Burmeister et al v. Kaua'i, County of

Filing 87

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON ALL COUNTS re 37 MOTION for Summary Judgment. Signed by JUDGE LESLIE E. KOBAYASHI on 05/02/2018. County of Kauai� 39;s Motion for Summary Judgment on All Counts, filed October 3, 2017, is HEREBY GRANTED IN PART AND DENIED IN PART. The Motion is DENIED insofar as the County is not entitled to summary judgment on Count I, Plaintiffs' claim for breach of cont ract, and on the portion of Count III, Plaintiffs' claim for trespass, based solely on the May 11, 2016 incident. The Motion is GRANTED insofar as the County is entitled to summary judgment on Counts II and IV-XI in their entirety, and to the portion of Count III not based on the May 11, 2016 incident. (eps, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KLAUS H. BURMEISTER AND
ULRIKE BURMEISTER, AS
TRUSTEES OF THE BURMEISTER
FAMILY TRUST DATED
JANUARY 21, 1994,

)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
COUNTY OF KAUA`I, and DOES
)
)
1-50,
)
Defendants,
)
_____________________________ )

CIVIL 16-00402 LEK-KJM

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON ALL COUNTS
On October 3, 2017, Defendant County of Kaua`i
(“Defendant” or the “County”) filed its Motion for Summary
Judgment on All Counts (“Motion”).

[Dkt. no. 37.]

Plaintiffs

Klaus H. Burmeister and Ulrike Burmeister, as Trustees of the
Burmeister Family Trust Dated January 21, 1994 (“Plaintiffs” or
(“Trustees”), filed their memorandum in opposition on
November 20, 2017, and the County filed its reply on November 27,
2017.

[Dkt. nos. 48, 51.]

December 11, 2017.

This matter came on for hearing on

On December 18, 2017, an entering order was

issued ruling on the Motion.
supersedes that ruling.

[Dkt. no. 56.]

The instant Order

Defendant’s Motion is hereby granted as

to Counts II, a portion of Count III, and Counts IV-XI; and

denied as to Count I and the portion of Count III based solely on
the May 11, 2016 incident, for the reasons set forth below.
BACKGROUND
Plaintiffs filed their Complaint on July 25, 2016, and
assert diversity jurisdiction.

[Dkt. no. 1 at ¶ 4.]

Plaintiffs

own certain real property, identified as Kaua`i Tax Map Key 5-88-34 (“Property”), which contains four single-family residences,
used as Transient Vacation Rentals (“TVRs”).

[Id. at ¶¶ 7-10.]

Plaintiffs contend the County’s subsequent enforcement actions
against the Property were wrongful in light of an Enforcement and
Settlement Agreement, executed on January 7, 2008 (“Settlement
Agreement”).1

Plaintiffs assert eleven claims:

breach of

contract (“Count I”); breach of the implied covenant of good
faith and fair dealing (“Count II”); trespass to land (“Count
III”); nuisance (“Count IV”); harassment (“Count V”); equal
protection (“Count VI”); tortious interference with contract
(“Count VII”); interference with prospective economic advantage

1

The parties’ filings and exhibits variously refer to the
four TVRs as “residences,” “structures,” “buildings,” and
“cottages.” This Order follows the Settlement Agreement, which
uses the term “Residences.” [Def.’s Separate & Concise Statement
of Facts in Supp. of Motion (“Def.’s CSOF”), filed 11/1/17
(dkt. no. 43), Decl. of Les Milnes (“Milnes Decl.”), Exh. 4
(Settlement Agreement); Pltfs.’ Separate & Concise Statement of
Facts in Supp. of Opp. to Def.’s Motion (“Pltfs.’ CSOF”), Decl.
of Klaus H. Burmeister (“K. Burmeister Decl.”), Exh. 1
(Settlement Agreement).]
2

(“Count VIII”); prima facie tort (“Count IX”); declaratory relief
(“Count X”); injunctive relief (“Count XI”).
Plaintiffs pray for:

a permanent injunction to enjoin

the County from continuing its allegedly wrongful conduct;
damages of at least $1,000,000; attorney’s fees and costs; and
declaratory relief.

Specifically, Plaintiffs seek a declaration

that “(a) the Settlement Agreement is valid and enforceable;
(b) the Trustees are not required to obtain a building permit for
Residence 4; and (c) the Trustees are not required to remove
Residence 4 except as set forth in the Settlement Agreement.”
[Complaint, Prayer at ¶ 4.]
The following facts are undisputed.

In 2002,

Plaintiffs purchased the Property, which contained a laundry
building and four residences, all operated as TVRs.
residences were initially constructed in 1969.

The four

The parties agree

the former owner remediated damage to Residence #4 in 1994, but
disagree as to the whether it was repaired or rebuilt.

[Def.’s

CSOF at ¶¶ 1-3 (rebuilt); Pltfs.’ CSOF at ¶¶ 1-3 (repaired).]
On June 24, 2004, the County Planning Department
(“Planning”) first took enforcement action against Plaintiffs
when it issued a Zoning Compliance Notice (“ZCN” generally, and
specifically “June 2004 ZCN”) for use of nonconforming structures
as dwelling units.

Compliance issues continued, and the County

continued to issue enforcement notices.
3

[Def.’s CSOF at ¶¶ 4-8;

Pltfs.’ CSOF at ¶¶ 4-8.]

On January 7, 2008 (“Effective Date”),

the parties entered into the Settlement Agreement to “resolve all
outstanding issues” regarding the Property.

[Def.’s CSOF at ¶ 9;

Pltfs.’ CSOF at ¶ 9.]
The Settlement Agreement provides, inter alia, that:
“Residence #4 shall be permitted to remain in its present
location until the crest of the active beach berm fronting
Residence #4 reaches any portion of Residence #4, at which time”
the owners shall remove or relocate it at their expense;
[Settlement Agreement, Terms of Agreement at ¶ 3;] “the Owners
shall not be required to obtain any other permits from the County
for all existing structures”; [id. at ¶ 6;] compliance with the
Settlement Agreement “shall cure any and all outstanding building
or zoning violations at this time as to any and all structures
currently existing”; [id. at ¶ 7;] and in the event of a dispute,
“the prevailing party shall be able to collect from the losing
party” its “reasonable expenses and costs, including without
limitation . . . reasonable attorney’s fees and costs”; [id. at
¶ 10].
The parties agree the Settlement Agreement’s resolution
of the “outstanding issues” at least included whether:

1) the

Property violated the maximum allowable density of three
structures; 2) the laundry building violated side-yard setback
requirements; 3) the fence and gate unlawfully block vehicle
4

access; and 4) whether Residence #4 violated shoreline setback
requirements.

