Puana v. Kealoha

Filing 445

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT KATHERINE P. KEALOHA'S MOTION TO DISMISS THIRD AMENDED COMPLAINT FOR DAMAGES BY JOINDER re 357 - Signed by JUDGE LESLIE E. KOBAYASHI on 1/31/2023. On the basis of the foregoing, the Court GRANTS IN PART AND DENIES IN PART Katherine's Motion to Dismiss Third Amended Complaint for Damages By Joinder, filed September 1, 2022. The Motion is GRANTED to the extent that: Plaintiffs' claim against Kath erine in Count I is DISMISSED; Plaintiffs' claim against Kathrine in Count II is DISMISSED; and the portion of Count III against Katherine based on her conduct relating to the 2009 reverse mortgage and the 2011 UED charge is DISMISSED. The d ismissals are WITH PREJUDICE. The Motion is DENIED to the extent that: the portion of Count III against Katherine based on her conduct related to the 2013 civil case and the 2013 mailbox theft survives dismissal; and Count IV survives dis missal. (eta)COURTS CERTIFICATE OF SERVICE - Katherine P. Kealoha shall be served by First Class Mail at FCI VICTORVILLE MEDIUM I FEDERAL CORRECTIONAL INSTITUTION P. O. BOX 3725, ADELANTO, CA 92301 and Louis M. Kealoha shall be served at the address of record on February 1, 2023. Registered Participants of CM/ECF received the document electronically to the email addresses listed on the Notice of Electronic Filing (NEF)

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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 IN PART AND DENYING IN PART
DEFENDANT KATHERINE P. KEALOHA’S MOTION TO
DISMISS THIRD AMENDED COMPLAINT FOR DAMAGES BY JOINDER
Before the Court is pro se Defendant Katherine P.
Kealoha’s (“Katherine”) Motion to Dismiss Third Amended
Complaint for Damages By Joinder (“Motion”), filed on
September 1, 2022.

[Dkt. no. 357.]

On September 28, 2022,

Plaintiffs Gerard K. Puana (“Puana”) and Ricky L. Hartsell as
Trustee of the Florence M. Puana Trust (“Hartsell” and
collectively “Plaintiffs”) filed their memorandum in opposition
to the Motion (“Plaintiffs’ Memorandum in Opposition”).
no. 374.]

[Dkt.

On October 20, 2022, Defendant City and County of

Honolulu (“the City”) filed its memorandum in opposition to the

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Motion (“City Memorandum in Opposition”).

PageID.6035

[Dkt. no. 384.]

The

Court finds this matter suitable for disposition without a
hearing pursuant to Rule LR7.1(c) of the Local Rules of Practice
for the United States District Court for the District of Hawaii
(“Local Rules”).

The Motion is hereby granted in part and

denied in part for the reasons set forth below.
BACKGROUND
Plaintiffs’ operative complaint is their Third Amended
Complaint for Damages, filed on May 13, 2022 (“Third Amended
Complaint”).

[Dkt. no. 307.]

The parties are familiar with the

facts of the case and, therefore, the Court does not repeat them
in detail here.

Relevant to the Motion, Plaintiffs allege the

following claims against Katherine, in her individual capacity:
a malicious prosecution claim under 42 U.S.C. § 1983
(“Count I”); a pattern of racketeering activity claim in
violation of 18 U.S.C. § 1962(c) (“Civil RICO Claim” or
“Count II”); an intentional infliction of emotional distress
claim (“IIED” or “Count III”); and a defamation claim
(“Count IV”).

See Third Amended Complaint at ¶¶ 185–99.

On May 27, 2022, the City filed its Motion to Dismiss
Third Amended Complaint (ECF No.307) (“City Motion”).
no. 313.]

[Dkt.

On June 29, 2022, Defendant Minh-Hung “Bobby” Nguyen

(“Nguyen”) filed his Motion to Dismiss Third Amended Complaint
for Damages [Doc. 307] (“Nguyen Motion”).
2

[Dkt. no. 330.]

