Yoshikawa v. City and County of Honolulu

Filing 228

ORDER GRANTING IN PART AND DENYING IN PART (1) DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT, AND (2) DEFENDANT TROY K. SEGUIRANT'S MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPL AINT re 205 , 206 - Signed by JUDGE JILL A. OTAKE on 5/27/2021. For the reasons set forth above, The City's Motion [ECF No. 205] is GRANTED IN PART AND DENIED IN PART as follows: (1) the Motion is denied with r espect to the procedural due process claim against the City in Counts One and Two; and (2) the Section 1981 claim in Count One, the equal protection claims in Counts One and Two, the ratification or approval claim in Count Two, the inaction or del ay claim in Count Two, and the entirety of Count Four are DISMISSED WITH PREJUDICE as to the City. Seguirant's Motion [ECF No. 206] is GRANTED IN PART AND DENIED IN PART as follows: (1) the Motion is DENIED with respect to the Section 1981 claim against Seguirant in Count One; and (2) the procedural due process and equal protection claims in Count One and Two against Seguirant are DISMISSED WITH PREJUDICE. (emt, )

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 (1)
vs.
DEFENDANT CITY AND COUNTY
CITY AND COUNTY OF HONOLULU; OF HONOLULU’S MOTION TO
DISMISS PLAINTIFF’S THIRD
TROY K. SEGUIRANT, Individually;
AMENDED COMPLAINT, AND (2)
GREG TALBOYS; AGT
DEFENDANT TROY K.
CONSTRUCTION, LLC; & JAMES A.
SEGUIRANT’S MOTION TO
SCHMIT,
DISMISS PLAINTIFF’S THIRD
AMENDED COMPLAINT
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART (1) DEFENDANT
CITY AND COUNTY OF HONOLULU’S MOTION TO DISMISS
PLAINTIFF’S THIRD AMENDED COMPLAINT, AND (2) DEFENDANT
TROY K. SEGUIRANT’S MOTION TO DISMISS PLAINTIFF’S THIRD
AMENDED COMPLAINT
As explained in a prior order, 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. In his Third Amended Complaint
(“TAC”), ECF No. 204, 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 enforcement of various
municipal laws, which frustrated Plaintiff’s residential construction project.
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 TAC.
ECF Nos. 205, 206. For the reasons discussed below, the Court GRANTS IN
PART AND DENIES IN PART the City Defendants’ motions to dismiss.
I.
A.

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.
204 ¶¶ 8–9, 23. At the time Plaintiff purchased the Property in 2014, it contained a
“nonconforming structure” within the shoreline setback. See ECF No. 204 ¶¶ 23,
31–32; Hawai‘i Revised Statutes (“HRS”) § 205A-43. 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. 204 ¶ 26.

1

The Court’s recitation of facts is based on the allegations in the TAC, which are
taken as true for purposes of the City Defendants’ motions to dismiss.
2 

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
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
3 

City, which Plaintiff alleges is a conflict of interest given Seguirant’s role as a City
building inspector. Id. ¶¶ 13, 217.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
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 (internal quotation marks omitted). 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 stopped work on the Project
and requested an appeal or hearing regarding the May 2016 NOV; and Plaintiff’s
representatives, including Schmit and Talboys, tried to convince various DPP
officials to rescind the May 2016 NOV in various written communications and in4 

person meetings. Id. ¶¶ 64–69. 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
(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
5 

down but f--- [expletive] these Haoles[2] don’t listen, that’s why I try keep it
local.’” Id. ¶¶ 79–81.
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. 204-10 at
1. Plaintiff believed that the Challacombe Letter voided the May 2016 NOV. ECF
No. 204 ¶ 83. Plaintiff initiated an appeal of the March 2017 NOO with the City’s
Board of Building Appeals (“BBA”). Id. ¶ 87.
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

2

Plaintiff explains that while the term “Haole” means “foreign” or “foreigner” in
Hawaiian, the term is used in the modern-day vernacular to refer to Caucasians,
both descriptively and derisively. ECF No. 204 ¶ 120 n.7 (citing Kaulia v. Cnty. of
Maui, Dep’t of Pub. Works & Waste Mgmt, 504 F. Supp. 2d 969, 975 n.9 (D. Haw.
2007)) (other citation omitted).
6 

officials further verbally assured Plaintiff’s representatives that the Project could
proceed, so Plaintiff recommenced work on the Project. See id. ¶ 86.
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
“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. 20412. The April 2017 NOV stated that the information supplied to obtain the
Amended Building Permit was inaccurate 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 § 231.6; 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. 204-12. 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

7 

communications with Plaintiff’s representatives as to the status of the Project.”
ECF No. 204 ¶¶ 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. ¶¶ 87, 99. The
BBA ruled on Plaintiff’s appeal in its Findings of Fact, Conclusions of Law, and
Decision and Order (“the BBA Order”), which was issued sometime in 2018.3 See
id. ¶ 103–04. While Plaintiff describes the BBA Order in vague terms and
declined to attach it to the TAC despite attaching numerous other documents, it is
apparent from the face of the TAC that Plaintiff did not prevail before the BBA.
See id. ¶¶ 138–41 (alleging that Plaintiff’s inability to appeal the BBA Order
deprived Plaintiff of his vested rights under the Amended Building Permit).
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. Id. ¶¶ 101, 103–06. Plaintiff
alleges that it was the City’s fault that the BBA Order was mailed to the wrong
addresses, as Schmit’s mailing was returned as undeliverable and Plaintiff’s prior
counsel had repeatedly notified DPP of his new address through his pleadings. Id.

