiety, but he no longer needed

6

Plaintiff submitted a printout from the NSAR Registration
Database showing that Jake DeRosa is an ESA and that Plaintiff is
his handler. The date of Jake’s registration is June 29, 2011.
[Pltf.’s CSOF, Exh. 7.]
19

them after he obtained Jake.

[Pltf. Decl. at ¶¶ 10-12.]

Plaintiff acknowledges that he did not register Jake as an ESA
until June 29, 2011, but he states that Jake “provided [him] with
emotional support and . . . helped alleviate the symptoms of
[his] disabilities prior to being registered as an” ESA.
¶ 13.]

[Id. at

As evidence of his disability, Plaintiff submitted a

letter, dated November 15, 2015, addressed “To Whom It May
Concern” from Jerry Jay Snodgrass, M.S. LPC, of Agape
Professional Counseling Center in Oregon (“11/15/15 Snodgrass
Letter”), stating, in pertinent part:
Vincent Derosa [sic] is under my care and I am
currently treating him for a mental health
disability recognized in the Diagnostic and
Statistical Manual of Mental Disorders, Fifth
Edition (DSM-5). This disorder substantially
limits at least one major life activity.
As the primary treatment modality to address his
psychological disability, I have prescribed
Mr. Derosa to obtain or keep a dog to serve as an
emotional support animal. It is my professional
opinion that the presence of this animal is a
necessary treatment for the mental health of
Mr. Derosa because its presence will mitigate the
symptoms he is currently experiencing.
[Pltf.’s CSOF, Exh. 6.]
Mr. Lahne responded to the 7/22/11 Plaintiff Letter in
a letter dated August 1, 2011 (“8/1/11 AOAO Letter”).
Decl., Exh. I.]

[Fleisch

It pointed out that the 7/22/11 Letter was the

first notice that the AOAO received that Plaintiff “was seeking
to keep his dog as anything but a pet.”

20

[Id. at 2.]

Further, it

stated that the AOAO was required to “engage in an interactive
process with a person requesting an accommodation to determine
whether the accommodation can be made” and that the AOAO was
“entitled to sufficient information to establish the need for the
use of the assistance animal to afford the person equal use and
enjoyment of the housing.”

[Id.]

The AOAO therefore provided

Plaintiff with forms for him and his treating physician to fill
out to provide the information that the AOAO asserted it was
entitled to have in order to determine whether he was entitled to
a reasonable accommodation.

[Id. at 3.]

The 8/1/11 AOAO Letter

said that Plaintiff had fifteen days to provide the information
and that he would be allowed to keep his dog in his unit pending
the AOAO’s receipt of the information.

The letter cautioned

Plaintiff that, if he failed to provide the information by the
deadline, the Board would assume that he was “unwilling or unable
to provide that information and he [would] be required to remove
the dog from the project.”

[Id.]

Plaintiff responded with a letter, dated August 11,
2011, formally requesting an exception to the no-pets rule as a
reasonable accommodation pursuant to the Fair Housing Act (“FHA”)
(“8/11/11 Plaintiff Letter”).7

[Fleisch Decl., Exh. J.]

Plaintiff refused to complete the forms that the AOAO provided,

7

Plaintiff submitted the letter himself, but sent
Ms. Belsom a copy. [8/1/11 Plaintiff Letter at D000870.]
21

arguing that they violated the FHA because they required
irrelevant information.8

[Id. at D000870.]

He provided, inter

alia, a “Letter of Prescription” from Stanley J. Rowett, M.A.,
M.F.T.,9 stating:
Vincent DeRosa is under my care for an Adjustment
Disorder with Anxiety, DSM-IV 309.24.
In my view his dog Jake has had a positive effect
on many of Vincent’s symptoms, helping Vincent to
function on a day to day basis.
Prescription: Jake, his current Emotional Support
Animal.
[Id. at D000871.]

He also provided a form signed by Kari M.

Adams, M.D., authorizing Jake to be registered as a service dog
under the ADA, and a handwritten letter by Dr. Adams.
D000872-73.]

[Id. at

The letter stated that Plaintiff was under her care

for “emotional distress + anxiety,” and that Jake “provides great
emotional support, the result of which is to alleviate
[Plaintiff’s] symptoms.”

[Id. at D000873.]

Defendants argue

that neither of the materials Plaintiff submitted with the
8/11/11 Plaintiff Letter established that “Plaintiff had a mental
impairment that substantially limited one or more of Plaintiff’s

8

In his declaration, Plaintiff states that the information
the AOAO requested “included highly personal, sensitive,
confidential, and inappropriate questions.” [Pltf. Decl. at
¶ 15.] Plaintiff asserts that he provided the AOAO “with all the
documentation that was necessary to support [his] request for
reasonable accommodations.” [Id.]
9

The Court assumes that M.F.T. stands for Marriage and
Family Therapist.
22

major life activities or that the animal was necessary to
mitigate such impacts or afford Plaintiff the ability to equally
use and enjoy his unit.”

[Mem. in Supp. of Motion at 6.]