On

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September 30, 2022, the Court issued its Order: Granting in Part
and Denying in Part the City’s Motion to Dismiss the Third
Amended Complaint; and Denying as Moot Nguyen’s Joinder (“9/30
Order”).

[Dkt. no. 379.]

On December 19, 2022, the Court

issued its Order Granting Defendant Ming-Hung “Bobby” Nguyen’s
Motion to Dismiss Third Amended Complaint for Damages [Doc. 307]
(“12/19 Order”).1

[Dkt. no. 414.]

Katherine seeks dismissal of

the claims alleged against her by joining the City Motion and
the Nguyen Motion.
DISCUSSION
I.

Joinder
Local Rule 7.7 states that, “[e]xcept with leave of

court based on good cause, any substantive joinder in a motion
or opposition must be filed and served within three (3) days of
the filing of the motion or opposition joined in.”

A

substantive joinder must also be “supported by a memorandum
. . . supplementing the motion or opposition joined in.”
Rule LR7.7.

Local

Here, Katherine failed to file her Motion within

three days of the City Motion or the Nguyen Motion.

Katherine

also failed to submit a supporting memorandum with her Motion.
Accordingly, Katherine failed to meet the requirements for a

1

The 12/19 Order is also available at 2022 WL 17811439.
3

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substantive joinder and, therefore, the Court construes the
Motion as a joinder of simple agreement.
II.

Merits
Although Katherine was once a licensed attorney, the

Court liberally construes her Motion because she is incarcerated
and proceeding pro se.

See Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (“A document filed pro se is to be liberally
construed[.] . . .” (citation and internal quotation marks
omitted)).

As such, the Court analyzes the merits of

Plaintiffs’ claims against Katherine.
A.

Malicious Prosecution Claim Under § 1983 (Count I)
“To state a claim under § 1983, a plaintiff must

allege two essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person acting
under the color of State law.”

Benavidez v. Cnty. of San Diego,

993 F.3d 1134, 1144 (9th Cir. 2021) (quotation marks and
citation omitted).
Plaintiffs allege Katherine is liable under § 1983 for
the malicious prosecution of Puana for the theft of her mailbox.
See Third Amended Complaint at ¶ 87.

Plaintiffs fail to state a

plausible § 1983 claim for malicious prosecution against
Katherine, however, because they fail to adequately plead that
Katherine acted under the color of state law.
4

“The state-action

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element in § 1983 ‘excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.’”

Caviness

v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th
Cir. 2010) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999)).
Whether a government actor “is acting under color
of law is not always an easy call, especially
when the conduct is novel,” and “there is no
rigid formula for measuring state action for
purposes of section 1983 liability.” Gritchen v.
Collier, 254 F.3d 807, 813 (9th Cir. 2001)
(quoting McDade v. West, 223 F.3d 1135, 1139 (9th
Cir. 2000)). Rather, determining whether a
public official’s conduct constitutes state
action “is a process of ‘sifting facts and
weighing circumstances.’” Id. (quoting McDade,
223 F.3d at 1139). “[N]o one fact can function
as a necessary condition across the board.”
Rawson v. Recovery Innovations, Inc., 975 F.3d
742, 751 (9th Cir. 2020) (quoting Brentwood Acad.
v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S.
288, 295, 121 S. Ct. 924, 148 L. Ed. 2d 807
(2001)), cert. denied, ––– U.S. ––––, 142 S. Ct.
69, 211 L. Ed. 2d 10 (2021). “At bottom, the
inquiry is always whether the defendant has
exercised power possessed by virtue of state law
and made possible only because the wrongdoer is
clothed with the authority of state law.” Id. at
748 (internal quotation marks omitted) (quoting
West, 487 U.S. at 49, 108 S. Ct. 2250).
Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1169 (9th Cir.
2022) (alteration in Garnier) (brackets in Garnier) (emphasis
added) (footnote omitted).
Here, Plaintiffs allege Katherine “called 911 . . . to
report that [her] personal mailbox . . . had been taken.”
[Third Amended Complaint at ¶ 88.]
5

They also allege Katherine

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“reported to [the Honolulu Police Department (‘HPD’)] . . . that
she could identify . . . Puana from surveillance video as the
person taking her mailbox . . . .”

