Wond Family Kapalama, LLC v. Continental Tire The Americas, LLC

Filing 128

ORDER GRANTING IN PART AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: COUNT IV OF COMPLAINT AND DENYING ALL OTHER MOTIONS FOR SUMMARY JUDGMENT re 60 MOTION for Summary Judgment as to Count IV (Bre ach of Contract) of Plaintiff's Complaint, re 62 MOTION for Partial Summary Judgment Re: Counts IV of Complaint, re 56 MOTION for Summary Judgment as to Counts I, II, and III (CERCLA/HERL), re 58 M OTION for Summary Judgment as to Count V (Indemnity) of Plaintiff's Complaint, re 66 MOTION for Partial Summary Judgment Re: COUNTS I, II AND III OF COMPLAINT. Signed by JUDGE LESLIE E. KOBAYASHI on 05/01/ 2018. Wond Family's Motion for Partial Summary Judgment Re: Count IV of Complaint, filed October 6, 2017, is HEREBY GRANTED IN PART AND DENIED IN PART. The following motions are HEREBY DENIED, in their entirety: Cont inental Tire's Motion for Summary Judgment as to Counts I, II, and III of Plaintiff's Complaint; Continental Tire's Motion for Summary Judgment as to Count IV of Plaintiff's Complaint; and Continental Tires Motion for Summary Judg ment as to Count V of Plaintiff's Complaint; all filed October 6, 2017; and Wond Family's Motion for Partial Summary Judgment Re: Counts I, II, and III of Complaint; filed October 11, 2017.Specifically, Wond Family's Count IV Motio n is GRANTED insofar as this Court rules that: 1) holdover rent is an available remedy for commercial lessors under Hawai'i common law; and 2) through the Assignment, Continental Tire assumed all of the Lessee's obligations in the Sublease. Wond Family's Count IV Motion is DENIED in all other respects. (eps, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WOND FAMILY KAPALAMA, LLC a
Hawai`i limited liability
company,

)
)
)
)
Plaintiff,
)
)
)
vs.
)
)
CONTINENTAL TIRE THE
AMERICAS, LLC, an Ohio
)
)
limited liability company,
)
)
Defendant.
_____________________________ )
)
CONTINENTAL TIRE THE
)
AMERICAS, LLC, an Ohio
)
limited liability company,
)
)
Third-Party
)
Plaintiff,
)
)
vs.
)
)
MELIM LTD.,
)
)
Third-Party
)
Defendant.
_____________________________ )

CIVIL NO. 16-00676 LEK-KJM

ORDER GRANTING IN PART AND DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT RE: COUNT IV OF COMPLAINT
AND DENYING ALL OTHER MOTIONS FOR SUMMARY JUDGMENT
Before the Court are: Defendant/Counterclaimant/ThirdParty Plaintiff Continental Tire the Americas, LLC’s
(“Continental Tire”) Motion for Summary Judgment as to Counts I,
II, and III of Plaintiff’s Complaint (“Continental Tire’s
Counts I-III Motion”); [filed 10/6/17 (dkt. no. 56);] Continental
Tire’s Motion for Summary Judgment as to Count IV of Plaintiff’s

Complaint (“Continental’s Count IV Motion”); [filed 10/6/17 (dkt.
no. 60);] Continental Tire’s Motion for Summary Judgment as to
Count V of Plaintiff’s Complaint (“Continental’s Count V
Motion”); [filed 10/6/17 (dkt. no. 58);] Plaintiff/Counterclaim
Defendant Wond Family Kapalama, LLC’s (“Wond Family”) Motion for
Partial Summary Judgment Re: Counts I, II, and III of Complaint
(“Wond Family’s Counts I-III Motion”); [filed 10/11/17 (dkt. no.
66);] and Wond Family’s Motion for Partial Summary Judgment Re:
Count IV of Complaint (“Wond Family’s Count IV Motion”), [filed
10/6/17 (dkt. no. 62)].
The following memoranda in opposition were filed: Wond
Family’s memorandum in opposition to Continental’s Count IV
Motion (“Wond Family’s Count IV Opposition”); [filed 11/27/17
(dkt. no. 76);] Continental Tire’s memorandum in opposition to
Wond Family’s Count IV Motion (“Continental’s Count IV
Opposition”); [filed 11/27/17 (dkt. no. 78);] Wond Family’s
memorandum in opposition to Continental’s Count V Motion (“Wond
Family’s Count V Opposition”); [filed 12/6/17 (dkt. no. 80)];
Wond Family’s memorandum in opposition to Continental’s
Counts I-III Motion (“Wond Family’s Counts I-III Opposition”);
[filed 12/18/17 (dkt. no. 83);] and Continental Tire’s memorandum
in opposition to Wond Family’s Counts I-III Motion
(“Continental’s Counts I-III Opposition”), [filed 12/18/17 (dkt.
no. 85)].

On December 13, 2017, Continental Tire filed a reply

2

in support of Continental’s Count V Motion (“Continental’s
Count V Reply”).

[Dkt. no. 82.]

Continental’s Count IV Motion and Wond Family’s
Count IV Motion came on for hearing on December 18, 207, and
Continental’s Count V Motion came on for hearing on December 27,
2017.

On January 7, 2018, this Court issued an entering order

(“1/7/18 EO”) finding Continental’s Counts I-III Motion and Wond
Family’s Counts I-III Motion suitable for disposition without a
hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice
of the United States District Court for the District of Hawai`i
(“Local Rules”).

[Dkt. no. 97.]

The 1/7/18 EO also informed the

parties that Continental’s Counts I-III Motion and Wond Family’s
Counts I-III Motion were denied.

On January 9, 2018, this Court

issued an entering order informing the parties of its rulings on
Continental’s Count IV Motion, Wond Family’s Count V Motion, and
Continental’s Count V Motion (“1/9/18 EO”).

[Dkt. no. 98.]

instant Order supersedes the 1/7/18 EO and the 1/9/18 EO.

The

For

the reasons set forth below, Wond Family’s Count IV Motion is
granted in part and denied in part, and Continental’s
Counts I-III Motion, Wond Family’s Counts I-III Motion,
Continental’s Count IV Motion, and Continental’s Count V Motion
are denied.

3

BACKGROUND
Wond Family filed its Complaint on December 28, 2016.1
It brings this action pursuant to the Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C.
§ 9607, et seq., and the Hawai`i Environmental Response Law
(“HERL”), Haw. Rev. Stat. Chapter 128D.2

[Complaint at ¶ 1.]

Wond Family asserts federal question jurisdiction over the CERCLA
claim and supplemental jurisdiction over the state law claims.
[Id. at ¶¶ 6-7 (citing 28 U.S.C. §§ 1331, 1367; 42 U.S.C.
§ 9613(b)).]

The Complaint alleges the following claims: a

CERCLA cost recovery claim pursuant to 42 U.S.C. § 9607(a)
(“Count I”); a HERL contribution/indemnity claim pursuant to Haw.
Rev. Stat. § 128D-18(d) (“Count II”); a claim for a declaratory
judgment regarding liability for future response costs (“Count
III”); breach of contract (“Count IV”); and a CERCLA and HERL
indemnity claim (“Count V”).

1

Continental Tire filed its Counterclaim Against Plaintiff
Wond Family Kapalama, LLC (“Counterclaim”) on January 30, 2017,
and its Third-Party Complaint Against Melim, Ltd. (“Third-Party
Complaint”) on August 21, 2017. [Dkt. nos. 10-1, 42.] Neither
the Counterclaim nor the Third-Party Complaint are at issue in
the motions addressed in this Order.
2

Wond Family describes HERL as the Hawai`i counterpart to
CERCLA. HERL is administered and enforced by the Hazard
Evaluation and Emergency Response Office (“HEER”) of the State of
Hawai`i Department of Health (“HDOH”). [Complaint at ¶ 12.]
4

I.

The Parties
Wond Family is the fee owner of the real property at

issue in this case – Tax Map Key (“TMK”) No. (1)1-5-021:024 (“the
Property”).3

[Concise Statement of Facts in Supp. of

Continental’s Count IV Motion (“Continental’s Count IV CSOF”),
filed 10/6/17 (dkt. no. 61), at ¶ 1; Separate & Concise CounterStatement of Material Facts in Opp. to Continental’s Count IV
Motion (“Wond Family’s Responsive Count IV CSOF”), filed 11/27/17
(dkt. no. 77), at § I (admitting Continental’s ¶ 1).]

It was

previously owned by individual Wond family members, but they
conveyed their interests to the Wond Family Kapalama Trust (“Wond
Trust”) in the 1960s.

[Wond Count IV Decl.,4 Exhs. 1-4

(certified copies of Indentures).]

In 2011, the Wond Trust

conveyed its interest in the Property to Plaintiff.

[Wond

Count IV Decl. at ¶ 8, Exh. 5 (Limited Warranty Deed).]

3

Wond Family describes the Property as Lots 1, 2, and 3 of
the Monmouth Industrial Subdivision in the Kapalama Section.
[Complaint at ¶ 17.] The address of the Property is 1385 Colburn
Street, Honolulu, Hawai`i 96819. Waiakamilo Road is on the north
of the Property, and Colburn Street is on the east. On the west
side of the Property is a parcel identified as TMK
(1) 1-5-021:004, which has the address 505 Waiakamilo Road,
Honolulu, Hawai`i 96818 (“Adjoining Property”). [Separate &
Concise Statement of Material Facts in Supp. of Wond Family’s
Count IV Motion (“Wond Family’s Count IV CSOF”), filed 10/6/17
(dkt. no. 63), Decl. of Michael M. Wond, Jr. (“Wond Count IV
Decl.”) at ¶¶ 2-3.]
4

Michael M. Wond, Jr. (“Wond”) is a co-manager of Wond
Family. [Wond Count IV Decl. at ¶ 1.]
5

Monmouth, Inc. (“Monmouth”) was the lessee in a lease
on the Property from November 1, 1957 to October 31, 2012 (“the
Lease”).