[Def.’s CSOF at ¶ 10 (characterizing this list as

complete); Pltfs.’ CSOF at ¶ 10 (characterizing this list as
incomplete).]
The parties agree resolution of the “outstanding
issues” at least included:

1) issuance of zoning and Special

Management Area (“SMA”) permits for the fence and Residences #1,
#2, and #3; 2) an agreement to alter the laundry building to
provide proper setback; and 3) allowing Residence #4 to remain in
its current location as a nonconforming structure, which must be
removed later “at such time the crest of the active beach berm
reaches” Residence #4, and until such time, agreeing Residence #4
will not be enlarged or reconfigured.

[Def.’s CSOF at ¶ 11

(characterizing this list as complete); Pltfs.’ CSOF at ¶ 11
(characterizing list as omitting a central aspect of the
Settlement Agreement’s resolution).]
The Federal Emergency Management Agency (“FEMA”)
monitors compliance with the National Flood Insurance Program
(“NFIP”).

In August 2009, FEMA conducted a floodplain tour of

the Kaua`i North Shore.

Afterwards, FEMA requested the County

respond to apparent NFIP violations at twenty one properties,
including Plaintiffs’ Property.

[Def.’s CSOF at ¶¶ 15-21;

Pltfs.’ CSOF at ¶¶ 15-21.]

5

On July 10, 2015, the Department of Public Works
(“DPW”) issued a Notice of Apparent Violation (“NOAV” generally,
and specifically “July 2015 NOAV”) relating to Residence #4’s
noncompliance with flood zone requirements, and demanded that
Plaintiffs submit a plan for compliance.
submit a plan for compliance.

Plaintiffs did not

[Def.’s CSOF at ¶¶ 21-22; Pltfs.’

CSOF at ¶¶ 21-22.]
On June 21, 2016, Planning issued an SMA Notice of
Violation (“NOV” generally, and specifically “June 2016 NOV”),
and withheld renewal of the annual TVR permit for Residence #4.
The June 2016 NOV stated that it was issued because “Structure #4
has yet to comply with DPW, Building or DPW, Flood Compliance
requirements as required in Building Permit Application
BP #06-0783.”

[Milnes Decl., Exh. 9 (June 2016 NOV) at 1.]

June 2016 NOV further stated:
Remedial action requires the applicant to either
complete the building permit process or remove the
structure. Further failure to engage and complete
the building permit process gives the Director
cause to withhold renewal of the issued TVNC
certificate for this structure.
. . . you are herein levied a fine of
$5,000.00 for the above noted SMA violation(s).
Should the required remedial actions not be
initiated within 60 days from the date of this
notice, an additional fine of $1,000.00 for each
day in which such violation persists shall be
levied.
[Id. at 2 (emphases in original).]
6

The

On July 18, 2016, Planning issued a letter requiring
Plaintiffs cease and desist TVR operations in Residence #4.
Plaintiffs have not ceased TVR operations in Residence #4.

On

July 27, 2016, Planning issued a letter rescinding the June 2016
NOV (“7/27/16 Letter”).
at ¶¶ 25-28.]

[Def.’s CSOF at ¶¶ 25-28; Pltfs.’ CSOF

The 7/26/16 Letter further:

stated Planning was

withholding the TVR renewal application for Residence #4 because
DPW’s July 2015 NOAV “relative to the floodplain management
issues” remained unresolved; warned any TVR use of Residence #4
after August 1, 2016, may result in fines up to $10,000 per day;
and advised, “Any claims DPW’s violation notice contradicts
[Planning’s] Settlement Agreement with you should be taken up
with them. . . .

You are responsible for providing us evidence

of [] clearance [from DPW].”

[Milnes Decl., Exh. 10 (7/26/16

Letter).]
On August 3, 2016, the County received a copy of the
Complaint.

In September 2016, the County resumed negotiations

with FEMA regarding Residence #4.
Pltfs.’ CSOF at ¶¶ 29-30.]

[Def.’s CSOF at ¶¶ 29-30;

On September 23, 2016, DPW issued a

letter to FEMA (“9/23/16 Letter”), which explained the County
Attorney’s conclusion that the Settlement Agreement resolved the
apparent NFIP violation by “ensur[ing] that Building #4 may not
be improved and will ultimately be removed from its current
location.”

[Def.’s CSOF, Decl. Stanford Iwamoto (“Iwamoto
7

Decl.”), Exh. 18 (9/23/16 Letter) at 2.]

DPW requested FEMA

determine whether it agrees the Settlement Agreement “fulfill[s]
the intent and purpose of the [NFIP] by ensuring compliance with
NFIP standards to the ‘maximum extent possible.’”

[Id.]

On October 7, 2016, FEMA issued a letter to DPW
(“10/7/16 Letter”) stating the Settlement Agreement was “one way
to remedy a[n NFIP] violation to the maximum extent possible” and
therefore “[n]o further action” was required as to Plaintiffs’
Property.

[Iwamoto Decl, Exh. 19 (10/7/16 Letter) at 1.]

October 13, 2016, DPW rescinded the July 2015 NOAV.

On

Also on

October 13, 2016, Planning renewed Plaintiffs’ TVR certificate
for Residence #4.

