Christopher Zyda, et al v. Four Seasons Hotels and Resorts, et al

Filing 193

ORDER Denying Intervenors' Motion To Remove Christopher Zyda As Class Representative, Or In The Alternative, To Prohibit Mr. Zyda From Encouraging Other Class Members To Personally Harass Intervenors re 149 . Signed by JUDGE LESLIE E. KOBAYASHI on 6/4/2019. (cib)

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII

CHRISTOPHER ZYDA, ON BEHALF OF
HIMSELF AND ALL OTHERS SIMILARLY
SITUATED,

CIV. NO. 16-00591 LEK-RT

Plaintiffs,
vs.
FOUR SEASONS HOTELS AND RESORTS,
FOUR SEASONS HOLDINGS, INC.,
FOUR SEASONS HUALALAI RESORT,
HUALALAI RESIDENTIAL, LLC, (DBA
HUALALAI REALTY); HUALALAI
INVESTORS, LLC, KAUPULEHU MAKAI
VENTURE, HUALALAI DEVELOPMENT
COMPANY, HUALALAI VILLAS &
HOMES, HUALALAI INVESTORS, LLC,
HUALALAI RENTAL MANAGEMENT, LLC,
DOES 1-100,
Defendants.

ORDER DENYING INTERVENORS’ MOTION TO REMOVE
CHRISTOPHER ZYDA AS CLASS REPRESENTATIVE, OR
IN THE ALTERNATIVE, TO PROHIBIT MR. ZYDA FROM ENCOURAGING
OTHER CLASS MEMBERS TO PERSONALLY HARASS INTERVENORS
On February 28, 2019, Intervenors James R. Mahoney,
Ann Marie Mahoney, Judith Runstad, H. Jon Runstad,
Jonathan Seybold, Patricia Seybold, David Keyes, Doreen Keyes,
Julie Wrigley, Kevin Reedy, Lynn Reedy, Bradley Chipps, and
J. Orin Edson (“Intervenors”) filed their Motion to Remove
Christopher Zyda as Class Representative, or in the Alternative,
to Prohibit Mr. Zyda from Encouraging Other Class Members to

Personally Harass Intervenors (“Motion”).

[Dkt. no. 149.]

Defendants Four Seasons Hotels Ltd.; Four Seasons Holdings,
Inc.; Hualalai Investors, LLC; Hualalai Residential, LLC; and
Hualalai Rental Management, LLC (“Defendants”) filed a statement
of no opposition on April 12, 2019.

[Dkt. no. 160.]

Plaintiffs

Christopher Zyda (“Zyda”) and Carol Meyer (“Meyer,” collectively
“Plaintiffs”), on behalf of themselves and all others similarly
situated (all collectively “Class”), filed their memorandum in
opposition on April 12, 2019, and they filed an errata on
April 13, 2019.

[Dkt. nos. 161, 162.]

reply on April 19, 2019.

Intervenors filed their

[Dkt. no. 163.]

for hearing on May 3, 2019.

This matter came on

Intervenors’ Motion is hereby

denied for the reasons set forth below.
BACKGROUND
There is a history of various disputes between
Defendants and certain homeowners at the Hualalai Resort
(“Resort”).

However, the focus of the claims and issues in the

instant case is the Resort’s policy change regarding the daily
fees for renters and unaccompanied guests (“Daily Resort Guest
Fees” or “DRGFs”) that was announced in 2015 and took effect in
2016.

The operative pleading in this case is Plaintiffs’ Second

Amended Class Action Complaint for Damages, Declaratory, and
Injunctive Relief (“Second Amended Complaint”), filed on
April 30, 2018.

[Dkt. no. 89.]
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Zyda filed the first two versions of the complaint in
state court, and the state court certified the Class.

[Notice

of Removal of Action Pursuant to 28 U.S.C. § 1332(d) and 28
U.S.C. § 1453(b) (“Notice of Removal”), filed 11/1/16 (dkt.
no. 1), Decl. of William Meheula, Exh. 1 (complaint filed on
10/2/15), Exh. 2 (amended complaint filed on 10/14/16), Exh. 3
(order granting class certification filed on 10/13/16).]
Defendants removed the case based on diversity jurisdiction,
pursuant to the Class Action Fairness Act.

[Notice of Removal

at ¶ 16.]
Intervenors are Resort homeowners and members of the
Hualalai Club (“Club”), i.e., they are members of the Class.
However, they support the DRGFs that Plaintiffs are challenging
in this action.