Mr. Lahne sent Ms. Belsom a letter, dated August 23,
2011, stating that the 8/11/11 Plaintiff Letter was insufficient
and denying Plaintiff’s request for an accommodation because
Plaintiff failed to provide the required information (“8/23/11
AOAO Letter”).

[Fleisch Decl., Exh. K.]

The 8/23/11 AOAO Letter

advised Plaintiff to remove Jack from the property immediately.
[Id. at 2.]
On December 16, 2011, Plaintiff filed a discrimination
complaint with the Hawai`i Civil Rights Commission (“HCRC”),
pursuant to Haw. Rev. Stat. §§ 368-3, 515-3, and with HUD,
pursuant to the FHA (“2011 HCRC Complaint”).10

[Pltf.’s CSOF,

Exh. 13 (letter dated 1/19/12 to Plaintiff from the Executive
Director of the HCRC regarding the 2011 HCRC Complaint).]
Plaintiff states that, after he filed the 2011 HCRC Complaint,
the AOAO “continued to target” him.

[Pltf. Decl. at ¶ 19.]

He

states that it billed him for its legal fees associated with his
request for an accommodation, and it applied his monthly
maintenance fee payments to those fees, causing him to become

10

The AOAO’s counsel received the 2011 HCRC Complaint on or
around January 13, 2012. [Defs.’ CSOF, Decl. of David R. Major
(“Major Motion Decl.”) at ¶ 5.]
23

delinquent in his maintenance fee payments.11

He also refused to

pay an AOAO remediation fee on May 24, 2012, and he was
threatened with having his utilities turned off.12

According to

Plaintiff, other unit owners in the same position were not
treated in this manner.

[Id. at ¶¶ 20-22.]

In addition, he

states that, on July 31, 2012, the AOAO “publicly listed [his]
name as a ‘delinquent owner’.”

[Id. at ¶ 22.]

Plaintiff states that, because the AOAO refused to
allow him to keep Jake, he had to move out of his unit and move
back to California.

[Id. at ¶ 18.]

Further, because of the

discriminatory and retaliatory threat to discontinue utilities,
Plaintiff could not rent his unit.
sell the unit in foreclosure.

He was ultimately forced to

[Id. at ¶ 27.]

On March 9, 2012, Plaintiff filed another complaint
with the HCRC and HUD.

He amended it on April 5, 2012 and

June 14, 2012 (collectively “2012 HCRC Complaint”).

[Pltf.’s

11

Certified sent Vincent and Maria DeRosa a letter, dated
February 21, 2012, stating that they were delinquent in the
amount of $2,351.85 (“2/21/12 Certified Letter”). The letter
demanded immediate payment and stated that, if they failed to
pay, water and cable service to the unit would be discontinued on
April 21, 2012, and, if the unit was being rented, the AOAO would
begin intercepting any rental revenue in thirty days. [Pltf.’s
CSOF, Exh. 14 at 1.]
12

Certified sent the DeRosas a letter, dated May 24, 2012,
stating that they were delinquent in the amount of $1,853.15
(“5/24/12 Certified Letter”). It contained language similar to
the 2/21/12 Certified Letter regarding utilities and rental
revenue. [Pltf.’s CSOF, Exh. 15 at 1.]
24

CSOF, Exh. 18 (letter dated 11/7/12 to Plaintiff from the
Executive Director of HCRC regarding the 2012 HCRC Complaint
(“11/7/12 HCRC Letter”)) at Exhs. 1, 1a, 1b).]

The 2012 HCRC

Complaint alleged that Defendants “committed unlawful
discrimination against [Plaintiff] on he basis of retaliation.”
[11/7/12 HCRC Letter at 1.]
Plaintiff states that, on October 2, 2012, he received
notice from the HCRC (“10/2/12 HCRC Letter”) that he “met the
definition of a ‘disabled person’ and the [AOAO] discriminated
against me by refusing to allow reasonable accommodations for
Jake.”

[Id. at ¶ 23.]

However, what the 10/2/12 HCRC Letter

actually states is that, after reviewing the 2011 HCRC Complaint,
“[i]t has been determined that there is reasonable cause to
believe” that the AOAO “committed unlawful discriminatory
practices against [Plaintiff] because of refusal to make a
reasonable accommodation in rules, policies, practices or
services, necessary for [his] equal opportunity to use and enjoy
the housing, based on disability.”
(10/2/12 HCRC Letter) at 1.]

[Pltf.’s CSOF, Exh. 17

It informed him that “it has been

found impracticable to issue a written final decision and order
within one year of the date of the filing of” the 2011 HCRC
Complaint.

[Id.13]

13

The Court notes that, although the letter states that a
copy of Plaintiff’s 2011 HCRC Complaint is attached as Exhibit 1,
(continued...)
25

Plaintiff states that, in the 11/7/12 HCRC Letter, the
HCRC informed him that the AOAO retaliated against him after he
“spoke[] out against the renovation project and threatened to
turn off [his] utilities that prevented [him] from being able to
rent [his] unit.”

