Puana v. Kealoha

Filing 442

ORDER GRANTING DEFENDANT DRU AKAGI'S MOTION FOR SUMMARY JUDGMENT re 370 - Signed by JUDGE LESLIE E. KOBAYASHI on 1/24/2023. On the basis of the foregoing, the Court GRANTS Akagi's Motion for Summary Judgme nt, filed September 28, 2022. Summary judgment is GRANTED in favor of Akagi as to Counts I, II, and III. There being no remaining claims against Akagi, the Clerk's Office is DIRECTED to terminate him as a party on February 8, 2023, unless a timely motion for reconsideration of this Order is filed. (eta)COURT'S CERTIFICATE OF SERVICE - Katherine P. Kealoha has been served by First Class Mail at FCI VICTORVI LLE MEDIUM I FEDERAL CORRECTIONAL INSTITUTION P. O. BOX 3725, ADELANTO, CA 92301 and Louis M. Kealoha has been served at the address of record on January 24, 2023. Registered Participants of CM/ECF received the document electronically to the email addresses listed on the Notice of Electronic Filing (NEF).

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 1 of 21

PageID.5994

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
GERARD K. PUANA, RICKY L.
HARTSELL, AS TRUSTEE OF THE
FLORENCE M. PUANA TRUST,

CIV. NO. 16-00659 LEK-WRP

Plaintiffs,
vs.
KATHERINE P. KEALOHA, LOUIS M.
KEALOHA, MINH-HUNG NGUYEN, MINHHUNG "BOBBY" NGUYEN, DANIEL
SELLERS, NIALL SILVA, WALTER
CALISTRO, DRU AKAGI, JOHN
AND/OR JANE DOES 1-50, DEREK
WAYNE HAHN,
Defendants.
ORDER GRANTING DEFENDANT DRU AKAGI’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Dru Akagi’s (“Akagi”)
Motion for Summary Judgment (“Motion”), filed September 28,
2022.1

[Dkt. no. 370.]

On November 17, 2022, Defendant City and

County of Honolulu filed a statement of no position.
no. 388.]

[Dkt.

On November 18, 2022, Plaintiffs Gerard K. Puana

(“Puana”) and Ricky L. Hartsell as Trustee of the Florence M.
Puana Trust (collectively “Plaintiffs”) filed their memorandum
in opposition.

[Dkt. no. 390.]

November 25, 2022.

[Dkt. no. 395.]

hearing on December 9, 2022.

1

Akagi filed his reply on
The Motion came on for

[Minutes, filed 12/9/22 (dkt.

Akagi filed his Motion in his individual capacity.

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 2 of 21

no. 411).]

PageID.5995

The Motion is hereby granted for the reasons set

forth below.
BACKGROUND
In June 2013, Akagi was assigned to the Honolulu
Police Department’s (“HPD”) Homicide Detail, Criminal
Investigative Division (“CID”).

[Akagi’s Separate and Concise

Statement of Facts in Support of Defendant Dru Akagi’s Motion
for Summary Judgment (“Akagi’s CSOF”), filed 9/28/22 (dkt.
no. 372), at ¶ 1; Plaintiffs’ Reply to Defendant Dru Akagi’s
Concise Statement of Material Facts in Support of Motion for
Summary Judgment and Plaintiffs’ Concise Statement of Material
Facts (“Plaintiffs’ Responsive CSOF”), filed 11/18/22 (dkt.
no. 391), at ¶ 1 (admitting Akagi’s CSOF ¶ 1).2]

On June 25,

2013, Defendant Walter Calistro (“Calistro”) – Akagi’s
supervisor – assigned Akagi as the lead CID detective to
investigate the theft of a mailbox at former HPD Chief of Police
Louis Kealoha’s (“Louis”) house.

[Akagi’s CSOF at ¶ 2;

Plaintiffs’ Responsive CSOF at ¶ 2; Exh. A (Partial Transcript
of Jury Trial - Day 2 (Testimony of Dru Akagi) in United States
v. Katherine P. Kealoha, et al., CR 17-00582 JMS-RLP, taken
5/23/19 (“Akagi Trans.”)) at 6-7.]