[Id. at ¶ 94.2]

These

allegations provide the extent that Katherine was involved in
the alleged scheme to frame Puana with the theft of the mailbox.
Plaintiffs do not allege Katherine used her powers and duties as
a deputy prosecuting attorney, see id. at ¶ 11, to implement the
scheme.3

Plaintiffs therefore fail to sufficiently allege

Katherine’s conduct “is fairly attributable to the government.”
Garnier, 41 F.4th at 1170 (brackets, quotation marks, and
citation omitted).
Accordingly, Plaintiffs’ claim in Count I against
Katherine is dismissed.

See Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))).

The

dismissal is with prejudice because this is Plaintiffs’ third

“[F]or the purposes of a motion to dismiss [courts] must
take all of the factual allegations in the complaint as
true . . . .” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted).
3 Although Plaintiffs cite instances when Katherine used her
position as a deputy prosecuting attorney that allegedly
affected Puana’s rights during a criminal prosecution, it was
not related to the mailbox theft. See Third Amended Complaint
at ¶¶ 60, 69.
2

6

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amendment and it is clear that “the pleading [cannot] possibly
be cured by the allegation of other facts.”

See Ebner v. Fresh,

Inc., 838 F.3d 958, 963 (9th Cir. 2016) (quotation marks and
citation omitted).
B.

Civil RICO Claim (Count II)
Plaintiffs’ allegations supporting their Civil RICO

Claim against Katherine are unclear.

It appears, however, that

their Civil RICO Claim stems from Katherine’s alleged
involvement in discrediting Puana and ultimately framing him for
the mailbox theft, and her alleged involvement in depriving her
grandmother – Florence M. Puana (“Florence”) – of her house and
property.

See Third Amended Complaint at ¶ 194.
1.

Relevant Law

“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.”

Bridge v. Phoenix Bond & Indem. Co.,

553 U.S. 639, 641 (2008) (alteration in Bridge) (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
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enterprise’s affairs through a pattern of
racketeering activity or collection of unlawful
debt.
“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 . . . .

8

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Eclectic Props. E., 751 F.3d at 997.

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In explaining predicate

acts, the United Supreme Court has held:
[P]redicates include any act “indictable” under
specified federal statutes, §§ 1961(1)(B)–(C),
(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).
2.

Scheme Related to Florence

Plaintiffs allege that, in January 2009, Katherine
prepared and executed fraudulent trust documents thereby
becoming trustee of a fictitious trust in order to purchase a
condominium under the trust’s name.
at ¶¶ 25–26.

See Third Amended Complaint

Katherine allegedly presented the fraudulent

documents to a title company to purchase the condominium with
part of the proceeds from a reverse mortgage she took out on
Florence’s house.

See id at ¶¶ 24, 29.

Katherine obtained the

reverse mortgage worth approximately $513,474 on October 6,
2009.

See id. at ¶ 32.

The deed for the newly purchased

condominium was recorded in Katherine’s name, as trustee of the
9

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trust, on October 14, 2009.

See id.

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Katherine did not pay off

the reverse mortgage, as she had assured Puana she would, and
Florence lost her house.

See id. at ¶¶ 24, 34.

Plaintiffs fail to sufficiently allege “that the
enterprise which [Katherine was] involved in or benefit[ed] from
the racketeering activity [was] one engaged in, or having an
effect on, interstate commerce.”

See Musick v. Burke, 913 F.2d

1390, 1398 (1990) (citations omitted).

Plaintiffs do not allege

how Katherine’s enterprise was engaged in, or had an effect on,
interstate commerce and, therefore, the portion of the Civil
RICO Claim against Katherine based on the scheme related to
Florence must be dismissed.