3

The BBA Order says it was entered on the “19th day of 2018, 2018.” ECF No.
204 ¶ 104.
8 

¶ 105, 106, 133, 135. Plaintiff further alleges that the Stop Work Order contained
in the April 2017 NOV is effectively non-appealable 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,” that
Seguirant’s supervisor “confirmed the actual, physical building was removed,” and
that the “new structure included new framing and structural columns, new cement
pads, and was a new building.” ECF No. 179 at 9–10.4 The BBA acknowledged
the Challacombe Letter’s approval of the “revised plan,” id. at 10, but ultimately
upheld Seguirant’s March 2017 NOO because Schmit5 “demolished and removed

4

The City Defendants, despite relying on the BBA Order, did not attach it to their
motions. See generally ECF Nos. 205, 206. The Court, however, already
reviewed the BBA Order in connection with its 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 as Moot Plaintiff’s Motion for Partial Summary Judgment
(the “January 6 Order”) and ruled that it must give preclusive effect to the BBA’s
ruling that the Project violated municipal law, notwithstanding the contents of the
Challacombe Letter, under the doctrine of issue preclusion. ECF No. 179 at 8–10,
42–46.
5

Schmit was the named petitioner in the BBA appeal. See ECF No. 121-3 at 1.
9 

the existing structure and did not construct the new building in the shoreline
setback area according to the approved plans[.]” Id. at 20.
Plaintiff did not appeal the BBA Order to the state circuit court within the
thirty-day appeal period outlined in HRS § 91-14(b). ECF No. 204 ¶ 197.
B.

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

February 5, 2021, asserting the following claims: Count One – 42 U.S.C. § 1981
(Fourteenth Amendment – Procedural Due Process and Equal Protection) (against
the City and Seguirant); Count Two – 42 U.S.C. §1983 (Fourteenth Amendment
violations including procedural due process, equal protection, ratification, and
inaction or delay (against the City and Seguirant);6 Count Four7 –
negligence/negligent retention, negligent hiring,8 and/or supervision (against the
City); Count Five – negligence (against Talboys and Schmit); and Count Six –

6

The Court cannot comprehend why Plaintiff asserted his procedural due process
and equal protection claims in two separate counts or why Plaintiff included his
procedural due process and equal protection claims as subparts of his Section 1981
claim (Count One), while only making passing references to the elements of a
Section 1981 claim within the Equal Protection subpart.

7

The TAC has no Count Three.

8

At the parties’ Local Rule 7.8 conference, Plaintiff’s counsel represented that it
was not pursuing a claim for negligent hiring and had inadvertently included it in
the TAC. ECF No. 209 at 2.
10 

Unfair or Deceptive Acts or Practices – UDAP (against Talboys and Schmit). Id.
at 29–55. Plaintiff prays for declaratory relief, injunctive relief, monetary
damages, punitive damages, treble damages, costs of suit, and attorneys’ fees. Id.
at 55–57.
The City and Seguirant each filed motions to dismiss on February 19, 2021.
ECF Nos. 205 (the City’s Motion), 206 (Seguirant’s Motion). Plaintiff filed his
oppositions to both motions on March 19, 2021.9 ECF Nos. 217, 218. The City
Defendants filed their reply memoranda on March 25, 2021. ECF Nos. 220, 221.
Oral argument was presented at a motions hearing on April 23, 2021. ECF No.
225.
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.

9

Plaintiff filed an amended memorandum in opposition to Seguirant’s Motion on
April 5, 2021. ECF No. 223.
11 

1988)) (alteration in original). However, conclusory allegations of law,
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
12 

in original). If dismissal is ordered, the plaintiff should be granted leave to amend
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.
A.

DISCUSSION

42 U.S.C. § 1981 (Count One)
Plaintiff alleges that the City and Seguirant violated 42 U.S.C. § 1981 in the

caption of Count One, but each of the subheadings in Count One refer to portions
of Plaintiff’s constitutional claims, i.e., procedural due process and equal
protection. ECF No. 204 at 29–37. Nonetheless, Plaintiff includes allegations
relating to the City Defendants’ interference with Plaintiff’s contracts under the
Equal Protection subheading, which appears to be the basis of Plaintiff’s Section
1981 claims. See id. at 31–33.
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
13 

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
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 Douglas10 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.
In Lindsey, the Ninth Circuit explained that there was a circuit split as to
whether a fourth element applies to Section 1981 claims that arise outside the
employment context, which “requires that . . . services remained available to
similarly-situated individuals who were not members of the plaintiff’s protected
class,” but declined to decide the issue. Id. Following Lindsey, the majority of
courts within the Ninth Circuit apply this fourth element. See York v. JPMorgan

10

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
14 

Chase Bank, Nat’l Ass’n, No. CV-18-04039-PHX-SPL, 2019 WL 3802535, at *2
n.4 (D. Ariz. Aug. 13, 2019) (explaining that “the greater weight of Ninth Circuit
authority” supports the use of the fourth element (collecting cases)).
Nonetheless, the Court is persuaded by the court’s reasoning in Makhzoomi
v. Southwest Airlines Co., 419 F. Supp. 3d 1136 (N.D. Cal. 2019), in which an
Iraqi plaintiff alleged that an airline removed him from a flight for speaking Arabic
in violation of Section 1981 after another passenger reported to airline employees
that she heard him express, while he spoke on a cell phone, what she perceived to
be threatening statements. See id. at 1147. The court declined to apply the fourth
element, explaining that “in the context of the denial of services by a commercial
establishment, ‘the task of producing similarly situated persons outside the
protected group is much more difficult,’ given the itinerant nature of the clientele.”
Id. at 1149 (citation omitted). The court explained that requiring the plaintiff to
compare his treatment with the treatment of other “passengers who were reported
to have been overheard on the airplane making potentially threatening comments”
was an “overly narrow comparison [that] would completely foreclose [the
plaintiff]’s discrimination claim,” which reveals the drawbacks of the fourth
element in cases arising outside of the employment context. Id. (internal quotation
marks and citation omitted). Instead, the court followed Christian v. Wal-Mart

15 

Stores, Inc., 252 F.3d 862 (6th Cir. 2001), in clarifying the third element as
follows:
“(3) plaintiff was denied the right to enter into or enjoy the
benefits or privileges of the contractual relationship in that (a)
plaintiff was deprived of services while similarly situated
persons outside the protected class were not and/or (b) plaintiff
received services in a markedly hostile manner and in a manner
which a reasonable person would find objectively
discriminatory.”
Makhzoomi, 419 F. Supp. 3d 1136 (quoting Christian, 252 F.3d at 872).
The facts here are analogous to Makhzoomi. Just as the Makhzoomi court
found it unreasonable to require the plaintiff to compare his treatment with a group
passengers that did not appear to exist, forcing Plaintiff to compare his treatment
with Seguirant’s treatment of other homeowners who were engaged in construction
in violation of municipal ordinances would be “overly narrow” as Plaintiff is not
well positioned to be aware of Seguirant’s conduct each time he inspects a noncompliant project (each of which may vary in the nature of their non-compliance).
Id. at 1149.11

11

 In

light of the Court’s conclusion that it must give preclusive effect to the
BBA’s determination that the Project violated municipal law, see supra n.4, other
homeowners engaging in lawful residential construction were not similarly situated
to Plaintiff as a building inspector would naturally treat a homeowner who was in
compliance with municipal law differently than one who was not.

