Yoshikawa v. City and County of Honolulu

Filing 179

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT TROY K. SEGUIRANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT; GRANTING IN PART AND DENYING IN PART DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS PLAINTIFF& #039;S SECOND AMENDED COMPLAINT; AND DENYING PLAINTIFF HITOSHI YOSHIKAWA'S MOTION FOR PARTIAL SUMMARY JUDGMENT re 121 , 122 , 130 - Signed by JUDGE JILL A. OTAKE on 1/6/2021. For the reasons set forth above, Seguirant's Motion [ECF No. 121] is GRANTED IN PART AND DENIED IN PART as follows: (1) all official capacity claims and the substantive due process claim are DISMISSED WITH PREJUDICE; and (2) the Section 1981, procedural due process, and equal p rotection claims in Count One against Seguirant in his individual capacity are DISMISSED WITH LEAVE TO AMEND. The City's Motion [ECF No. 122] is GRANTED IN PART AND DENIED IN PART as follows: (1) the negligent training claim in Count F ive and Count Seven are DISMISSED WITH PREJUDICE; (2) Count Six is DISMISSED WITHOUT PREJUDICE; and (3) Counts Two, Three, and Four, and the balance of Count Five are DISMISSED WITH LEAVE TO AMEND. Given the dismissal of Count Six, Plaintiff& #039;s Motion for Partial Summary Judgment [ECF No. 130] is DENIED as MOOT. Plaintiff may file an amended complaint by February 5, 2021 curing the defects identified in this Order. Plaintiff may not add parties or claims without obtaining leave of court. Failure to comply with this Order may result in the dismissal of this action. (emt, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

HITOSHI YOSHIKAWA,

CIVIL NO. 18-00162 JAO-RT

Plaintiff,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
vs.
TROY K. SEGUIRANT’S MOTION
CITY AND COUNTY OF HONOLULU; TO DISMISS PLAINTIFF’S
SECOND AMENDED
TROY K. SEGUIRANT; GREG
COMPLAINT; GRANTING IN
TALBOYS; AGT CONSTRUCTION,
PART AND DENYING IN PART
LLC; & JAMES A. SCHMIT,
DEFENDANT CITY AND COUNTY
OF HONOLULU’S MOTION TO
Defendants.
DISMISS PLAINTIFF’S SECOND
AMENDED COMPLAINT; AND
DENYING PLAINTIFF HITOSHI
YOSHIKAWA’S MOTION FOR
PARTIAL SUMMARY JUDGMENT

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
TROY K. SEGUIRANT’S MOTION TO DISMISS PLAINTIFF’S SECOND
AMENDED COMPLAINT; GRANTING IN PART AND DENYING IN
PART DEFENDANT CITY AND COUNTY OF HONOLULU’S MOTION
TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT; AND
DENYING PLAINTIFF HITOSHI YOSHIKAWA’S MOTION FOR
PARTIAL SUMMARY JUDGMENT

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This case concerns Plaintiff Hitoshi Yoshikawa’s (“Plaintiff”) attempt to
rebuild his house in Kaneohe, Hawai‘i and the regulatory challenges he faced in
doing so. Plaintiff alleges that the City and County of Honolulu (the “City”) and
one of its building inspectors, Defendant Troy K. Seguirant (“Seguirant”), violated
Plaintiff’s civil rights through their interpretation and enforcement of various
municipal laws, which frustrated Plaintiff’s residential construction project. In his
Second Amended Complaint (“SAC”), ECF No. 79, Plaintiff also asserts various
tort claims against the City, his contractor Defendant AGT Construction, LLC
(“AGT”), AGT’s owner, Defendant Greg Talboys (“Talboys”), and his architect,
Defendant James Schmit (“Schmit”). Seguirant and the City (collectively, the
“City Defendants”) each moved to dismiss the SAC, ECF Nos. 121, 122, and
Plaintiff moved for partial summary judgment on his equitable estoppel claim
against the City, ECF No. 130. For the reasons discussed below, the Court
GRANTS IN PART AND DENIES IN PART the City Defendants’ motions to
dismiss and DENIES AS MOOT Plaintiff’s motion for partial summary judgment.
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I.
A.

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BACKGROUND

Facts1
Plaintiff, a Japanese national, resides in the City and County of Honolulu

and owns waterfront real property located in Kaneohe (the “Property”). ECF No.
79 ¶¶ 8–9, 23. At the time Plaintiff purchased the Property in 2014, it contained a
“nonconforming structure” within the shoreline setback. See Hawai‘i Revised
Statutes (“HRS”) § 205A-43; ECF No. 79 ¶ 31. Plaintiff then hired Schmit to
design plans and obtain a building permit so that Plaintiff could repair and renovate
the Property in accordance with rules and regulations pertaining to construction
within the shoreline setback area. ECF No. 79 ¶¶ 23–26.
1.

The Permit and Inspections

In November 2014, Schmit submitted a building permit application for an
“Addition and Alteration to existing Single Family Dwelling,” which required
approval from various sources, including the Building and Zoning divisions within
the City’s Department of Planning and Permitting (“DPP”). Id. ¶¶ 37, 39.
Following extensive review and “[i]terative feedback” between Schmit and DPP
officials, Schmit revised the plans and ultimately obtained a building permit from
DPP in October 2015. Id. ¶¶ 42–49. After obtaining the building permit, Plaintiff

1

The Court’s recitation of facts is based on the allegations in the SAC, which are
taken as true for purposes of the City Defendants’ motions to dismiss.
3 

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began substantial work on the addition and alteration project (the “Project”),
beginning with demolition work in areas outside the shoreline setback in
November 2015. Id. ¶¶ 50–51.
Seguirant inspected the Project at least nine times between December 2015
and May 4, 2016, which, according to Plaintiff’s contractors, was unusually
frequent as building inspectors might visit comparable projects only two or three
times. Id. ¶¶ 52, 54, 57. Seguirant did not raise any issues or concerns relating to
the scope or execution of the Project to Plaintiff, any of Plaintiff’s contractors and
subcontractors, or Schmit during any of these inspections. Id. ¶ 54. Plaintiff’s
contractors noticed Seguirant “approach and converse cordially with the next door
neighbor” on multiple occasions. Id. ¶ 55. Plaintiff alleges that Seguirant owns
and operates a construction business while working as a building inspector for the
City, which Plaintiff alleges is a conflict of interest given Seguirant’s role as a City
building inspector. Id. ¶¶ 13, 152.a.
2.

The May 6, 2016 Unappealable Notice of Violation

On May 6, 2016, Seguirant issued a Notice of Violation and Stop Work
Order on the Project (the “May 2016 NOV”). Id. ¶ 58. The May 2016 NOV
informed Plaintiff that a “new building permit is required for the removal of the
walls of the existing non-conforming structure and the construction of the new
walls within the shoreline setback area” and cited Plaintiff for the “reconstruction
4 

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of the existing nonconforming structure within the shoreline setback area.” Id. ¶
63. The day he issued the May 2016 NOV, Seguirant informed Talboys that “a
Complaint had come in from a woman who had seen the construction Project while
kayaking in Kaneohe Bay” and that Talboys “better watch out, she’s super
knowledgeable.” Id. ¶¶ 59, 61. Plaintiff alleges that Seguirant’s comment about
the kayaker’s complaint was fabricated and intended to distract Plaintiff from
Seguirant’s misconduct that then began to unfold. Id. ¶ 62.
After receiving the May 2016 NOV, Plaintiff’s representatives, including
Schmit and Talboys, stopped work on the Project, requested an appeal or hearing
regarding the May 2016 NOV, and tried to convince various DPP officials to
rescind the May 2016 NOV in various written communications and in-person
meetings. Id. ¶¶ 64–70. In response to Plaintiff’s request for an appeal, DPP’s
then-Acting Director George Atta informed Plaintiff that his request was
premature, as Notices of Violation are not appealable; only Notices of Order are.
Id. ¶ 71. Plaintiff then continued to exchange information and revised plans with
DPP officials, including its Director and Deputy Director. Id. ¶ 73.
3.