As of October 2016, no County enforcement

actions were pending with regard to Plaintiffs’ Property.
[Def.’s CSOF at ¶¶ 31-34; Pltfs.’ CSOF at ¶¶ 31-34.]
STANDARD
This Court has stated:
[A]s a general rule, the construction and
legal effect to be given a contract is a question
of law.” Found. Int’l, Inc. v. E.T. Ige Const.,
Inc., 78 P.3d 23, 30–31 (Haw. 2003). The parol
evidence rule only applies if an agreement is
integrated — if so, “[a]bsent an ambiguity, [the]
contract terms should be interpreted according to
their plain, ordinary, and accepted sense in
common speech.” Id., at 31 (citation and
quotations omitted). Thus, “a prerequisite to the
application of the [parol evidence rule] is that
there must first be a finding by the trial court
that the writing was intended to be the final and,
therefore, integrated expression of the parties’
agreement.” Matter of O.W. Ltd. P’ship, 668 P.2d
8

56, 60 (Haw. App. 1983) (citing Restatement
(Second) of Contracts §§ 209 comment c, 210
comment b, 213 comment b (1981)) (additional
citations omitted). The court may use all
available evidence in determining whether a
contract is integrated. Seascape Development v.
Fairway Capital, 737 F. Supp. 2d 1207, 1215 (D.
Haw. 2010).
“A contract is ambiguous when the terms of
the contract are reasonably susceptible to more
than one meaning.” Airgo, Inc. v. Horizon Cargo
Transp., Inc., 66 Haw. 590, 594, 670 P.2d 1277,
1280 (1983) (citing Hennigan v. Chargers Football
Co., 431 F.2d 308, 314 (5th Cir. 19[7]0)). “The
court should look no further than the four corners
of the document to determine whether an ambiguity
exists.” Williams v. Aona, 210 P.3d 501, 515
(Haw. 2009) (quoting United Pub. Workers, AFSCME,
Local 646, AFL–CIO v. Dawson Int’l, Inc., 149 P.3d
495, 508 (Haw. 2006)). “‘[T]he parties’
disagreement as to the meaning of a contract or
its terms does not render clear language
ambiguous.’” Found. Int’l, Inc., 78 P.3d at 33
(citing State Farm Mut. Auto. Ins. Co. v.
Fermahin, 836 P.2d 1074, 1077 (Haw. 1992);
Hawaiian Ins. & Guar. Co. v. Chief Clerk of the
First Circuit Court, 713 P.2d 427, 431 (Haw.
1986)). . . . Therefore, “courts should not draw
inferences from a contract regarding the parties’
intent when the contract is definite and
unambiguous.” United Pub. Workers, 149 P.3d at
508 (quoting State Farm Fire and Cas. Co. v. Pac.
Rent–All, Inc., 978 P.2d 753, 762 (Haw.
1999)). . . .
Carson v. Kanazawa, CIVIL 14-00544 LEK-KSC, CIVIL 16-00053 LEKKSC, 2017 WL 3444764, at *12 (D. Hawai`i Apr. 30, 2017) (citation
omitted) (emphases omitted).

9

DISCUSSION
I.

Count I - Breach of Contract
A.

Breach of the Settlement Agreement

Plaintiffs allege the County breached the Settlement
Agreement by, inter alia:

“ordering the Trustees to obtain a

building permit for, or remove, Residence 4; ordering the
Trustees to pay a fine for ‘failure to complete the building
permit process;’ withholding approval of the [TVR] Renewal
Application; and threatening criminal prosecution.”

[Complaint

at ¶ 43.]
The County argues DPW’s July 2015 NOAV, Planning’s
June 2016 NOV, and Planning’s 7/26/16 Letter (collectively
“Enforcement Notices”) were not contemplated by the parties and
are outside the scope of the Settlement Agreement.

The

Enforcement Notices all relate to Residence #4’s compliance with
flood zone standards, but before the Effective Date, the County
had not asserted Plaintiffs violated flood zone standards.

The

County argues “compliance with federally mandated flood zone
building standards” was outside the contemplation of the parties
because, “at the time of the Agreement, the parties believed that
Building #4 was constructed prior to 1980, and therefore, was not
required to comply with the standards.”
at 15.]

[Mem. in Supp. of Motion

The County further argues that, because the County had

10

not yet enacted an ordinance addressing TVRs, issues relating to
the renewal of Plaintiffs’ TVR certificate were outside the
contemplation of the parties.

Therefore, the County argues,

enforcement actions relating to flood zone standards and nonrenewal of the TVR certificate did not breach the Settlement
Agreement.
The Court concludes the Settlement Agreement is
ambiguous.

Its provision exempting Plaintiffs from “obtain[ing]

any other permits from the County,” [Settlement Agreement at
¶ 6,] is contradicted by Plaintiffs’ conduct in applying for TVR
licenses.

Under the Settlement Agreement, Plaintiffs are granted

some relief from having to “obtain any other permits from the
County,” but which “permits” and “outstanding issues” the parties
intended the Settlement Agreement to reach cannot be determined
from within its four corners.

[Id. at ¶¶ 6-7.]

Resort to parol

evidence is therefore appropriate to determine the construction
the parties intended.
The parties advance two different interpretations of
the scope of the Settlement Agreement, both of which are
permissible constructions of the agreement’s ambiguous text.
Under the County’s favored construction, the permitting and code
violations reached are only those which had been explicitly
discussed, such as in negotiations or in prior enforcement
notices.

Under Plaintiffs’ favored construction, the permitting
11

and code violations reached include all possible violations given
the law and facts accessible to the County during the years in
which the parties negotiated the Settlement Agreement.
In reviewing the Motion, this Court must view the
record in the light most favorable to Plaintiffs.

See Crowley v.

Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (“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 . . . .” (citations and
quotation marks omitted)).

Plaintiffs state that, through

counsel, they negotiated with the County for over three years,
and one of the purposes of the Settlement Agreement was “to avoid
future potential problems that could arise under prospective TVR
restrictions.”

[K. Burmeister Decl. at ¶ 21.]

Further, one of

the reasons for the Settlement Agreement was that the County’s
permitting files were destroyed after Hurricane Iniki, which
prevented Plaintiffs from proving the Residences were constructed
at times qualifying them to be grandfathered under applicable
county ordinances.

[Id. at 15.]

The County’s contention that the parties could not have
contemplated the not-yet-enacted TVR ordinance is disputed.
Plaintiffs contend “prospective TVR restrictions” were
contemplated.

[Id. at ¶ 21.]