16 

In contrast, the Ninth Circuit held in Lindsey that there was a genuine issue
of material fact as to the fourth element — whether the plaintiff, a company that
presents fashion shows largely staffed and attended by African-Americans, was
provided inadequate accommodations for contracted expectations such as a room
for up to 550 guests, when it was denied the use of a hotel’s grand ballroom, while
a bar mitzvah party was granted use of the grand ballroom despite having a smaller
number of attendees. See Lindsey, 447 F.3d at 1142–43, 1147. Unlike the plaintiff
in Lindsey, Plaintiff was not in a position to identify Seguirant’s treatment of those
similarly situated to him.
1.

Prima Facie Section 1981 Claim against Seguirant

While the bulk of Count One focuses on Plaintiff’s constitutional claims
(some of which are repeated in Count Two), the Court concludes that the TAC
contains sufficient factual allegations to state a Section 1981 claim against
Seguirant. Plaintiff alleges that he contracted with a general contractor and
architect, both of whom are “Haole,” and that Seguirant interfered with Plaintiff’s
right to contract with them due to racial animus against “Haoles.” See ECF No.
204 ¶¶ 120–27. The Court disagrees with Seguirant that Plaintiff failed to
plausibly allege how Seguirant impaired Plaintiff’s contractual rights. ECF No.
206-1 at 11–12. While Count One is certainly disorganized, the Court understands
Plaintiff’s argument to be that Seguirant, motived by racial animus, tried to prevent
17 

the Project from proceeding by engaging in multiple inspections and issuing
multiple violations. Plaintiff has further pleaded allegations that satisfy the relaxed
standard in Christian that Makhzoomi adopted: Plaintiff received hostile treatment
that a reasonable person would find objectively discriminatory when Seguirant
made the “Haoles” comment referenced in the TAC. See Makhzoomi, 419 F. Supp.
3d at 1149; ECF No. 204 ¶ 81.
Further, Plaintiff may maintain a Section 1981 claim against Seguirant even
if Seguirant was discriminating only against Plaintiff’s “Haole” contractor and
architect, and not Plaintiff, a Japanese national. 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)).
2.

Qualified Immunity

Seguirant argues that he is entitled to qualified immunity on Plaintiff’s
Section 1981 claim because of a circuit split as to whether Section 1981 provides a
remedy against government officials and because whether to apply the fourth
18 

element described in Lindsey is not settled law within the Ninth Circuit. ECF No.
206-1 at 9–10. Qualified immunity protects government officials from suit in their
individual capacity so long as “their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations and footnote omitted).
The existence of a circuit split regarding the viability of a claim does not
entitle a government official to qualified immunity where the claim is recognized
in the circuit in which the action is maintained. See Boyd v. Benton County, 374
F.3d 773, 781 (9th Cir. 2004) (“If the right is clearly established by decisional
authority of the Supreme Court or this Circuit, our inquiry should come to an
end.”). Thus, the fact that other circuits may not recognize a claim under Section
1981 against government officials does not entitle Seguirant to qualified immunity.
Moreover, Plaintiff’s Section 1981 claim against Seguirant may proceed
even though Lindsey left open the question as to whether the fourth element of
McDonnell Douglas applies outside the employment context. Indeed, “[t]he
constitutional right to be free from such invidious discrimination [racial or ethnic
animus] is so well established and so essential to the preservation of our
constitutional order that all public officials must be charged with knowledge of it.”
Williams v. Alhambra Sch. Dist. No. 68, 234 F. Supp. 3d 971, 978–79 (D. Ariz.
2017) (quoting Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980)).
19 

3.

But-for Causation

Seguirant argues that Plaintiff’s Section 1981 claim fails because Plaintiff
did not allege but-for causation, and that Plaintiff would be unable to allege but-for
causation without impeaching the BBA Order, which affirmed the violations
Seguirant issued. ECF No. 206-1 at 10–11. The Supreme Court recently ruled that
a Section 1981 plaintiff must prove but-for causation by showing that “but for the
defendant’s unlawful conduct, [the plaintiff’s] alleged injury would not have
occurred.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct.
1009, 1014 (2020).
The Court disagrees with Seguirant that the BBA Order prevents Plaintiff
from establishing causation. It may be the case that the Project violated the City’s
ordinances and that Seguirant discriminated against Plaintiff in enforcing those
ordinances because of racial animus. Thus, taking all the allegations in the TAC as
true, it is possible that Seguirant would not have enforced the City’s ordinances in
the precise manner that he did if Plaintiff’s contractor and architect were of a
different race.
4.

Municipal Custom or Policy

The City argues that Plaintiff’s Section 1981 claim against the City fails
because Plaintiff failed to allege that Plaintiff suffered a Section 1981 violation
because of a municipal custom or policy. ECF No. 205-1 at 8–9. For the City to
20 

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[12] and subsequent cases.” Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 735–36 (1989).
Plaintiff argues that the TAC contains sufficient allegations regarding a
municipal policy or custom because he alleged that the City failed to implement
non-discrimination or cultural sensitivity training and failed to implement a proper
conflict of interest policy or conflict-check for its building inspectors. ECF No.
217 at 9. In other words, Plaintiff’s theory is not that the City had a custom or
policy of discriminating against “Haoles,” but that Seguirant was able to engage in
such discrimination because the City failed to train him properly.
“To impose liability on a municipal employer for failure to adequately train
its employees, a plaintiff must prove that the government’s omission amounted to
‘deliberate indifference’ to the right at issue[.]” Raines v. Seattle Sch. Dist. No. 1,
No. C09-203 TSZ, 2013 WL 221630, at *2 (W.D. Wash. Jan. 18, 2013) (citing
Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010)). In

12

In Monell, the Court held that “a local government may not be sued under §
1983 for an injury inflicted solely by its employees or agents.” Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978). “Instead, it 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.
21 