The Challacombe Letter

In October 2016, then-Acting DPP Director Art Challacombe issued a
written letter indicating that a revised proposal Schmit had sent him was consistent
with ordinances regarding nonconforming structures in the shoreline setback area
5 

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(the “Challacombe Letter”). Id. ¶ 74. The Challacombe Letter explained that the
revised proposal did not “increase the nonconformity and is less than 50 percent of
the replacement cost of the nonconforming structure,” and so complied with the
City’s ordinances regarding construction work within the shoreline setback area.
Id. The Challacombe Letter further authorized Plaintiff to submit a building permit
based on the revised plans. Id. Following receipt of the Challacombe Letter,
Plaintiff expended substantial resources and time to revise the Project’s plans and
submitted revised plans in December 2016. Id. ¶¶ 76–77.
4.

The March 14, 2017 Appealable Notice of Order

On February 2, 2017, while working in Plaintiff’s yard, Plaintiff’s
contractors overheard Seguirant tell the next-door neighbor, “I keep shutting them
down but f--- [expletive] these Haoles[2] don’t listen, that’s why I try keep it
local.” Id. ¶¶ 79–81.

2

Plaintiff offers the following definition of the word “Haole”:
The word “Haole” is a term formerly used to connote “foreigner” but
in practice has evolved into a racial slur and/or derogatory term
typically used by locals in Hawai‘i, against white people (generally),
and/or persons who are not locals such as tourists, as well as residents,
and military personnel who are not originally from Hawai‘i (i.e. nonlocals).

ECF No. 79 ¶ 120.a n.7.
6 

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On March 14, 2017, Seguirant issued a Notice of Order (the “March 2017
NOO”) regarding the May 2016 NOV, which Plaintiff alleges contradicted the
Challacombe Letter. Id. ¶ 82. The March 2017 NOO stated that the “existing nonconforming structure within the shoreline setback area was reconstructed, which is
not in accordance with the approved building permit” and that “a new building
permit is required for removing the walls of the existing non-conforming structure
and constructing new walls within the shoreline setback area.” ECF No. 79-10 at
1. Plaintiff was confused because he believed that the Challacombe Letter voided
the May 2016 NOV. ECF No. 79 ¶ 83.
5.

The Amended Building Permit

Despite the issuance of the March 2017 NOO, on March 29, 2017, DPP
issued an amended building permit (the “Amended Building Permit”) for the
Project that was consistent with the Challacombe Letter. Id. ¶ 84. Various DPP
officials further verbally assured Plaintiff’s representatives that the Project could
proceed, so Plaintiff recommenced work on the Project. See id. ¶ 86. Plaintiff
subsequently initiated an appeal of the March 2017 NOO with the City’s Board of
Building Appeals (“BBA”). Id. ¶ 87.
6.

The April 7, 2017 Unappealable Notice of Violation

On April 7, 2017, Seguirant issued a further Notice of Violation and Stop
Work Order (the “April 2017 NOV”). Id. ¶ 88. The April 2017 NOV
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“concern[ed] the same alleged issues pertaining to the Project’s scope of work in
the setback,” but in fact covered additional violations as well. Id.; ECF No. 79-12.
The April 2017 NOV stated that the information supplied to obtain the Amended
Building Permit was incorrect in violation of Revised Ordinances of Honolulu
(“ROH”) § 18-5.3(b); that the existing nonconforming structure was removed and
a new structure had been built in its place in violation of ROH § 23-1.6; that the
building permit was issued prior to Plaintiff obtaining a special management area
use permit in violation of ROH § 18-5.3(b); that a new portion of the structure had
been built in the shoreline setback area without a shoreline setback variance in
violation of ROH § 23-1.5; and that a structure was built in the special
management area prior to Plaintiff obtaining a special management area use permit
in violation of ROH § 25-6.1. ECF No. 79-12. Plaintiff stopped work on the
Project again and continued to challenge the May 2016 NOV, the March 2017
NOO, and the April 2017 NOV, but the various City officials “went silent, ceasing
communications with Plaintiff’s representatives as to the status of the Project[.]”
ECF No. 79 ¶¶ 90–92.
7.

The BBA Hearing and Order

On November 3, 2017, the BBA held a hearing on Plaintiff’s appeal of the
March 2017 NOO, attended by Seguirant and his supervisor. Id. ¶ 99. The BBA
denied Plaintiff’s appeal in its Findings of Fact, Conclusions of Law, and Decision
8 

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and Order (“the BBA Order”), which was issued sometime in 2018.3 See id. ¶ 101;
ECF No. 121-3.
Plaintiff alleges that five months after the hearing he still had not received
the BBA Order, but learned through discovery that it was sent to outdated
addresses for Schmit and Plaintiff’s prior counsel. ECF No. 79 ¶¶ 101, 103–06.
Plaintiff does not allege who caused this error. See id. Plaintiff further alleges that
the Stop Work Order contained in the April 2017 NOV is effectively nonappealable because it was not followed by a Notice of Order. Id. ¶ 102.
The BBA found that “Seguirant issued the [May 2016] NOV based on his
observations of the Property and determined that the entire structure was
demolished which exceeded the scope of work of the Building Permit,”4 ECF No.
121-3 at 2–3, that Seguirant’s supervisor “confirmed the actual, physical building
was removed,” and that the “new structure included new framing and structural

3

The signature line on the BBA Order says it was entered on the “19th day of
2018, 2018.” ECF No. 121-3 at 6.
4

While the BBA Order was not among the numerous exhibits attached to the
SAC, the City attached a copy of it as an exhibit to its motion to dismiss. The
Court may consider it without converting the motion into a motion for summary
judgment. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)
(explaining that a court may consider extrinsic documents on a motion to dismiss
without converting the motion to a motion for summary judgment if the
documents’ authenticity is not contested and the plaintiff’s complaint necessarily
relies on them (citation omitted)).
9 

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columns, new cement pads, and was a new building.” Id. at 3. The BBA
acknowledged the Challacombe Letter’s approval of the “revised plan,” id., but
ultimately upheld Seguirant’s March 2017 NOO because Schmit5 “demolished and
removed the existing structure and did not construct the new building in the
shoreline setback area according to the approved plans[.]” Id. at 5.
It is undisputed that Plaintiff did not appeal the BBA Order to the state
circuit court within the thirty-day appeal period outlined in HRS § 91-14(b).
B.

Procedural History
Plaintiff commenced this action on May 3, 2018 and filed the SAC on

August 29, 2019, asserting the following claims: Count One – Fourteenth
Amendment violations pursuant to 42 U.S.C. §§ 1981, 1983 (against Seguirant);
Count Two – Fourteenth Amendment violations pursuant to 42 U.S.C. §§ 1981,
1983, municipal liability, ratification or approval (against the City); Count Three –
Fourteenth Amendment violations pursuant to 42 U.S.C. § 1983, municipal
liability, policy of inaction and/or delay (against the City); Count Four – violations
of procedural due process pursuant to 42 U.S.C. § 1983, municipal liability
(against the City); Count Five – negligence, negligent hiring, training, retention,
and/or supervision (against the City); Count Six – equitable estoppel; Count Seven
– declaratory and injunctive relief; Count Eight – negligence (against Talboys and

5

Schmit was the named petitioner in the BBA appeal. See ECF No. 121-3 at 1.
10 

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Schmit); and Count Nine – Unfair or Deceptive Acts or Practices – UDAP (against
Talboys and Schmit). Plaintiff prays for declaratory relief, injunctive relief,
monetary damages, punitive damages, treble damages, costs of suit, and attorneys’
fees. ECF No. 79 at 46–48.
Seguirant and the City each filed motions to dismiss on May 26, 2020. ECF
Nos. 121, 122. Plaintiff moved for partial summary judgment on Count Six on
June 15, 2020. ECF No. 130. In accordance with the Court’s October 6, 2020
Entering Order, ECF No. 158, Plaintiff and the City Defendants each submitted a
supplemental memorandum on October 9, 2020 regarding the doctrine of
exhaustion of administrative remedies. ECF Nos. 164, 165. Oral argument was
presented at a motions hearing on October 16, 2020. ECF No. 166.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) authorizes dismissal of a
complaint that fails “to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). On a Rule 12(b)(6) motion to dismiss, “the court accepts the facts
alleged in the complaint as true,” and “[d]ismissal can be based on the lack of a
cognizable legal theory or the absence of sufficient facts alleged.” UMG
Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir.
2013) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1988)) (alteration in original). However, conclusory allegations of law,
11 

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unwarranted deductions of fact, and unreasonable inferences are insufficient to
defeat a motion to dismiss. See Sprewell v. Golden State Warriors, 266 F.3d 979,
988 (9th Cir. 2001); Nat’l Ass’n for the Advancement of Psychoanalysis v. Cal. Bd.
of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (citation omitted).
Furthermore, the court need not accept as true allegations that contradict matters
properly subject to judicial notice. See Sprewell, 266 F.3d at 988.
“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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). The tenet that the court must accept as true all the allegations contained in
the complaint does not apply to legal conclusions. See id. As such, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (some alterations
in original). If dismissal is ordered, the plaintiff should be granted leave to amend
12 

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unless it is clear that the claims could not be saved by amendment. See Swartz v.
KPMG LLP, 476 F.3d 756, 760 (9th Cir. 2007) (citation omitted).
III.