Clarke Investment Corporation (“Clarke Investment”)

acquired Monmouth’s interest in the Lease by mesne assignment.
[Wond Family’s Count IV CSOF at ¶¶ 2-3; Continental’s Opp. to
Wond Family’s Count IV CSOF (“Continental’s Responsive Count IV
CSOF”), filed 11/27/17 (dkt. no. 79), at § I (admitting Wond
Family’s ¶¶ 2-3).]
Clarke Investment, as lessor, and Melim Service &
Supply Co., Ltd., as lessee, entered into an Indenture of
Sublease of the Property (“the Sublease”) on February 12, 1959.
[Continental’s Count IV CSOF, Decl. of Lisa A. Bail (“Bail
Count IV Decl.”), Exh. A.]

Melim Tire & Rubber Co., Ltd.

executed an Assignment of Leases (“Assignment”) on September 24,
1968,5 assigning the Sublease to The General Tire and Rubber
Company (“General Tire”).6

The Assignment was filed in the Land

5

It is unclear how Melim Service & Supply Co., Ltd. became
Melim Tire & Rubber Co., Ltd. It also operated under the name
“Melim General Tire Service.” For purposes of the motions
addressed in this Order, the parties do not dispute that the
entities are related, and the Court will refer to them
collectively as “Melim.”
6

Wond Family describes General Tire as “the corporate
predecessor of Continental Tire,” and alleges Continental Tire
“is the successor sublessee of the Property under the Sublease.”
[Complaint at ¶ 19.] Continental Tire, however, denied these
allegations because it was “without knowledge or information
sufficient to form a belief as to the truth of the allegations of
said paragraph.” [Continental Tire’s Answer to Complaint Filed
(continued...)
6

Court on March 17, 1969.

[Bail Count IV Decl., Exh. B.]

The

parties refer to the filing date as the date of the Assignment.
[Continental’s Count IV CSOF at ¶ 4; Wond Family’s Responsive
Count IV CSOF at § I (admitting Continental’s ¶ 4).]
In the Assignment, “General Tire and its successors and
assigns covenanted that they would ‘observe and perform all of
the covenants and agreements in said documents contained and on
the part of the Lessee to be paid, observed and
performed . . . .’”

[Wond Family’s Count IV CSOF at ¶ 7;

Continental’s Responsive Count IV CSOF at § I (admitting Wond
Family’s ¶ 7).]

In 1984, General Tire – which at the was named

GenCorp, Inc. – assigned its interest in the Sublease to General
Tire, Inc.7

Kapalama Associates LLC (“Kapalama Associates”)8

purchased Clarke Investment’s interest in the Lease on
November 8, 2000 in bankruptcy proceedings, and Kapalama

6

(...continued)
on December 28, 2016 (“Answer”), filed 1/30/17 (dkt. no. 10), at
¶ 13.]
7

General Tire, Inc. was sold to Continental AG in 1987, but
it did not change its name until 1994, when it became Continental
General Tire, Inc. It later went through two name changes,
eventually becoming Continental Tire the Americas, LLC. [Wond
Family’s Count IV CSOF, Decl. of Elijah Yip (“Yip Count IV
Decl.”), Exh. 53 (excerpts of Continental’s Objections &
Responses to Pltf.’s First Request for Answers to Interrogs. to
Def.) at 6-7.]
8

Wond and Harriet Wond Little formed Kapalama Associates
when Clarke filed bankruptcy in 2000, and Wond was a co-manager
of Kapalama Associates. [Wond Decl. at ¶¶ 16, 18, Exhs. 12
(Articles of Organization).]
7

Associates transferred all of its assets to Wond Family in 2012.
The Lease and the Sublease expired on October 31, 2012.

[Wond

Family’s Count IV CSOF at ¶¶ 8-11; Continental Tire’s Responsive
Count IV CSOF at § I (admitting Wond Family’s ¶¶ 8-11).]
Continental Tire vacated the Property when the Sublease expired.
[Continental’s Count IV CSOF at ¶ 6; Wond Family’s Responsive
Count IV CSOF at ¶ 6 (only contesting other portions of
Continental’s ¶ 6).]

Continental Tire does not currently own or

operate a facility on the Property.

[Continental’s Count IV CSOF

at ¶ 12; Wond Family’s Responsive Count IV CSOF at § I (admitting
Continental’s ¶ 12).]

During the term of the Lease and Sublease,

Wond Family, the individual Wond family members, the Wond Family
Trust, and Kapalama Associates did not have access to the
Property.

[Pltf.’s Separate & Concise Statement of Material

Facts in Supp. of Wond Family’s Counts I-III (“Wond Family’s
Counts I-III CSOF”), filed 10/6/17 (dkt. no. 65), Decl. of
Michael M. Wond, Jr. (“Wond Counts I-III Decl.”) at ¶ 26.]
II.

Use of the Property
Wond Family states that, on or before 1955, Melim was

operating a tire recapping and automotive service business on the
Adjoining Property.

[Mem. in Supp. of Wond Family’s Count IV

Motion at 5 (citing Wond Family’s Count IV CSOF, Decl. of Dan
Ford (“Ford Count IV Decl.”), Exh. 24 (excerpt of Expert Report
dated 9/11/17 by Ford Canty & Associates, Inc. (“Ford Report”)),

8

App’x B-1).9]

According to Wond Family, sometime after Melim

entered into the Sublease, it began using both the Property and
the Adjoining Property to operate its business.
Decl. at ¶ 24.]

[Wond Count IV

However, Continental Tire presents evidence that

the Property was used primarily as a parking lot for the tire
business – which was operated on the Adjoining Property – until
approximately 1992 or early 1993.

[Concise Statement of Facts in

Supp. of Continental’s Counts I-III Motion (“Continental’s Counts
I-III CSOF”), filed 10/6/17 (dkt. no. 57), Decl. of Lindsay
Friedman (“Friedman Decl.”) at ¶ 3.10]
In 1968, Melim sold its business to General Tire, and
the business was renamed “Melim General Tire Service.”

[Ford

Report, App’x D (various newspaper advertisements and articles)
at 1-4.]

From 1968 to 1993, General Tire and its successors used

both properties to operate a tire sales and recapping/automotive
services business.11

Either Continental Tire or its predecessors

9

Dan Ford is a Registered Professional Geologist. He is
the co-founder and Principal Geologist of Ford Canty &
Associates, Inc. [Ford Count IV Decl. at ¶ 1.] Appendix B-1 is
a 1955 Sanborn Fire Insurance Map; it does not describe the
nature of Melim’s business in 1955. However, the parties do not
dispute that Melim was operating a tire recapping and automotive
service business.
10

Lindsay Friedman is Continental Tire’s Senior Manager for
corporate real estate. [Friedman Decl. at ¶ 1.]
11

“Tire recapping is the process by which the tread on used
tires is removed and replaced with fresh rubber, and it can be
performed on both personal and large commercial vehicle tires.”
(continued...)
9

had possession and control of the Property from September 24,
1968 until at least October 31, 2012.

[Wond Count IV Decl. at

¶¶ 25, 27.]
Melim used a building, which it constructed, on the
Adjoining Property to operate its business (“Service
Station A”).12

Service Station A “was expanded such that part of

its footprint was on the Property,” but it was demolished in the
1990s.

[Id. at ¶ 26.]

A 1968 Honolulu Star-Bulletin article

stated Melim’s “Waiakamilo Road plant . . . has 35,000 square
feet under roof.”

[Ford Report, App’x D at 1-2.]

Service

Station A had seven underground hydraulic lifts, which crossed
onto the Property.

When the lifts were removed in 1995,

hydrocarbon impacted soil was found underneath, prompting a
removal action.

[Wond Family’s Counts I-III CSOF, Decl. of

Elijah Yip (“Yip Counts I-III Decl.”), Exh. 69 (Site Assessment
and PCS Removal Action Former General Tire Location, dated
6/26/02, revised 1/30/04, by Hawai`i International Environmental
Services, Inc. (“HIES Report”)) at 1-2 & Figure 6).]

The

hydraulic lifts “were likely used for various automotive
services, including tire changing, and related vehicle repair and
maintenance activities.”

[Ford Report at 5.]

11

(...continued)
[Ford Report at 4.]
12

Service Station A is shown on the maps attached to the
Ford Report as Appendices B-2 and B-5 through B-8.
10

In or around 1983, Continental Tire built an automotive
services building on the Property (“Service Station B”).
demolished in 2012.

[Wond Count IV Decl. at ¶ 29.]

It was

General

Tire’s Building Permit Application, approved on January 24, 1983,
describes the work as a “NEW REPAIR AREA.”
Exh. 52 (“1/24/83 Building Permit”).]

[Yip Count IV Decl.,

Based on building permits

and the drawings attached thereto, Service Station B had three
service bays and three hydraulic lifts.

[Yip Counts I-III Decl.,

Exh. 72 at 1-2, Exh. 73 at 1; Ford Report at 6.]

There was also

an oil/water separator (“OWS”) system adjacent to Service
Station B.

[HIES Report at CTA-000246; Ford Report, Figure 4.]

The OWS and drain system serviced the facilities on both
properties, collectively.

[Ford Report at 6.]

The OWS drains

and pipes delivered wastewater into a concrete box adjacent to
Service Station B.

[Id.; 1/24/83 Building Permit.]