Clouthier, the Ninth Circuit explained that this standard is satisfied “[o]nly where a
failure to train reflects a deliberate or conscious choice by a municipality” in order
to avoid “diluting the requirement that a local government can be held liable only
for an action or inaction that amounts to an official policy[.]” Clouthier, 591 F.3d
at 1250 (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)) (internal
quotation marks omitted). Even if the City failed to provide Seguirant with nondiscrimination or diversity training, nothing in the TAC indicates that the City
evinced “deliberate indifference” toward racial discrimination. Furthermore,
nothing in the TAC suggests that such training would have prevented Seguirant
from engaging in discrimination. See Lee v. City of Los Angeles, 250 F.3d 668,
681 (9th Cir. 2001) (“[T]he identified deficiency in a local governmental entity’s
training program must be closely related to the ultimate injury.” (internal quotation
marks, brackets, and citation omitted)).
The Court also rejects Plaintiff’s argument regarding the conflict of interest
policy because there is no apparent connection between the City’s lack of a conflict
of interest policy, which may have prevented Seguirant from inspecting homes in
the same market that he services as a general contractor, and Seguirant’s racial
animus against “Haoles.”
Because the Court concludes that Plaintiff failed to allege that his right to
make and enforce contracts under Section 1981 was caused by a municipal policy
22 

or custom, the Court need not reach the remainder of the City’s arguments
regarding Plaintiff’s Section 1981 claim.
The Court dismissed Plaintiff’s Section 1981 claim against the City in its
January 6 Order because Plaintiff failed to allege that the Section 1981 violation
occurred pursuant to a municipal policy or custom. ECF No. 179 at 17. Despite
another opportunity to sufficiently allege such violation, Plaintiff did not do so in
the TAC. The Court thus concludes that further amendment of the Section 1981
claim as to the City would be futile. See Chodos v. W. Publ’g Co., 292 F.3d 992,
1003 (9th Cir. 2002) (explaining that a district court’s discretion to deny leave to
amend a complaint is particularly broad where a plaintiff has had prior
opportunities to amend).
Regarding Plaintiff’s Section 1981 claims, the Court DENIES Seguirant’s
motion and GRANTS the City’s Motion. Plaintiff’s Section 1981 claim against the
City is DISMISSED WITH PREJUDICE.
B.

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

liable under Section 1983 for violating Plaintiff’s procedural due process rights
under the Fourteenth Amendment. Specifically, Plaintiff alleges that he was not
afforded procedural due process in the course of the BBA proceedings as the BBA
failed to render a decision within a reasonable amount of time and because the
23 

BBA transmitted the BBA Order to the wrong address, thereby preventing Plaintiff
from commencing an agency appeal in state court. See ECF No. 204 at 38–42.
“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
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).
1.

Deprivation of a Property Interest Protected by the Constitution

The City argues that Plaintiff cannot state a procedural due process claim
because Plaintiff failed to allege a liberty or property interest protected by the
Constitution, arguing that there is no constitutional right to build a home in
violation of municipal law and that the BBA’s conclusion that the Project did
indeed violate such law is subject to issue preclusion. ECF No. 205-1 at 11–13.
Plaintiff, however, does not argue that the outcome of the BBA proceeding,
namely the BBA’s conclusion that the Project could not proceed without
modification, was a due process violation; instead, Plaintiff alleges that the process
itself was procedurally defective. If the Court were to accept the City’s argument
that Plaintiff’s failure on the merits before the BBA doomed any procedural due

24 

process claim, that would mean that the government need not ensure due process
so long as it is correct on the merits, which offends basic notions of due process.13
The Ninth Circuit has in the context of a substantive due process claim
“recognized a constitutionally ‘protected property interest’ in a landowner’s right
to ‘devote [his] land to any legitimate use.’” Squaw Valley Dev. Co. v. Goldberg,
375 F.3d 936, 949 (9th Cir. 2004), (quoting Harris v. County of Riverside, 904
F.2d 497, 503 (9th Cir. 1990)) (brackets in original) (some internal quotation
marks omitted), overruled on other grounds by Lingle v. Chevron U.S.A. Inc., 544
U.S. 528 (2005); see also Jensen v. County of Sonoma, No. C-08-3440 JCS, 2010
WL 2330384, at *13 (N.D. Cal. June 4, 2010), aff’d, 444 F. App’x 156 (9th Cir.
2011) (explaining that for purposes of a procedural due process claim, “the right to
the use and enjoyment of one’s property—is a well-established constitutional
property right”). The Ninth Circuit has further held that while “procedural
requirements ordinarily do not transform a unilateral expectation into a protected
property interest, such an interest is created ‘if the procedural requirements are
intended to be a significant substantive restriction on . . . [the administrative
agency’s] decision making.’” Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24

13

At the hearing, the City Defendants’ counsel stated that there can be no due
process violation where the government is correct on the merits. The notion that
only parties who are correct on the merits are entitled to due process flies in the
face of basic constitutional jurisprudence and is wholly unsupported by caselaw.
25 

F.3d 56, 62 (9th Cir. 1994) (quoting Goodisman v. Lytle, 724 F.2d 818, 820 (9th
Cir. 1984)) (ellipsis in original) (some internal quotation marks omitted).
Plaintiff alleged that “Plaintiff’s normal 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.” ECF No. 204 ¶ 168. Thus, at least at this stage of the
proceeding, the Court concludes that Plaintiff’s right to appellate review before the
BBA was a “significant substantive restriction” on DPP’s ability to enforce the
City’s ordinances by preventing landowners from proceeding with construction.
Plaintiff had a constitutionally protected property interest when he appeared before
the BBA to challenge the March 2017 NOO and was ultimately deprived of this
interest when the BBA affirmed the order. Even if this deprivation was proper,
Plaintiff was nonetheless entitled to due process.
2.