DISCUSSION

The SAC is disorganized and unclear. Because several issues are common
to both of the separate motions to dismiss filed by the City Defendants, the Court
addresses various claims collectively and in a different order than how they are
presented in the SAC.
A.

Plaintiff’s Claims against Seguirant in His Official Capacity
As a preliminary matter, Plaintiff does not specify in the SAC whether he

asserts his federal civil rights claim against Seguirant in his individual or official
capacity. Seguirant correctly contends that any claims against him in his official
capacity should be dismissed because he was acting as a building inspector within
the course of his official duties, and the City is therefore the proper party. ECF
No. 121-1 at 19. “Since official-capacity suits generally represent only another
way of pleading an action against an entity of which an officer is an agent,” Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978), such suits should “be
treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(citation omitted). “It is not a suit against the official personally, for the real party
in interest is the entity.” Id. Accordingly, the claims against Seguirant in his
official capacity are DISMISSED WITH PREJUDICE. See Park v. City & County
13 

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of Honolulu, 292 F. Supp. 3d 1080, 1090 (D. Haw. 2018) (dismissing with
prejudice official capacity claims against the individual officer defendants). 
B.

42 U.S.C. § 1981 (Counts One and Two)
Plaintiff alleges that Seguirant violated 42 U.S.C. § 1981 in the caption of

Count One, but it is unclear which of the allegations in Count One relate to that
statute, if any. Plaintiff expands on this claim in his opposition brief, arguing that
Seguirant interfered with his contractual relationships with his architect and
general contractor. ECF No. 146 at 11. Plaintiff likewise alleges that the City
violated Section 1981 in Count Two, but again fails to identify specific violations
of Section 1981.
Section 1981 was “meant, by its broad terms, to proscribe discrimination in
the making or enforcement of contracts against, or in favor of, any race.” Gratz v.
Bollinger, 539 U.S. 244, 276 n.23 (2003) (internal quotation marks and citation
omitted). “‘Race’ is interpreted broadly to mean classes of persons identifiable
because of their ancestry or ethnic characteristics.” Gathenji v. Autozoners, LLC,
703 F. Supp. 2d 1017, 1029 (E.D. Cal. 2010) (quoting Saint Francis Coll. v. AlKhazraji, 481 U.S. 604, 612–13 (1987)). The Supreme Court has explained that
Section 1981 is “intended to protect from discrimination identifiable classes of
persons who are subjected to intentional discrimination solely because of their
ancestry or ethnic characteristics.” Saint Francis Coll., 481 U.S. at 613. In order
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to state a claim under Section 1981, it is essential that the plaintiff “initially
identify an impaired contractual relationship . . . under which the plaintiff has
rights.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (internal
quotation marks, citation, and footnote omitted).
Because Section 1981 claims typically arise in employment discrimination
cases, the Court must evaluate such claims using the first three elements of the
McDonnell Douglas6 test used in Title VII discrimination cases even though the
claims here do not involve an employment relationship. See Lindsey v. SLT L.A.,
LLC, 447 F.3d 1138, 1145 (9th Cir. 2006). Accordingly, Plaintiff must plead that
he (1) is a member of a protected class, (2) attempted to contract for certain
services, and (3) was denied the right to contract for those services. See id. For
purposes of a §1981 claim, however, Plaintiff’s protected class must relate to his or
her “ancestry or ethnic characteristics.” Saint Francis Coll., 481 U.S. at 613.
For the City to be liable under Section 1981, Plaintiff must also “show that
the violation of his ‘right to make contracts’ protected by § 1981 was caused by a
custom or policy within the meaning of Monell[7] and subsequent cases.” Jett v.
Dallas Indep. Sch. Dist., 491 U.S. 701, 735–36 (1989).

6

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

7

Monell held that “a local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents.” Monell, 436 U.S. at 694. “Instead, it
(continued . . .)
15 

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The City Defendants do not address the question of whether Plaintiff
belongs to a protected class in the context of his Section 1981 claims. The Court
may nonetheless dismiss Plaintiff’s Section 1981 claims sua sponte without notice
where “it is obvious that the plaintiff ‘cannot possibly win relief.’” Landucci v.
State Farm Ins. Co., 65 F. Supp. 3d 694, 711 (N.D. Cal. 2014) (citation omitted);
see also Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988). Such
is the case here.
Plaintiff argues that when Seguirant talked about “shutting down . . . these
Haoles,” Seguirant was referring to “the class of people (all races alike) that were
not born and raised in Hawaii, which includes Plaintiff Yoshikawa (a Japanese
national) and Plaintiff’s architect, general contractor and his employees alike who
were not born and raised in Hawaii.”8 ECF No. 146 at 10. This definition

(. . . continued)
is when execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under §
1983.” Id. At the motions hearing, Plaintiff’s counsel seemed to misconstrue
Monell by arguing that Seguirant’s actions violated a City policy or custom, not
that he was acting in accordance with a City policy or custom.
8

Multiple cases in this District explain that the term, “Haole,” refers to a white
person. See, e.g., Kaulia v. Cnty. of Maui, Dep’t of Pub. Works & Waste Mgmt.,
504 F. Supp. 2d 969, 975 n.9 (D. Haw. 2007) (“‘Haole’ means ‘foreign’ or
‘foreigner’ in Hawaiian. The term is used in modern day vernacular to refer—
either descriptively or derisively—to Caucasians.”); Chenoweth v. Maui Chem. &
Paper Prods., Inc., CV. No. 07-00092 DAE–KSC, 2008 WL 4107906, at *7 n.3
(continued . . .)
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precludes Plaintiff from pleading a Section 1981 claim because a class of people
that consists of anyone not born and raised in Hawai‘i is not a protected class under
Section 1981 or the McDonnell Douglas framework.
In addition, as the City Defendants point out, the Section 1981 claims are
currently defective because Plaintiff did not identify a contractual relationship
under which he has rights. ECF No. 121-1 at 24; ECF No. 122-1 at 20–21.
Plaintiff responds that “all one has to do is look to the case caption and see that
there are significant contractual relationships and alleged breaches at stake here.”
ECF No. 146 at 11. But while Plaintiff has indeed asserted claims against his
general contractor and his architect, the existence of those claims does not alleviate
Plaintiff’s burden of identifying in a Section 1981 claim the contractual
relationship impaired. Finally, Plaintiff failed to identify the City’s “custom or
policy” that resulted in the impairment of Plaintiff’s contractual rights.
Amendment of the Section 1981 claims would not be futile. At the motions
hearing, Plaintiff’s counsel stated that Plaintiff would rely on a race-based theory