[Pltf. Decl. at ¶ 23.]

In fact, the 11/7/12

HCRC Letter states that “there is reasonable cause to believe”
that Defendants “committed unlawful discriminatory practices
against [Plaintiff] because of retaliatory conduct.”
CSOF, Exh. 18 (11/7/12 HCRC Letter at 1).]

[Pltf.’s

It informed him that

“it has been found impracticable to issue a written final
decision and order within one year of the date of the filing of”
the 2012 HCRC Complaint.

[Id.]

Plaintiff states that the HCRC

gave him a choice of the following actions: allow the HCRC to
bring an action against the AOAO; sue the AOAO on his own behalf
after it issued a right-to-sue letter; or take no further action.
According to Plaintiff, the HCRC “encouraged” him to sue on his
own behalf.

[Pltf. Decl. at ¶ 25.]

He therefore decided to

withdraw his HCRC complaints and sue on his own behalf.
¶ 26.]

[Id. at

Plaintiff did not withdraw the 2011 HCRC Complaint until

October 2014.

[Major Motion Decl. at ¶ 5.]

It is unclear when

he withdrew the 2012 HCRC Complaint.

13

(...continued)
[10/2/12 HCRC Letter at 1,] the version of the letter that
Plaintiff submitted as Exhibit 17 does not include the
attachment. Thus, the Court cannot consider the specific
allegations of Plaintiff’s 2011 HCRC Complaint.
26

Plaintiff states that, on November 30, 2012, the AOAO
filed a lien on his unit “for amounts supposedly owed for
maintenance fees, late fees, legal fees, and the remediation
fee,” but, on December 18, 2012, it granted his request for a
reasonable accommodation.14

[Pltf. Decl. at ¶¶ 28-29.]

By that

time, however, Plaintiff had already moved out of state and the
sale of his unit was in escrow.

He would have incurred

additional losses and penalties if he cancelled the sale.
at ¶ 29.]

[Id.

In spite of Plaintiff’s requests and the HCRC’s

determinations, the AOAO refused to withdraw its demand that he
pay the fees that it incurred related to his request for an
accommodation and it refused to remove the lien.

Plaintiff paid

the lien in full on February 4, 2013 from the proceeds of the
sale of the unit.

[Id. at ¶¶ 30-31.]

Even after the sale of his unit, Plaintiff – who was
represented by the Legal Aid Society of Hawai`i – attempted to
settle his claims with the AOAO.
decided to file this action.

After these attempts failed, he

[Id. at ¶ 32.]

14

The memorandum in opposition states that the amount of
the lien was $16,559.28, [Mem. in Opp. at 10,] but that amount is
not included in Plaintiff’s Declaration, and Plaintiff did not
attach any documentation regarding the lien.
27

IV.

Claims Reviewed under Summary Judgment Standard
A.

Time-Barred Claims
Plaintiff’s intentional infliction of emotional

distress (“IIED”), negligent infliction of emotional distress
(“NIED”), and negligence claims are subject to a two-year statute
of limitations.

See, e.g., Carroll v. Cty. of Maui, Civil No.

13-00066 DKW-KSC, 2015 WL 1470732, at *6 (D. Hawai`i Mar. 31,
2015) (concluding that the plaintiffs’ IIED and negligence
claims, inter alia, were subject to a two-year statute of
limitations (citing Wheeler v. Hilo Med. Ctr., Inc., 2010 WL
1711993, at *11 (D. Haw. Apr. 27, 2010) (“Battery, IIED, false
imprisonment, and NIED are all tort claims to recover
compensation for damage or injury.

As a result, these claims are

subject to the two-year statute of limitations in HRS
§ 657–7[.]”))).15

Plaintiff’s gross negligence claim is subject

to the same two-year statute of limitations.

See Faaita v.

Liang, Civil No. 07-00601 LEK, 2009 WL 3124765, at *4 (D. Hawai`i
Sept. 29, 2009).

This Court agrees with Defendants that, to the

extent that the Complaint alleges a claim for violation of Haw.
Rev. Stat. § 514B-105, the claim should be construed as a
negligence-based claim.

Thus, that claim is also subject to the

15

Section 657-7 states: “Actions for the recovery of
compensation for damage or injury to persons or property shall be
instituted within two years after the cause of action accrued,
and not after, except as provided in section 657-13.” The
exceptions listed in § 657-13 do not apply in the instant case.
28

two-year statute of limitations.

This Court will refer to

Plaintiff’s NIED claim, negligence claim, gross negligence claim,
and § 514B-105 claim collectively as “the Negligence Claims.”
This Court has stated that:
the “discovery rule” applies to the statute of
limitations for IIED and NIED claims. United
States EEOC v. NCL Am., 535 F. Supp. 2d 1149,
1169–70 (D. Hawai`i 2008). In that case, the
district court stated:
[U]nder the discovery rule, a cause of action
accrues when the plaintiff knew or should
have known of the causal connection between
the defendant’s action and the damage done.
While it is clear that [the defendant’s]
action in terminating the policy was known by
[the p]laintffs (sic) in 1992, it is still
unclear when [the p]laintiffs actually
suffered emotional distress, and when they
connected their distress with [the
defendant’s] actions.
Id. at 1170 (alterations in original) (citation
omitted).
Enriquez v. Countrywide Home Loans, FSB, 814 F. Supp. 2d 1042,
1069 (D. Hawai`i 2011) (alterations in Enriquez).