Lack of Process

As explained above, Plaintiff argues that there was a lack of process when
the BBA failed to issue the BBA Order within a reasonable amount of time and
when it transmitted the BBA Order to the wrong address. ECF No. 217 at 14–15.
Plaintiff alleges that the BBA’s proceedings were subject to the Hawai‘i
Administrative Procedure Act, which in turn required that the BBA render its
decision within a reasonable amount of time. ECF No. 204 ¶¶ 167, 170. Plaintiff
relies on HRS § 93-13.5, which requires that “an agency . . . adopt rules that
26 

specify a maximum time period to grant or deny a business or development-related
permit, license, or approval; provided that the application is not subject to state
administered permit programs delegated, authorized, or approved under federal
law.” HRS § 91-13.5. Further,
For purposes of this section, “application for a business or
development-related permit, license, or approval” means any
state or county application, petition, permit, license, certificate,
or any other form of a request for approval required by law to be
obtained prior to the formation, operation, or expansion of a
commercial or industrial enterprise, or for any permit, license,
certificate, or any form of approval required under sections 46-4,
46-4.2, 46-4.5, 46-5, and chapters 183C, 205, 205A, 340A,
340B, 340E, 340F, 342B, 342C, 342D, 342E, 342F, 342G, 342H,
342I, 342J, 342L, and 342P.[14]
HRS § 91-13.5(g). Plaintiff therefore did not submit an “application for a business
or development-related permit, license, or approval” subject to HRS § 91-13.5 to

14

The sections referenced relate to county zoning (HRS § 46-4); nonsignificant
zoning changes (HRS § 46-4.2); ordinances establishing historical, cultural, and
scenic districts (HRS § 46-4.5); planning and traffic commissions (HRS § 46-5);
the state land use conservation district (HRS chapter 183C); the Land Use
Commission (HRS chapter 205); coastal zone management (HRS chapter 205A);
solid waste (HRS chapter 340A); wastewater treatment personnel (HRS chapter
340B); safe drinking water (HRS chapter 340E); Hawaii law for mandatory
certification of public water system operators (HRS chapter 340F); air pollution
control (HRS chapter 342B); ozone layer protection (HRS chapter 342C); water
pollution (HRS chapter 342D); nonpoint source pollution management and control
(HRS chapter 342E); noise pollution (HRS chapter 342F); integrated solid waste
management (HRS chapter 342G); solid waste pollution (HRS chapter 342H);
special wastes recycling (HRS chapter 342I); hazardous waste (HRS chapter 342J);
underground storage tanks (HRS chapter 342L); and asbestos and lead (HRS
chapter 342P).
27 

the BBA. Instead, Plaintiff appealed an adverse order from DPP preventing
Plaintiff from continuing work on an existing building permit. The Court therefore
concludes that even if an agency’s violation of HRS § 91-13.5 constituted a lack of
process for the purposes of a procedural due process claim, the BBA’s handling of
Plaintiff’s appeal was not subject to this statute.
Plaintiff also alleges, however, that Plaintiff’s prior counsel notified the
BBA of a change in address several times; that the BBA Order was transmitted to
Schmit’s prior address and was returned as undeliverable; that he was unable to
commence an agency appeal of the BBA Order because he did not receive notice
of the BBA Order within the 30-day appeal window; and that the City is therefore
at fault for Plaintiff’s inability to commence an agency appeal. ECF No. 204
¶¶ 154–63. The Court concludes that Plaintiff sufficiently alleged a lack of process
by including factual allegations showing that the City made errors relating to the
transmittal of the BBA Order that prevented Plaintiff from commencing an agency
appeal relating to the BBA Order.
The City argues that there was no lack of process because there is no
constitutional right to an appeal, relying on Jones v. Barnes, 463 U.S. 745 (1983),
and because Plaintiff received ample process before the BBA. ECF No. 205-1 at
13. In Jones, the Court ruled that although states must provide counsel for indigent
criminal defendants where appeals may be made as a matter of right despite the
28 

lack of a constitutional right to appeal, counsel for such defendants have no duty to
raise every colorable claim suggested by their clients. See Jones, 463 U.S. at 750–
51, 754. The Court is not convinced that Jones or the lack of a constitutional right
to an appeal forecloses Plaintiff’s procedural due process claim. Plaintiff does not
argue that he was not denied due process because there was no procedure for
appellate review. Rather, Plaintiff contends that he was denied the right to
commence an agency appeal that was available under HRS § 91-14(b). ECF No.
204 ¶ 161. Insofar as Plaintiff had a statutory right to commence an agency appeal
of the BBA Order, the City’s errors that prevented Plaintiff from seeking a timely
appeal constitutes a lack of process. And the fact that Plaintiff received some
process before the BBA does not mean that he was not entitled to any further
process.15

15

The City argues that the Court already ruled that Plaintiff was afforded process,
relying on the Court’s statement in the January 6 Order that it is “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.’” ECF No. 205-1 at 15 (quoting
ECF No. 179 at 21)). In Plaintiff’s Second Amended Complaint (“SAC”),
however, Plaintiff did not argue that he was deprived of process when he was
unable to appeal the BBA Order, instead arguing that the City committed due
process violations when it “rel[ied] on unwritten rules that contradict the published
. . . ‘50 percent rule’ . . . and (2) fail[ed] to have DPP follow the April 2017 NOV
with a Notice of Order.” ECF No. 179 at 19 (citing ECF No. 79 ¶¶ 145–48).
Plaintiff thus failed to allege a procedural due process violation in the SAC, but
cured that deficiency in the TAC.
29 

The City argues that Plaintiff failed to allege that the City was actually
responsible for the BBA’s transmittal of the BBA Order to the wrong address, as
Plaintiff only alleged that his prior counsel updated his address with DPP, not the
BBA, and that the Court should not accept Plaintiff’s legal conclusion that the City
was at fault for this error. ECF No. 205-1 at 16. But at this stage, the Court must
infer all facts in favor of Plaintiff and so the Court concludes that Plaintiff alleged
sufficient facts to support his assertion that the City was at fault, namely that
Plaintiff had notified DPP of the change in address and that the BBA had notice
that the BBA Order had been returned as undeliverable.16 ECF No. 204 ¶¶ 156,
158.
The City argues that Plaintiff was not denied a lack of process because he
still could have filed an untimely agency appeal and relied on the doctrine of
equitable estoppel or changed course with respect to the Project in order to proceed
in a manner allowed by DPP. ECF No. 205-1 at 14–16. While Plaintiff may
certainly have had these options, Plaintiff nonetheless could not commence a