(. . . continued)
(D. Haw. Sept. 3, 2008) (“‘Haole’ is a Hawaiian word often used to describe a
Caucasian person.”). But for the purposes of evaluating Defendants’ Motions to
Dismiss, the Court uses Plaintiff’s definition. See Davis v. KHNL/KGMB, LLC,
Civil No. 14-00483 SOM/BMK, 2015 WL 3448737, at *2 (D. Haw. May 28, 2015)
(explaining that courts evaluate motions to dismiss “‘on the assumption that all the
allegations in the complaint are true even if doubtful in fact’” (quoting Twombly,
550 U.S. at 555) (other citation omitted)).
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of discrimination if his “localism” argument should fail.9 The Court concludes that
it is at least possible that Plaintiff could assert a Section 1981 claim based on
possible discrimination on Seguirant’s part against Caucasians (the vernacular
definition of the word “Haole”) if Seguirant was indeed discriminating against
Plaintiff’s Caucasian agents to Plaintiff’s detriment. See McDonald v. Santa Fe
Trail Transp. Co., 427 U.S. 273, 286–87 (1976) (“[Section] 1981 is applicable to
racial discrimination in private employment against white persons.”); Maynard v.
City of San Jose, 37 F.3d 1396, 1403 (9th Cir. 1994) (holding that a white plaintiff
has standing to assert racial discrimination claims under Section 1983 relating to
discrimination against non-white groups where such discrimination resulted in
injuries that were personal to the plaintiff and the plaintiff was the “only effective
plaintiff who can bring [the] suit” (citing cases involving Section 1981 claims)). It
is further conceivable that Plaintiff could allege facts identifying a contractual
relationship that was impaired as well a “custom or policy” on the part of the City
that resulted in the impairment of Plaintiff’s contractual rights. Plaintiff’s Section

9

Plaintiff’s counsel further stated discovery would enable Plaintiff to ascertain
against whom Seguirant was discriminating. Discovery is generally unavailable to
Plaintiffs seeking additional information to cure inviable claims, and therefore
discovery will not be allowed on this topic prior to the filing of an amended
complaint. See Hu Honua Bioenergy, LLC v. Hawaiian Elec. Indus., Inc., Civil
No. 16-00634 JMS-KJM, 2017 WL 11139576, at *2 (D. Haw. July 6, 2017) (“The
law is well settled that a plaintiff is not entitled to discovery it might need to state a
plausible claim for relief.” (citation omitted)).  
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1981 claims (Count One and a portion of Count Two) against Seguirant in his
individual capacity and the City are therefore DISMISSED WITH LEAVE TO
AMEND.
C.

42 U.S.C. § 1983: Procedural Due Process (Counts One and Four)
In Counts One and Four, Plaintiff alleges that Seguirant and the City are

each liable under Section 1983 for violating Plaintiff’s procedural due process
rights under the Fourteenth Amendment. Plaintiff alleges that Seguirant’s various
“unreasonable, arbitrary and capricious actions” amount to procedural due process
violations. ECF No. 79 ¶ 121. Plaintiff alleges that the City committed procedural
due process violations by (1) relying on unwritten rules that contradict the
published the “50 percent rule” contained in ROH § 23-1.6 (which limits
renovations of nonconforming structures to fifty percent of the replacement cost of
the structure), and (2) failing to have DPP follow the April 2017 NOV with a
Notice of Order, which would give Plaintiff a basis to commence a second BBA
appeal. Id. ¶¶ 145–48.
“To obtain relief on a procedural due process claim, the plaintiff must
establish the existence of ‘(1) a liberty or property interest protected by the
Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of
process.’” Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008) (alterations in

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original) (citation omitted). At its core, procedural due process requires notice and
an opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
Plaintiff argues that the City’s failure to “Notice to Order” the April 2017
NOV deprived him of a right to be heard. ECF No. 79 ¶ 148. Yet, Plaintiff also
alleges that the April 2017 NOV “concern[ed] the same alleged issues pertaining to
the Project’s scope of work in the setback” as outlined in the May 2016 NOV
and/or March 2017 NOO.10 Id. ¶ 88. Indeed, the April 2017 NOV included
violations of ROH Chapters 23 (Shoreline Setbacks), 25 (Special Management
Area), and 18 (Fees and Permits for Building, Electrical, Plumbing and Sidewalk
Codes) that were raised in the May 2016 NOV and March 2017 NOO. See ECF
Nos. 79-6, 79-10, 79-12.
Following the BBA Hearing, the BBA upheld Seguirant’s determination that
the Project violated portions of ROH Chapter 18 and denied Plaintiff the right to
proceed with the Project. See ECF No. 121-3 at 5 (“[T]he Petitioner demolished
and removed the existing structure and did not construct the new building in the
shoreline setback area according to the approved plans[.]”). Plaintiff’s allegation
that DPP’s failure to “Notice to Order” the April 2017 NOV “caus[ed] the Project

10

The SAC does not identify the applicable Notice. See ECF No. 79 ¶ 88.
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to be stuck in limbo for over two years,” ECF No. 79 ¶ 148, is simply implausible
in light of the BBA’s determination that the Project could not proceed.11
It is also unclear how Plaintiff can assert that the City did not afford him
process with respect to the deprivation at issue, i.e., the City’s refusal to allow the
Project to proceed, when his architect—represented by counsel—participated in a
contested case hearing before the BBA, and the BBA Order was appealable.12
It is conceivable that Plaintiff may be able to plead facts giving rise to a
procedural due process violation on the part of Seguirant and/or the City.
Plaintiff’s procedural due process claims against Seguirant in his individual

11

Given that the BBA upheld Seguirant’s determination in the May 2016 NOV
and the March 2017 NOO that the Project violated portions of ROH Chapter 18,
Plaintiff fails to demonstrate how he could have been able to proceed with the
Project even if the April 2017 NOV was followed by a Notice of Order and a
subsequent determination by the BBA that the Project did not violate the relevant
provisions of ROH Chapters 23 and 25.
12

In his Supplemental Memorandum, Plaintiff argues that the City did “not even
provid[e] notice by mailing the order to the right people in violation of HRS
§[ ]91-12.” ECF No. 164 at 4 (footnote omitted). But the SAC does not allege a
mistake by the City in this regard. The only information in the present record
about the topic is in the City’s Concise Statement of Facts, which states that the
BBA Order was mailed to the address on file for both Schmit and his attorney (as a
courtesy) and that the BBA was not informed that Schmit’s address had changed.
ECF No. 144 at 10. Plaintiff may be able to plausibly allege in an amended
complaint that the City’s failure to provide his agents with copies of the BBA
Order amounted to a procedural due process violation.
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capacity in Count One and against the City in Count Four are therefore
DISMISSED WITH LEAVE TO AMEND.
D.

42 U.S.C. § 1983: Substantive Due Process (Count One)
In Count One, Plaintiff also alleges that Seguirant violated his substantive

due process rights by “depriv[ing] Plaintiff of his vested rights under the
[Amended Building Permit], and the use or enjoyment of his Property for two
years.” ECF No. 79 ¶ 122.
“The guarantee of substantive due process provides heightened protection
against government interference with certain fundamental rights and liberty
interests.” Krainski v. Nevada ex rel. Bd. of Regents of Nev. Sys. of Higher Educ.,
616 F.3d 963, 969 (9th Cir. 2010) (internal quotation marks and citation omitted).
“To state a substantive due process claim, the plaintiff must show as a threshold
matter that a state actor deprived it of a constitutionally protected life, liberty or
property interest.” Shanks, 540 F.3d at 1087 (citing Action Apartment Ass’n, Inc.
v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026 (9th Cir. 2007)). The
“‘irreducible minimum’ of a substantive due process claim challenging land use
action is failure to advance any legitimate governmental purpose.” Id. at 1088
(quoting N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 484 (9th Cir. 2008))
(other citation omitted). “When executive action like a discrete permitting
decision is at issue, only ‘egregious official conduct can be said to be “arbitrary in
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the constitutional sense”’: it must amount to an ‘abuse of power’ lacking any
‘reasonable justification in the service of a legitimate governmental objective.’”
Id. (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (other
citation omitted)).
Because Plaintiff asserted his substantive due process claim against
Seguirant and not the City, only Seguirant’s actions (issuing the May 2016 NOV,
the March 2017 NOO, and the April 2017 NOV) matter here. Even if Plaintiff
were able to establish the threshold element of a constitutionally protected property
right, Plaintiff’s substantive due process claim would nonetheless fail as a matter
of law. Accepting the factual allegations in the SAC as true, it is simply
implausible that Seguirant’s actions “lack[ed] any ‘reasonable justification in the
service of a legitimate governmental objective.’” Shanks, 540 F.3d at 1088
(citation omitted). Plaintiff himself alleges that Talboys and/or Schmit “violated
applicable code and regulations of [DPP]” and “caused the scope of the Project to
exceed the scope of the permits.” ECF No. 79 ¶¶ 169–70. At the motions hearing,
Plaintiff’s counsel explained that the claims against Schmit and Talboys were
alternative theories of liability in the event that the Court rejected Plaintiff’s
principal claim that he was entitled to proceed with the Project. But “[a] pleader
may assert contradictory statements of fact only when legitimately in doubt about
the facts in question.” Total Coverage, Inc. v. Cendant Settlement Servs. Grp.,
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Inc., 252 F. App’x 123, 126 (9th Cir. 2007) (internal quotation marks and citation
omitted). As Plaintiff evidently concedes that it is at least possible that the Project
violated municipal law, Plaintiff cannot plausibly claim that Seguirant’s actions
(enforcing the provisions that Schmit and/or Talboys may violated) were wholly
divorced from a governmental interest.
Plaintiff’s substantive due process claim against Seguirant is therefore
DISMISSED WITH PREJUDICE. Dismissal is with prejudice because the facts
Plaintiff already alleged prevent Plaintiff from alleging plausibly that Seguirant’s
actions were wholly divorced from a governmental interest.
E.