At the

southern end of Service Station A, on the border between the
Property and the Adjoining Property, there was a 250-gallon
boiler fuel underground storage tank (“UST”).
& Figure 4.]

[Ford Report at 5

It was installed in 1966, and “USTs installed

during this time period did not have stringent designs or leak
detection systems, and releases were common.”

[Id. at 5.]

As part of this system, floor drains were
installed lengthwise along the edge of the roof
overhang of Service Station A on [the Adjoining
Property], and the bay opening of Service
Station B on the [Property]. The purpose of these
floor drains is to collect oily wastewater from
11

daily operations. Both floor drains were outdoors
(not contained within the buildings) and exposed
to open air. The floor drains emptied into 3-inch
cast iron piping, which extended parallel to the
floor drains and delivered wastewater to the OWS
system located in a concrete box adjacent to
Service Station B. . . . There was a 100-gallon
waste oil UST located adjacent to the OWS, which
collected the oil for eventual disposal. . . .
. . . .
Construction drawings also indicate that following
closure of the boiler UST in 1988, it was replaced
by a boiler fuel above-ground storage tank (AST).
The AST was located in the southern corner of the
site, as shown approximately on Figure 4. In
photographs of the site, an additional floor drain
was noted adjacent to the boiler AST, which
extended north towards the service stations. It
is suspected to have merged with the OWS system.
[Id. at 6.]
As of October 1, 1968, Melim was a General Tire general
distributor, and its tire recapping work included “giant aircraft
and plantation-type tires.”

[Id., App’x D at 1-2.]

According to

a 1970 advertisement, after acquiring Melim, Continental Tire’s
predecessor continued to replace tires for passenger vehicles, as
well as farm and industrial vehicles, and to perform tire
recapping.

[Id. at 7-8.]

During the years of its operation, the

business’s services also included, inter alia: oil and oil filter
changes; transmission services; battery sale and servicing;
radiator flushing and filling; selling antifreeze coolant; and
various brake services.

[Ford Report, App’x D (various

advertisements).]

12

Continental General Tire, Inc. and Oahu Construction
Company, Ltd. (“Oahu Construction”) entered into a License
Agreement dated January 31, 1997, allowing Oahu Construction to
use the Property “from February 1, 1997 through May 31, 1997 for
the staging of materials and equipment during construction and
installation of water lines along Dillingham Boulevard.”
Counts I-III Decl., Exh. 66 (License Agreement) at 1.]

[Yip

The Ford

Report states:
Photographs of the site during this time period
show large stockpiles of soil on the site. The
source of the stockpiles is unknown. Vegetation
was observed growing from the soil, indicating
that piles had been there for some time. Because
the source of the fill material is unknown test
results are not available, there is potential that
the fill material could have contributed to the
contamination at the site.
[Ford Report at 7 & App’x E at 39-41 of 63 (dkt. no. 65-49).13]
The June 26, 2002 HIES Report, revised January 30,
2004, states: “The majority of the Site is currently being used
as an unpaved gravel parking lot.

A very small portion of the

parcel is used as a staging area by a construction company, Okada
Trucking.

Okada Trucking occupies all of the adjacent parcel

north of the Site.”

[HIES Report at pg. 1-2.]

13

The photographs are labeled “1990s (Following Demolition
of Service Station A).”
13

III. Contamination Issues
Wond Family represents that, in 2011, it began to
evaluate the environmental condition of the Property in
anticipation of the expiration of the Lease and Sublease.
in Supp. of Wond Family’s Count IV Motion at 9.]

[Mem.

Wond

commissioned a Phase I environmental site assessment (“ESA”)
report by Bureau Veritas North America, Inc. (“Bureau Veritas”)
regarding the Kapalama properties owned by Kapalama Associates,
including the Property (“Phase I Report”).

[Ford Count IV Decl.,

Exh. 25 (Phase I Report, dated August 12, 2011).]

Wond Family

argues the Phase I Report: “identified several recognized
environmental conditions including lack of documentation
regarding remedial work after a petroleum release was discovered
on the Property, and the likelihood of contamination from prior
automotive repair and services conducted on the premises”; and it
recommended a Phase II ESA for the Property.

[Mem. in Supp. of

Wond Family’s Counts I-III Motions at 13-14 (citing Phase I
Report at 37-38).]

After Continental Tire refused Wond’s request

for access, Wond Family had its attorney – Philip Leas, Esq. –
contact Continental Tire’s in-house counsel – Kevin Collins, Esq.
– in a February 23, 2012 letter.

Mr. Leas stated that: page 7,

section 13 of the Sublease required Continental Tire to permit
Kapalama Associates and its agents to enter the Property to
examine its condition; Kapalama Associates invoked that clause to

14

perform a Phase II investigation; Kapalama Associates intended to
conduct the investigation at its own expense to see if any
remediation was necessary.

[Wond Family’s Count IV CSOF, Decl.

of Philip J. Leas (“Leas Count IV Decl.”), Exh. 26 (2/23/12
letter) at 1.]

Mr. Leas emphasized that Kapalama Associates and

Wond Family expected Continental Tire would return the Property
in good condition at the end of the Sublease.

This included the

removal of a derelict structure on the Property, i.e., “[t]he
ultimate condition of property should be a paved lot free of
debris.”

[Id. at 2.]

Wond Family asserts the derelict structure

Mr. Leas was referring to was Service Station B.

[Mem. in Supp.

of Wond Family’s Count IV Motion at 10.]
After various disputes with Kapalama Associates,
Continental Tire had the structure removed, but, according to
Kapalama Associates, “it broke off from an underground pipe that
seemed to be directed toward a concrete patch in the pavement
that may be the site of an underground tank.”

[Leas Count IV

Decl., Exh. 30 (email chain between Leas and Collins from 5/22/12
to 7/20/12) at P000030.]
an environmental concern.

Mr. Leas stated the remaining pipe was
[Id.]

Further, the removal resulted

in “a large depression about two feet deep below the natural
grade of the property,” and Kapalama Associates required that the
Property be restored to grade before the end of the Sublease.
[Leas Count IV Decl., Exh. 32 (email chain between Leas and

15

Collins from 5/22/12 to 10/10/12) at P000095.]

Mr. Collins

asserted the Property was in sufficiently restored condition, and
any depression was imperceptible.

[Id.]

On October 15, 2012, Mr. Leas sent Mr. Collins an email
with photographs showing the hole in the ground, and he argued
that the hole was “much more than imperceptible.”
Decl., Exh. 33 at P000079.]

[Leas Count IV

On October 30, 2012, Mr. Collins

advised him the hole had been filled in.

[Id., Exh. 34 (email

chain from 10/30/12 to 12/6/12) at P000091.]
From September 14 to 18, 2012 and on November 8, 2012,
ENPRO Environmental (“ENPRO”) conducted Phase II sampling and
analysis on the Property on Continental Tire’s behalf.14

ENPRO’s

soil and groundwater sampling detected benzo(a)pyrene and lead
levels in excess of HDOH’s Tier 1 Environmental Action Levels for
commercial/industrial use (“Tier 1 C/I EALs”).

[Wond Family’s

Count IV CSOF at ¶¶ 29, 31; Continental Tire’s Responsive
Count IV CSOF at § I (admitting Wond Family’s ¶¶ 29, 31).]
“ENPRO recommended excavating the near surface soil in the
immediate vicinity of the locations where sampling detected
contamination above Tier 1 C/I EALs.”

[Wond Family’s Count IV

CSOF at ¶ 31; Continental Tire’s Responsive Count IV CSOF at

14

The report’s description of the sampling areas does not
explain why those areas were chosen for sampling. [Leas Count IV
Decl., Exh. 47 at pgs. 4 of 38 to 38 of 38 (ENPRO Soil &
Groundwater Sampling & Analysis, dated 12/11/12 (“Phase II
Report”)) at 1, 10-11.]
16

§ I.]

ENPRO’s Phase II Report states no contaminants beyond the

Tier 1 C/I EALs were found in the samples collected in November
2012.

[Phase II Report at 2.]

ENPRO opined that

the near surface soil contaminants previously
identified at concentrations greater than the DOH
Tier [C/I] 1 EALs were isolated to those original
locations at Borings 4, 5, and 6. Furthermore,
groundwater contaminants previously identified at
concentrations greater than the DOH Tier 1 [C/I]
EALs were due to suspended solids because their
presence was not confirmed when the sample was
filtered and analyzed for dissolved contaminants.
ENPRO recommends excavating the near surface
soil in the immediate vicinity of the sample
locations at Borings 4, 5, and 6 where
contaminants were detected at concentrations
greater than DOH Tier 1 [C/I] EALs. Excavated
contaminated soil should be disposed of at a
certified on-island landfill and may require
additional characterization, including toxicity
characteristic leaching procedure (TCLP) analysis
for lead, in order to meet the landfill acceptance
criteria.
[Id.]
Mr. Leas received ENPRO’s Phase II report on
December 22, 2012.

[Leas Count IV Decl., Exh. 47 at P000103-0

(email chain, with attachment, between Leas, Leas’s assistant,
and Collins from 12/19/12 to 12/22/12).]

Noting work for the

Phase II Report was done on the Property after the expiration of
the Sublease, Mr. Leas informed Mr. Collins that Kapalama
Associates intended to issue an invoice for carryover rent until
the Property was cleaned up and “in good repair, order and
condition,” as required by the Sublease.

17

[Id., Exh. 36 (letter

dated 1/3/13).]

In addition, Wond Family retained Bureau Veritas

to review ENPRO’s work.

Bureau Veritas prepared a letter, dated

February 20, 2013, to Wond, summarizing the Phase II Report and
identifying “a number of significant issues with ENPRO’s
investigation methodology, the quality of documentation,
questions regarding sample integrity, the quality of
documentation and their conclusions” (“2/20/13 Bureau Veritas
Review Letter”).