16

At the hearing, the City Defendants’ counsel conceded that accepting all facts in
the TAC as true and making each inference in favor of Plaintiff, the TAC
contained allegations sufficient to show that the City was at fault for the error in
the transmittal of the BBA Order. Indeed, although not specifically discussed by
either party, Jones v. Flowers, 547 U.S. 220 (2006), suggests that if the
government has knowledge that notice has been returned as undeliverable, due
process requires that additional available reasonable steps be taken to provide
notice, even if there is a statutory requirement on the party to receive notice to
update his mailing address and he fails to do so.
30 

timely agency appeal, which he was entitled by statute to do. The availability of
alternative courses of action do not obviate the fact that Plaintiff has sufficiently
alleged that he received a lack of process.
Finally, the City argues that Plaintiff’s procedural due process claim fails
because Plaintiff failed to allege a cognizable injury that resulted from the lack of
process. Id. at 14. The Court disagrees. Plaintiff has alleged that he was unable to
commence an agency appeal because of the City’s failure to transmit the BBA
Order to the correct address. Even if an agency appeal would not have changed the
ultimate outcome, a denial of procedural due process “can lead to the award of
nominal damages, even where substantive injury cannot be proved.” Weinberg v.
Whatcom County, 241 F.3d 746, 752 (9th Cir. 2001). The availability of nominal
damages means that Plaintiff need not prove actual damages in order to have a
viable procedural due process claim. See id.
The Court therefore concludes that the TAC adequately states a procedural
due process claim against the City.
3.

Plaintiff’s Procedural Due Process Claim against Seguirant

Despite the fact that Plaintiff’s procedural due process claim relates to the
BBA’s handling of the BBA Order, Plaintiff argues that Seguirant is also liable
because “Seguirant’s unreasonable and irrational conduct . . . forms the genesis of
this dispute” and that “Seguirant’s conduct . . . drives and forms the very basis of
31 

Plaintiff’s procedural due process claims.” ECF No. 218 at 16. The Court agrees
with Seguirant that Plaintiff has failed to state any procedural due process violation
for which Seguirant is responsible. ECF No. 206-1 at 12–13. The TAC includes
no allegations showing that Seguirant deprived Plaintiff of a constitutionally
protected property or liberty interest without process. And there is no apparent
connection between the basis for Plaintiff’s procedural due process claim (the
BBA’s transmittal of the BBA Order to the wrong address) and Seguirant.
The Court concludes that amendment of Plaintiff’s procedural due process
claim against Seguirant would be futile in light of Plaintiff’s failure to state a claim
against Seguirant despite previous opportunities to amend his complaint. See
Chodos, 292 F.3d at 1003.
The Court therefore DENIES the City’s Motion with respect to the
procedural due process claims in Counts One and Two of the TAC and
DISMISSES WITH PREJUDICE those same claims as to Seguirant.
C.

42 U.S.C. § 1983: Equal Protection (Counts One and Two)
In Counts One and Two of the TAC, Plaintiff asserts that the City

Defendants are liable under Section 1983 for violating the Equal Protection Clause
of the Fourteenth Amendment. The basis for Plaintiff’s equal protection claim is
the “inordinate and unusual amount of attention that has been paid to Plaintiff’s
remodeling project,” which is evidenced by Seguirant’s nine inspections of the
32 

Project, as opposed to the two to three site visits building inspectors conduct on
comparable projects. ECF No. 204 ¶¶ 173–83. Plaintiff clarified in his opposition
to Seguirant’s Motion that he is asserting a “class of one” equal protection claim,
as opposed to a class-based equal protection claim. ECF No. 218 at 17.
“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. Cty. Dep’t of Child.
& Fam. Servs., 974 F.3d 1012, 1022 (9th Cir. 2020) (quoting City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 439 (1985)) (some internal quotation marks
omitted). In a “class of one” equal protection claim, the plaintiff must allege that
“[he] has been intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment.” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (some internal quotation marks
and citations omitted). The Ninth Circuit has “recognized that the rational basis
prong of a ‘class of one’ claim turns on whether there is a rational basis for the
distinction, rather than the underlying government action.” Gerhart v. Lake
County, 637 F.3d 1013, 1023–24 (9th Cir. 2011) (footnote omitted).
Plaintiff argues that his allegation that Seguirant inspected the Project nine
times, as opposed to the two-to-three times that a building inspector would inspect
33 

a comparable project, shows that Plaintiff was treated differently than similarly
situated individuals. See ECF No. 218 at 19. Seguirant argues that the owners of
similar residential construction projects are not similarly situated to Plaintiff
because Plaintiff was constructing the Project in violation of municipal law. ECF
No. 221 at 8–9.
Courts within the Ninth Circuit have “‘enforce[d] the similarly-situated
requirement with particular strictness when the plaintiff invokes the class-of-one
theory.’” Leen v. Thomas, No. 2:12-cv-01627-TLN-DMC, 2020 WL 1433143, at
*6 (E.D. Cal. Mar. 24, 2020) (quoting Warkentine v. Soria, 152 F. Supp. 3d 1269,
1294 (E.D. Cal. 2016)) (brackets in original) (other citations omitted). “‘Class-ofone plaintiffs must show an extremely high degree of similarity between
themselves and the persons to whom they compare themselves.’” Id. (quoting
Warkentine, 152 F. Supp. 3d at 1294); see also Hood Canal Sand & Gravel, LLC
v. Brady, 129 F. Supp. 3d 1118, 1125 (W.D. Wash. 2015) (“‘[Class of one
plaintiffs] must demonstrate that they were treated differently than someone who is
prima facie identical in all relevant respects.’” (quoting Purze v. Village of
Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002)) (brackets in original)).
The Court ruled in its January 6 Order that the doctrine of issue preclusion
requires that it give preclusive effect to the BBA Order, which determined that the
Project violated municipal law. ECF No. 179 at 44. Plaintiff must therefore
34 

compare his treatment with, at a minimum, other property owners who have
engaged in construction that violates municipal law. In order for Plaintiff to state
an equal protection claim, then, Plaintiff is required to show that Seguirant treated
Plaintiff differently than property owners committing similar building code
violations, not property owners constructing similar projects who are not breaking
the law. Plaintiff has thus failed to allege that he was treated intentionally
differently than similarly situated individuals as the TAC fails to identify any
similarly situated individuals and/or articulate how Seguirant treated Plaintiff
differently from those individuals.
Because of its conclusion that Plaintiff has failed to allege that he was
treated intentionally differently than those similarly situated, the Court need not
reach the issues of whether Seguirant had a rational basis for treating Plaintiff
differently or whether the City has municipal liability for Seguirant’s equal
protection violation. The Court further concludes that amendment would be futile
in light of Plaintiff’s previous opportunities to amend his complaint. See Chodos,
292 F.3d at 1003. The Court therefore DISMISSES WITH PREJUDICE
Plaintiff’s equal protection claim against both defendants in Counts One and Two
of the TAC.
D.