Former Defendant Derek Wayne

“Plaintiffs’ Responsive CSOF” refers to Section I of
docket number 391. Section II sets forth Plaintiffs’ Concise
Statement of Facts and will be referred to as “Plaintiffs’
CSOF.”
2

2

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 3 of 21

PageID.5996

Hahn (“Hahn”), who worked as a member of the Criminal
Intelligence Unit (“CIU”), briefed Akagi on the mailbox theft
case, and Hahn told Akagi that Puana was a person of interest.
Defendant Niall Silva (“Silva”), another member of the CIU, gave
Akagi surveillance video clips of the mailbox theft.

[Akagi’s

CSOF at ¶¶ 3-4; Plaintiffs’ Responsive CSOF at ¶¶ 3-4.]
On June 28, 2013, Akagi interviewed Carrie Arakaki
(“Arakaki”), who was Puana’s next-door neighbor.

[Plaintiffs’

CSOF at ¶ 9; Akagi’s Reply to Plaintiffs’ Concise Statement of
Material Facts (“Akagi’s Responsive CSOF”), filed 11/25/22 (dkt.
no. 396), at ¶ 9 (admitting Plaintiffs’ CSOF ¶ 9).]

Arakaki

owned a vehicle that Akagi thought resembled the vehicle in the
video footage of the mailbox theft, but Araki told Akagi that
the car in the video footage was not hers.

See Plaintiffs’ CSOF

at ¶¶ 12, 11; Akagi’s Responsive CSOF at ¶¶ 12, 11.
On June 29, 2013, Akagi met with Defendant
Katherine P. Kealoha (“Katherine”) and showed her the video
footage.

Katherine told Akagi that Puana was the person in the

video stealing the mailbox.

Katherine submitted an official

police form identifying Puana as the person stealing the mailbox
in the video.

[Akagi’s CSOF at ¶¶ 5-7; Plaintiffs’ Responsive

CSOF at ¶¶ 5-7.]

“Akagi eliminated [Puana]’s alibi during the

relevant time period when the Kealoha’s mailbox was stolen.”
[Akagi’s CSOF at ¶ 9; Plaintiffs’ Responsive CSOF at ¶ 9.]
3

On

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 4 of 21

PageID.5997

July 1, 2013, Akagi transferred the case to the United States
Postal Service (“USPS”) and completed his closing report on
July 2, 2013.

[Akagi’s CSOF at ¶ 10; Plaintiffs’ Responsive

CSOF at ¶ 10.]

Akagi listed Arakaki’s vehicle as a suspect

vehicle in his closing report.

See Plaintiffs’ CSOF, Decl. of

Alexander Silvert (“Silvert Decl.”), Exh. K (C.I.D. Closing
Report) at 3.
In the criminal case against Katherine, Akagi
testified as a government witness that he relied on Katherine’s
identification of Puana in recommending criminal charges.

See

Akagi’s CSOF at ¶¶ 15–16; Plaintiffs’ Responsive CSOF at ¶¶ 15–
16.

During the instant case, Puana testified during his

deposition that he does not have a basis to state Akagi acted
with malice during his investigation.

[Akagi’s CSOF at ¶ 19;

Plaintiffs’ Responsive CSOF at ¶ 19.]
Plaintiffs allege the following claims against Akagi
in his individual capacity: (1) a malicious prosecution claim
under 42 U.S.C. § 1983 (“Count I”); (2) a racketeering claim
under 18 U.S.C. § 1962(c) (“Civil RICO claim” and “Count II”);
(3) a claim for intentional infliction of emotional distress
(“IIED” and “Count III”); and (4) a defamation claim
(“Count IV”).

See Third Amended Complaint for Damages, filed

5/13/22 (dkt. no. 307), at ¶¶ 185–99.

Although Plaintiffs both

assert Counts I through IV against Akagi, the actions only arise
4

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 5 of 21

out of conduct affecting Puana.

PageID.5998

Thus, although the Court refers

to Plaintiffs as bringing the claims, it is clear that Puana is
the individual asserting those claims against Akagi.
DISCUSSION
I.