Plaintiffs assert compliance with,

not exemption from, the TVR ordinance; they argue the County used
12

wrongful Enforcement Notices to deny their TVR certificates and
threaten fines of up to $10,000 per day.
The Court finds there is a genuine issue of material
fact as to whether the Settlement Agreement resolved the issues
giving rise to the Enforcement Notices, and concludes the County
is not entitled to judgment as a matter of law on the basis that
its conduct did not breach the Settlement Agreement.

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.”).
B.

Validity and Enforceability of the Settlement Agreement
In the instant Motion, the County had argued the

Settlement Agreement was based on a mutual mistake regarding when
Residence #4 was constructed.
argument.

The County has since waived that

[Def.’s Mem. in Opp. to Pltfs.’ Motion for Partial

Summary Judgment on Counts I, II, X and XI [Dkt. #42], filed
3/27/18 (dkt. no. 83) at 20.]

The County presents other defenses

to the enforcement of the Settlement Agreement, but none is
availing.
The County repeatedly argues this case involves
“federally mandated [flood zone] building standards.”
Supp. of Motion. at 15, 17, 30.]

It does not.

[Mem. in

Although this

case relates to the County’s effort to come into compliance with
13

the voluntary standards of the National Flood Insurance Program
(“NFIP”), which is administered by the United States Federal
Emergency Management Agency (“FEMA”), the Enforcement Notices
assert Plaintiffs violated the Kaua`i County Code (“KCC”), not
any federal law or regulation.

[July 2015 NOAV at 1; June 2016

NOV at 2; 7/27/16 Letter.]
Community participation in the NFIP is voluntary,
and FEMA does not have any direct involvement in
the administration of local floodplain management
ordinances. However, communities must adopt
regulations consistent with FEMA’s minimum
eligibility criteria in order to be enrolled in
the NFIP. 42 U.S.C. § 4012(c)(2); cf. 42 U.S.C. §
4022(a)(1) (prohibiting federal flood insurance to
communities that have not complied with the
criteria).
Nat’l Wildlife Fed’n v. Fed. Emergency Mgmt. Agency, 345 F. Supp.
2d 1151, 1156 (W.D. Wash. 2004) (some citations omitted).
On August 28, 2014 FEMA issued DPW a letter consistent
with the principles of voluntary participation identified in
National Wildlife Federation.

[Pltfs.’ CSOF, Decl. of Counsel

(“McAneeley Decl.”), Exh. 12 (“8/28/14 Letter”).2]

The 8/28/14

Letter followed up on FEMA’s August 2009 North Shore floodplain
tour, and explained that until “all outstanding compliance issues
[are] resolved to the maximum extent possible [] the County risks
losing its standing in the [NFIP],” and Kaua`i will remain
ineligible for the Community Rating System (“CRS”) program,

2

Plaintiffs’ counsel is Lindsay N. McAneeley.
14

“which could save homeowners in Kauai at least $197,160 per year,
every year, in flood insurance premiums.”

[Id. at 1.]

As to

Plaintiff’s Property, FEMA was unsatisfied with the County’s
remediation plan, which according to FEMA, involved issuing
notices of violation pursuant to the County’s Special Management
Area and floodplain regulations.

[Id. at 5.]

FEMA explained

that it was “not concerned with” violations of County code
requirements, but rather, with apparent NFIP violations,” arising
under the Code of Federal Regulations.

[Id.]

FEMA explained DPW

must address [Residence] #4 which is a known NFIP
violation as suggested in the County’s notes on
the online permit #6-783, which state “existing
building is in violation of flood requirements.”
In its remedial action plan, the County must
consider how to remedy violations to the maximum
extent possible per NFIP regulations, not
necessarily the County’s flood prevention
ordinance, which appears to be out of compliance
with NFIP regulations regarding substantial
improvement.
[Id.]

The 8/28/14 Letter concluded by “recogniz[ing] the efforts

that the County is expending to remedy these violations so they
can remain in good standing with the NFIP and to qualify to enter
the [CRS], a voluntary program which could save homeowners
[substantial amounts] in flood insurance premiums.”

[Id. at 8.]

The County is not entitlement to summary judgment based
on any federally mandated standards.
dispute of material fact.

First, there is a genuine

According to Plaintiffs, following

execution of the Settlement Agreement, they applied for
15

additional permits “[i]n reliance on the County’s representation
that this was a mere ministerial requirement,” necessary to
fulfill the Settlement Agreement’s promise that permit approval
“would be issued ‘simultaneously with the execution of this
Agreement.’”

[K. Burmeister Decl. at ¶ 23.]

Planning stated

that its June 2016 NOV was “a continuation of an enforcement
process that commenced in 2008.”

[7/27/16 Letter.]

There is a

genuine dispute as to whether that enforcement process breached
promises made under the Settlement Agreement.

To the extent the

County’s conduct caused FEMA to conclude Residence #4 was a known
NFIP violation, the County is not entitled to summary judgment
because of FEMA.

Second, even if FEMA acted independently of

such conduct, the apparent NFIP violation does not relate to any
federal mandate.
Next, the County argues that, to the extent the
Settlement Agreement prevents DPW from enforcing the flood zone,
it conflicts with KCC § 15-1.2(d), which provides that flood zone
requirements “shall take precedence over any less restrictive,
conflicting laws, ordinances, and regulations.”3

Further, the

County relies on Konno v. County of Hawai`i and argues that, to
the extent the Settlement Agreement exempts Plaintiffs’ Property
from floodplain standards, it is void for authorizing unlawful

3

The Kaua`i County Code is accessible at
https://qcode.us/codes/kauaicounty/
16

conduct or as contrary to public policy.

See 85 Hawai`i 61, 72,

937 P.2d 397, 408 (1997) (contract void for violating civil
service policies set forth by Hawai`i statutes and Constitution).
The Settlement Agreement does not violate any law or
public policy.

To the contrary, the law favors resolution

through compromise or settlement rather than by litigation.

See

Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116
Hawai`i 277, 288, 172 P.3d 1021, 1032 (2007).

The County

identifies no law depriving DPW and Planning of enforcement
discretion so that issuance of the Enforcement Notices was
required.

Notably, the flood ordinance’s enforcement section

contains permissive language.

See KCC § 15-1.9 (“The County may

commence a civil action [to enforce violations] in any manner
provided by law.”).