[Wond Family’s Counts I-III CSOF, Decl. of

John P. Rau (“Rau Counts I-III Decl.”), Exh. 28 at 2.15]

Two of

the fourteen issues identified in the 2/20/13 Bureau Veritas
Review Letter were: the lack of “rationale for the location of
boreholes and depths of sample location”; and improper comparison
to the HDOH Tier 1 C/I EALs.

[Id. at 3.]

Bureau Veritas

transmitted the 2/20/13 Bureau Veritas Review Letter to HEER.
[Rau Counts I-III Decl., Exh. 27 (letter dated 3/8/13).]
From February 13 to 21, 2013, ENPRO excavated “a
20-foot by 20-foot area impacted by benzo(a)pyrene and a 20-foot
by 40-foot area impacted by lead,” each to a depth of two feet
below ground surface (“bgs”).

[Leas Count IV Decl., Exh. 48

(excerpt of ENPRO Soil Removal & Disposal and Confirmation
Sampling & Analysis, dated 3/12/13 (“Phase III Report”)) at 1.16]

15

John Rau was formerly employed by Bureau Veritas as a
Senior Geologist. [Rau Count I-III Decl. at ¶ 1.]
16

Exhibit 48 also includes various emails between Mr. Leas
(continued...)
18

ENPRO subsequently performed field testing to analyze the
effectiveness of the remediation activities.

The testing of

samples collected from the remediation areas did not identify
Polynuclear Aromatic Hydrocarbons (“PAHs”) or Total Lead at
levels exceeding HDOH Tier 1 C/I EALs.

[Id.]

ENPRO’s excavation

uncovered “a concrete box, believed to be a former oil-water
separator, with metal piping, a concrete slab beneath the
oil-water separator, and surrounding pea gravel . . . in the
20-foot by 20-foot remediation area.”

[Id.]

ENPRO removed the

OWS, but “[t]he concrete slab and associated piping were left at
the project site for future removal and disposal at the request
of the client.”

[Id. at 12.]

Continental Tire took the position

that the Phase III Report showed no further action was necessary
as to the contaminants at the Property, but Kapalama Associates
asserted their expert’s analysis showed further testing was
necessary.

[Leas Count IV Decl., Exh. 48 at P000174-76.]

The

Phase III Report was filed with HDOH, and Continental Tire
anticipated that a No Further Action (“NFA”) determination would
be issued as to the Property.

[Id. at P000174.]

16

(...continued)
and Mr. Collins, and between John Rau and Wond from March 11,
2013 to March 22, 2013. [Leas Count IV Decl., Exh. 48 at
P000174-82.] ENPRO’s Phase III Report begins on page 10, as the
report appears in the district court’s electronic case filing
system. The Phase III Report’s laboratory reports and landfill
acceptance documents are not included in Exhibit 48. [Leas
Count IV Decl. at ¶ 24.]
19

On March 1, 2013, Bureau Veritas collected samples from
the open excavations on the Property and completed analytical
testing “to provide some preliminary data regarding the
effectiveness of ENPRO Environmental’s remedial action.”

[Wond

Family’s Counts I-III CSOF, Decl. of Philip J. Leas, (“Leas
Counts I-III Decl.”), Exh. 50 (email dated 3/12/13 to Collins
from Leas forwarding 3/11/13 email from Rau transmitting table
summarizing test results) at P000172.]

Mr. Rau stated:

Both samples reported total petroleum hydrocarbons
(TPH)-residual range organics (RRO) and
benzo(a)pyrene at concentrations that exceeded the
Hawaii State Department of Health (DOH) Tier 1
Environmental Action Levels (EALs). In addition,
Sample 13022-S1 reported polychlorinated biphenyls
(PCBs) at concentrations that exceeded the DOH
Tier 1 EALs.
The analytical results indicate that
concentrations of several constituents remain at
levels that exceed the DOH Tier 1 EALs.
[Id.]
On September 23, 2013, HEER issued a letter to
Continental Tire, stating:
The Phase II investigation conducted by ENPRO has
been determined to be deficient in many HDOH
requirements and cannot be considered appropriate
for characterizing the site or determining
necessary remedial actions. Some but not all of
the deficiencies can be found in Bureau Veritas’s
letter of February 20, 2013 attached. Therefore,
the report is rejected as a Phase II site
characterization based on numerous technical
errors. HDOH requires a full site
characterization of 1385 Colburn Street following
the procedures detailed in the [HDOH Technical
Guidance Manual (“TGM”)].
20

Due to the substantial amount of technical errors
– including sampling and analytical errors, and
lack of sufficient detail – the Phase II report is
inadequate for determining additional remedial
actions for the site and HDOH cannot accept the
Phase III report or issue a determination of No
Further Action for the soil removal action.
[Leas Count I-III Decl., Exh. 53 (9/23/13 letter to Ken Miller
from Jordan Nakayama, Project Manager, HEER) at P000356.]
Mr. Leas thereafter informed Continental Tire’s counsel,
Lisa Bail, Esq., that $171,257.89 in carryover rent was due from
the expiration of the Sublease to October 2013 because
Continental Tire failed to complete the required remediation of
the Property.

[Leas Count IV Decl., Exh. 40 (letter dated

10/25/13) at 1-3.]

Ms. Bail responded that Continental Tire did

not owe carryover rent because there was no evidence of
contaminants that exceeded the Tier 1 C/I EALs.

[Id., Exh. 41

(letter dated 1/27/14).]
On January 27, 2014, Continental Tire’s counsel
transmitted to Wond Family’s counsel a draft Follow-Up Site
Investigation Work Plan, dated January 25, 2014 by Kevin S.
Kennedy Consulting, LLC (“Kennedy Consulting” and “the Work
Plan”).

[Leas Counts I-III Decl., Exh. 55 (letter to Leas from

Bail transmitting the Work Plan).]

On February 3, 2014, Wond

Family’s counsel sent Continental Tire’s counsel an email
transmitting a letter of the same date to Wond by Bureau Veritas
commenting on the Work Plan (“2/3/14 Bureau Veritas Review

21

Letter”).

[Id., Exh. 56.]

The 2/3/14 Bureau Veritas Review

Letter was submitted to HDOH.

[Rau Counts I-III Decl. Decl.,

Exh. 29 (2/25/14 email to Nakayama from Rau).]

One of the

concerns raised in the 2/3/14 Bureau Veritas Review Letter was
that:
The Work Plan includes the establishment of only
three [decision units (“DUs”)] for the site.
Three DUs are not an adequate number to reasonably
assess the property based on the number of
historical uses the property and known areas of
contamination. Section 3.4 of the TGM states that
“the appropriate type, size, shape and number of
DUs for a given project is necessarily sitespecific and must take into consideration the
historical, current and future use of the site.”
The Work Plan discusses numerous historical uses
that do not appear to have been considered during
the design of the three DUs. Historical
environmental uses include the following:
•

A boiler underground storage tank (UST).
No documentation exists showing that the
UST was removed and proper assessment of
the excavation conducted.

•

Past release of hydraulic oil on the
adjacent 505 Waiakamilo Road property.

•

The former Oil/Water Separator (OWS).

•

The drainage trenches, at least one of
which remains at the site.

•

An aboveground storage tank (AST) that
was formerly located on the southern
corner of the Property.

•

The Open sided steel framed CMU storage
and carport used by Dent Doctors Hawaii
and Lex Brodie Tire.

22

The Work Plan divides the Site into a limited
number of very large areas. These areas include
potential “hotspot areas” that have a greater
likelihood of contamination. Rather than
separating these into separate decision units
designed to assess individual areas of concern,
the Work Plan groups them together.
Alternatively, the Work Plan does not separate an
area that has a greater likelihood for no
contamination. Specifically, the remedial
excavation conducted by Hawaii International
Environmental Services (HIES) in 2002 to address a
release of hydraulic oil, occurred on a portion of
TMK (1) 1-5-021: Parcel 004, but extended onto
Parcel 024. Because the excavation was reportedly
filled with “clean backfill”, it would be
reasonable to assess this area separately from the
nonexcavated areas. By including this area of
likely clean fill material into the DU, the
overall results are likely to be skewed to lower
average concentrations.
[Leas Counts I-III Decl., Exh. 56 at P000381.]
In March and April 2014, in a follow-up site
investigation for Continental Tire, Kennedy Consulting collected
soil samples from the Property and conducted a geophysical survey
to locate buried structures.

Kennedy Consulting removed the

remnant pipes associated with the OWS on April 17, 2014 and, some
time in either March or April 2014, Kennedy Consulting broke up
and removed the concrete box and concrete slab that were part of
the OWS.

[Leas Count IV Decl., Exh. 49 (excerpt of Follow-Up

Site Investigation Report by Kennedy Consulting, dated 5/20/14
(“Follow-Up Report”)) at 17-18.]

Kennedy Consulting found lead

in excess of the Tier 1 C/I EAL, as well as levels exceeding the
Tier 1 EALs for unrestricted land use for total petroleum
23

hydrocarbons (“TPH”) Lube Oil, PCBs, benzo(a)pyrene,
dibenzo(a,h)anthracene, benzo(b)flouranthene, lead, and mercury.
[Follow-Up Report, Tables 5-8.17]

The Follow-Up Report requested

that HDOH issue a Conditional NFA determination that was
dependent upon the issuance of an Environmental Hazzard
Management Plan (“EHMP”) for the Property.
55.]

[Follow-Up Report at

Mr. Leas states that, to his knowledge, neither Continental

Tire nor Kennedy Consulting prepared or proposed an EHMP for the
Property.