Defamation Claim (Count IV)
Akagi states Plaintiffs are no longer asserting the

defamation claim against him because Plaintiffs’ counsel
confirmed through email that the claim is time-barred.

See

Motion, Mem. in Supp. at 1 (citing Akagi’s CSOF, Decl. of
Nicholas P. Ching (“Ching Decl.”), Exhibit H).

Plaintiffs

neither contest Akagi’s statement in their opposition nor
provide evidence to negate Akagi’s evidence.

Because

Plaintiffs’ counsel concede that their defamation claim against
Akagi is time barred, no genuine issue of material fact exists
and Akagi is entitled to judgment as a matter of law as to
Count IV.

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.”).
II.

Malicious Prosecution Claim (Count I)
A.

Probable Cause
In order to prevail on a § 1983 claim of
malicious prosecution, a plaintiff must show
“that the defendants prosecuted [him] with malice
and without probable cause, and that they did so
for the purpose of denying [him] equal protection
5

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 6 of 21

PageID.5999

or another specific constitutional right.” Lacey
v. Maricopa Cnty., 693 F.3d 896, 919 (9th Cir.
2012) (quoting Freeman v. City of Santa Ana, 68
F.3d 1180, 1189 (9th Cir. 1995)). “In general, a
claim of malicious prosecution is not cognizable
under § 1983 ‘if process is available within the
state judicial systems’ to provide a remedy,”
although the Ninth Circuit has “held that an
exception exists . . . when a malicious
prosecution is conducted with the intent to . . .
subject a person to a denial of constitutional
rights.” Id. (quoting Bretz v. Kelman, 773 F.2d
1026, 1031 (9th Cir. 1985) (en banc)).
“Malicious prosecution actions are not limited to
suits against prosecutors but may be brought, as
here, against other persons who have wrongfully
caused the charges to be filed.” Awabdy v. City
of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004)
(citing Galbraith v. Cnty. of Santa Clara, 307
F.3d 1119, 1126–27 (9th Cir. 2002)).
The court must look to Hawaii law “to
determine the legal effect of the state court’s
action because [the Ninth Circuit has]
incorporated the relevant elements of the common
law tort of malicious prosecution into [the]
analysis under § 1983.” Id. . . .
Andrews v. Hawaii Cnty., Civil No. 11-00512 JMS/BMK, 2013 WL
5276533, at *9 (D. Hawai`i Sept. 18, 2013) (some alterations in
Andrews) (footnote omitted).3

“An individual seeking to bring a

malicious prosecution claim must generally establish that the
prior proceedings terminated in such a manner as to indicate his
innocence.”

Awabdy, 368 F.3d at 1068 (some citations omitted)

In Andrews, the plaintiff was prosecuted in state court.
See 2013 5276533, at *3. Here, Puana was prosecuted for the
mailbox theft in federal court. However, Andrews and Hawai`i
law still apply because Akagi was a county police officer at the
time he recommended that Puana be federally prosecuted.
3

6

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 7 of 21

PageID.6000

(citing Heck v. Humphrey, 512 U.S. 477, 484–85, 114 S. Ct. 2364
(1994)).
Under Hawai`i law,
Probable cause in a malicious prosecution action
depends “not on the actual state of the facts but
upon the honest and reasonable belief of the
party commencing the action.” Brodie [v. Haw.
Auto. Retail Gasoline Dealers Ass’n], 2 Haw. App.
[316,] 318, 631 P.2d [600,] 602 [(1981)]
(citations omitted).[4]
[P]robable cause for the filing of a lawsuit
exists where a person:
reasonably believes in the existence of the
facts upon which the claim is based, and
either
(a) correctly or reasonably believes
that under those facts the claim may be
valid under the applicable law, or
(b) believes to this effect in
reliance upon the advice of counsel,
sought in good faith and given after
full disclosure of all relevant facts
within his knowledge or information.
Id. at 319, 631 P.2d at 602 (quoting Restatement
(Second) of Torts § 675 (1977)). The
determination as to whether a particular party
had probable cause is both a subjective and
objective question. See, e.g., Bertero v. Nat’l
Gen. Corp., 13 Cal. 3d 43, 118 Cal. Rptr. 184,
193, 529 P.2d 608 (1974); Williams v. City of New
York, 508 F.2d 356, 359 (1974). The first
question is whether the party had the subjective
belief that he or she possessed probable cause in
the underlying action. The second question is
whether that belief was reasonable.
Brodie, 6 Haw. App. 316, 631 P.2d 600, was reversed by the
Hawai`i Supreme Court on other grounds. 65 Haw. 598, 655 P.2d
863 (1982).
4