See Amended Motion to Intervene, filed 4/3/17

(dkt. no. 37); Order Granting Amended Motion to Intervene, filed
8/4/17 (dkt. no. 65); Intervenors’ Answer to Second Amended
Class Action Complaint for Damages, Declaratory, and Injunctive
Relief, filed 5/14/18 (dkt. no. 92).

In the instant Motion,

Intervenors ask this Court to remove Zyda as a Class
representative or, in the alternative, to issue an order
requiring Zyda to 1) stop sending “e-mails to his hui inviting

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them to personally approach intervenors”; and 2) retract the
February 21, 2019 email he sent to his “hui”.1

[Motion at 2.]

STANDARD
As part of its authority to exercise control over a
class action, this Court has broad, although not unlimited,
discretion to issue orders addressing the conduct of the counsel
and the parties in this case.

See Gulf Oil Co. v. Bernard, 452

U.S. 89, 100 (1981).
Federal Rule of Civil Procedure 23(a)(4)
requires that representative parties in a class
action “will fairly and adequately protect the
interests of the class.” Courts have the
inherent power to replace class representatives.
See, e.g., Robichaud v. Speedy PC Software,
No. C 12 04730 LB, 2013 WL 818503, at *8 (N.D.
Cal. Mar. 5, 2013) (noting that when a
representative plaintiff cannot serve as the
class representative “for a reason that does not
affect the viability of the class claims, courts
regularly allow or order the plaintiffs’ counsel
to substitute a new representative plaintiff” and
collecting cases); Bogner v. Masari Investments,
LLC, 257 F.R.D. 529, 533 n.1 (D. Ariz. 2009)
(“[I]f Plaintiffs prove to be incapable of
representing the class effectively, the Court has
power to replace them.”); see also U.S. Parole
Comm’n v. Geraghty, 445 U.S. 388, 416 n.8, 100 S.
Ct. 1202, 63 L. Ed. 2d 479 (1980) (Powell, J.,
dissenting) (noting that a court “can re-examine
[a class representative’s] ability to represent
the interests of class members [and s]hould it be
found wanting, the court may seek a substitute
1

Zyda’s hui is a group of approximately 100 Resort
homeowners whom he refers to as his “supporters.” [Mem. in
Supp. of Motion at 4 & n.3.] The parties dispute whether all
persons in that group agree with, and support, all of Zyda’s
positions in this case.
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representative or even decertify the class”
(citing, e.g., Fed. R. Civ. P. 23(c)(1),
(d))). . . .
Nunez v. BAE Sys. San Diego Ship Repair Inc., 292 F. Supp. 3d
1018, 1059 (S.D. Cal. 2017) (alterations in Nunez) (emphasis
added).
DISCUSSION
This Court has carefully considered all of the
parties’ submissions related to the Motion, but does not find
that Zyda’s conduct related to this case warrants his removal as
a Class representative.

That being said, all parties and

counsel are reminded of the following:
(a) Aloha Spirit” is the coordination of mind
and heart within each person. It brings each
person to the self. Each person must think and
emote good feelings to others. In the
contemplation and presence of the life force,
“Aloha”, the following unuhi laula loa may be
used:
“Akahai”, meaning kindness to be expressed with
tenderness;
“Lokahi”, meaning unity, to be expressed with
harmony;
“Oluolu”, meaning agreeable, to be expressed with
pleasantness;
“Haahaa”, meaning humility, to be expressed with
modesty;
“Ahonui”, meaning patience, to be expressed with
perseverance.
These are traits of character that express the
charm, warmth and sincerity of Hawaii’s people.
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It was the working philosophy of native Hawaiians
and was presented as a gift to the people of
Hawaii. “Aloha” is more than a word of greeting
or farewell or a salutation. “Aloha” means
mutual regard and affection and extends warmth in
caring with no obligation in return. “Aloha” is
the essence of relationships in which each person
is important to every other person for collective
existence. “Aloha” means to hear what is not
said, to see what cannot be seen and to know the
unknowable.
(b) In exercising their power on behalf of the
people and in fulfillment of their
responsibilities, obligations and service to the
people, the legislature, governor, lieutenant
governor, executive officers of each department,
the chief justice, associate justices, and judges
of the appellate, circuit, and district courts
may contemplate and reside with the life force
and give consideration to the “Aloha Spirit”.
Haw. Rev. Stat. Ann. § 5-7.5.