Moreover, the flood ordinance expressly

provides for grandfathering certain nonconforming structures.
KCC § 15-1.8 (exemption depends on date of construction and
whether structure “is considered to be [a] substantial
improvement”).

The County fails to show a negotiated settlement

to resolve whether a structure is grandfathered under the flood
ordinance and/or whether possible enforcement actions will be
undertaken is unlawful or contrary to public policy.4

4

Plaintiffs also argue the Settlement Agreement is
enforceable, even if premised on unlawful conduct, under Wilson
v. Kealakekua Ranch, Ltd., 57 Haw. 124, 129, 551 P.2d 5255, 528(continued...)
17

Next, the County argues the Settlement Agreement is
void and unenforceable because, under the County Charter:

all

contracts must be signed by the mayor; Planning lacks authority
to bind DPW; and the attorney’s fees provision is void for
creating a financial obligation outside the appropriations
process.

The County’s contention that the Planning Director and

Deputy County Attorney exceeded their actual authority is not
reached; it is enough that they acted with apparent authority.5
See Menashe v. Bank of New York, 850 F. Supp. 2d 1120, 1136 (D.
Hawai`i 2012).
Under Hawaii law, “[a]n agency relationship
may be created through actual or apparent
authority.” See [State v.] Hoshijo ex rel. White,
102 Hawai’i [307,] 318, 76 P.3d [550,] 561
[(2003)] (quoting Cho Mark Oriental Food, Ltd. v.
K & K Int’l, 73 Haw. 509, 515, 836 P.2d 1057, 1061
(1992)). To establish actual authority, there
must be “a manifestation by the principal to the
agent that the agent may act . . . , and may be
created by express agreement or implied from the
conduct of the parties or surrounding
circumstances.’” Id. (quoting State Farm Fire &
Cas. Co. v. Pac. Rent-All, Inc., 90 Hawai`i 315,
325, 978 P.2d 753, 763 (1999)). In comparison,
“[a]pparent authority arises when ‘the principal

4

(...continued)
29 (1976). That argument is not reached.
5

Although the issue of actual authority is not reached, the
Court notes that, after the hearing on the instant Motion, the
County has admitted that it has executed other agreements that
contain attorney’s fees provisions without the mayor’s signature
and without engaging in the appropriations process. [Def.’s
Response to Pltfs.’ First Request for Answers to Admissions,
filed 4/2/18 (dkt. no. 84-4), at ¶¶ 18, 25.]
18

does something or permits the agent to do
something which reasonably leads another to
believe that the agent had the authority he was
purported to have.’” Cho Mark Oriental Food,
Ltd., 73 Haw. at 515, 836 P.2d at 1061 (quoting
Hawaiian Paradise Park Corp. v. Friendly Broad.
Co., 414 F.2d 750, 756 (9th Cir.1969)).
Id.

Under the Charter of the County of Kaua`i (“County

Charter”), the County Attorney “shall represent the county in all
legal proceedings” and “perform all other services incident to
his office as may be required by law.”6
8.05.

County Charter §§ 8.04-

The parties negotiated the Settlement Agreement for over

three years.

Plaintiffs’ counterparties signed as, for “COUNTY

OF KAUAI; By: Ian K. Costa; Its: Planning Director” and “APPROVED
AS TO FORM AND LEGALITY; James K. Tagupa; Deputy County Attorney,
County of Kauai`i.”

[Settlement Agreement at pgs. 10-11.]

Under

these circumstances, Plaintiffs were reasonable in believing that
Mr. Tagupa and Mr. Costa had authority to bind the County to the
Settlement Agreement.

See Cho Mark Oriental Food, 73 Haw. at

515, 836 P.2d at 1061.
Alternatively, even if Mr. Tagupa and Mr. Costa lacked
apparent authority, the County subsequently ratified the
Settlement Agreement.

See Hawai`i Hous. Auth. v. Uyehara, 77

Hawai`i 144, 150, 883 P.2d 65, 71 (1994) (“the unauthorized act

6

The Charter of the County of Kaua`i, 2016 Codified
Version, is available at http://www.kauai.gov/Portals/0/Council/
Documents/KauaiCharterCodified2016(Final).pdf
19

of an agent, if ratified, is as binding upon the principal as an
original express grant of authority.” (citation and internal
quotation marks omitted)).

On August 6, 2013, FEMA issued a

letter to DPW (“8/6/13 Letter”), and explained it rejected the
County’s argument that apparent NFIP violations were cured
because the Settlement Agreement allowed the Residences “to be
built back to pre-Iniki conditions, even if they should
technically have been ‘substantial improvements.’”
Decl., Exh. 16 (8/6/13 Letter) at 4.]

[Iwamoto

Thus, DPW was at least

aware of the Settlement Agreement when it received the 8/6/13
Letter.

Plaintiffs contend the County acted in accordance with

the Settlement Agreement by issuing and renewing their TVR
Certificates, until their application sent on June 14, 2016.
[K. Burmeister Decl. at ¶ 25.]

The County does not dispute

Plaintiffs’ assertion that it first repudiated the Settlement
Agreement during this litigation.
The County is not entitlement to summary judgment on
Count I on the basis the Settlement Agreement is void or
unenforceable.

In light of this ruling, the Court need not

address Plaintiffs’ argument that the County is equitably
estopped from strategically changing its position and arguing the
Settlement Agreement is unenforceable.

20

II.

Count II - Breach of the Implied Covenant of Good Faith and
Fair Dealing
In their memorandum in opposition, Plaintiffs clarify

that Count II does not allege the tort of bad faith.

Plaintiffs

contend Count II rests in assumpsit, not tort, and argue the
County’s liability on Count II arises from, inter alia, its bad
faith issuance of the Enforcement Notices, its failure to explain
to FEMA how the Settlement Agreement satisfied NFIP requirements,
and its repudiation of the Settlement Agreement following the
commencement of this litigation.
The Hawai`i Supreme Court has recognized the tort of
bad faith in the insurance context because bad faith failure to
pay claims, in addition to breaching a contract, “damages the
very protection or security which the insured sought to gain by
buying insurance”; therefore, “the tort of bad faith is . . . a
separate and distinct wrong which results from the breach of a
duty imposed as a consequence of the relationship established by
contract.”