7

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 8 of 21

PageID.6001

Arquette v. State, 128 Hawai`i 423, 434, 290 P.3d 493, 504
(2012) (some alterations in Arquette).
Akagi was provided with the surveillance video of the
purported mailbox theft and, when he showed it to Katherine, she
told Akagi that Puana was the person in the video stealing the
mailbox.

Katherine then filed an official report identifying

Puana as the person who stole the mailbox.

See Akagi’s CSOF at

¶¶ 3-7; Plaintiffs’ Responsive CSOF at ¶¶ 3-7.

“Akagi

eliminated [Puana]’s alibi during the relevant time period when
the Kealoha’s mailbox was stolen.”

[Akagi’s CSOF at ¶ 9;

Plaintiffs’ Responsive CSOF at ¶ 9.]
Plaintiffs argue Akagi began to investigate Puana
before Katherine identified him and, therefore, there is a
genuine dispute of material fact as to whether Akagi was a part
of the malicious prosecution of Puana.

See Mem. in Opp. at 7.

Plaintiffs aver, however, that Hahn told Akagi Puana was a
person of interest on June 25, 2013, see Plaintiffs’ CSOF at
¶ 5; Akagi’s Responsive CSOF at ¶ 5, which was four days before
Katherine identified Puana, see Akagi’s CSOF at ¶ 5; Plaintiffs’
Responsive CSOF at ¶ 5.

The Court rules that, even considering

“the evidence in the light most favorable to Plaintiffs as the
nonmoving parties,” see Harris v. Cnty. of Orange, 17 F.4th 849,
855 (9th Cir. 2021) (brackets, quotation marks, and citation

8

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 9 of 21

PageID.6002

omitted), Akagi had a reasonable belief, based on Hahn’s
representations, that Puana was a person of interest.
Plaintiffs’ challenge to Akagi’s closing report, see Mem. in
Opp. at 8, where Akagi listed Arakaki’s vehicle as a suspect
vehicle, see Silvert Decl., Exh. K at 3, does not create a
genuine issue of material fact as to whether Akagi had probable
cause in sending the case to the USPS.

Although Akagi’s closing

report failed to eliminate Arakaki’s vehicle as a suspect
vehicle, this failure does not negate the other reasons for
Akagi having probable cause to seek prosecution.

The closing

report was sent to USPS, which completed its own report and
recommended the federal prosecution of Puana.

See Plaintiffs’

CSOF at ¶ 17; Akagi’s Responsive CSOF at ¶ 17.
Akagi relied on information from Hahn and Katherine,
along with other information, to complete his closing report
which was sent to USPS.

Akagi was assigned to the case on

June 25, 2013 and completed his closing report on July 2, 2013.
See Akagi’s CSOF at ¶¶ 2, 10; Plaintiffs’ Responsive CSOF at
¶¶ 2, 10.

In the federal prosecution of Katherine, Akagi

testified as a government witness that he relied on Katherine’s
positive identification of Puana to recommend criminal charges
against Puana.

See Akagi’s CSOF at ¶¶ 15–16; Plaintiffs’

Responsive CSOF at ¶¶ 15–16.

9

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 10 of 21

PageID.6003

Accordingly, no genuine issue of material fact exists,
and this Court concludes, as a matter of law, that Akagi had
probable cause to recommend criminal charges and to send the
closing report to USPS.
B.

Malice
Even if there was a genuine issue of material fact as

the issue of probable cause, Akagi would still be entitled to
summary judgment because the Court also finds that Plaintiffs
fail to raise a genuine issue of material fact that Akagi acted
with malice.
To avoid summary judgment, a plaintiff must “produce
some affirmative evidence that malice existed.”