“Giv[ing] consideration to the

‘Aloha Spirit’” does not mean that conflicts and disputes will
not arise, nor does it mean that a party must abandon his or her
firmly-held beliefs.

Instead, the Aloha Spirit guides the

manner in which conflicts and disputes are resolved.
Although the judges of the United States District
Court for the District of Hawai`i are not listed in § 5-7.5(b),
this Court, as part of the Hawai`i judicial community, also
“give[s] consideration to the ‘Aloha Spirit’.”

Further, this

Court expects counsel appearing before it to do the same and to
impress upon their clients the importance of conducting the
litigation in a manner consistent with the “Aloha Spirit.”
Being a zealous advocate for a client does not require counsel
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to abandon the “Aloha Spirit.”

Cf. Preamble to Haw. R. Prof’l

Conduct § 1 (“A lawyer, as a member of the legal profession, is
a representative of clients, an officer of the legal system, and
a public citizen having special responsibility for the quality
of justice.”); id. § 8 (“A lawyer’s responsibilities as a
representative of clients, an officer of the legal system, and a
public citizen are usually harmonious.

Thus, when an opposing

party is well represented, a lawyer can be a zealous advocate on
behalf of a client and at the same time assume that justice is
being done.”).2
As noted supra, a class representative must “fairly
and adequately protect the interests of the class.”
Rule 23(a)(4) (emphasis added).

Although this Court has found

that Zyda’s conduct in the course of this litigation does not
require his removal as a Class representative at this time, Zyda
is CAUTIONED that, if he continues to engage in the type of
conduct described in the Motion, that analysis may change.

Such

conduct, if it continues after the instant Order, may warrant
sanctions when it is viewed in the context of the case as a
whole and in light of the admonition in this Order.

2

Local Rule 83.3 states that: “Every member
this court and any attorney permitted to practice
pursuant to LR83.1(d) or (e) shall be governed by
observe the standards of professional and ethical
required of members of the Hawaii State Bar.”
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At a

of the bar of
in this court
and shall
conduct

minimum, this Court will issue an order to show cause, requiring
Zyda to appear in person before this Court to explain his
actions.

The potential sanctions may ultimately include

removing Zyda as a Class representative and requiring Plaintiffs
to identify a new representative, who must also meet the
requirements of Rule 23(a)(4).
Meyer is still listed as a plaintiff in this action
and Intervenors argue that she could continue to serve as the
Class representative if Zyda were removed.

However, Plaintiffs

have represented that Meyer was only named for purposes of the
claim under the Condominium Property Act, Haw. Rev.
Stat. Chapter 514B (“Count I”), and her participation is no
longer required in light of the disposition of Count I.3

See

Motion for Approval of Class Notice, Class Notice Procedure, and
Leave to File Third Amended Complaint, filed 5/20/19 (dkt.
no. 181), Decl. of Kyle Smith, Esq., Exh. 3 (proposed third
amended complaint, listing Zyda as the only plaintiff).

Thus,

if Zyda were to be removed as the Class representative, a new
representative – who has not previously participated in the case
as a named plaintiff – would have to be identified.

3

The

On March 7, 2019, this Court issued an order granting
summary judgment in favor of Defendants as to Meyer’s claim in
Count I and decertifying the Class as to Count I. [Dkt.
no. 152.]
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identification of such a person would likely delay the trial in
this case, which is currently scheduled to begin on September 3,
2019.

Zyda is therefore encouraged to conduct himself in an

appropriate manner so as to avoid such a delay.
CONCLUSION
On the basis of the foregoing, Intervenors’ Motion to
Remove Christopher Zyda as Class Representative, or in the
Alternative, to Prohibit Mr. Zyda from Encouraging Other Class
Members to Personally Harass Intervenors, filed February 28,
2019, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, June 4, 2019.

CHRISTOPHER ZYDA, ET AL. VS. FOUR SEASONS HOTELS & RESORTS, ET
AL; CV 16-00591 LEK-KSC; ORDER DENYING INTERVENORS' MOTION TO
REMOVE CHRISTOPHER ZYDA AS CLASS REPRESENTATIVE, OR IN THE
ALTERNATIVE, TO PROHIBIT MR. ZYDA FROM ENCOURAGING OTHER CLASS
MEMBERS TO PERSONALLY HARASS INTERVENORS

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