Plaintiff’s

negligence and gross negligence claims are also subject to the
“discovery rule.”

See Aana v. Pioneer Hi-Bred Int’l, Inc., 965

F. Supp. 2d 1157, 1179 (D. Hawai`i 2013).

By extension, the

§ 514B-105 claim – which this Court has construed as another
negligence claim – is also subject to the discovery rule.
First, the statute of limitations on these claims was
not tolled while Plaintiff’s HCRC complaints were pending.

Cf.

Hale v. Hawaii Publ’ns, Inc., 468 F. Supp. 2d 1210, 1232 (D.
29

Hawai`i 2006) (stating that “parallel avenues of relief are
generally not tolled by a Title VII administrative remedy, even
if the claims are based on the same facts and directed toward the
same ends” (some citations omitted) (citing Johnson v. Railway
Express Agency, 421 U.S. 454, 467, 95 S. Ct. 1716, 44 L. Ed. 2d
295 (1975); Harris v. Alumax Mill Products, Inc., 897 F.2d 400,
404 (9th Cir. 1990))).
Plaintiff also argues that he is entitled to equitable
tolling of the statute of limitations because of Defendants’
purported efforts to settle this dispute without requiring him to
file a civil suit.

The ICA has stated:

“‘Equitable tolling’ is defined as ‘[t]he
doctrine that the statute of limitations will not
bar a claim if the plaintiff, despite diligent
efforts, did not discover the injury until after
the limitations period had expired.’” Narmore v.
Kawafuchi, 112 Hawai`i 69, 75 n.15, 143 P.3d 1271,
1277 n.15 (2006) (quoting Black’s Law Dictionary
579 (8th ed. 2004)) superseded bv [sic] statute on
other grounds, HRS §§ 232–16, 17 (Supp. 2014).
In order to toll a statute of limitations for
a complaint filed after its expiration, a
plaintiff must demonstrate “(1) that he . . .
has been pursuing his right diligently, and
(2) that some extraordinary circumstance
stood in his way,” Felter v. Norton[, 412]
F. Supp. 2d 118, 126 (D.D.C. 2006) (citing
Pace v. DiGuglielmo, 544 U.S. 408, 417, 125
S. ct. [sic] 1807, 1814, 161 L. Ed. 2d 669
(2005); Zerilli–Edelcrlass v. N.Y. City
Transit Auth., 333 F.3d 74, 80–81 (2d Cir.
2003)). Extraordinary circumstances are
circumstances that are beyond the control of
the complainant and make it impossible to
file a complaint within the statute of

30

limitations. Id. (citing United States v.
Cicero, 214 F.3d 199, 203 (D.C. Cir. 2000)).
Office of Hawaiian Affairs v. State, 110 Hawai`i
338, 360, 133 P.3d 767, 789 (2006).
Reyes v. HSBC Bank USA, Nat’l Ass’n, No. CAAP–12–0000507, 2015 WL
3476371, at *6 (Hawai`i Ct. App. May 29, 2015) (some alterations
in Reyes).
Even assuming that Plaintiff was diligently pursuing
his rights during the attempted settlement negotiations,
Defendants’ participation in such negotiations did not create
circumstances beyond Plaintiff’s control that “ma[d]e it
impossible to file a complaint within the statute of
limitations.”

This Court therefore CONCLUDES that equitable

tolling does not apply in this case.
As previously noted, the 8/23/11 AOAO Letter informed
Plaintiff that the AOAO had denied his request for an
accommodation to allow him to keep Jake.

To the extent that

Plaintiff’s IIED claim and his Negligence Claims are based upon
the denial of his request for an accommodation, this Court
CONCLUDES that those claims accrued when Plaintiff received the
8/23/11 AOAO Letter.

Thus, this Court CONCLUDES that those

portions of Plaintiff’s IIED claim and his Negligence claims are
time-barred because Plaintiff failed to bring those claims within
two years after receiving the letter.

31

Plaintiff’s position is that Defendants’ discriminatory
and retaliatory acts continued after the denial of his request
for accommodation, including, inter alia, the attempt to collect
attorneys’ fees associated with his request for an accommodation,
the threats to discontinue utilities to his unit, publicly
identifying him as a delinquent owner, and placing a lien on his
unit.

He argues that:
After paying the full amount of the lien,
Plaintiff continued to attempt to resolve his
dispute with the Association through settlement.
Defendants initially indicated a willingness to
attempt to settle the matter. When attempts at
settlement proved unsuccessful, Plaintiff
initiated the current action. Plaintiff’s
complaint was filed on January 22, 2015, within
the two years of Defendants’ final discriminatory
act.

[Mem. in Opp. at 27 (emphasis omitted).]