42 U.S.C. § 1983: Equal Protection (Counts One and Two)
Plaintiff’s counsel stated at the motions hearing that Plaintiff intended to

allege equal protection claims against the City Defendants in Counts I and II.
Seguirant argues that any alleged equal protection claim fails as a matter of law,
contending that there cannot be a class-based claim in the absence of a control
group and that a class-of-one theory cannot apply to government action involving
discretionary decision making. ECF No. 121-1 at 22–23.
“The Equal Protection Clause of the Fourteenth Amendment commands that
no State shall ‘deny to any person within its jurisdiction the equal protection of the
laws,’ which is essentially a direction that all persons similarly situated should be
treated alike.” Sampson v. County of Los Angeles ex rel. L.A. Cnty. Dep’t of Child.
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& Fam. Servs., 974 F.3d 1012, 1022 (9th Cir. 2020) (internal quotation marks
omitted) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985)). Equal protection claims may be class-based or based on a class-of-one.
See, e.g., Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 589 (9th Cir. 2008) (holding
that a class-based equal protection claim arises when the “law is applied in a
discriminatory manner or imposes different burdens on different classes of people”
(internal quotation marks and citation omitted)); Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000) (holding that an equal protection claim may be “brought
by a ‘class of one,’ where the plaintiff alleges that she has been intentionally
treated differently from others similarly situated and that there is no rational basis
for the difference in treatment” (citations omitted)).
While the SAC alludes to an equal protection claim, Count One does not
appear to assert an express equal protection violation against Seguirant. Indeed,
Plaintiff only mentions the phrase twice in the SAC, see ECF No. 79 ¶¶ 3, 109,
both times in paragraphs preceding Counts One and Two, the captions for which
reference only “Fourteenth Amendment Violations.” Id. at 29, 33. Further, the
vaguely alleged equal protection claim in the SAC does not make clear whether

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Plaintiff asserts a class-based equal protection claim, a class-of-one equal
protection claim, or both.13
And while Plaintiff alleges that Seguirant acted with “malice or intent to
discriminate against the Plaintiff based on race, alienage, and/or national origin,”
ECF No. 79 ¶ 119 (emphasis omitted), and inspected the Property more than
building inspectors typically inspect comparable projects, id. ¶ 57, Plaintiff does
not include further factual allegations showing that Seguirant applied the law in a
discriminatory manner or applied different burdens to different classes of people,
as a class-based equal protection claim requires. Nor does Plaintiff allege that
Seguirant intentionally treated him differently from similarly situated individuals
with no rational basis for the difference in treatment, which a class-of-one claim
requires.14

13

Even Plaintiff’s opposition briefs do not shed light on the matter, as they allude
to but do not expressly articulate the basis for his equal protection claim. See
generally ECF Nos. 145, 146.

14

Plaintiff’s allegation that Seguirant inspected the Property more than other
building inspectors inspect comparable projects, ECF No. 79 ¶¶ 54, 57, is
insufficient because Plaintiff has not pleaded facts showing that Seguirant
intentionally treated Plaintiff differently than similarly-situated individuals with no
rational basis for the difference in treatment.
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It is conceivable that Plaintiff could plead facts giving rise to an equal
protection claim. The equal protection claims against Seguirant in his individual
capacity and the City are therefore DISMISSED WITH LEAVE TO AMEND.15
F.

42 U.S.C. § 1983: Claim for Ratification or Approval (Count Two)
In Count Two of the SAC, Plaintiff alleges that the City committed various

Fourteenth Amendment violations under a theory of ratification or approval for
which it is liable under Section 1983. Specifically, Plaintiff contends that the City
ratified and approved Seguirant’s wrongful acts through the DPP Director’s
signing of the April 2017 NOV and the DPP Director’s failure to rescind the Stop
Work Order Seguirant issued in the April 2017 NOV. ECF No. 79 ¶¶ 128–130.
“[A] municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under § 1983
on a respondeat superior theory.” Monell, 436 U.S. at 691. A municipality can be
liable, however, if “an official with final policy-making authority ratified a
subordinate’s unconstitutional decision or action and the basis for it.” Gillette v.
Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992) (emphasis added) (citations
omitted). The policymaker must further “make a deliberate choice from among

15

Because the Court dismisses Count One against Seguirant, it need not reach
Seguirant’s qualified immunity argument. Indeed, it is difficult for the Court to
address qualified immunity without knowing the precise contours of Plaintiff’s
constitutional claims against Seguirant.
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various alternatives to follow a particular course of action.” Id. (citing Oviatt ex
rel. Waugh v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992)).
The SAC does not indicate which of Seguirant’s acts were allegedly
unconstitutional and how they were unconstitutional. Even assuming Seguirant
engaged in unconstitutional conduct, the SAC does not outline the DPP Director’s
ratification of the action and the basis for it. Indeed, nothing in the SAC suggests
that the DPP Director was aware of any statements Seguirant made, any biases
Seguirant harbored, or that Seguirant maintained his own contracting business
while working as a building inspector for the City.
It is conceivable that Plaintiff could plead facts showing that Seguirant’s
supervisor ratified an unconstitutional act on Seguirant’s part as well as the basis
for such act. Accordingly, Count Two is DISMISSED WITH LEAVE TO
AMEND.
G.

42 U.S.C. § 1983: Fourteenth Amendment Violations for Policy of
Inaction or Delay (Count Three)
In Count Three of the SAC, Plaintiff alleges that the City is liable for its

policy of inaction or delay that amounted to a failure to protect Plaintiff’s
constitutional rights. While the Court acknowledges that Count Three is not
particularly clear, the City misconstrues Count Three as purely a claim for
substantive due process violations. Plaintiff’s counsel represented at the motions
hearing that Count Three also includes procedural due process violations. “[A]
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local governmental body may be liable if it has a policy of inaction and such
inaction amounts to a failure to protect constitutional rights.” Oviatt, 954 F.2d at
1474 (citation omitted). Thus, the City could theoretically be liable if its policy of
inaction and delay resulted in a substantive or procedural due process violation.
Under Oviatt, the elements of a municipal liability claim under Section 1983
arising out of a policy of inaction or delay are: “(1) that [the plaintiff] possessed a
constitutional right of which he was deprived; (2) that the municipality had a
policy; (3) that this policy ‘amounts to deliberate indifference’ to the plaintiff’s
constitutional right; and (4) that the policy is the ‘moving force behind the
constitutional violation.’” Id. (citation omitted).
Plaintiff must plead facts showing that “the need for more or different action
‘is so obvious, and the inadequacy [of the current procedure] so likely to result in
the violation of constitutional rights, that the policymakers . . . can reasonably be
said to have been deliberately indifferent to the need.’” Id. at 1477–78 (alterations
in original) (citation omitted). Although the SAC conclusorily alleges that the
City’s policy of inaction or delay “evidences a deliberate indifference to the
Plaintiff’s rights to substantive and procedural due process,” ECF No. 79 ¶ 138, it
offers no facts demonstrating an obvious inadequacy of the City’s procedures. In
the absence of such allegations, Plaintiff not only failed to plead the existence of a

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policy of inaction or delay, but also failed to plead that the City’s policy amounts
to deliberate indifference.
It is conceivable that Plaintiff may be able to plead facts that give rise to a
Monell claim against the City based on a policy of inaction or delay. As such,
Count Three is DISMISSED WITH LEAVE TO AMEND.
H.