[Leas Count IV Decl. at ¶ 27.]
In a June 3, 2014 letter to Continental Tire (through

its counsel), Wond Family (through its counsel) “demand[ed] that
Continental Tire remove the contamination on the property and
refrain from trying to burden the property with future conditions
or restraints that would not exist were the contamination not
present” (“6/3/14 Demand Letter”).18

[Leas Counts I-III Decl.,

Exh. 59 at 2.]
Bureau Veritas sent HEER a letter dated June 4, 2014
reviewing the Follow-Up Report (“6/4/14 Bureau Veritas Review
Letter”).

[Rau Counts I-III Decl., Exh. 30 (letter to Nakayama

17

Wond Family notes the Ford Report states there is both
lead and TPHs as oil range organics (“TPH-ORO”) in amounts that
exceed the Tier 1 C/I EALs. [Mem. in Supp. of Wond Family’s
Count IV Motion at 28 (citing Ford Report at 18-19, App’x F).]
18

The 6/3/14 Demand Letter also asserted that “[s]urrender
of the property will not be complete until Continental Tire
removes the contamination and grades the surface.” [Leas
Counts I-III Decl., Exh. 59 at 2.]
24

from Rau and Ford).]

Bureau Veritas raised concerns, including

the Follow-Up Report’s “minimal discussion of Defendant’s longterm use of the Property as an automotive service and tire
facility, [Kennedy Consulting]’s failure to identify surface
sources of contamination that are typically present at automotive
repair facilities, and the request for a Conditional NFA.”

[Mem.

in Supp. of Wond Family’s Count I-III Motion at 20 (citing Rau
Decl., Exh. 30 at 1-4, 7).]
On July 21, 2014, HEER issued Continental Tire a letter
stating HDOH did not concur with the request for a conditional
NFA determination (“7/21/14 HEER Letter”).

It advised

Continental Tire the “issue may be revisited following the
capping of the entire site, submittal, and the HDOH approval of
the site-specific EHMP and or excavation to 2’ bgs of soil from
the decision units 1 & 2” – i.e., the “Capping Remedy” and the
“Excavation Remedy.”
Letter) at 1.]

[Leas Count IV Decl., Exh. 45 (7/21/14 HEER

Kennedy Consulting submitted the Revised Follow-

Up Site Investigation Report, dated October 6, 2015 (“Revised
Follow-Up Report”), to HDOH on November 6, 2015.

On November 16,

2015, HEER accepted the revised version, authorized Continental
Tire to proceed with the project, and directed Continental Tire
to confer with Wond on how to proceed.

[Leas Count IV Decl.,

Exh. 46 (letter to Ken Miller of Continental Tire from Paul
Chong, Project Manager, HEER, dated 11/16/15 (“11/16/15 HEER

25

Letter”)).]

Continental Tire asserts that, according to the

Revised Follow-Up Report, “[t]he remaining contaminant of concern
at the Property is lead, which is present at one to two feet
below the surface, at concentrations exceeding the DOH Tier 1
Commercial/Industrial EAL,” and which “was ‘most likely imported
with artificial fill material.’”

[Mem. in Supp. of Count V

Motion at 3 (citing Revised Follow-Up Report at xii).]
Bureau Veritas prepared a draft Remedial Alternatives
Analysis Report (“Draft RAA Report”) for Wond Family and
submitted it to HDOH on or about December 23, 2015.

HDOH

provided comments on the Draft RAA Report on March 10, 2016, and
Bureau Veritas incorporated the comments in the final version of
the report (“Final RAA Report”), which was submitted to HDOH on
July 15, 2016.

[Wond Family’s Count IV CSOF, Decl. of John P.

Rau (“Rau Count IV Decl.”) at ¶ 9.]

Bureau Veritas analyzed four

alternatives: 1) no action; 2) the Capping Remedy; 3) the
Excavation Remedy; and 4) excavation to four feet bgs (“Deeper
Excavation Remedy”).
Report) at 18-27.]

[Rau Counts I-III Decl., Exh. 32 (Final RAA

Bureau Veritas compared the four alternatives

and opined that the Excavation Remedy was the preferred
alternative.

[Id. at 27-30.]

After reviewing the Draft RAA Report, HEER determined
either the Capping Remedy or the Excavation Remedy would be
acceptable.

[Leas Count IV Decl., Exh. 50 (letter dated 3/10/16

26

from Paul Chong to Wond (“3/10/16 HEER Letter”)).]

Continental

Tire contends that, because HDOH’s position was the same as it
was in the 7/21/14 HEER Letter, the RAA reports were not
necessary.
at 7.]

[Mem. in Supp. of Continental’s Counts I-III Motion

Wond Family asserts that, after the Final RAA Report was

submitted to HDOH, Bureau Veritas “then engaged in public
outreach regarding [Wond Family’s] intent to implement the
Excavation Remedy.”

[Mem. in Supp. of Wond Family’s Counts I-III

Motion (citing Rau Counts I-III Decl., Exhs. 34-39).19]
From September 23 to 26, 2016, Bureau Veritas collected
soil samples from the upper two feet of soil throughout the
Property “[i]n order to characterize the soil on the Property for
potential Excavation and disposal at a landfill in connection
with” Wond Family’s selected remedy.
¶ 11.]

[Rau Counts I-III Decl. at

Bureau Veritas established eight DUs throughout the

Property.

[Id. & Exh. 33 (map of DUs).]

The Ford Report

includes a discussion of data from Bureau Veritas’s 2016 sampling

19

Exhibit 34 is the legal notice of Proposed Remedial
Action, published in the Honolulu Star-Advertiser on
September 29, 2016. Exhibits 35 through 38 are letters, each
dated September 23, 2016, from Bureau Veritas to: Senator Donna
Mercado Kim; Jack Bennett, Senior Environmental Program Manager,
Kamehameha Schools; Representative Joey Manahan; and
Representative Karl Rhoads. Exhibit 39 is a letter dated
September 28, 2016 Marcia Nakama, manager of the Kalihi-Palama
Public Library transmitting materials to be made available for
public review.
27

conducted on the Property.20

[Ford Report at 18-19.]

Bureau

Veritas’s sampling indicated that several contaminants were
present in the zero to two foot layer of the Property at levels
exceeding HDOH’s Tier 1 EALs.

The levels of TPH-ORO, TPH as

diesel range organics (“TPH-DRO”), and lead were high enough to
also exceed the Tier 1 C/I EALs.

[Id. at 19.]

Further, the

level of lead in the two to four foot layer also exceeded the
Tier 1 EAL, and mercury impacted soil was found as deep as 11.011.5 feet.

[Id. at 20.]

Wond Family contends the contaminants

remain on the Property to the current date.

[Count V Opp. at 7.]

The Ford Report opines “the most probable cause of contamination
at the site is related to historical use of the site as an
automobile repair facility.”

[Ford Report at 21.]

In addition

to the general operation of the automotive facility, the Ford
Report noted:
Based on aerial photographs of the site
(particularly from 1967, Appendix B-3), it is
evident that Continental Tire maintained poor
housekeeping practices as [sic] the site. The
surface of the site consisted of exposed soil, and
vehicles, equipment, large piles of used tires and
debris were observed on the ground surface.
This is indicative of improper storage and poor
housekeeping at an automobile repair facility.
Most likely, the debris at the site was derived
from automobile service operations, and it could

20

Appendix F to the Ford Report includes: a table titled
“Summary of Soil Analytical Results by Bureau Veritas”; and a
table titled “Comparison of Analytical Results from KSK and BVNA
Reports” (i.e., Kennedy Consulting and Bureau Veritas).
28

have included batteries, drums, and used oil and
automobile fluids, which have the potential to
discharge contaminants to the ground surface.
Further evidence of poor housekeeping include
photographs of the site from the 1990s and 2000s
(refer to Appendix E). The photographs show
heavily stained areas of asphalt-pavement around
trench drains near the former AST, and at least
three 55-gallon drums without secondary
containment. Following closure of the service
stations, 55-gallon drums were still present at
the site, and batteries were observed on the
ground surface.
[Id. at 23.]
Wond Family asserts it has commenced the Excavation
Remedy process, but Continental Tire argues there is no evidence
Wond Family has done so.
DISCUSSION
The Court will address the parties’ motions in the
order they were heard, or were scheduled to be heard.
I.

The Parties’ Count IV Motions
Count IV alleges Continental Tire breached Covenants 9,

13, 18, and 19 of the Sublease.

[Complaint at ¶¶ 86-89.]

Wond

Family alleges:
Continental Tire’s breaches of the Sublease have
caused Plaintiff to sustain damages including but
not limited to: costs to perform environmental
investigation that Continental Tire should have
completed prior to the expiration of the Sublease,
costs to remediate the contamination on the
Property, and lost rent during the period
following the expiration of the Sublease up until
the time the Property is restored to the condition
in which Continental Tire is obligated to return
29

the Property to Plaintiff pursuant to Covenants 9
and 19 of the Sublease.
[Id. at ¶ 91.]
Continental’s Count IV Motion contends Continental Tire
is entitled to summary judgment on Count IV because Wond Family’s
claim for holdover rent from the date the Sublease expired until
the Property is remediated fails as a matter of law because:
Continental Tire is not in possession of the Property; and there
is no provision in the Sublease allowing for the collection of
holdover rent.

Wond Family’s Count IV Motion seeks partial

summary judgment on the following issues: 1) Continental Tire “is
liable for breach of the lease . . . by failing to uphold its
surrender obligations arising from the lease terms and common
law”; and 2) Wond Family “may recover carryover rent since
October 31, 2012 from Defendant as a remedy for its breach of its
surrender obligations.”
Motion at 3.]