Enoka v. AIG Hawaii Ins. Co., Inc., 109 Hawai`i 537,

549, 128 P.3d 850, 862 (2006) (citations and internal quotation
marks omitted).

Plaintiffs have not presented any evidence the

County committed a wrongful act apart from its alleged breach of
contract.

Therefore, to the extent Count II alleges the tort of

bad faith, the Court finds there are no genuine issues of
material fact, and the County is entitled to summary judgment.
21

Moreover, this Court has stated:
Hawai`i “contract law allows — and at times even
encourages — intentional breaches of contract.”
Francis v. Lee Enters., Inc., 89 Hawai`i 234, 243,
971 P.2d 707, 716 (1999) (citing R. Posner,
Economic Analysis of Law § 3.8 (1972)). This
“amoral view” favors “‘efficient’ breaches of
contract, i.e., breaches where the gain to the
breaching party exceeds the loss to the party
suffering the breach.” Id. “[B]reaching a
contract constitutes a morally neutral act. . . .
[T]he duty to keep a contract at common law means
a prediction that you must pay damages if you do
not keep it—and nothing else.” Id. (internal
citation and quotation marks omitted).
Barranco v. 3D Sys. Corp., CIVIL NO. 13-00412 LEK-RLP, 2018 WL
1599270, at *22 (D. Hawai`i Mar. 30, 2018) (alterations in
Barranco).

Plaintiffs may not maintain a separate cause of

action to assert the County’s moral wrongness or fault for
breaching their contract.

See id.

There are no genuine issues

of material fact as to Count II, and the County is entitled to
summary judgment.
III. Count III - Trespass
This Court has stated:
One is subject to liability to another for
trespass, irrespective of whether he thereby
causes harm to any legally protected interest of
the other, if he intentionally: (a) enters land in
the possession of the other, or . . . (b) remains
on the land. . . .” Restatement (Second) of Torts
§ 158 (1965); see also Memminger v. Summit at
Kaneohe Bay Ass’n, 129 Hawai`i 426, No. 30383,
2013 WL 2149732, at *3 (Hawai`i. Ct. App. May 17,
2013) (discussing Restatement (Second) of Torts §
158 cmt. f).
22

Lowther v. U.S. Bank N.A., 971 F. Supp. 2d 989, 1016 (D. Hawai`i
2013).

Further, a claim for trespass is subject to a two-year

statute of limitations.

Id. (some citations omitted) (citing

Haw. Rev. Stat. § 657-7).

Because Plaintiffs filed their

Complaint on July 25, 2016, any incidents occurring before
July 25, 2014, are time-barred.
Ulrike Burmeister states that, in September 2008, she
saw Planning inspector Les Milnes enter the Property and asked
him to respect her privacy, leave, and never enter without
permission; despite this request, other unauthorized entries
occurred in 2008 and 2010.

[Pltfs.’ CSOF, Decl. of Ulrike

Burmeister (“U. Burmeister Decl.”) at ¶¶ 5-6.]

Further, Ulrike

Burmeister states that, on May 11, 2016, “Deputy Planning
Director Ka`aina Hull entered the Property without [her]
consent[, and] disturbed at least two of [her] guests.”
¶ 7.]

[Id. at

Plaintiffs state that they have documented fourteen

instances in which a County representative has trespassed on the
Property.

[K. Burmeister Decl. at ¶ 38.]
The County argues it is entitled to summary judgment

because Plaintiffs fail to show the County’s alleged trespass
caused damage.

This Court disagrees.

Whether the County

“cause[d] harm to any legally protected interest” by its trespass
may be relevant to damages, but is not an element of liability
for trespass.

See Lowther, 971 F. Supp. 2d at 1016.
23

Moreover,

the United States Supreme Court has stated “the common law of
trespass furthers a range of interests,” which include privacy,
protection of property, and others; “[i]n any event, unlicensed
use of property by others is presumptively unjustified.”

Oliver

v. United States, 466 U.S. 170, 184 n.15 (1984).
The Motion is denied as to the portion of Count III
based on the May 11, 2016 incident.

Ulrike Burmeister’s

testimony about that incident creates a genuine issue of material
fact as to whether entry occurred; and her testimony about that
and prior incidents creates a genuine issue of material fact as
to whether the unauthorized entry occurred intentionally,
knowingly, and wilfully.
The Motion is granted as to the portions of Count III
based on incidents other than the May 11, 2016 incident.
Plaintiffs cite no other evidence of trespass within the two-year
statute of limitations.

Although Plaintiffs state they have

documented fourteen incidents, they fail to provide evidence
necessary to create a genuine issue of material fact.
IV.

Count IV - Nuisance
Plaintiffs contend the Enforcement Notices constitute a

private nuisance, and cite Western Sunview Properties LLC v.
Federman, in which this district court stated, “A private
nuisance has been defined as ‘a nontrespassory invasion of
another’s interest in the private use and enjoyment of his
24

land.’”

338 F. Supp. 2d 1106, 1116 (D. Hawai`i 2004) (citation

omitted) (quoting Restatement (Second) of Torts, § 821D (1979)).
There, the plaintiffs alleged construction on the defendants’
property unreasonably obstructed their view plane.

Id.

Plaintiffs’ circumstances are nothing like Western Sunview.
Plaintiffs complain of harm from the Enforcement Notices, not any
incompatible neighboring property use.

Count IV is thus outside

the scope of a traditional nuisance action.

See Green v. Fred

Weber, Inc., 254 S.W.3d 874, 881 (Mo. 2008) (“The law of nuisance
recognizes two conflicting rights:

property owners have a right

to control their land and use it to benefit their best interests;
the public and neighboring land owners have a right to prevent
unreasonable use that substantially impairs the peaceful use and
enjoyment of other land.”).
Plaintiffs seek to expand the law of nuisance to
encompass wrongful zoning and building code enforcement.

This

Court cannot oblige: “absent a statute or valid ordinance
declaring [wrongful zoning enforcement] in violation of general
concepts of public policy to be a nuisance or subject to
abatement, equity courts generally are without jurisdiction to
enjoin such activities.”

See Marsland v. Pang, 5 Haw. App. 463,

478, 701 P.2d 175, 188 (1985) (citation omitted).