According to Plaintiff,

he paid the lien in full on February 4, 2013, [Pltf. Decl. at
¶ 31,] and he argues that he filed this action within two years
of that time.
2012.

However, the AOAO filed the lien on November 30,

[Id. at ¶ 28.]

This Court CONCLUDES that, to the extent

that Plaintiff’s IIED claim and the Negligence Claims are based
upon the allegedly illegal lien, the claims accrued as soon as
Plaintiff had notice of the lien, which presumably occurred
around November 30, 2012.

Thus, those portions of the claims are

time-barred because Plaintiff did not bring the claims within two
years of that date.

32

Although it is not entirely clear, it appears that
Plaintiff argues that the failure of the settlement discussions
with Defendants was the final discriminatory act that the IIED
claim and the Negligence Claims are based upon.

Even assuming

that Plaintiff is making such an argument, this Court cannot
consider claims based on discrimination in the attempted
settlement process because Plaintiff did not allege such claims
in the Complaint.
This Court concludes that the last act of alleged
discrimination and/or retaliation that Plaintiff relies upon in
his IIED claim and his Negligence Claims is the filing of the
lien, and therefore he does not allege any allegedly unlawful
acts within the two-year period before the filing of the
Complaint.

This Court therefore CONCLUDES that those claims are

time-barred.

This Court GRANTS Defendants’ Motion insofar it

GRANTS summary judgment in favor of Defendants as to the
following claims: IIED, NIED, negligence, gross negligence, and
violation of § 514B-105.
B.

Racketeering
Haw. Rev. Stat. § 842-8(c) allows an injured party to

bring a civil racketeering action.

It states: “Any person

injured in the person’s business or property by reason of a
violation of this chapter may sue therefor in any appropriate
court and shall recover the damages the person sustains and the

33

cost of the suit, including a reasonable attorney’s fee.”
Hawai`i courts look to federal Racketeer Influenced and Corrupt
Organizations (“RICO”) statutes in interpreting Chapter 842.
See, e.g., State v. Bates, 84 Hawai`i 211, 222, 933 P.2d 48, 59
(1997) (“Insofar as this case involves one of first impression,
and because HRS § 842–2 incorporated provisions of 18 U.S.C. §
1962, we look to the federal courts for guidance in cases
interpreting the phrase ‘associated with any enterprise’ under
constitutional ‘void for vagueness’ challenges.”).

The Hawai`i

Supreme Court has stated: “To maintain a civil RICO claim based
upon 18 U.S.C. § 1962(c) (1994), a plaintiff must prove the
following elements: ‘(1) conduct (2) of an enterprise (3) through
a pattern (4) of racketeering activity.’”

TSA Int’l Ltd. v.

Shimizu Corp., 92 Hawai`i 243, 263, 990 P.2d 713, 733 (1999)
(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.
Ct. 3275, 87 L. Ed. 2d 346 (1985)).

For Chapter 842 purposes:

“Racketeering activity” means any act or threat
involving but not limited to murder, kidnapping,
gambling, criminal property damage, robbery,
bribery, extortion, labor trafficking, theft, or
prostitution, or any dealing in narcotic or other
dangerous drugs that is chargeable as a crime
under state law and punishable by imprisonment for
more than one year.
Haw. Rev. Stat. § 842-1.
Plaintiff argues that Defendants’ actions constituted
extortion, as defined in Haw. Rev. Stat. § 707-765.

34

Viewing the

current record in the light most favorable to Plaintiff,16
Defendants’ actions could be found to have: substantially harmed
Plaintiff’s health, financial condition, and/or reputation; or
created a disincentive for Plaintiff to take public positions
against the AOAO – such as his opposition to the remediation
project.

See Haw. Rev. Stat. § 707-764(1)(l),(2).

However, that

alone is not enough to prove a racketeering claim based on
extortion.

Section 707-764 states, in pertinent part:
A person commits extortion if the person does any
of the following:
(1) Obtains, or exerts control over, the
property, labor, or services of another with
intent to deprive another of property, labor, or
services by threatening by word or conduct to:
. . . .
(l) Do any other act that would not in
itself substantially benefit the defendant
but that is calculated to harm substantially
some person with respect to the threatened
person’s health, safety, business, calling,
career, financial condition, reputation, or
personal relationships;
(2) Intentionally compels or induces another
person to engage in conduct from which another has
a legal right to abstain or to abstain from
conduct in which another has a legal right to
engage by threatening by word or conduct to do any

16

“We review a grant of summary judgment de novo and must
determine, viewing the facts in the light most favorable to the
nonmoving party, whether there are any genuine issues of material
fact and whether the district court correctly applied the
relevant substantive law.” Crowley v. Bannister, 734 F.3d 967,
976 (9th Cir. 2013) (citations and quotation marks omitted).
35

of the actions set forth in paragraph (1)(a)
through (l) . . . .
(Emphases added.)
Even if there is sufficient evidence to create a
genuine issue of fact as to whether Defendants substantially
harmed Plaintiff’s health, financial condition, and/or
reputation, Plaintiff’s civil racketeering claim based on alleged
extortion also requires that Defendants obtained or exerted
control of Plaintiff’s property with the intent to deprive him of
property by threatening word or conduct.