[Mem. in Supp. of Wond Family’s Count IV

Wond Family’s Count IV Motion does not seek a

ruling on the amount of carryover rent due.
The Sublease states:
AND THE SAID LESSEE hereby covenants and
agrees with the Lessor as follows:
. . . .
(9) That the Lessee will not make or suffer
any waste or strip or unlawful, improper or
offensive use of said premises or any part
thereof; and will, during the whole of said term
keep the said premises, including improvements, in
a strictly clean, neat and sanitary condition; and
30

will also observe, comply with and perform all
rules, regulations, ordinances and/or laws made by
the Board of Health and/or other due authority of
the municipal, territorial or federal governments
applicable to the said premises and improvements,
and will indemnify and hold harmless the Lessor
and its successors against all actions, suits,
damages and claims by whomsoever brought or made
by the reason of the non-observance or
non-performance of the said rules, regulations,
ordinances and laws or of this covenant;
. . . .
(13) That the Lessee will permit such fee
simple owner(s), the Lessor and their respective
agents, at all reasonable times during the said
term, to enter the premises and examine the state
of repair and condition thereof, and will repair
and make good all defects of which notice shall be
given by the Lessor, or its agent, within thirty
(30) days after the giving of such notice;
. . . .
(18) That the Lessee will not commit or
suffer any act or neglect whereby the demised
premises or any erection or improvement thereon or
the estate of the Lessee in the same at any time
during the said term shall become subject to any
attachment, judgment, lien, charge, or encumbrance
whatsoever except as hereinafter provided, and
shall indemnify and hold harmless the Lessor
against all liens, charges, and encumbrances and
all expenses resulting therefrom, including
attorneys’ fees;
(19) That at the end of the said term, or
other sooner determination of this lease, the
Lessee will peaceably and quietly deliver up to
the Lessor possession of the land hereby demised,
together with all erections and improvements upon
or belonging to the same, by whomsoever made, in
good repair, order and condition, reasonable wear
and tear excepted.

31

[Bail Count IV Decl., Exh. A (Sublease) at P001068, P001074-80
(emphasis added).]
“Surrender Clause.”

Paragraph (19) is referred to as the
It is undisputed that the Sublease does not

expressly address the remedy of holdover rent – also referred to
as carryover rent.
A.

Availability of Holdover Rent
The crux of Continental Tire’s argument is that the

adoption of Haw. Rev. Stat. § 521-71(e) in Hawaii’s Residential
Landlord-Tenant Code (“Chapter 521”) indicates the Hawai`i State
Legislature (“the Legislature”) intended to displace any common
law remedy of holdover rent.

Continental Tire therefore contends

that, because there is no corresponding statute for commercial
leases, holdover rent is no longer available for commercial
leases, including the Sublease, unless the lease expressly
provides for it.
To the extent Continental Tire contends Hawai`i law
never recognized a common law right to holdover rent, Continental
Tire’s position is rejected.

In Schimmelfennig v. Grove Farm

Co., the Supreme Court of the Territory of Hawai`i stated:
There is no dispute between the parties that,
independently of express covenant, applicable
provisions of law impose the obligation upon a
lessee to restore the premises at the termination
of a tenancy in substantially the same condition
as at the inception of a lease, subject to
reasonable use. (U.S. v. Jordan, 186 F.[2d] 803;
Lane v. Spurgen, 100 Cal. App. [2d] 460, 223
P.[[2d] 889; Martin v. Medlin, 81 Ga. App. 602, 59
S.E.[2d] 519; Salina Coca-Cola Bottling Corp. v.
32

Rogers. 171 Kan. 688, 237 P.[2d] 218; Donsky v.
Sedlak, 4 N.J. Misc. 49, 131 Atl. 619; Welch v.
Rice, 61 Wyo. 511, 159 P.[2d] 180.)
41 Haw. 124, 129 (1955) (alterations in Schimmelfennig).
Further,
“[w]hen the tenant, whose term has expired by
efflux of time, instead of quitting the premises,
as he ought to do, remains in possession, holding
over as it is called, he is a wrongdoer, and may
be treated as such by the owner, his landlord.”
(Den ex dem. Decker v. Adams, 12 N.J.L. 99, 100;
Grant v. White, 42 Mo. 285; Leonard v. Spicer Mfg.
Co., 103 N.J.L. 391, 139 Atl. 15.) In such
circumstances, “he becomes a tenant at sufferance,
and the landlord has the option to treat him as a
tenant or proceed against him as a trespasser, or
bring an action for unlawful detainer without
service on the tenant of any prior notice, but if
a new contract is shown either express or
inferable from the dealings of the parties, the
estate becomes one at will, and a new contract may
be inferred from an agreement for a new lease.”
(3 Thompson, Real Property, § 1511, pp. 781-782
[[1940]; Kaye v. M’Divani, 6 Cal. App. [2d] 132,
44 P.[2d] 371; Leggett v. Louisiana Purchase
Exposition Co., 157 Mo. App. 108, 137 S.W. 893;
National Bank v. People’s Grocery Co., 153 S.C.
118, 150 S.E. 478; Monks v. Hess, 53 S.D. 275, 220
N.W. 490.)
Id. at 134 (alterations in Schimmelfennig).

In Smith v.

Bottomingly, the Supreme Court of the Territory stated:
The duty of the lessee to so arrange his affairs
during the term of the lease as to be able to
surrender actual possession on or immediately
after the last day of the lease is the same in all
such cases. The duty is upon the lessee to
ascertain, in ample time, whether a subtenant is
setting up a spurious claim and to take such steps
as may be necessary to restore the possession
before the expiration of the lease, so that he may
be able to deliver that possession to those
entitled thereto at the end of the term.
33

The decision of the court in Henderson v.
Squire, 4 L.R., Q.B. Cases, 170, 173, 174, a case
of an implied covenant to restore possession,
supports these views. Cockburn, C.J., said: “I am
prepared to abide by the law as laid down by Lord
Kenyon in Harding v. Crethorn, that ‘when a lease
is expired the tenant’s responsibility is not at
an end; for if the premises are in possession of
an under-tenant, the landlord may refuse to accept
the possession, and hold the original lessee
liable; for the lessor is entitled to receive the
absolute possession at the end of the term.’ That
has been considered law ever since, and has been
recognized as law in all the text books.
30 Haw. 853, 856-57 (1929).

Based on these cases, this Court

concludes Hawai`i common law recognized a landlord’s right to
holdover rent.
In addition, in 1972, holdover rent was statutorily
recognized by § 521-71(e), which states:
Whenever the term of the rental agreement expires,
whether by passage of time, by mutual agreement,
by the giving of notice as provided in subsection
(a), (b), (c), or (d) or by the exercise by the
landlord of a right to terminate given under this
chapter, if the tenant continues in possession
after the date of termination without the
landlord’s consent, the tenant may be liable to
the landlord for a sum not to exceed twice the
monthly rent under the previous rental agreement,
computed and prorated on a daily basis, for each
day the tenant remains in possession. The
landlord may bring a summary proceeding for
recovery of the possession of the dwelling unit at
any time during the first sixty days of holdover.
Should the landlord fail to commence summary
possession proceedings within the first sixty days
of the holdover, in the absence of a rental
agreement, a month-to-month tenancy at the monthly
rent stipulated in the previous rental agreement
shall prevail beginning at the end of the first
sixty days of holdover.

34

In 1972, the Legislature enacted Chapter 521.
Laws Act 132, at 446-64.

1972 Haw. Sess.

Continental Tire argues the legislative

history of Act 132 shows the Legislature intended to supersede
common law landlord-tenant law because the Legislature recognized
it was outdated.

Continental Tire argues § 521-71(e) only

revives the right to holdover rent for residential leases and,
because there is no corresponding statute reviving the right to
holdover rent for commercial leases, the right no longer exists
for commercial leases.

This Court disagrees.

In considering a draft of the bill that eventually
became Act 132, the Hawai`i Senate Committee on Consumer
Protection stated: “The existing landlord-tenant law, based on
out-dated English common law doctrines, is largely inappropriate
to modern conditions and inexpressive of the vital interests of
the parties and the public which the law must protect, as
recognized and expounded in the Lemle v. Breeden[, 51 Haw. 426,
462 P.2d 470 (1969),] decision.”
72, in Senate Journal at 834.

S. Stand. Comm. Rep. No. 223-

The committee also stated the

purpose of the bill was to “establish a new legal framework
governing the relationships of residential landlords and tenants,
consistent with” Lemle.21

Id. at 832 (emphasis added).

The

committee opined that, if the bill as amended was enacted, “it

21

Lemle involved the lease of a residence.
27, 462 P.2d at 471.
35

51 Haw. at 426-

could provide the basis for the law of residential landlord and
tenant to be developed by the courts in the realistic light of
modern concepts and modern living conditions.”
(emphasis added).

Id. at 834

Similarly, the Conference Committed stated:

The purpose of this bill is to establish a
comprehensive residential landlord-tenant code
under which the law governing residential landlord
and tenant relations would be restated in a manner
consistent with recent court decisions, with the
residential rental market, and with the objective
of improving such landlord and tenant relations.
The code would spell out in some detail the
respective rights, obligations, and remedies of
residential landlords and tenants.
The proposed codification of this fundamental
area of the law must be undertaken with great
care, for the code is intended to be comprehensive
and to serve as the basis for future law that will
be developed by the courts. . . .
Conf. Comm. Rep. No. 12-72, in 1972 Senate Journal, at 756, 1972
House Journal at 1054 (emphases added); see also id. S. Stand.
Comm. Rep. No. 477-72, in 1972 Senate Journal, at 948; H. Stand.
Comm. Rep. No. 659-72, in 1972 House Journal, at 961 (reports
from Senate Judiciary Committee and House Judiciary Committee,
both including the same text as the first sentence of Conf. Comm.
Rep 12-72).