Negligence and Negligent Hiring, Training, Retention, and Supervision
(Count Five)
In Count Five of the SAC, Plaintiff appears to assert what he considers to be

five separate state law claims against the City: negligence, negligent hiring,
negligent training, negligent retention, and negligent supervision. The factual
bases for these claims are Seguirant’s maintenance of a contracting business while
working as a building inspector; the City’s provision of little-to-no formal training
or supervision, which enabled Seguirant to discriminate against Plaintiff; and the
City’s wrongful retention of Seguirant after being put on notice of his misconduct.
ECF No. 79 ¶ 152.
The City argues for dismissal of these negligent employment claims
because: (1) the BBA Order collaterally estops Plaintiff from arguing that
Seguirant should not have issued the various NOVs and NOO; (2) Plaintiff failed
to allege that the City’s negligent hiring of Seguirant was the proximate cause of
Plaintiff’s injuries; and (3) that it was not foreseeable that Seguirant had
“dangerous propensities.” ECF No. 122-1 at 24–27. The Court need not reach the
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issue of whether issue preclusion bars Plaintiff’s negligence claim as none of the
claims satisfy the requisite requirements as currently pled.
1.

Negligence

“It is well-established that, in order for a plaintiff to prevail on a negligence
claim, the plaintiff is required to prove all four of the necessary elements of
negligence: (1) duty; (2) breach of duty; (3) causation; and (4) damages.” Cho
v. Hawai‘i, 115 Hawai‘i 373, 379 n.11, 168 P.3d 17, 23 n.11 (2007) (citation
omitted). Inexplicably, Plaintiff does not include any factual allegations that
correspond to these elements, focusing only on the negligent employment claims.
Somewhat understandably, the City’s motion also focuses on the negligent
employment claims rather than the negligence claim itself. ECF No. 122-1 at 24–
27. If Plaintiff wishes to assert a negligence claim against the City, Plaintiff must
plead facts that satisfy the elements of a negligence claim.
It is conceivable that Plaintiff could plead facts showing that the City
breached a duty of care owed to Plaintiff and that such breach caused Plaintiff
damages. As such, Plaintiff’s negligence claim in Count Five is DISMISSED
WITH LEAVE TO AMEND.
2.

Negligent Hiring

Hawaiʻi law requires employers “to exercise reasonable care in hiring
individuals who, because of the nature of their employment, may pose a threat of

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injury to members of the public.” Janssen v. Am. Haw. Cruises, Inc., 69 Haw. 31,
34, 731 P.2d 163, 166 (1987) (footnote and citations omitted); see also Kaahu v.
Randall, Civil No. 14-00266HG-RLP, 2018 WL 472996, at *18 (D. Haw. Jan. 18,
2018) (citing Janssen). The elements of a negligent hiring claim are:
(1) the defendant owed a duty of care to the plaintiff;
(2) the defendant breached that duty by hiring an employee, even
though the defendant knew, or should have known, of the
employee’s dangerous propensities;
(3) the plaintiff suffered monetarily compensable physical or
emotional injuries; and,
(4) the breach of the duty was the proximate cause of the
plaintiff’s physical or emotional injuries.
See Murphy v. Lovin, 128 Hawai‘i 145, 155–58, 284 P.3d 918, 928–31 (App.
2011), as corrected (Jan. 10, 2012) (citing the circuit court’s uncontested jury
instruction regarding the elements of a negligent hiring claim). The employer only
owes a “duty of care to those who are foreseeably endangered by the [dangerous]
conduct and only in regard to the risks or hazards whose likelihood made the
conduct unreasonably dangerous.” Murphy, 128 Hawai‘i at 158, 284 P.3d at 931
(citation omitted); see also Ryder v. Booth, Civil No. 16-00065 HG-KSC, 2016
WL 2745809, at *11 (D. Haw. May 11, 2016) (“The key to a claim
of negligent hiring is foreseeability. If an employer was not on notice as to
the hired employee’s dangerous propensities, the employer cannot be held liable as
a matter of law.” (citation omitted)).

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It is conceivable that Plaintiff could amend the complaint to remedy his
failure to plead facts showing that the City was on notice of Seguirant’s
“dangerous propensities”16 when it hired him. Plaintiff’s negligent hiring claim in
Count Five is therefore DISMISSED WITH LEAVE TO AMEND.
3.

Negligent Retention

“The Hawaii courts have not established the exact elements of a negligent
retention claim.” Ryder, 2016 WL 2745809, at *11 (citation omitted). “A
valid negligent retention claim nonetheless contains the elements of an
ordinary negligence cause of action, from which it is derived.” Id. (citation
omitted).
Plaintiff alleges that the City “wrongfully retained Defendant Seguirant as a
building inspector with DPP, after it was put on notice of his misconduct.” ECF
No. 79 ¶ 152.d. This allegation is confusing as Seguirant’s alleged “misconduct”
is his allegedly tortious conduct, i.e., discriminating against Plaintiff and
maintaining his contracting business while working as a building inspector. Id. ¶
152. As the City persuasively argues, its retention of Seguirant could not have

16

Plaintiff appears to suggest that Seguirant’s maintenance of a contracting
business constitutes “dangerous propensities” for purposes of a negligent hiring
claim yet offers no explanation in support. The Court is skeptical that this suffices
but need not address the question.
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been the proximate cause of Plaintiff’s injuries if Seguirant had already caused
those injuries when the City received notice of the same.
It is conceivable, however, that Plaintiff could amend his complaint in order
to allege that Seguirant caused injuries to Plaintiff after the City was put on notice
of Seguirant’s prior alleged misconduct. The negligent retention claim in Count
Five is therefore DISMISSED WITH LEAVE TO AMEND.
4.

Negligent Supervision

The Hawai‘i Supreme Court analyzes negligent supervision claims using the
standards set forth in the Restatement of Torts (Second) § 317 (1995). See Dairy
Rd. Partners v. Island Ins. Co., 92 Hawai‘i 398, 426–27, 992 P.2d 93, 121–22
(2000). Section 317 states:
A master is under a duty to exercise reasonable care so to control
his servant while acting outside the scope of his employment as
to prevent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk of bodily
harm to them, if
(a) The servant
(i) is upon the premises in possession of the master or upon
which the servant is privileged to enter only as his servant,
or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to
control his servant, and
(ii) knows or should know of the necessity and opportunity
for exercising such control.

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Restatement of Torts (Second) § 317 (1995) (emphasis added). Thus, there can
only be a negligent supervision claim arising out of an employee’s misconduct
when the employee’s misconduct occurred outside the scope of his or her
employment. See Pulawa v. GTE Hawaiian Tel, 112 Hawai‘i 3, 18, 143 P.3d
1205, 1220 (2006) (“[N]egligent supervision may only be found where an
employee is acting outside of the scope of his or her employment[.]” (citation
omitted)).
Plaintiff alleges that if the City had adequately supervised Seguirant, it
would not have allowed him to maintain an active contracting business while
working as a building inspector or discriminate against Plaintiff. ECF No. 79 ¶
152.a–b. But it is clear from the SAC that Plaintiff believes he was injured by
Seguirant’s efforts to enforce the City’s ordinances in relation to the Property, and
so his negligent supervision claim against the City is based on acts Seguirant took
within the scope of his employment. Plaintiff concedes as much in his opposition
to the City’s Motion: “the Defendants acted within their course and scope of
employment.”17 ECF No. 145 at 17 (emphasis added).
It is conceivable that Plaintiff could amend his complaint to include a
tortious act Seguirant committed outside the scope of his employment. Plaintiff’s

17

While Plaintiff referred to “the Defendants,” Plaintiff must have been referring
only to Seguirant as Seguirant is the only City employee that Plaintiff sued.
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negligent supervision claim is therefore DISMISSED WITH LEAVE TO
AMEND.
5.