§ 707-764(1)(l).

Plaintiff has not presented any evidence that would create a
genuine issue of fact for trial as to the intent requirement.
Further, § 707-764(1)(l) also requires that Defendants’ alleged
acts of extortion did not, in themselves, benefit Defendants.
That is not the case here.

Defendants’ attempts to enforce the

no-pets provision in the Kapalua Declaration and the House Rules
did have an independent benefit to them, and the AOAO informed
Plaintiff that it was making similar demands of owner unit owners
known to be keeping animals in the Golf Villas.

See 8/1/11 AOAO

Letter at 4 (“[I]n response to your unequal enforcement claims,
the Association has demanded that all persons keeping animals in
the Project of which it is aware provide the Board with the same
information as is being requested from Mr. DeRosa. . . .

[T]hose

persons will be required to complete the same forms and
appropriate action will be taken as to any owners or occupants
36

who fail or refuse to do so or whose disability and need for an
assistance animal is not established to the Board’s
satisfaction.”).
As to § 707-764(2), even if there is sufficient
evidence to create a genuine issue of fact as to whether
Defendants’ created a disincentive for Plaintiff to publicly
oppose the AOAO’s positions, Plaintiff’s racketeering claim also
requires that Defendants intentionally induced him not to speak
out against it.

As stated above, Plaintiff has not presented any

evidence that would create a genuine issue of fact for trial as
to the intent requirement.
The gravamen of this case is the parties’ different
positions on the issue of whether the no-pets provision in the
Kapalua Declaration and the House Rules is enforceable.

While

the enforcement of the provision may have had unfortunate, and
even harmful, effects on Plaintiff, that alone does not turn the
disputed enforcement into racketeering.

Plaintiff has suspicions

that Defendants had improper motives for enforcing the no-pets
provision against him, but he has not presented evidence to
support his suspicions.

His declaration states, “[a]fter

speaking out against the large-scale renovation project, I began
to be harassed, discriminated against, and retaliated against by
the Board.”

[Pltf. Decl. at ¶ 8.]

However, “a ‘conclusory,

self-serving affidavit’ that lacks detailed facts and supporting

37

evidence may not create a genuine issue of material fact.”
Debeikes v. Hawaiian Airlines, Inc., Civil No. 13-00504 ACK-RLP,
2015 WL 6555404, at *9 n.14 (D. Hawai`i Oct. 28, 2015) (quoting
F.T.C. v. Neovi, Inc., 604 F.3d 1150, 1159 (9th Cir. 2010)).
This Court therefore FINDS that Plaintiff has not
presented sufficient evidence to create a triable issue of fact
as to the intent requirement for his racketeering claim.

This

Court CONCLUDES that Defendants are entitled to judgment as a
matter of law as to Plaintiff’s racketeering claim and GRANTS the
Motion as to that claim.
C.

Breach of Contract
Plaintiff argues that the Golf Villas governing

documents constitute a contract between him and the AOAO and that
Defendants breached that contract when they enforced the no-pets
provision against him.

He contends that Haw. Rev. Stat. § 514B-

156 requires that a condominium’s no-pets provision be in the
project’s bylaws.

Thus, because the Golf Villas Bylaws do not

prohibit pets, the no-pets provisions in the Kapalua Declaration
and House Rules are invalid, and Defendants had no authority to
enforce them against Plaintiff.

Section 514B-156 states, in

pertinent part:
(a) Any unit owner who keeps a pet in the owner’s
unit pursuant to a provision in the bylaws which
allows owners to keep pets or in the absence of
any provision in the bylaws to the contrary, upon
the death of the animal, may replace the animal
with another and continue to do so for as long as
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the owner continues to reside in the owner’s unit
or another unit subject to the same bylaws.
(b) Any unit owner who is keeping a pet pursuant
to subsection (a), as of the effective date of an
amendment to the bylaws which prohibits owners
from keeping pets in their units, shall not be
subject to the prohibition but shall be entitled
to keep the pet and acquire new pets as provided
in subsection (a).
(c) The bylaws may include reasonable
restrictions or prohibitions against excessive
noise or other problems caused by pets on the
property and the running of pets at large in the
common areas of the property. . . .
(d) Whenever the bylaws do not prohibit unit
owners from keeping animals as pets in their
units, the bylaws shall not prohibit the tenants
of the unit owners from keeping pets in the units
rented or leased from the owners . . . .
The bylaws may allow each owner or tenant to keep
only one pet in the unit.
(e) Any amendments to the bylaws that provide for
exceptions to pet restrictions or prohibitions for
preexisting circumstances shall apply equally to
unit owners and tenants.
Haw. Rev. Stat. § 514B-156(a)-(e).