Nothing in either Act 132 or its legislative history

suggests the Legislature intended to replace landlord-tenant law
in any areas other than the residential context.
Chapter 521 itself expressly states one of its purposes
is “[t]o revise the law of residential landlord and tenant by

36

changing the relationship from one based on the law of conveyance
to a relationship that is primarily contractual in nature.”
Rev. Stat. § 521-2(b)(3) (emphasis added).

Haw.

As to Chapter 521’s

effect on the applicability of other authority, Haw. Rev. Stat.
§ 521-3 states, in pertinent part:
(a) Unless displaced by the particular provisions
of this chapter, the principles of law and equity,
including the law relative to capacity to
contract, principal and agent, real property,
public health, safety and fire prevention,
estoppel, fraud, misrepresentation, duress,
coercion, mistake, bankruptcy, or other validating
or invalidating cause supplement its provisions.
(b) Every legal right, remedy, and obligation
arising out of a rental agreement not provided for
in this chapter shall be regulated and determined
under chapter 666, and in the case of conflict
between any provision of this chapter and a
provision of chapter 666, this chapter shall
control.
Thus, Chapter 521 only applies to residential landlord-tenant
relationships, and it only displaces the common law regarding
residential leases.

Because Chapter 521 does not displace the

common law regarding commercial leases, a statute expressly
allowing commercial landlords to recover holdover rent is not
necessary.

Further, because the common law right to holdover

rent in commercial leases remains in effect, a commercial
landlord may recover holdover rent even in the absence of an
express contractual provision authorizing the remedy.

Insofar as

Wond Family’s Count IV Motion seeks a ruling that holdover rent
is an available remedy, its motion is granted.
37

Because

Continental’s Count IV Motion seeks a ruling that holdover rent
is not available in Hawai`i for commercial leases, this motion is
denied.
B.

Scope of Continental Tire’s Obligations
Wond Family’s Count IV Motion seeks a ruling that,

under the Surrender Clause and Hawai`i common law, Continental
Tire was obligated to surrender the Property at the end of the
Sublease in substantially the same condition it was when the
Sublease commenced, subject to reasonable use.

The Surrender

Clause required the Lessee to return the Property to the Lessor
“together with all erections and improvements upon or belonging
to the same, by whomsoever made, in good repair, order and
condition, reasonable wear and tear excepted.”

[Bail Count IV

Decl., Exh. A (Sublease) at P001080 (emphasis added).]

The

Assignment states:
in consideration of the premises, the Assignee,
for itself, its successors and assigns, hereby
covenants with (1) the Assignor and (2) the
Lessors, and their respective successors,
successors in trust and assigns: that the Assignee
will pay the rents reserved by said Leases, and
will observe and perform all of the covenants and
agreements in said documents contained and on the
part of the Lessee to be paid, observed and
performed, and will indemnify and keep the
Assignor and the Lessors indemnified against all
claims, demands, damages, costs, counsel fees and
expenses by reason of any breach of these
covenants.

38

[Id., Exh. B (Assignment) at 4 (emphasis added, other emphases
omitted).]

Based on the evidence described supra, this Court

finds that: 1) Continental Tire is a successor of the Assignee –
General Tire; and 2) Wond Family is a successor and/or assignee
of the Lessor – Clarke Investment.

Thus, under the Assignment,

Continental Tire is obligated to perform all covenants and
agreements in the Sublease – including the Surrender Clause, and
Wond Family is entitled to enforce those obligations.

There is

no evidence in the record suggesting there is any other agreement
limiting Continental Tire’s obligations regarding the Property
and the Sublease.
There are no genuine issues of material fact, and this
Court concludes that, as a matter of law, Continental Tire
assumed all of the lessee’s obligations in the Sublease –
including the Surrender Clause – when Continental Tire entered
into the Assignment.22

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.”).

Wond Family’s

Count IV Motion is granted insofar as it seeks a ruling that

22

Because this Court concludes Continental Tire was
obligated to comply with the Surrender Clause, it does not reach
Wond Family’s alternate argument regarding Continental Tire’s
surrender obligations under Hawai`i common law.
39

Continental Tire is obligated to perform all obligations under
the Sublease – including the Surrender Clause.
C.

Whether Wond Family is Entitled to Holdover Rent
Wond Family’s Count IV Motion also seeks a ruling that

Wond Family is entitled to holdover rent because Continental Tire
breached its surrender obligations.

Viewing the current record

in the light most favorable to Continental Tire as the non-moving
party,23 this Court concludes a reasonable jury could find for
Continental Tire on the issues of: whether Continental Tire’s
environmental investigation and remediation efforts after the
Sublease expired violated the Surrender Clause; and whether the
condition of the Property at the time the Sublease expired
constituted “good repair, order and condition, reasonable wear
and tear excepted.”

See California v. Campbell, 319 F.3d 1161,

1166 (9th Cir. 2003) (“A genuine dispute arises if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.”).

Thus, there are genuine issues of material

fact that preclude a summary judgment ruling that Continental
Tire is a holdover lessee.

Wond Family’s Count IV Motion is

23

“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.” Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013)
(citations and quotation marks omitted).
40

therefore denied as to Wond Family’s request for a ruling that
Continental Tire is a holdover lessee.24
II.

Count V
Count V alleges HEER has required Wond Family to

remediate hazardous substances that Continental Tire and its
predecessors released on the Property.

[Complaint at ¶¶ 92-96.]

Continental Tire seeks summary judgment on Count V to the extent
Wond Family seeks indemnification for contamination occurring
before Continental Tire leased the Property.

Continental Tire

contends that, because Covenant (9) of the Sublease does not
refer to either CERCLA or the environmental problems with the
Property before the Sublease was assigned to Continental Tire,
Covenant (9) does not require Continental Tire to indemnify Wond
Family for contamination Continental Tire did not cause.
[Continental’s Count V Reply at 2.]
A.

Indemnification for Post-Assignment CERCLA Violations
CERCLA was enacted in 1980.

See 94 Stat. 2796.

neither the Sublease nor the Assignment refer to it.

Thus,

However,

Covenant (9) of the Sublease requires the sublessee to “observe,

24

Because this Court cannot rule, as a matter of law, that
Continental Tire is a holdover lessee, it does not address for
what period Wond Family may recover holdover rent or whether Wond
Family mitigated its damages. However, even if this Court
concluded, as a matter of law, that Continental Tire is a
holdover lessee, it would find there are genuine issues of
material fact as to the period of recovery and the mitigation of
damages.
41

comply with and perform all rules, regulations, ordinances and/or
laws made by the . . . federal governments applicable to the said
premises and improvements.”
added).]

[Sublease at P001074 (emphasis

This language is broad enough to include federal laws

that were not in effect at the time of the Sublease, but were
enacted after the Sublease, such as CERCLA.

Further,

Covenant (9) requires the sublessee to “indemnify and hold
harmless the Lessor and its successors against all actions,
suits, damages and claims by whomsoever brought or made by the
reason of the non-observance or non-performance of the said
rules, regulations, ordinances and laws.”

[Id.]

This Court has

concluded the Assignment obligates Continental Tire to comply
with all of the sublessee’s covenants and agreements in the
Sublease, and Wond Family is entitled to enforce those
obligations.

In addition to the indemnification obligations

assumed in the Sublease, the Assignment also contains its own
indemnification language: “the Assignee . . . will indemnify and
keep the Assignor and the Lessors indemnified against all claims,
demands, damages, costs, counsel fees and expenses by reason of
any breach of these covenants.”

[Assignment at 4.]

Although the

issue is not squarely presented in Continental’s Count V Motion,
this Court is inclined to conclude the indemnification language
in the Sublease and the indemnification language in the
Assignment are sufficiently broad enough to require Continental

42

Tire to indemnify Wond Family for CERCLA claims based on postAssignment violations by General Tire and its successors/assigns,
including Continental Tire.
B.

Indemnification for Pre-Assignment CERCLA Violations
At issue in Continental’s Count V Motion is whether

Continental Tire is liable for any CERCLA violations that
occurred prior to the Assignment.

Continental Tire’s position is

that lead is the only contaminant of concern on the Property, and
the Revised Follow-Up Report indicates the contamination is most
likely from imported, artificial fill.

However, Continental Tire

argues Wond Family has neither alleged nor presented evidence
establishing that Continental Tire brought the contaminated fill
to the Property, and Wond Family has acknowledged that multiple
entities brought fill to the Property.

In discovery, Wond Family

stated:
5.

IDENTIFY all parties who brought fill onto
the PROPERTY, and describe the type of fill,
where it was placed and when it was placed.
Response:
In or around 1956, Hawaiian Dredging
stockpiled clean coral fill material on the
Property for application to low lying areas
on properties in the Kapalama area owned by
the Wond family, including the Property.
Melim and Defendant also placed fill on the
Property.25

25

The Court will refer to this as “Answer to
Interrogatory 5.”
43

[Bail Count V Decl., Exh. K (Pltf.’s Response to Def. Continental
Tire the Americas, LLC’s First Request for Answers to Interrogs.
to Pltf. Wond Family Kapalama, LLC dated 4/19/17) at 6 (emphases
in original).]

Continental Tire contends it is entitled to

summary judgment as to the portion of Count V seeking
indemnification for contamination occurring on the Property prior
to the Assignment because Wond Family cannot show who caused the
contamination.
This Court must first determine whether imposing preAssignment liability on Continental Tire is possible under the
terms of the Sublease and the Assignment.