Moreover, this

Court cannot “declar[e by its] mere repetition or continuance”
that wrongful zoning enforcement constitutes a “nuisance where
25

the legislature has not seen fit” to grant such authority.
id. (citation and internal quotation marks omitted).

See

There being

no genuine dispute of material fact, the County is entitled to
summary judgment on Count IV.
V.

Count V - Harassment
In relevant part, “harassment” means “[a]n intentional

or knowing course of conduct directed at an individual that
seriously alarms or disturbs consistently or continually bothers
the individual and serves no legitimate purpose.”
Stat. § 604-10.5(a)(2).

Haw. Rev.

Plaintiffs adduce no evidence showing

the Enforcement Notices were pretextual or served no legitimate
purpose.

Plaintiffs simply argue the Enforcement Notices were

illegitimate because they were based “on the faulty premise that
Residence 4 is not a legally nonconforming structure, and that
the Notices were not in violation of the Agreement.”
Opp. at 29 (emphases omitted).]

[Mem. in

Such contentions, even if true,

flatly fail to support a claim for harassment.

There being no

genuine dispute of material fact, the County is entitled to
summary judgment on Count V.
VI.

Count VI - Equal Protection
“To succeed on a ‘class of one’ [equal protection]

claim, [a plaintiff] must demonstrate [state action which]:
(1) intentionally (2) treated [the plaintiff] differently than
other[s] similarly situated property owners, (3) without a
26

rational basis”; but a plaintiff “need not show [the government
representatives] were motived by subjective ill will.”

Gerhart

v. Lake Cty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011)
(citations omitted).

“A class-of-one plaintiff must show that

the discriminatory treatment was intentionally directed at him,
as opposed . . . to being an accident or a random act.”

North

Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir.
2008).
The County argues it is entitled to summary judgment
because it did not treat Plaintiffs differently than owners of
the other twenty one properties FEMA identified as apparent NFIP
violations during its 2009 North Shore floodplain tour.

Further,

the County argues it “was compelled to take action by FEMA, and
did so reasonably.”

[Mem. in Supp. of Motion at 30.]

Plaintiffs argue the other twenty one properties are
not appropriate comparators because the Settlement Agreement
establishes Residence #4 as a legally nonconforming structure.
Plaintiffs point out that, in a February 22, 2010 letter to FEMA
(“2/22/10 Letter”), DPW identified one of the twenty one
properties as grandfathered under the flood ordinance.

[Pltfs.’

CSOF, McAneeley Decl., Exh. 22 (2/22/10 Letter) at 5.]

By

contrast, DPW flagged Plaintiffs’ Property for investigation and
enforcement.

[Id. at 8.]

Plaintiffs argue the County should

have “simply explain[ed] to FEMA the history of Residence 4,” and
27

suggest it did not because of later regret it did not negotiate a
different bargain.

[Mem. in Opp. at 32-33.]

Plaintiffs fail to establish their prima facie case
that they were intentionally treated differently from other
similar homeowners.

Plaintiffs ignore that the County did tell

FEMA about the Settlement Agreement, but FEMA rejected the claim
it allowed the residences “to be built back to pre-Iniki
conditions, even if they should technically have been
‘substantial improvements.’”

[8/6/13 Letter at 4.]

fatal to Plaintiffs’ equal protection theory.

This is

Plaintiffs point

to certain Kaua`i County Councilmembers’ opposition to the
Settlement Agreement and argue it shows the County used FEMA as a
pretext.7

The problem for Plaintiffs is that they must show

conduct that is intentional, not merely negligent.
Plaintiffs argue that, instead of issuing the
Enforcement Notices, the County should have instead provided FEMA
the facts and argument which ultimately proved persuasive in the
9/23/16 Letter.

Even assuming that the County’s failure to do so

amounts to discrimination, finding intentional discrimination
requires an improbable exercise in speculation built atop

7

On November 25, 2008, certain Kaua`i County
Councilmembers, on behalf of the County Council’s Planning
Committee, issued a memo to the Kaua`i County Planning
Commission, which expressed their concerns that the Settlement
Agreement was both unlawful and unwise. [K. Burmeister Decl.,
Exh. 26.]
28

speculation.

Thus, to the extent Plaintiffs argue that

Councilmembers’ opposition to the Settlement Agreement, voiced in
2008, creates a genuine dispute of material fact as to whether
the County then intentionally provided FEMA an argument likely to
be rejected and withheld the more persuasive arguments later
stated in the 9/23/16 Letter, for the purpose of using FEMA’s
conclusion that apparent NFIP violations were not resolved, such
as in the 8/6/13 Letter, as a pretext for issuing the July 2015
NOAV and later Enforcement Notices, in order to achieve
Councilmembers’ goal of repudiating the Settlement Agreement,
this speculation is insufficient to create a genuine dispute of
material fact sufficient to defeat summary judgment on Count VI.
Plaintiffs are correct insofar as they argue the County
was not compelled to take action by FEMA because the NFIP is
voluntary.

See Nat’l Wildlife Fed’n, 345 F. Supp. 2d at 1156.

In the context of Plaintiffs’ equal protection claim, this is a
distinction without a difference.

To defeat summary judgment,

Plaintiffs must establish a genuine dispute of material fact as
to whether the County had a rational basis for treating
Plaintiffs differently, not whether the County was compelled to
treat Plaintiffs differently.

See Gerhart, 637 F.3d at 1023.

The County’s interest in entering the CRS, a voluntary program
which would result in substantial savings to Kaua`i homeowners on
their flood insurance premiums, provided a rational basis for
29

treating Plaintiffs’ differently.

Thus, even if Plaintiffs had

shown a genuine dispute of material fact as to whether they were
treated differently, the County would still be entitled to
summary judgment on Count VI.
VII. Count VII - Tortious Interference With Contract
The elements of tortious interference with
contractual/advantageous relationship (“TICR”) are:
(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.
Lee v. Aiu, 85 Hawai`i 19, 32, 936 P.2d 655, 668 (1997).
Plaintiffs cite no evidence the County intentionally induced, or
actually caused, a third party to breach its contract with
Plaintiffs.