Defendants argue that:

1) § 514B-156 does not prohibit the enforcement of no-pet
provisions that appear in documents other than the bylaws; and
2) even if it does, § 514B-156 does not apply to the Golf Villas
because its governing documents were created long before the
enactment of Chapter 514B.
This Court is not aware of any case law regarding
§ 514B-156.

However, one commentary has taken the position that,

“because pet restrictions affect the use of the units, the house
39

rules can prohibit pets only if the bylaws already prohibit pets,
or if they are amended by the owners to prohibit pets.”
Gwen Bratton & Arlette Harada, An Update on Condominium Law Since
the 2006 Recodification, HAW. B.J., Sept. 2015, at 5 & n.17
(citing Haw. Rev. Stat. § 514B-156(a) (2008)).

As previously

noted, in the absence of a governing state law decision, this
Court must predict how the Hawai`i Supreme Court would decide the
issue.

See Evanston Ins. Co. v. Nagano, 891 F. Supp. 2d 1179,

1189 (D. Hawai`i 2012) (citing Trishan Air, Inc. v. Fed. Ins.
Co., 635 F.3d 422, 427 (9th Cir. 2011)).

The issue of whether

the Hawai`i Supreme Court would hold that a no-pets provision in
a condominium’s house rules (or declarations) is invalid without
a corresponding provision in the bylaws has not been sufficiently
addressed by the parties.
In addition, as to Defendants’ argument that § 514B-156
does not apply because the Golf Villas’s governing documents were
created long before the enactment of Chapter 514B, Haw. Rev.
Stat. § 514B-22 states, in pertinent part:
Sections 514B-4, 514B-5, 514B-35, 514B-41(c),
514B-46, 514B-72, and part VI, and section 514B-3
to the extent definitions are necessary in
construing any of those provisions, and all
amendments thereto, apply to all condominiums
created in this State before July 1, 2006;
provided that those sections:
(1) Shall apply only with respect to events
and circumstances occurring on or after
July 1, 2006; and

40

(2) Shall not invalidate existing provisions
of the declaration, bylaws, condominium map,
or other constituent documents of those
condominiums if to do so would invalidate the
reserved rights of a developer or be an
unreasonable impairment of contract.
Section 514B-156 is within Part VI, and the events at issue in
this case occurred after July 1, 2006.

Thus, § 514B-156 applies,

invalidating the no-pets provision in the Kapalua Declaration and
the House Rules, unless to do so would: 1) invalidate the
developer’s reserved rights; or 2) “be an unreasonable impairment
of contract.”

The parties have not submitted any evidence in

connection with the instant Motion regarding those two issues,
and this Court FINDS that there are genuine issues of fact as to
the applicability of § 514B-22(2).
In light of the unresolved legal issues regarding
§ 514B-156 and the factual issues regarding § 514B-22(2), this
Court DENIES Defendants’ Motion as to Plaintiff’s breach of
contract claim.
D.

Haw. Rev. Stat. § 514B-9 Claim
Section 514B-9 states: “Every contract or duty governed

by this chapter imposes an obligation of good faith in its
performance or enforcement.”

Plaintiff has not cited, nor is

this Court aware of, any case in which the Hawai`i Supreme Court
has recognized that an apartment owner may bring a claim against
the owners’ association for violation of § 514B-9.

41

Thus, it is

unclear whether violation of § 514B-9 is a cognizable claim in
the first instance.
Even assuming, arguendo, that the claim is cognizable,
the existing record does not support it.

The House Rules

provide:
SECTION F - ENFORCEMENT OF HOUSE RULES
F-1 To aid the General Manager in enforcement of
the house rules, the Board of Directors has
established the following schedule of fines.
F-2

Schedule of fines:
First Offense

- Verbal warning that a
particular house rules is
being violated.

Second Offense - Written warning and/or
notice with copy to the Board
of Directors.
Third Offense

- $100 fine with written
notice.

Fourth Offense - $500 fine and a lien placed
against the apartment, plus
lien costs, attorney fees,
etc. with 8% compounded
interest accruing after 30
days from lien date.
Kapalua Resort Association (KRA) and the State of
Hawaii (Chapter 514-A) has a set of rules and
regulations, which when in conflict or are more
encompassing, will take precedent over these house
rules.
[Fleisch Decl., Exh. D (House Rules) at 6 (emphasis omitted).]
Thus, assuming that the no-pets provision in the House Rules was
valid, Defendants were entitled to enforce the provision through

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warnings, fines, a lien on Plaintiff’s unit, attorneys’ fees, and
interest.

Further, the 7/1/11 AOAO Letter expressly notified

Plaintiff that, if it became necessary for the AOAO to take legal
action to compel his compliance with the no-pets provision, he
would be liable to the AOAO the fees and costs it incurred in
that action – including reasonable attorneys’ fees – pursuant to
Haw. Rev. Stat. § 514B-157.

[Id., Exh. G (7/1/11 AOAO Letter) at

2.]
As previously noted, although Plaintiff has suspicions
that Defendants had improper motives for enforcing the no-pets
provision against him, he has not presented any evidence to
support his position.

See supra Section IV.B.