Negligent Training

The Hawaiʻi Supreme Court has yet to recognize a separate negligent
training claim based on section 317, despite “ample opportunity” to do so. Vargas
v. City & County of Honolulu, CIV. NO. 19-00116 LEK-WRP, 2020 WL 3547941,
at *21 (D. Haw. June 30, 2020) (citing Dairy Rd. Partners, 92 Hawaiʻi at 426–27,
992 P.2d at 121–22; Wong-Leong v. Hawaiian Indep. Refinery, Inc., 76 Hawaiʻi
433, 444, 879 P.2d 538, 549 (1994)). The Court agrees with Judge Leslie E.
Kobayashi’s prediction in Vargas that the Hawai‘i Supreme Court “would hold
that negligent training is a type of negligent supervision/control” because
“appropriate training is undoubtedly one of the ways that an employer controls its
employees.” Id. But see Kaahu, 2018 WL 472996, at *18 (relying on California
law in its recitation of the following elements for a standalone negligent training
claim: “(1) the employer negligently trained the employee regarding the
performance of his job duties, (2) which led the employee, in the course of
executing his job duties, (3) to cause an injury or damages to the plaintiff” (citation
omitted)). Thus, any negligent training claim would simply be a subset of
Plaintiff’s potential negligent supervision claim, which the Court has given
Plaintiff leave to amend. Accordingly, the negligent training claim in Count Five
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is DISMISSED WITH PREJUDICE, though Plaintiff may allege that the City is
liable for issues relating to training in its general negligence claim or if it includes
a negligent supervision claim in an amended complaint.
I.

Equitable Estoppel (Count Six)
In Count Six of the SAC, Plaintiff alleges that “equitable estoppel applies

and the Project should be allowed to proceed in accordance with by [sic] DPP
Director Challacombe’s letter[.]” ECF No. 79 ¶ 157. In his motion for partial
summary judgment, Plaintiff recharacterizes the claim as separate claims for
building or zoning estoppel and vested rights. See generally ECF No. 130. The
Court concludes that it lacks jurisdiction over Count Six because Plaintiff failed to
exhaust his administrative remedies. Indeed, Plaintiff’s counsel conceded at the
motions hearing that Plaintiff’s equitable estoppel claim seeks to “overrule” the
BBA Order. The Court therefore need not reach the merits of the City’s motion to
dismiss Count Six for failure to state a claim or Plaintiff’s motion for partial
summary judgment.
The doctrine of exhaustion of administrative remedies provides that “no one
is entitled to judicial relief for a supposed or threatened injury until the prescribed
administrative remedy has been exhausted.” Aleknagik Natives Ltd. v. Andrus, 648
F.2d 496, 499 (9th Cir. 1980) (internal quotation marks omitted) (quoting Myers v.
Bethlehem Shipbuilding Corp., 303 U.S. 41, 50–51 (1938)). Where exhaustion is
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“statutorily mandated,” the exhaustion requirement is jurisdictional. Eluska v.
Andrus, 587 F.2d 996, 999 (9th Cir. 1978). If exhaustion is not “statutorily
mandated,” “its application rests within the sound discretion of the trial court.” Se.
Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir. 1983).
In general, “[e]xhaustion of administrative remedies is not required where
administrative remedies are inadequate or not efficacious, or where pursuit of
administrative remedies would be a futile gesture.” Fones4All Corp. v. FCC, 550
F.3d 811, 818 (9th Cir. 2008) (brackets and internal quotation marks omitted)
(quoting Se. Alaska Conservation Council, 697 F.2d at 1309).
The BBA Order affirming the March 2017 NOO was appealable but was not
appealed. Under the BBA’s enabling ordinance, the “proceedings of the board
shall be subject to the provisions of HRS Chapter 91.” ROH § 16-1.1 (adopting
the “International Building Code, 2006 Edition” and amending Section 112.5 of
that document). And HRS Chapter 91 (generally known as the Hawai‘i
Administrative Procedure Act) gives a party “aggrieved by a final decision and
order in a contested case” the right to seek review in Hawaii’s circuit courts,
provided that the party institutes a proceeding for review (that is, an agency
appeal) within thirty days of service of a certified copy of the final order. HRS §
91-14(a)–(b).

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Plaintiff argues in his supplemental memorandum that exhaustion is not
required because HRS § 91-14(a) states that “nothing in this section shall be
deemed to prevent resort to other means of review, redress, relief, or trial de novo,
including the right of trial by jury, provided by law.” ECF No. 164 at 2 (some
emphases omitted) (quoting HRS § 91-14(a)). Yet, Plaintiff does not cite any
authorities that support his interpretation of the statute, nor does he address ROH
18-5.4(f)(2), which limits relief from a BBA decision to an appeal under HRS
Chapter 91:
Upon service of the notice by the building official as prescribed
herein, any work in progress shall be suspended and be stayed
until a favorable written decision of the building board of appeals
is served upon the permittee. If an unfavorably written decision
is served upon the permittee, any work under the permit shall be
stayed until the judge of the court in which an appeal has been
filed pursuant to HRS Chapter 91 rules otherwise.
ROH § 18-5.4(f)(2) (emphasis added). See, e.g., N Grp. LLC v. Hawaiʻi Cnty.
Liquor Comm’n, 681 F. Supp. 2d 1209, 1221 (D. Haw. 2009) (observing that
although “HRS § 91-14(a) does state that ‘nothing in this section shall be deemed
to prevent resort to other means of review, redress, relief, or trial de novo,
including the right of trial by jury, provided by law,’” that statement merely does
not “foreclose other forms of judicial review to which a person is otherwise
entitled” and further observing that the applicable statutes did not “provide[]” any

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additional avenues to review the Liquor Commission’s decision other than that
provided in HRS Chapters 281 and 91 (emphasis added)).
The Court concludes that exhaustion is statutorily mandated where an
aggrieved party wishes to challenge a final decision of the BBA. First, it is beyond
dispute that the BBA’s proceedings are subject to the Hawai‘i Administrative
Procedure Act. See ROH § 16-1.1 (amending Section 112.5 of the International
Building Code, 2006 Edition). Second, a contractor or owner may only resume
work halted by a building official following a favorable ruling by the BBA or a
court following an agency appeal, as stated in ROH § 18-5.4(f)(2).
Thus, Plaintiff’s only avenue to challenge DPP’s adverse decision was to
present an appeal to the BBA, followed by an agency appeal to the state circuit
court. ROH § 16-1.1 (amending Section 112.5 of the International Building Code,
2006 Edition); id. § 18-5.3(f)(2); HRS § 91-14(a)–(b). Plaintiff’s failure to exhaust
administrative remedies here is therefore jurisdictional. Accord Leone v. County of
Maui, 128 Hawai‘i 183, 192, 284 P.3d 956, 965 (App. 2012) (holding that
exhaustion is statutorily mandated under the Coastal Zone Management Act
because aggrieved landowners could either commence an agency appeal under
HRS § 91-14 or a civil action under HRS § 205A-6(c)); N Grp. LLC, 681 F. Supp.
2d at 1226 (holding that exhaustion is statutorily required in the context of
decisions issued by the county liquor commission where the commission’s
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enabling statute provided that the commission’s decisions shall be final and shall
not be reviewable by or appealable to any court or tribunal, except as otherwise
provided in HRS Chapter 281 or HRS Chapter 91, and that such prescribed judicial
review is part of the “administrative remedy”).
The central premise of Count Six (Plaintiff’s equitable estoppel claim) is that
Plaintiff is entitled to proceed with construction of the Project in accordance with
the Challacombe Letter. The BBA considered and rejected this argument and
Plaintiff did not appeal the BBA Order. The Court therefore lacks jurisdiction over
this claim.18 Count Six is therefore DISMISSED WITHOUT PREJUDICE under
Rule 12(b)(1).19 Plaintiff’s motion for partial summary judgment is DENIED AS
MOOT.