The dismissal is with prejudice

because amendment cannot cure the claim’s defect.
3.

Scheme to Discredit Puana

Plaintiffs allege that, after Puana was arrested for
unlawful entry into a dwelling (“UED”) on June 27, 2011,
Katherine unlawfully entered Puana’s residence and removed,
among other things, $15,000 in cash.

See id. at ¶¶ 54-56.

Between June 27, 2011 and September 6, 2011, Katherine allegedly
used her position as a Deputy Prosecuting
Attorney to have the Sheriff’s Division of the
Department of Public Safety transport . . . Puana
from jail to state court, on dates when he did
not have a scheduled court hearing so that
Katherine . . . could meet with him and convince
him to enter a residential drug treatment
program. This was done covertly and without the

10

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knowledge of his defense attorney on the UED
charge.
[Id. at ¶ 60.]

In November 2013, Katherine allegedly directed

personnel at the prosecutor’s office to oppose Puana’s motion to
dismiss his deferred acceptance of no contest plea and to
persuade the court to convert his deferred acceptance of no
contest plea into a felony conviction in the UED case.
at ¶ 69.

See id.

Plaintiffs further allege that Katherine testified

falsely in depositions and at trial in Puana’s state civil case
against Katherine.

See id. at ¶¶ 71, 75, 78–79.

On

February 12, 2015, a jury returned a verdict in favor of
Katherine and she was awarded a total of $658,787.00 in damages
on her counterclaim against Puana.

See id. at ¶ 80.

In June 2013, Katherine called 911 and reported that
her personal mailbox was stolen.
the person who stole the mailbox.

She also identified Puana as
See id. at ¶¶ 88, 94.

Puana

was eventually arrested and charged for destroying a letter box
or mail, based in part on Katherine’s false statements.

See id.

at ¶ 104.
Even accepting Plaintiffs’ allegations as true, they
do not plausibly allege how Katherine’s enterprise was engaged
in, or had an effect on, interstate commerce.
F.2d at 1398.

See Musick, 913

It appears that Katherine’s scheme to discredit

Puana was entirely personal.

Although Katherine allegedly used

11

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her professional influence to effectuate this scheme, she did
not work in a position that affected interstate commerce.
Accordingly, the portion of Plaintiffs’ Civil RICO Claim against
Katherine based on the scheme to discredit Puana is dismissed.
The dismissal is with prejudice because the claim cannot be
saved by amendment.
C.

IIED Claim (Count III)
Plaintiffs do not allege which specific acts caused

Puana emotional distress.

It appears Plaintiffs group the

defendants’ conduct together in alleging their IIED claim.
e.g., Third Amended Complaint at ¶ 183 (“As a direct and
proximate result of the foregoing Plaintiffs have suffered
enormous emotional distress . . . .”).
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).
12

See,

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Young v. Allstate Ins. Co., 119 Hawai`i 403, 429, 198 P.3d 666,
692 (2008) (footnote omitted).

Moreover, Plaintiffs’ IIED claim

against Katherine 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 (citation omitted)).

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).
1.

2009 Reverse Mortgage

Plaintiffs do not delineate their IIED claim based on
the 2009 reverse mortgage as to Puana and Florence.

Plaintiffs,

however, allege the fraudulent trust documents that Katherine
gave to the title company to purchase the condominium contained
Puana’s signature although he did not sign the documents.
Third Amended Complaint at ¶ 30.

The Court, therefore,

addresses this claim as to both Puana and Florence.4

4

See

To the

Haw. Rev. Stat. § 663-7 states:
A cause of action arising out of a wrongful
act, neglect, or default, except a cause of
(. . . continued)
13

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extent that Plaintiffs allege an IIED claim against Katherine
for her conduct related to the reverse mortgage, it is unclear
when Florence or Puana became aware of the injury associated
with the reverse mortgage.