This Court FINDS

that Plaintiff has not presented sufficient evidence to create a
triable issue of fact as to his claim that Defendants acted in
bad faith in enforcing the no-pets provision.

This Court

CONCLUDES that Defendants are entitled to judgment as a matter of
law as to Plaintiffs § 514B-9 claim and GRANTS the Motion as to
that claim.
E.

Failure to Accommodate
Defendants also seek summary judgment as to Plaintiff’s

claims related to reasonable accommodation.

This Court agrees

with Defendants that portions of the Complaint suggest that
Plaintiff is asserting claims based on Defendants’ alleged
failure to grant him a reasonable accommodation for his

43

disability, in violation of state and federal law.

However, at

the hearing on the Motion, Plaintiff’s counsel confirmed that
Plaintiff is not bringing such claims in this case.

This Court

therefore does not construe Plaintiff’s Complaint as alleging a
failure to accommodate claim under any authority.

To the extent

that Defendants’ Motion argues that they are entitled to summary
judgment on Plaintiff’s failure to accommodate claims, this Court
does not need to address those arguments.
F.

Haw. Rev. Stat. § 515-16 and
Haw. Admin. R. §§ 12-46-301, 12-46-310
Finally, this Court notes that, in addition to alleging

violations of Haw. Rev. Stat. §§ 514B-9 and 514B-105, the
Complaint also alleges violations of Haw. Rev. Stat. § 515-16(1)
and (6) and Haw. Admin. R. §§ 12-46-301, 12-46-310(1) and (6).
[Complaint at ¶ 29.]

Although Defendants’ Motion seeks the entry

of judgment on all of Plaintiff’s claims, [Motion at 2,]
Defendants do not make any specific argument regarding the
alleged violations of § 515-16(1) and (6), § 12-46-301, or § 1246-310(1) and (6).17

Haw. Rev. Stat. § 515-16 states, in

pertinent part:

17

The only references to these provisions in the Motion are
in two quotations to the Complaint. [Mem. in Supp. of Motion at
1, 7.] There is no substantive discussion of those provisions.
44

It is a discriminatory practice for a person, or
for two or more persons to conspire:
(1) To retaliate, threaten, or discriminate
against a person because of the exercise or
enjoyment of any right granted or protected
by this chapter, or because the person has
opposed a discriminatory practice, or because
the person has made a charge, filed a
complaint, testified, assisted, or
participated in an investigation, proceeding,
or hearing under this chapter; [or]
. . . . .
(6) To threaten, intimidate or interfere
with persons in their enjoyment of a housing
accommodation because of the race, sex,
including gender identity or expression,
sexual orientation, color, religion, marital
status, familial status, ancestry,
disability, age, or human immunodeficiency
virus infection of the persons, or of
visitors or associates of the persons[.]
First, this Court does not construe the Complaint’s allegation of
a violation of § 515-16(6) as an affirmative claim for relief
because Plaintiff has confirmed that he is not bringing any
claims based on the denial of a reasonable accommodation.
Second, Haw. Admin. R. 12-46-301 and 12-46-310 are part of the
implementing regulations for § 515-16.

See § 12-46-301 (“The

purpose of this subchapter is to implement laws prohibiting
discrimination in real property transactions[.]”).

This Court

therefore does not construe the Complaint’s allegations of
violations of § 12-46-301 and § 12-46-310(1) and (6) as
affirmative claims for relief.

This Court does construe the

Complaint as alleging an affirmative claim for relief based on a
45

violation of § 515-16(1).

However, insofar as Defendants’ Motion

did not set forth any specific argument regarding Plaintiff’s
§ 515-16(1) claim, this Court cannot construe Defendants’ Motion
as seeking summary judgment on that claim.

This Court makes no

findings or conclusions at this time regarding the merits of
Plaintiffs’ § 515-16(1) claim.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Summary Judgment, filed March 9, 2016, is HEREBY GRANTED IN PART
AND DENIED IN PART.

The Motion is GRANTED insofar as:

-Plaintiff’s bad faith claim, prima facie tort claim, selective
enforcement of governing documents claim, and breach of
fiduciary duty claim are DISMISSED WITH PREJUDICE; and
-this Court GRANTS summary judgment in favor of Defendants as to
Plaintiff’s intentional infliction of emotional distress
claim, negligent infliction of emotional distress claim,
negligence claim, gross negligence claim, Haw. Rev. Stat.
§ 514B-105 claim, racketeering claim, and Haw. Rev. Stat.
§ 514B-9 claim.
The Motion is DENIED as to Plaintiff’s breach of contract claim.
Although the dispositive motions deadline has passed,
see Rule 16 Scheduling Order, filed 8/3/15 (dkt. no. 23), at ¶ 7,
this Court GRANTS the parties leave to file motions for summary
judgment regarding the remaining breach of contract claim and the
Haw. Rev. Stat. § 515-16(1) claim, which was not addressed in the
instant Motion.

Any party wishing to file a motion for summary

judgment regarding one or both of those claims must do so by
May 31, 2016.
46

IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 31, 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; AMENDED ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

47