42 U.S.C. § 1983: Claim for Ratification or Approval (Count Two)

35 

In Count Two of the TAC, Plaintiff alleges that the City is liable under
Section 1983 under a theory of ratification or approval. 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.17 ECF No.
204 ¶¶ 184–92.
“[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
various alternatives to follow a particular course of action.” Id. (citing Oviatt v.
Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992)).
The Court dismissed Plaintiff’s ratification or approval claim in its January 6
Order because Plaintiff failed to allege facts showing that the DPP Director ratified
an unconstitutional act and the basis for it. ECF No. 179 at 28. Here, Plaintiff

17

Plaintiff mistakenly references the April 2017 NOV as a Notice of Order and
also cites the wrong exhibit. ECF No. 204 ¶ 187 (citing Exhibit 11, instead of
Exhibit 12, which is the April 2017 NOV).
36 

posits that Seguirant’s April 2017 NOV was the unconstitutional act. But Plaintiff
again fails to allege that the DPP ratified the alleged unconstitutional basis for this
act, i.e., Seguirant’s discriminatory motives. See ECF No. 204 ¶¶ 189–90. Just as
was the case in the SAC, nothing in the TAC 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. Instead, Plaintiff alleges that “ratification can . . . be
inferred by the long procedural history of the dispute which was known or should
have been known by the DPP Director.” ECF No. 204 ¶ 189. The DPP’s
awareness of the dispute does not mean the DPP Director knew, let alone ratified,
the basis for Seguirant’s actions. Thus, even if Seguirant’s April 2017 NOV was a
constitutional violation, Plaintiff has failed to allege facts showing that the City is
liable for such violation under a theory of ratification or approval.
Despite being granted leave to amend to plead facts showing that the DPP
Director ratified Seguirant’s unconstitutional acts and the basis for such acts,
Plaintiff has failed to do so. ECF No. 179 at 28. The Court therefore concludes
that further leave to amend would be futile. See Chodos, 292 F.3d at 1003.
Accordingly, Plaintiff’s ratification or approval claim in Count Two is
DISMISSED WITH PREJUDICE.
E.

42 U.S.C. § 1983: Fourteenth Amendment Violations for Policy of
Inaction or Delay (Count Two)
37 

In Count Two of the TAC, 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. Specifically, Plaintiff alleges that the City’s failure to set a
defined time frame for the BBA to render decisions violates HRS § 91-13.5 and
constitutes a policy of inaction or delay.18 ECF No. 204 ¶¶ 199–200. “[A] 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).
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). In order to properly plead a
municipal liability claim based on a policy of inaction or delay, the plaintiff must
“identif[y] the challenged policy/custom, explain[ ] how the policy/custom was
deficient, explain[ ] how the policy/custom caused the plaintiff harm, and reflect[ ]
how the policy/custom amounted to deliberate indifference, i.e., explain[ ] how the

18

  The

Court rejected Plaintiff’s argument that the BBA was required to set a
deadline for issuing orders under HRS § 91-13.5. See Section III.B.2, supra.
38 

deficiency involved was obvious and the constitutional injury was likely to occur.”
Garcia v. County of Riverside, No. ED CV 18-00839 SJO (ASx), 2018 WL
6133720, at *9 (C.D. Cal. Aug. 29, 2018) (quoting Young v. City of Visalia, 687 F.
Supp. 2d 1141, 1149 (E.D. Cal. 2009)) (alterations in original) (internal quotation
marks omitted).
Plaintiff failed to plead the Oviatt elements sufficiently. Even assuming
arguendo that the City’s failure to establish a timeframe for the BBA to issue
orders amounts to a policy under Oviatt, Plaintiff failed to establish facts showing
that the policy constitutes deliberate indifference. In order to properly plead
deliberate indifference, Plaintiff must offer 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.’” Oviatt,
954 F.2d at 1477–78 (alterations in original) (citation omitted). Although the TAC
alleges that the City’s failure to set a time frame for the BBA to issue orders
“amounts to deliberate indifference,” ECF No. 204 ¶¶ 199–201, Plaintiff has not
alleged any facts showing that the BBA’s failure to establish a deadline for issuing
orders prior to the BBA’s handling of Plaintiff’s appeal was likely to result in the
violation of constitutional rights such that the City was deliberately indifferent to
the violation of constitutional rights. See Bd. of Cty. Comm’rs v. Brown, 520 U.S.
39 

397, 410 (1997) (“‘[D]eliberate indifference’ is a stringent standard of fault,
requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.”).
In light of these conclusions, the Court need not reach the remainder of
Defendant’s arguments relating to Plaintiff’s inaction or delay claim. The Court
dismissed Plaintiff’s inaction or delay claim against the City in its January 6 Order
due to Plaintiff’s failure to plead deliberate indifference. ECF No. 179 at 29–30.
The Court therefore concludes that further leave to amend would be futile. See
Chodos, 292 F.3d at 1003. As such, Plaintiff’s claim for inaction or delay in Count
Two is DISMISSED WITH PREJUDICE.
F.

Negligence/Negligent Retention and Negligent Hiring and/or
Supervision (Count Four)
In Count Four of the TAC, Plaintiff appears to assert what he considers to be

three separate state law claims against the City: negligence/negligent retention,
negligent hiring, and negligent supervision. Plaintiff, however, disclosed at the
parties’ Local Rule 7.8 conference that he is not pursuing a negligent hiring claim
and included it in the TAC inadvertently, leaving only the negligence/negligent
retention claim and the negligent supervision claim. ECF No. 209 at 2. Plaintiff’s
negligent hiring claim is therefore DISMISSED WITH PREJUDICE.
1.