Under Hawai`i law, in

order to assume liability for past breaches, an indemnity
agreement must “‘clearly and unequivocally’ assume either general
environmental liability or the indemnitee’s . . . past breaches.”
Servco Pac. Inc. v. Dods, 193 F. Supp. 2d 1183, 1193 (D. Hawai`i
2002) (citing Kamali v. Hawaiian Electric Co., 54 Haw. 153, 162,
504 P.2d 861, 866 (1972)).

As previously noted, neither the

Sublease nor the Assignment refers to CERCLA.

Further, the

Sublease and the Assignment do not refer to liability for:
1) general environmental laws in existence at the time of the
document; 2) general environmental laws that may be enacted after
the execution of the document; or 3) violations that occurred
before the parties executed the documents.

Thus, neither the

Sublease, the Assignment, nor the two documents read collectively

44

clearly and unequivocally assumes liability for environmental
claims based on the lessor’s past breaches or liability for the
lessor’s past breaches of statutory schemes that may be enacted
in the future.
However, the broad language in the Sublease’s and the
Assignment’s indemnity provisions may be construed to assume such
liability if there is evidence that Melim had knowledge of
environmental problems when it entered into the Sublease and/or
that General Tire had such knowledge when it entered into the
Assignment.

See Purolator Products Corp. v. Allied–Signal, Inc.,

772 F. Supp. 124, 137 (W.D.N.Y. 1991) (“Facet knew that there
were problems at the site when it entered into the October 1979
indemnity agreement.

By agreeing to a broad, inclusive

assumption of liability with respect to the transferred property
at a time when the environmental problems were not fully
resolved, Facet assumed environmental liability for the site.”).
Viewing the record in the light most favorable to Wond
Family, this Court finds there are genuine issues of material
fact regarding whether Melim had knowledge of past or existing
environmental problems when it entered into the Sublease and
whether General Tire had knowledge of past or existing
environmental problems when it entered into the Assignment.
Unless there was such knowledge, the broad indemnity language in
the Sublease and/or the Assignment does not constitute an

45

assumption of liability for environmental problems that had
occurred or were in existence when the Sublease and/or the
Assignment were executed.

These issues of fact preclude a

summary judgment ruling on the issue of whether Continental Tire
is liable for contamination that occurred on the Property prior
to the Assignment.
Because this Court cannot conclude, based on the
current record, whether or not the Sublease and the Assignment
allow Continental Tire to be held liable for any contamination
that occurred prior to the Assignment, this Court declines to
address whether and, if so, when and how any pre-Assignment
contamination occurred.
III

Continental’s Count V Motion is denied.

The Parties’ Counts I-III Motions
Continental Tire seeks summary judgment as to Counts I,

II, and III because Wond Family cannot prove that: it has
incurred environmental response or recovery costs; it complied
with CERCLA’s and HERL’s requirements; or that Continental Tire
is a potentially responsible party (“PRP”).

Wond Family seeks

summary judgment on Counts I, II, III as to liability and does
not seek a ruling on damages.

Further, Wond Family asserts this

Court does not need to determine what contamination on the
Property is attributable to Continental Tire’s activities because
CERCLA and HERL are strict liability schemes, and Continental
Tire is jointly and severally liable for the entire harm to the

46

Property.

If there are other users of the Property that are

responsible for the contamination, Continental Tire must
establish that fact at the contribution stage, not the liability
stage.
CERCLA, 42 U.S.C. §§ 9601-9675, is a statutory
scheme giving the federal government broad
authority to require responsible parties to clean
up contaminated soil and groundwater. Key Tronic
Corp. v. United States, 511 U.S. 809, 814, 114 S.
Ct. 1960, 128 L. Ed. 2d 797 (1994).
Section 9607(a) states that any enumerated
responsible party, including any person who is a
current owner or operator of contaminated
property, is liable for “any . . . necessary costs
of response incurred by any other person
consistent with the national contingency plan.”
42 U.S.C. § 9607(a)(B). “Response” costs are
limited to cleanup, enforcement, and related
security costs. 42 U.S.C. § 9601(23)-(25). The
national contingency plan (NCP) is a national plan
promulgated by the federal government to guide
federal and state response actions. 42 U.S.C.
§ 9605; 40 C.F.R. pt. 300 (publishing the NCP). A
private person (someone who is not the United
States, a state, or a tribe) who has incurred
“necessary costs of response” that are consistent
with the NCP, 42 U.S.C. § 9607(a)(B), may bring an
action to recover such costs, including “interest
on the amounts recoverable.” § 9607(a).
AmeriPride Servs. Inc. v. Texas E. Overseas Inc., 782 F.3d 474,
479-80 (9th Cir. 2015) (alteration in AmeriPride) (footnote
omitted).
Under § 9607(a)(A)-(D), a potentially
responsible party is liable for specified costs
incurred by a government, including natural
resource damages and certain health effects
studies, and for “necessary costs of response
incurred by [a private party] consistent with the
national contingency plan.” Section 9607(a)
further provides that “[t]he amounts recoverable
47

in an action under this section shall include
interest on the amounts recoverable” under
§ 9607(a)(A)-(D), and “[s]uch interest shall
accrue from the later of (i) the date payment of a
specified amount is demanded in writing, or
(ii) the date of the expenditure concerned.”
§ 9607(a).
To prevail in a private cost recovery action
under § 9607(a), a plaintiff must establish, among
other things, that the release of a hazardous
substance “caused the plaintiff to incur response
costs that were ‘necessary’ and ‘consistent with
the national contingency plan.’” Carson Harbor
[Vill., Ltd. v. Unocal Corp.], 270 F.3d [863,]
870–71 [(9th Cir. 2001).] Therefore, a defendant
liable in a private cost recovery action under §
9607(a) would be liable for response costs that
meet such criteria.
A party liable under § 9607(a) may bring a
contribution action under § 9613(f)(1), which
permits courts to allocate “response costs” among
liable parties. Such a plaintiff may seek
contribution “from any other person who is liable
or potentially liable” under § 9607(a). The
liability of the defendant in the contribution
action is therefore also defined by § 9607(a).
Reading these sections together, when a
private plaintiff who incurred liability under
§ 9607(a)(B) for a third party’s response costs
seeks contribution under § 9613(f)(1) for such
costs, the only response costs recoverable from
the defendant in the contribution action are those
that were necessary and consistent with the
NCP. . . .
Id. at 489-90 (some alterations in AmeriPride).

“‘Private party

remedial action is “consistent with the [NCP] if the action, when
evaluated as a whole, is in substantial compliance with . . .
[certain procedural requirements], and results in a
CERCLA-quality cleanup.”’”

Chubb Custom Ins. Co. v. Space

48

Sys./Loral, Inc., 710 F.3d 946, 961 (9th Cir. 2013) (alterations
and emphasis in Chubb Custom) (quoting Carson Harbor Vill. v.
Cty. of Los Angeles, 433 F.3d 1260, 1265 (9th Cir. 2006) (quoting
40 C.F.R. § 300.700(c)(3)(i))).
The elements of a contribution/indemnity claim under
CERCLA and HERL are essentially the same.

“HERL, like CERCLA,

allows parties to allocate indemnification costs between them.
Haw. Rev. Stat. § 128D-6(g).

HERL also allows for recoverable

costs for ‘remedial or removal action’

Id. at § 128D-5.”

Kugle

v. Island Cement, LCC, No. CV 09-00351 DAE BMK, 2010 WL 4960009,
at *15 (D. Hawai`i. Nov. 30, 2010).

The State Contingency Plan

(“SCP”) is set forth in Haw. Admin. R. title 11, chapter 451.
Wond Family alleges it has established all of the
elements of CERCLA and HERL violations, and Continental Tire
alleges Wond Family has not, and cannot, do so.

The evidence

discussed above shows there is conflicting evidence regarding the
elements of Wond Family’s claims.

This Court finds there are

genuine issues of material fact that preclude summary judgment in
favor of either party as to Counts I, II, and III.

Wond Family’s

Counts I-III Motion and Continental’s Counts I-III Motions are
therefore denied without prejudice to refiling should definitive
evidence be able to be presented to the Court.

49

CONCLUSION
On the basis of the foregoing, Wond Family’s Motion for
Partial Summary Judgment Re: Count IV of Complaint, filed
October 6, 2017, is HEREBY GRANTED IN PART AND DENIED IN PART.
The following motions are HEREBY DENIED, in their entirety:
Continental Tire’s Motion for Summary Judgment as to Counts I,
II, and III of Plaintiff’s Complaint; Continental Tire’s Motion
for Summary Judgment as to Count IV of Plaintiff’s Complaint; and
Continental Tire’s Motion for Summary Judgment as to Count V of
Plaintiff’s Complaint; all filed October 6, 2017; and Wond
Family’s Motion for Partial Summary Judgment Re: Counts I, II,
and III of Complaint; filed October 11, 2017.
Specifically, Wond Family’s Count IV Motion is GRANTED
insofar as this Court rules that: 1) holdover rent is an
available remedy for commercial lessors under Hawai`i common law;
and 2) through the Assignment, Continental Tire assumed all of
the Lessee’s obligations in the Sublease.
Motion is DENIED in all other respects.
IT IS SO ORDERED.

50

Wond Family’s Count IV

DATED AT HONOLULU, HAWAII, May 1, 2018.

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

WOND FAMILY KAPALAMA, LLC vs. CONTINENTAL TIRE THE AMERICAS, LLC,
ETC.; CIVIL 16-00676 LEK-KJM; ORDER GRANTING IN PART AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT RE: COUNT IV OF
THE COMPLAINT AND DENYING ALL OTHER MOTIONS FOR SUMMARY JUDGMENT

51