Plaintiffs allege that, on

September 15, 2012, Florence sent a letter to Katherine asking
about the proceeds of the reverse mortgage and whether the
reverse mortgage was being repaid, and Katherine replied on the
same day that she never borrowed money from Florence and she
would seek legal retribution against anyone making such
accusations against her.
68.

See Third Amended Complaint at ¶¶ 67–

Such events suggest Florence had reason to know that there

was a problem with the funds associated with the reverse
mortgage.

But, the fact that Katherine denied borrowing the

money is not conclusive that Florence had reason to know that
Katherine misappropriated the money from the reverse mortgage.
In any event, in March 2013, Florence and Puana sued
Katherine in a civil action claiming, among other things, fraud,
breach of fiduciary duty, and misappropriation of the reverse

action for defamation or malicious prosecution,
shall not be extinguished by reason of the death
of the injured person. The cause of action shall
survive in favor of the legal representative of
the person and any damages recovered shall form
part of the estate of the deceased.
Thus, Hartsell may bring an IIED claim on behalf of
Florence despite her being deceased because he is the trustee of
Florence’s estate.
14

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mortgage funds.

See id. at ¶ 71.

PageID.6048

Thus, Florence and Puana knew

of the injury associated with the reverse mortgage on the date
Plaintiffs commenced the civil action in March 2013, at the
latest.

The statute of limitations for the IIED claim related

to the reverse mortgage, therefore, ran sometime in March 2015.
Because Plaintiffs did not file the original complaint until
December 2016, the IIED claim related to the reverse mortgage is
time-barred.

Plaintiffs’ IIED claim against Katherine related

to the reverse mortgage is therefore dismissed.

The dismissal

is with prejudice because the claim’s defect cannot be saved by
amendment.
2.

2011 UED Charge

To the extent that Plaintiffs allege an IIED claim
related to Puana’s 2011 UED charge, it is time-barred.
Katherine allegedly unlawfully entered Puana’s residence in June
2011 and removed $15,000 in cash.

See id. at ¶ 56.

Moreover,

from June 2011 to September 2011, Katherine allegedly used her
position as a deputy prosecuting attorney to meet with Puana
without his defense attorney to convince Puana to enter a
residential drug treatment program in order to resolve his UED
charge favorably.

See id. at ¶¶ 60–61.

It appears that Puana

knew of Katherine’s conduct related to the UED charge by
September 6, 2011, at the latest.

See, e.g., id. at ¶ 60.

The

statute of limitations for any IIED claim based on Katherine’s
15

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conduct related to the UED charge ran on September 6, 2013.
Because Plaintiffs did not file their original complaint until
December 2016, any IIED claim related to the UED charge is timebarred.

As such, Plaintiffs’ IIED claim related to the 2011 UED

charge is dismissed.

The dismissal is with prejudice because

amendment cannot cure the claim’s defect.
3.

2013 Civil Case

To the extent that Plaintiffs allege an IIED claim
related to Katherine’s conduct in the 2013 civil case,
Plaintiffs sufficiently plead an IIED claim.

Plaintiffs allege

Katherine lied under oath numerous times, which ultimately led
to Katherine prevailing in her counterclaim.
80.

See id. at ¶¶ 72-

This claim is not time-barred because Plaintiffs did not

find out about the false testimony until 2019.

See id. at ¶ 81.

To the extent that Plaintiffs allege an IIED claim related to
Katherine’s conduct in the 2013 civil case, Plaintiffs
sufficiently plead an IIED claim.

Accordingly, Katherine’s

Motion is denied as to the portion of Plaintiffs’ IIED claim
against Katherine based on her conduct related to the 2013 civil
case.
4.

2013 Mailbox Theft

Plaintiffs allege Katherine called 911 on June 22,
2013 to report the theft of her mailbox.

Katherine also

allegedly told police that Puana was the person who stole her
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mailbox.

PageID.6050

Plaintiffs assert Katherine made those statements

falsely to implicate Puana in a federal crime in an attempt to
discredit him in the ongoing civil case.

See id. at ¶¶ 88–90.