Arquette, 128

Hawai`i at 437, 290 P.3d at 507 (quotation marks and citation
omitted).

“[I]n order to establish the element of malice for a

malicious prosecution claim, a plaintiff must show inter alia
that the defendant initiated the prior proceeding with the
intent, without justification or excuse, to commit a wrongful
act and the emphasis is on the misuse of criminal or civil
actions as a means for causing harm.”

Id. (quotation marks and

citation omitted).
Plaintiffs argue the fact that “Akagi acted with
malice can be inferred from his actions from the lack of
probable cause to charge Gerard Puana with stealing the
mailbox.”

[Mem. in Opp. at 8.]

Akagi had sufficient basis to
10

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 11 of 21

PageID.6004

establish probable cause, and Plaintiffs do not provide any
evidence to create a genuine issue of fact as to whether that
Akagi acted with malice.

Indeed, during Puana’s May 27, 2022

deposition, Puana testified that he did not have a basis to
claim Akagi acted with malice during the investigation.

See

Akagi’s CSOF at ¶ 19; Plaintiffs’ Responsive CSOF at ¶ 19.
Because Plaintiffs do not raise a genuine issue of
material fact as to probable cause and malice, the Court
concludes that Akagi is entitled to judgment as a matter of law
as to Count I and, therefore, it does not to address Akagi’s
qualified immunity argument.
III. Civil RICO Claim (Count II)
“The Racketeer Influenced and Corrupt Organizations
Act (RICO or Act), 18 U.S.C. §§ 1961–1968, provides a private
right of action for treble damages to ‘[a]ny person injured in
his business or property by reason of a violation’ of the Act’s
criminal prohibitions.”

Bridges v. Phoenix Bond & Indem. Co.,

553 U.S. 639, 641 (2008) (quoting 18 U.S.C. § 1964(c)).
Under 18 U.S.C. § 1962(c),
[i]t shall be unlawful for any person employed by
or associated with any enterprise engaged in, or
the activities of which affect, interstate or
foreign commerce, to conduct or participate,
directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful
debt.

11

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 12 of 21

PageID.6005

“Broadly speaking, there are two parts to a civil RICO
claim.”

Painters & Allied Trades Dist. Council 82 Health Care

Fund v. Takeda Pharms. Co., 943 F.3d 1243, 1248 (9th Cir. 2019)
(“Painters”).

There is “[t]he civil RICO violation . . .

defined under 18 U.S.C. § 1962,” then there is “‘RICO standing’
. . . defined under 18 U.S.C. § 1964(c).”

Id.

The former

aspect “sets out four elements: a defendant must participate in
(1) the conduct of (2) an enterprise that affects interstate
commerce (3) through a pattern (4) of racketeering activity or
collection of unlawful debt.”

Eclectic Props. E., LLC v. Marcus

& Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014) (citing 18
U.S.C. § 1962(c)).

The latter aspect – RICO standing – requires

that “a plaintiff must show: (1) that his alleged harm qualifies
as injury to his business or property; and (2) that his harm was
‘by reason of’ the RICO violation.”

Painters, 943 F.3d at 1248

(citation and some internal quotation marks omitted).
To show the existence of an enterprise . . .,
plaintiffs must plead that the enterprise has
(A) a common purpose, (B) a structure or
organization, and (C) longevity necessary to
accomplish the purpose. Boyle v. United States,
556 U.S. 938, 946, 129 S. Ct. 2237, 173 L. Ed. 2d
1265 (2009). Racketeering activity, the fourth
element, requires predicate acts . . . .
Eclectic Props. E., 751 F.3d at 997.

In explaining predicate

acts, the United Supreme court has held:
[P]redicates include any act “indictable” under
specified federal statutes, §§ 1961(1)(B)–(C),
12

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 13 of 21

PageID.6006

(E)–(G), as well as certain crimes “chargeable”
under state law, § 1961(1)(A), and any offense
involving bankruptcy or securities fraud or drugrelated activity that is “punishable” under
federal law, § 1961(1)(D). A predicate offense
implicates RICO when it is part of a “pattern of
racketeering activity”—a series of related
predicates that together demonstrate the
existence or threat of continued criminal
activity. H.J. Inc. v. Northwestern Bell
Telephone Co., 492 U.S. 229, 239 (1989); see
§ 1961(5) (specifying that a “pattern of
racketeering activity” requires at least two
predicates committed within 10 years of each
other).
RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 330 (2016).
A.