18

“If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

19

The Court concludes that it has jurisdiction over the remainder of the claims in
the SAC. The Court agrees with Plaintiff that the exhaustion requirement does not
apply to his §§ 1981 and 1983 claims. See Patsy v. Bd. of Regents, 457 U.S. 496,
500 (1982) (“[W]e have on numerous occasions rejected the argument that a §
1983 action should be dismissed where the plaintiff has not exhausted state
administrative remedies.” (collecting cases)); Woods v. Storms, 793 F. App’x 542,
543 (9th Cir. 2020) (“[Section] 1981 does not require that a plaintiff exhaust
administrative remedies before filing a federal lawsuit.” (citation omitted)) (mem.).
Plaintiff’s various negligence and HRS § 480-2 claims against the City, Talboys,
or Schmit do not involve “supposed or threatened injur[ies]” that were properly
before the BBA. Aleknagik Natives, 648 F.2d at 499. The Court therefore has
jurisdiction over Counts Five, Eight, and Nine.
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Declaratory and Injunctive Relief (Count Seven)
Count Seven is styled as a claim for declaratory and injunctive relief. But

neither declaratory relief nor injunctive relief are stand-alone claims as they are
duplicative of Plaintiff’s other claims; both are remedies that may be available if
Plaintiff prevails on one or more of his claims. See Long v. JP Morgan Chase
Bank, Nat’l Ass’n, 848 F. Supp. 2d 1166, 1180 (D. Haw. 2012) (“It is well-settled
that a claim for ‘injunctive relief’ standing alone is not a cause of action.”
(collecting cases)).
Accordingly, the Court DISMISSES Count Seven WITH PREJUDICE.
K.

Issue Preclusion
The City Defendants argue that issue preclusion20 prevents the Court from

reconsidering the BBA’s rejection of Plaintiff’s argument that he is entitled to
proceed with the Project because it complies with applicable laws and regulations.
ECF No. 121-1 at 20; ECF No. 122-1 at 17–18. In its Reply, the City points to
issue preclusion as its central argument, ECF No. 149 at 5, but other than
Plaintiff’s declaratory and injunctive relief claim, the City Defendants did not
identify in their Motions which claims are barred by issue preclusion. ECF No.
121-1 at 20; ECF No. 122-1 at 17–18.

20

Issue preclusion is also referred to as collateral estoppel.
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The Court must look to Hawai‘i law to determine whether the Court must
give preclusive effect to the BBA Order. See Bridge Aina Le‘a, LLC v. Hawaii
Land Use Comm’n, 950 F.3d 610, 637 (9th Cir. 2020), petition for cert. filed (U.S.
July 22, 2020) (No. 20-54). Under Hawai‘i law, the “judgment of a court of
competent jurisdiction is a bar to a new action in another court between the same
parties or their privies concerning the same subject matter.” Id. (internal quotation
marks and citation omitted). For a prior judgment to have preclusive effect, the
following requirements must be satisfied:
(1) the issue decided in the prior adjudication is identical to the
one presented in the action in question; (2) there is a final
judgment on the merits; (3) the issue decided in the prior
adjudication was essential to the final judgment; and (4) the party
against whom [issue preclusion] is asserted was a party or in
privity with a party to the prior adjudication.
Id. (alteration in original) (additional formatting and citations omitted). The
doctrine of issue preclusion “also appl[ies] to matters litigated before an
administrative agency.” Santos v. State, Dep’t of Transp., Kauai Div., 64 Haw.
648, 653, 646 P.2d 962, 966 (1982) (collecting cases).
The analysis as to whether the issue before the BBA is identical to the issue
presented in this action closely tracks the Court’s analysis as to whether Plaintiff
failed to exhaust administrative remedies. While Schmit introduced the
Challacombe Letter into evidence at the administrative hearing, the BBA
nonetheless upheld the March 2017 NOO because Plaintiff’s contractors
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“demolished and removed the existing structure and did not construct the new
building in the shoreline setback area according to the approved plans[.]” ECF No.
122-3 at 5. The BBA thus considered and rejected Plaintiff’s arguments that the
March 2017 NOO and April 2017 NOV were issued in error because they
contradict the Challacombe Letter. See ECF No. 79 ¶ 159.
It is apparent from the face of the BBA Order that it is a final (albeit,
appealable) judgment denying Schmit’s appeal on the merits as the BBA made
findings of fact, conclusions of law, and a decision and order following an
evidentiary hearing, see generally ECF No. 122-3, and the issue of whether
Plaintiff could proceed with construction of the Project in the manner that led to
the March 2017 NOO was essential to the BBA proceeding. Indeed, Schmit
argued in his BBA Position Statement (drafted by Plaintiff’s former counsel) that
the March 2017 NOO contradicted the Challacombe Letter, ECF No. 79-14 at 5,
which argument the BBA rejected.
Finally, there is no dispute that Plaintiff was in privity with a party in the
BBA Proceeding, i.e., Schmit. See ECF No. 79 ¶ 26 (“Plaintiff hired architect
Defendant Schmit . . . to design plans and obtain a building permit for a house
remodel[.]”).
The Court therefore concludes that it must give preclusive effect to the
BBA’s Order, which determined that the Project violated municipal law,
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notwithstanding the contents of the Challacombe Letter. To the extent that any of
Plaintiff’s claims require the Court to reach a different opinion on this issue, those
claims fail to state a claim upon which relief can be granted.
In Count Six (Plaintiff’s equitable estoppel claim), Plaintiff effectively asks
the Court to reverse the BBA Order determining that the Project was constructed in
violation of municipal law and hold that Plaintiff may proceed with construction in
accordance with the Challacombe Letter. If Plaintiff were to prevail on this claim,
the trier of fact would not only have to consider an issue that was before the BBA
but would also have to reach the opposite conclusion on that issue. And the Court
must give preclusive effect to the BBA’s conclusions relating to the legality of the
Project. In any event, the Court lacks jurisdiction over Count Six and need not
make a determination as to whether Count Six should be dismissed on issue
preclusion grounds.
As explained above, the Court dismissed Plaintiff’s Section 1983 claims
based on Plaintiff’s failure to plead the essential elements of those claims. The
Court dismissed the claims against Seguirant without reaching his qualified
immunity defense. If Plaintiff asserts Section 1983 claims against the City
Defendants in a Third Amended Complaint (not including those claims that were
dismissed with prejudice), the Court’s conclusion that the BBA’s has preclusive
effect may bear on the viability of such claims. In other words, Plaintiff’s Section
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1983 claims will not be viable if the trier of fact must revisit the issue of whether
the Project was in fact constructed contrary to law for Plaintiff to prevail on these
claims. But the Court will not engage in that analysis here as Plaintiff has failed to
state a Section 1983 claim in the SAC.
IV.

CONCLUSION

For the reasons set forth above, Seguirant’s Motion [ECF No. 121] is
GRANTED IN PART AND DENIED IN PART as follows: (1) all official
capacity claims and the substantive due process claim are DISMISSED WITH
PREJUDICE; and (2) the Section 1981, procedural due process, and equal
protection claims in Count One against Seguirant in his individual capacity are
DISMISSED WITH LEAVE TO AMEND.
The City’s Motion [ECF No. 122] is GRANTED IN PART AND DENIED
IN PART as follows: (1) the negligent training claim in Count Five and Count
Seven are DISMISSED WITH PREJUDICE; (2) Count Six is DISMISSED
WITHOUT PREJUDICE; and (3) Counts Two, Three, and Four, and the balance
of Count Five are DISMISSED WITH LEAVE TO AMEND.
Given the dismissal of Count Six, Plaintiff’s Motion for Partial Summary
Judgment [ECF No. 130] is DENIED as MOOT.
Plaintiff may file an amended complaint by February 5, 2021 curing the
defects identified in this Order. Plaintiff may not add parties or claims without
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obtaining leave of court. Failure to comply with this Order may result in the
dismissal of this action.
IT IS SO ORDERED.
DATED: Honolulu, Hawai‘i, January 6, 2021.

Jill A. Otake
United States District Judge

Civil No. 18-00162 JAO-RT, Yoshikawa v. City and County of Honolulu, ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT TROY K.
SEGUIRANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED
COMPLAINT; GRANTING IN PART AND DENYING IN PART DEFENDANT
CITY AND COUNTY OF HONOLULU’S MOTION TO DISMISS
PLAINTIFF’S SECOND AMENDED COMPLAINT; AND DENYING
PLAINTIFF HITOSHI YOSHIKAWA’S MOTION FOR PARTIAL SUMMARY
JUDGMENT
47