Plaintiffs sufficiently allege an IIED claim against Katherine
for her conduct related to the 2013 mailbox theft.
Plaintiffs do not allege when Puana became aware of
Katherine’s conduct related to the 2013 mailbox theft.

During

the criminal case associated with the mailbox theft, Puana’s
public defender issued subpoenas to HPD in September 2014 and
October 2014 requesting, among other things, reports and records
concerning the 2013 mailbox theft.

See id. at ¶¶ 107-08.

Plaintiffs do not allege if or when they received the requested
documents, but a motion for a protective order was filed on
October 24, 2014 seeking to quash the subpoenas.
¶ 109.

See id. at

The federal theft charge against Puana was dismissed

with prejudice via written order on December 16, 2014.
at ¶ 114.

See id.

Because it is unclear when Puana became aware of

Katherine’s involvement in the 2013 mailbox theft, the Court
declines to rule on the issue of whether the portion of
Plaintiffs’ IIED claim against Katherine stemming from those
events are time-barred.
D.

Defamation Claim (Count IV)
Plaintiffs allege “Katherine . . . made false

statements and/or reports about . . . Puana, knowing of the
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falsity of those statements, and intending thereby to defame and
cause damages . . . .”

[Id. at ¶ 199.]

It appears Plaintiffs

assert a defamation claim against Katherine for the report she
made with HPD identifying Puana as the person who committed the
mailbox theft.

See id. at ¶ 94.5

To plead a defamation claim under Hawai`i law, a
plaintiff must allege:
(a) a false and defamatory statement concerning
another;
(b) an unprivileged publication to a third
party;
(c) fault amounting at least to negligence on
the part of the publisher [actual malice where
the plaintiff is a public figure]; and
(d) either actionability of the statement
irrespective of special harm or the existence of
special harm caused by the publication.
Nakamoto v. Kawauchi, 142 Hawai`i 259, 270, 418 P.3d 600, 611
(2018) (alteration in Nakamoto) (citation omitted).
Here, Plaintiffs plead a plausible defamation claim
against Katherine because they allege Katherine falsely reported
to HPD that Puana was the person who stole the mailbox.

See

Tuomela v. Waldorf-Astoria Grand Wailea Hotel, Civ. No. 20-00117
JMS-RT, 2021 WL 233695, at *4 (D. Hawai`i Jan. 22, 2021)
(“[U]nder Hawaii law, statements that ‘impute to a person the

Although the Court refers to Plaintiffs as making this
claim, it is clear that only Puana can assert this claim.
5

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PageID.6052

commission of a crime’ are defamatory per se.” (quoting Isaac v.
Daniels, 2018 WL 1903606, at *6 (D. Haw. Mar. 20, 2018))).
Katherine’s Motion is therefore denied as to Plaintiffs’
defamation claim against her.
CONCLUSION
On the basis of the foregoing, the Court GRANTS IN
PART AND DENIES IN PART Katherine’s Motion to Dismiss Third
Amended Complaint for Damages By Joinder, filed September 1,
2022.

The Motion is GRANTED to the extent that: Plaintiffs’

claim against Katherine in Count I is DISMISSED; Plaintiffs’
claim against Kathrine in Count II is DISMISSED; and the portion
of Count III against Katherine based on her conduct relating to
the 2009 reverse mortgage and the 2011 UED charge is DISMISSED.
The dismissals are WITH PREJUDICE.
The Motion is DENIED to the extent that: the portion
of Count III against Katherine based on her conduct related to
the 2013 civil case and the 2013 mailbox theft survives
dismissal; and Count IV survives dismissal.
IT IS SO ORDERED.

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PageID.6053

DATED AT HONOLULU, HAWAII, January 31, 2023.

GERARD K. PUANA, ET AL. VS. KATHERINE P. KEALOHA, ET AL; CV 1600659 LEK-WRP; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT KATHERINE P. KEALOHA’S MOTION TO DISMISS THIRD AMENDED
COMPLAINT FOR DAMAGES BY JOINDER

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