Pattern of Racketeering Activity
Akagi first argues Plaintiffs’ RICO claim must fail

because they cannot prove that Akagi engaged in a pattern of
racketeering activity.

See Motion, Mem. in Supp. at 13.

Specifically, Akagi contends that Plaintiffs do not provide
evidence of two predicate acts.

See id.

Plaintiffs argue the

pattern of racketeering activity began in 2011 and continued
into 2014.

See Mem. in Opp. at 13.

Even if the racketeering

activity began in 2011 and continued into 2014, Plaintiffs fail
to provide evidence that Akagi participated in the racketeering
activity beyond the eight days he investigated the mailbox
theft, which included sending the closing report to the USPS and
recommending criminal charges, see Akagi’s CSOF at ¶¶ 2, 10;
Plaintiffs’ Responsive CSOF at ¶¶ 2, 10.

See, e.g., Zazzali v.

Ellison, 973 F. Supp. 2d 1187, 1200 (D. Idaho 2013) (“[T]he
13

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 14 of 21

PageID.6007

touchstone of [§ 1962(c)] is that each individual defendant must
be shown to have personally participated in a pattern of
racketeering activity.”).

Moreover, such a short period of time

cuts against a finding of a pattern of racketeering activity.
See H.J. Inc., 492 U.S. at 242 (“A party alleging a RICO
violation may demonstrate continuity over a closed period by
proving a series of related predicates extending over a
substantial period of time.

Predicate acts extending over a few

weeks or months and threatening no future criminal conduct do
not satisfy this requirement: Congress was concerned in RICO
with long-term criminal conduct.”).
Even assuming that Akagi’s recommendation of criminal
charges constituted a predicate act, no genuine issue of
material fact has been raised as to the issue of whether Akagi
participated in a second predicate act.

Plaintiffs appear to

argue that the predicate act or acts continued through December
2014 when Puana was tried in the criminal case for mailbox
theft.

See Mem. in Opp. at 13.

Again, though, Plaintiffs do

not provide evidence of any acts taken by Akagi that constitute
subsequent predicate acts.

Thus, Plaintiffs’ RICO claim against

Akagi fails.
B.

RICO Standing
For the sake of completeness, the Court will also

address whether there is a genuine issue of material fact as to
14

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 15 of 21

RICO standing.

PageID.6008

Akagi argues Plaintiffs fail to demonstrate

proof of concrete financial loss, i.e., Plaintiffs lack RICO
standing.

See Motion, Mem. in Supp. at 15; see also Painters,

943 F.3d at 1248.

The Court finds that Plaintiffs fail to raise

a genuine issue of material fact as to their RICO standing for
two reasons.
First, Plaintiffs fail to show that Akagi’s conduct
was the proximate cause of his injury.
“[a] plaintiff must show that the defendant’s
RICO violation was not only a ‘but for’ cause of
his injury, but that it was a proximate cause as
well.” Oki Semiconductor Co. v. Wells Fargo
Bank, Nat. Ass’n, 298 F.3d 768, 773 (9th Cir.
2002) (citing Holmes v. Sec. Inv’r Prot. Corp.,
503 U.S. 258, 268–69, 112 S. Ct. 1311, 117 L. Ed.
2d 532 (1992)). “Some ‘direct relationship’
between the injury asserted and the injurious
conduct is necessary.” Oki Semiconductor Co.,
298 F.3d at 773 (quoting Holmes, 503 U.S. at 269,
112 S .Ct. 1311). “To establish proximate cause,
plaintiffs must show that their injury flows
directly from the defendants’ commission of the
predicate acts.” Pedrina v. Chun, 906 F. Supp.
1377, 1415 (D. Haw. 1995) (citation omitted).
Ryan v. Salisbury, 382 F. Supp. 3d 1031, 1056 (D. Hawai`i 2019)
(alteration in Ryan).