Negligence/Negligent Retention

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Plaintiff alleges that the City is liable for negligence and negligent retention
because it retained Seguirant as an employee after learning of his tortious conduct,
specifically his discriminatory conduct toward Plaintiff and his maintenance of a
contracting business while working as a building inspector. ECF No. 204 ¶ 208.
“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). “The Hawaii courts have not established the exact elements of a
negligent retention claim.” Ryder v. Booth, Civil No. 16-00065 HG-KSC, 2016
WL 2745809, at *11 (D. Haw. May 11, 2016) (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).
The Court dismissed Plaintiff’s negligent retention claim in its January 6
Order on the basis that the City’s retention of Seguirant could not have been the
proximate cause of Plaintiff’s injuries if Seguirant had already caused those
injuries when the City received notice of the Seguirant’s wrongful conduct. ECF
No. 179 at 33–34. Plaintiff again has failed to plausibly allege that the City’s
negligent retention of Seguirant was the proximate cause of Plaintiff’s injuries
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insofar as Plaintiff did not allege that the City knew or should have known that
Seguirant had engaged in wrongful conduct before Seguirant caused injury to
Plaintiff. ECF No. 205-1 at 24.
The Court has previously given Plaintiff leave to amend in order to allege
that the City had knowledge of Seguirant’s wrongful conduct at the time Seguirant
injured Plaintiff. ECF No. 179 at 33–34. As Plaintiff has failed to do so, the Court
concludes further leave to amend would be futile. See Chodos, 292 F.3d at 1003.
Plaintiff’s negligence/negligent retention claim in Count Four is therefore
DISMISSED WITH PREJUDICE.
2.

Negligent Supervision

Plaintiff alleges that the City engaged in negligent supervision by allowing
Seguirant to maintain his general contracting business while working as a building
inspector and by providing Seguirant with little to no training as a building
inspector, enabling Seguirant to discriminate against Plaintiff. ECF No. 204
¶ 217(a–b). The Hawai‘i Supreme Court analyzes negligent supervision claims
using the standards set forth in the Restatement (Second) of Torts § 317. 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
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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.
Restatement (Second) of Torts § 317 (Am. L. Inst. 1965) (current through 2020
Supp.) (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 Black v. Correa, CV.
No. 07-00299 DAE-LEK, 2007 WL 3195122, at *10 (D. Haw. Oct. 30, 2007)
(“[N]egligent supervision may be found only when the employee acts outside the
scope of his or her employment.” (citing Pulawa v. GTE Hawaiian Tel, 112
Hawai‘i 3, 143 P.3d 1205 (2006); Dairy Road Partners, 92 Hawai‘i 398, 992 P.2d
93 (2000))); Carroll v. County of Maui, Civil No. 13-00066 DKW-KSC, 2015 WL
1470732, at *10 (D. Haw. Mar. 31, 2015) (“To state a claim for negligent
supervision or failure to control under Hawai‘i law, a plaintiff must allege that the
employees who committed the wrongful acts were acting outside the scope of their
employment.” (citation omitted)).

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The Court ruled in its January 6 Order that Plaintiff’s negligent supervision
claim is defective because Plaintiff believes he was injured by Seguirant’s efforts
to enforce the City’s ordinances in relation to the Property, which constitute acts
Seguirant took within the scope of his employment. ECF No. 179 at 35. Plaintiff
has not included any allegations regarding tortious conduct that Seguirant engaged
in outside the scope of his employment. See generally ECF No. 204. Plaintiff’s
negligent supervision claim therefore remains defective.
Despite the Court’s prior ruling, Plaintiff cites Ryder for the proposition that
“Hawaii law recognizes two types of claims alleging negligent supervision: one
that seeks relief from acts occurring outside the scope of employment, and one that
seeks relief from acts that happened in the scope of employment.” ECF No. 217 at
21 (quoting Ryder, 2016 WL 2745809, at *10). In support of this proposition,
Ryder cites to Black v. Correa, 2007 WL 3195122, at *10–11, which explains that
in situations where an employee-supervisor negligently supervises other
employees, the employer can be held liable for the employee-supervisor’s acts
within the scope of employment based on respondeat superior liability. See Ryder,
2016 WL 2745809, at *10.
But regardless of whether recovery under such a respondeat superior theory
is a second “type” of negligent supervision claim as termed in Ryder, it is clear that
Seguirant is not a supervisor as Plaintiff alleges that Seguirant is a building
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inspector and makes no references to any employees under Seguirant’s
supervision. Thus, as the Court held in the January 6 Order, Seguirant must have
committed a tortious act outside the scope of his employment in order for Plaintiff
to have a negligent supervision claim against the City. ECF No. 179 at 34–35.
The Court previously granted Plaintiff leave to amend in order to allege
tortious conduct that Seguirant engaged in outside the scope of his employment.
ECF No. 179 at 34–35. Because Plaintiff has not done so, the Court concludes
further leave to amend would be futile. See Chodos, 292 F.3d at 1003. Plaintiff’s
negligent supervision claim in Count Four is therefore DISMISSED WITH
PREJUDICE.
IV.

CONCLUSION

For the reasons set forth above, The City’s Motion [ECF No. 205] is
GRANTED IN PART AND DENIED IN PART as follows: (1) the Motion is
denied with respect to the procedural due process claim against the City in Counts
One and Two; and (2) the Section 1981 claim in Count One, the equal protection
claims in Counts One and Two, the ratification or approval claim in Count Two,
the inaction or delay claim in Count Two, and the entirety of Count Four are
DISMISSED WITH PREJUDICE as to the City.
Seguirant’s Motion [ECF No. 206] is GRANTED IN PART AND DENIED
IN PART as follows: (1) the Motion is DENIED with respect to the Section 1981
45 

claim against Seguirant in Count One; and (2) the procedural due process and
equal protection claims in Count One and Two against Seguirant are DISMISSED
WITH PREJUDICE.
IT IS SO ORDERED.
DATED: Honolulu, Hawai‘i, May 27, 2021.

Civil No. 18-00162 JAO-RT, Yoshikawa v. City and County of Honolulu, ORDER
GRANTING IN PART AND DENYING IN PART (1) DEFENDANT CITY AND
COUNTY OF HONOLULU’S MOTION TO DISMISS PLAINTIFF’S THIRD
AMENDED COMPLAINT, AND (2) DEFENDANT TROY K. SEGUIRANT’S
MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT
46