Plaintiffs point to the two guests disturbed by the

alleged trespass incident on May 11, 2016, and speculate this
incident caused those two guests not to return.
provide no evidence indicating:

Plaintiffs

who these guests are; whether

the guests had a contract to come back; whether the guests
subsequently breached that contract; or whether that breach was
intentionally induced by the County.

There being no genuine

dispute of material fact, the County is entitled to summary
judgment on Count VII.

30

VIII. Count VIII - Tortious Interference With Prospective
Economic Advantage
The Hawai`i Supreme Court has stated:
The elements of the tort of intentional
interference with prospective business advantage
are: (1) the existence of a valid business
relationship or a prospective advantage or
expectancy sufficiently definite, specific, and
capable of acceptance in the sense that there is a
reasonable probability of it maturing into a
future economic benefit to the plaintiff; (2)
knowledge of the relationship, advantage, or
expectancy by the defendant; (3) a purposeful
intent to interfere with the relationship,
advantage, or expectancy; (4) legal causation
between the act of interference and the impairment
of the relationship, advantage, or expectancy; and
(5) actual damages.
Minton v. Quintal, 131 Hawai`i 167, 191, 317 P.3d 1, 25 (2013).
Plaintiffs do not contend the County’s conduct caused them to
cancel any guest reservations or decline any inquiries from
prospective guests.

Rather, Plaintiffs argue they bring

Count VIII because they have suffered mental anguish and stress,
non-economic damages under Hawai`i law, and rely on Haw. Rev.
Stat. § 663-8.5.

Even assuming Plaintiffs can demonstrate actual

damages, they fail to adduce any evidence as to the fourth
element, “legal causation between the act of interference and the
impairment of the relationship, advantage, or expectancy.”
id.

See

There being no genuine dispute of material fact, the County

is entitled to summary judgment on Count VIII.

31

IX.

Count IX - Prima Facie Tort
This Court has stated it predicts
that the Hawai`i Supreme Court would only
recognize a prima facie tort claim in cases with
facts that are virtually identical to Giuliani [v.
Chuck, 1 Haw. App. 379, 620 P.2d 733 (1980)]. See
Metzler [Contracting Co. LLC v. Stephens, Civil
No. 07-00261 LEK], 2009 WL 1046666, at *5 [D.
Hawai`i Apr. 17, 2009]. 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 [Intermediate Court of Appeals of
Hawai`i (“ICA”)] held that “the amended complaint
[was] sufficient to state a 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).

DeRosa v. Ass’n of Apartment Owners of the Golf Villas, 185 F.
Supp. 3d 1247, 1252–53 (D. Hawai`i 2016) (emphasis in original).
Plaintiffs argue this case is like Giuliani and rely on
Yoneji v. Yoneji, in which the ICA described Giuliani as a case
where the defendant caused the plaintiff to “needlessly enter
into litigation to defend their property and rights which, in
turn, caused [them] mental anguish as well as deprivation of
enjoyment over a long period of time.”

Yoneji v. Yoneji, 136

Hawai`i 11, 20, 354 P.3d 1160, 1169 (Ct. App. 2015) (citation
32

omitted).

Plaintiffs ignore that, in Yoneji, the ICA “h[eld]

that Giuliani did not create a broad prima facie tort cause of
action . . . .

Instead, [Giuliani] recognized a cause of action

[limited] to cases that are factually similar to Giuliani and
where no other well-recognized causes of action are pled to
address the alleged harm.”

Id.

This Court again states that, in Giuliani, the ICA
“‘did not recognize prima facie tort as an alternative to another
well-recognized cause of action.’”

DeRosa, 185 F. Supp. 3d at

1252 (quoting Metzler, 2009 WL 1046666, at *5).

Even assuming

Plaintiffs needlessly entered into litigation and suffered mental
anguish, this allegation is insufficient to state a claim for
prima facie tort.

See id.

There being no genuine dispute of

material fact, the County is entitled to summary judgment on
Count IX.
X.

Counts X and XI - Declaratory and Injunctive Relief
This Court has stated:
It is well-settled that declaratory relief
and injunctive relief “are remedies and not
independent causes of actions.” See, e.g., Wagner
v. Aurora Loan Servicing, Civil No. 10–00729
LEK–BMK, 2011 WL 6819041, at *6 (D. Hawai`i
Dec. 27, 2011) (some citations omitted) (citing
Caniadido v. MortgageIT, Civil No. 11–00078
JMS/BMK, 2011 WL 3837265, at *5–6 (D. Hawai`i
Aug. 26, 2011) (citing Ballard v. Chase Bank USA,
NA, 2010 WL 5114952, at *8 (S.D. Cal. Dec. 9,
2010) (“A claim for declaratory relief ‘rises or
falls with [the] other claims.’”); Jensen v.
Quality Loan Serv. Corp., 702 F. Supp. 2d 1183,
33

1201 (E.D. Cal. 2010) (“A request for injunctive
relief by itself does not state a cause of
action.”))).
Billete v. Deutsche Bank Nat’l Tr. Co., Civil No. 13-00061
LEK-KSC, 2013 WL 2367834, at *7 (D. Hawai`i May 29, 2013).
Counts X and XI state claims for relief, and neither states an
independent cause of action.

See id.

There being no genuine

dispute of material fact, the County is entitled to summary
judgment on Counts X and XI.
CONCLUSION
On the basis of the foregoing, County of Kauai’s Motion
for Summary Judgment on All Counts, filed October 3, 2017, is
HEREBY GRANTED IN PART AND DENIED IN PART.

The Motion is DENIED

insofar as the County is not entitled to summary judgment on
Count I, Plaintiffs’ claim for breach of contract, and on the
portion of Count III, Plaintiffs’ claim for trespass, based
solely on the May 11, 2016 incident.

The Motion is GRANTED

insofar as the County is entitled to summary judgment on
Counts II and IV-XI in their entirety, and to the portion of
Count III not based on the May 11, 2016 incident.
IT IS SO ORDERED.

34

DATED AT HONOLULU, HAWAII, May 2, 2018.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

KLAUS H. BURMEISTER, ET AL. VS. COUNTY OF KAUA`I; CIVIL 16-00402
LEK-KJM; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT ON ALL COUNTS

35