Here, Plaintiffs concede that Akagi

transferred the case to USPS on July 1, 2013 and Puana was
federally charged the same day, which was a day before Akagi
completed his closing report.

See Akagi’s CSOF at ¶ 10;

Plaintiffs’ Responsive CSOF at ¶ 10.

Thus, to the extent that

Plaintiffs argue Akagi’s closing report led to Puana’s false

15

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 16 of 21

PageID.6009

arrest, Puana was arrested and federal criminal charges were
filed against him before Akagi finished his closing report and,
therefore, the closing report could not be a proximate cause of
Puana’s injury.
Second, Plaintiffs fail to provide any evidence that
Puana suffered a concrete financial loss.

Although Plaintiffs

state Puana’s economic loss stems from Akagi’s tortious
interference with Puana’s prospective business advantage, see
Mem. in Opp. at 14–15, Plaintiffs do not cite to anything in the
record to support such a claim.

Plaintiffs also state Puana

testified to such economic loss, see Mem. in Opp. at 15, but,
again, they do not provide any evidence.

Accordingly,

Plaintiffs do not raise a genuine issue of material fact as to
whether they have RICO standing and, therefore, Akagi is
entitled to judgment as a matter of law as to Count II.
IV.

IIED Claim (Count III)
A.

Statute of Limitations
Akagi argues

Plaintiffs’ IIED claim is time-barred.

See Motion, Mem. in Supp. at 17–18.

Plaintiffs, however,

contend the IIED claim is timely because it did not accrue until
the criminal charges against Puana were dismissed with prejudice
on December 16, 2014.

See Mem. in Opp. at 17.

concludes that the IIED claim is time-barred.

16

The Court

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 17 of 21

PageID.6010

Plaintiffs’ IIED claim against Akagi has a two-year
statute of limitations.

See Haw. Rev. Stat. § 657-7; see also

U.S. E.E.O.C. v. NCL Am., 535 F. Supp. 2d 1149, 1169 (D. Hawai`i
2006) (stating Haw. Rev. Stat. § 657-7 applies to IIED claims
(citing Linville v. Hawaii, 874 F. Supp. 1095, 1104 (D. Haw.
1994)).

The IIED claim is governed by the “discovery rule,”

i.e., a claim accrues when the plaintiff knows or has reason to
know of the injury.

See Yamaguchi v. Queen’s Med. Ctr., 65 Haw.

84, 90-91, 648 P.2d 689, 693–94 (1982) (citation omitted)
(stating that the discovery rule determines when Hawai`i tort
claims begin to accrue).
The parties dispute when Puana knew or had reason to
know of Akagi’s closing report recommending criminal charges.
The statute of limitations accrued, at the latest, when Puana
included Akagi’s closing report as an exhibit during his federal
mailbox theft criminal case, see Akagi’s CSOF at ¶ 12;
Plaintiffs’ Responsive CSOF at ¶ 12, because this inclusion
demonstrates that Puana knew of Akagi’s recommendation of
criminal charges, which is the foundation of the IIED claim
against Akagi.

The exhibit list is dated December 1, 2014, see

generally Ching Decl., Exh. D (Puana’s Amended Exhibit List
filed in CR 13-00735 LEK), which suggests that Puana had reason
to know of the contents of the closing report on or before
December 1, 2014.

As such, the statute of limitations of the
17

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 18 of 21

PageID.6011

IIED claim against Akagi expired, at the latest, on December 1,
2016.

The IIED claim against Akagi is therefore untimely

because Plaintiffs filed their original complaint on
December 14, 2016.

See Complaint for Damages, filed 12/14/16

(dkt no. 1).
B.

Merits
Even if the IIED claim against Akagi was not time-

barred, it would fail as a matter of law because Plaintiffs have
not provided any evidence that Akagi acted outrageously.
The Hawai`i Supreme Court has stated:
[T]he tort of IIED consists of four elements:
“1) that the act allegedly causing the harm was
intentional or reckless, 2) that the act was
outrageous, and 3) that the act caused 4) extreme
emotional distress to another.” Hac [v. Univ. of
Hawai`i], 102 Hawai`i [102,] 106–07, 73 P.3d
[46,] 60–61 [(2003)]. “The term ‘outrageous’ has
been construed to mean without just cause or
excuse and beyond all bounds of decency.” Enoka
v. AIG Hawai`i Ins. Co., Inc., 109 Hawai`i 537,
559 128 P.3d 850, 872 (2006) (citations and some
internal quotation marks omitted). “The question
whether the actions of the alleged tortfeasor are
unreasonable or outrageous is for the court in
the first instance, although where reasonable
people may differ on that question it should be
left to the jury.” Takaki v. Allied Machinery
Corp., 87 Hawai`i 57, 68, 951 P.2d 507, 518 (App.
1998) (quotations and quotation marks omitted).
Young v. Allstate Ins. Co., 119 Hawai`i 403, 429, 198 P.3d 666,
692 (2008) (footnote omitted).
Plaintiffs contend Akagi’s conduct was outrageous
because his closing report “perpetuated the lies and mishandling
18

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 19 of 21

PageID.6012

regarding Niall Silva’s alleged recovery of the surveillance
video of the mailbox theft some five hours before the theft was
even reported.”
is unpersuasive.

[Mem. in Opp. at 16.]

Plaintiffs’ contention

Considering the evidence in the light most

favorable to Plaintiffs, the Court finds that Akagi was
presented with evidence that a reasonable investigator would
rely upon:
-that Calistro assigned the investigation to Akagi and Hahn told
Akagi that Puana was a person of interest; see Akagi’s CSOF
at ¶¶ 2–3; Plaintiffs’ Responsive CSOF at ¶¶ 2–3;
-that Silva provided Akagi with the video footage of the mailbox
theft; see Akagi’s CSOF at ¶ 4; Plaintiffs’ Responsive CSOF
at ¶ 4;
-that Akagi met with Katherine and she identified Puana as the
person in the video and Katherine filed an official form
identifying Puana, see Akagi’s CSOF at ¶¶ 5–7; Plaintiffs’
Responsive CSOF at ¶¶ 5–7; and
-that, during the criminal trial against Katherine, Akagi
testified that he relied on Katherine’s identification in
recommending criminal charges, see Ching Decl., Exh. A
(Akagi Trans.) at 45, and Akagi stated that “[he] had no
reason to not believe her[,]” [id. at 39].
The Court also finds that Akagi did not act
outrageously when he sent his closing report to USPS and
recommended criminal charges against Puana because he relied on
both his supervisor’s instruction that Puana was a person of
interest and Katherine’s identification of Puana.

The Court

finds that there is no evidence suggesting that Akagi knew or
was involved in the fabrication evidence.

19

Importantly, Puana

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 20 of 21

PageID.6013

was already charged with the federal crime before Akagi
submitted his closing report.

Finally, Akagi’s reliance and

investigation did not go “beyond all bounds of decency.”

See

Young, 119 Hawai`i at 429, 198 P.3d at 692 (quotation marks and
citation omitted).
C.

Ruling
Even viewing the record in the light most favorable to

Plaintiffs, there are no genuine issues of material fact, and
Akagi is entitled to judgment as a matter of law as to
Count III.
CONCLUSION
On the basis of the foregoing, the Court GRANTS
Akagi’s Motion for Summary Judgment, filed September 28, 2022.
Summary judgment is GRANTED in favor of Akagi as to Counts I,
II, and III.
There being no remaining claims against Akagi, the
Clerk’s Office is DIRECTED to terminate him as a party on
February 8, 2023, unless a timely motion for reconsideration of
this Order is filed.
IT IS SO ORDERED.

20

Case 1:16-cv-00659-LEK-WRP Document 442 Filed 01/24/23 Page 21 of 21

PageID.6014

DATED AT HONOLULU, HAWAII, January 24, 2023.

GERARD K. PUANA, ET AL. VS. KATHERINE P. KEALOHA, ET AL; CV 1600659 LEK-WRP; ORDER GRANTING DEFENDANT DRU AKAGI’S MOTION FOR
SUMMARY JUDGMENT
21