DeRosa v. Ass'n of Apartment Owners of the Golf Villas

• Citation: 185 F.Supp.3d 1247
• Decision Date: 06 May 2016
• Docket Number: CIVIL 15-00165 LEK-KSC
• Parties: Vincent DeRosa, Plaintiff, v. The Association of Apartment Owners of the Golf Villas; Certified Management, Inc., dba Certified Hawaii aka Associa Hawaii ; John Does 1-100; Jane Does 1-100; Doe Partnerships 1-100 and Doe Entities 1-100, Defendants.
• Court: U.S. District Court — District of Hawaii

185 F.Supp.3d 1247

Vincent DeRosa, Plaintiff,

v.The Association of Apartment Owners of the Golf Villas; Certified Management, Inc., dba Certified Hawaii aka Associa Hawaii ; John Does 1-100; Jane Does 1-100; Doe Partnerships 1-100 and Doe Entities 1-100, Defendants.

CIVIL 15-00165 LEK-KSC

United States District Court, D. Hawai'i.

Signed May 6, 2016

As Amended August 31, 2016

Andrew D. Chianese, Malia R. Nickison-Beazley, Terrance M. Revere, Revere & Associates LLLC, Kailua, HI, for Plaintiff.

David R. Major, Karin L. Holma, Bays Lung Rose & Holma, Honolulu, HI, for Defendants.

AMENDED ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Leslie E. Kobayashi, United States District Judge

On March 9, 2016, Defendants the Association of Apartment Owners of the Golf Villas ("AOAO") and Certified Management, Inc., doing business as Certified Hawaii, now known as Associa Hawaii ("Certified," collectively "Defendants"), filed their Motion for Summary Judgment ("Motion"). [Dkt. no. 29.] Plaintiff Vincent DeRosa ("Plaintiff") filed his memorandum in opposition on March 28, 2016, and Defendants filed their reply on April 4, 2016. [Dkt. nos. 32, 36.] This matter came on for hearing on April 18, 2016.

On May 3, 2016, this Court issued an entering order ruling on the Motion ("5/3/16 EO Ruling"). [Dkt. no. 43.] The instant Order supersedes the 5/3/16 EO Ruling. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendants' Motion is HEREBY GRANTED IN PART AND DENIED IN PART. Specifically, the Motion is DENIED WITHOUT PREJUDICE as to Plaintiff's breach of contract claim, and the Motion is GRANTED in all other respects. As to the remaining claims—breach of contract and the Haw. Rev. Stat. § 515–16(1) claim—any party who desires to file a motion for summary judgment has leave to file by or before May 31, 2016 .

BACKGROUND

Plaintiff filed his Complaint on January 22, 2015 in state court. [Notice of Removal, filed 5/7/15 (dkt. no. 1), Decl. of David R. Major ("Major Removal Decl."), Exh. A (Complaint).] Defendants removed the case based on federal question jurisdiction. [Notice of Removal at ¶ 2.]

The Complaint alleges that Plaintiff has a disability, as that term is defined in the Americans with Disabilities Act ("ADA"). Plaintiff owns a pug named Jake, who is a certified Emotional Support Animal ("ESA"), registered with the National Service Animal Registry ("NSAR"). [Complaint at ¶¶ 8-10.] Further, Plaintiff alleges that:

"Jake" meets the ADA definition of a service dog. The Fair Housing Amendments Act of 1988, Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA require property managers and landlords to make reasonable accommodations to permit a disabled handler to keep an ESA even when there is a policy explicitly prohibiting pets.

[Id. at ¶ 11.]

The following facts are undisputed. Plaintiff previously owned a condominium unit at the Kapalua Golf Villas ("Golf Villas"), which is part of the Kapalua Resort, a master planned community. [Defs.' Separate Concise Statement of Facts in Supp. of Motion ("Defs.' CSOF"), filed 3/9/16 (dkt. no. 30), at ¶¶ 1-2; Pltf.'s Separate Concise Statement of Facts in Supp. of Mem. in Opp. ("Pltf.'s CSOF"), filed 3/28/16 (dkt. no. 33), at ¶¶ 1-2.] The Kapalua Resort is subject to a December 29, 1976 Declaration of Covenants and Restrictions, the applicable version of which was amended and restated, and recorded on September 30, 1987 ("Kapalua Declaration"). [Defs.' CSOF at ¶ 2; Pltf.'s CSOF at ¶ 2; Defs.' CSOF, Decl. of Alan Fleisch ("Fleisch Decl."),¹ Exh. B (Kapalua Decl.).]

The Golf Villas's Declaration of Horizontal Property Regime ("Golf Villas Declaration") states that it is subject to the Kapalua Declaration. [Defs.' CSOF at ¶ 4; Pltf.'s CSOF at ¶ 4; Fleisch Decl., Exh. C (Golf Villas Decl.).] The Kapalua Declaration therefore contains numerous covenants and restrictions that encumbered the title to Plaintiff's Golf Villas unit. [Defs.' CSOF at ¶ 5; Pltf.'s CSOF at ¶ 5.]

The claims in this case arise from: the AOAO's refusal to grant Plaintiff an exception to what the AOAO asserts is a no-pets policy in the Golf Villas's governing documents; and alleged retaliation by the AOAO and its agent, Certified, for Plaintiff's opposition to a Golf Villas remediation project and for his filing of a disability discrimination complaint against the AOAO with the Hawai'i Civil Rights Commission ("HCRC") and the United States Department of Housing and Urban Development ("HUD").

Plaintiff's Complaint does not set forth his claims as numbered counts. He lists them in one paragraph:

The actions and omissions of the AOAO and Certified constitute retaliation, bad faith, selective enforcement of the governing documents, negligence, gross negligence, breach of contract, breach of fiduciary duty, negligent and intentional emotional distress, prima facie tort, racketeering, and violations of [Haw. Rev. Stat.] §§ 515–16(1), 515–16(6), 514B–9, 514B–105, 514B–105 [sic] and [Haw. Admin. R.] §§ 12–46–301, 12–46–310(1) and 12–46–310(6).

[Complaint at ¶ 29.] The Complaint seeks the following relief: a declaratory judgment that Defendants violated § 515–16(1) and (6), § 12-46-301, and § 12-46-310(1) and (6); "[j]ust compensation including general, special, and punitive damages[;]" attorneys' fees and costs; and any other appropriate relief. [Id. at pg. 8.]

In the instant Motion, Defendants argue that all of Plaintiff's claims should be dismissed with prejudice or this Court should grant summary judgment in Defendants' favor.

DISCUSSION

I. Procedural Issues

In his memorandum in opposition, Plaintiff asks that he be allowed to continue discovery, pursuant to Fed. R. Civ. P. 56(d), before this Court rules on the Motion. [Mem. in Opp. at 2.] In an April 13, 2016 entering order ("4/13/16 EO"), this Court denied Plaintiff's request because he failed to follow the requirements for a Rule 56(d) request. [Dkt. no. 37.]

This Court also notes that Plaintiff failed to include a declaration or affidavit authenticating his exhibits. Although Plaintiff submitted a declaration, [Decl. of Vincent DeRosa ("Plaintiff Declaration"), filed 3/28/16 (dkt. no. 34),] it is not sufficient to authenticate any of his exhibits. In the 4/13/16 EO, this Court informed the parties that it would not consider any exhibits that were not properly authenticated. However, out of fairness, this Court recognizes that: several of Plaintiff's exhibits are documents that are included among Defendants' exhibits; some of Plaintiff's other exhibits are described—although not specifically identified according to exhibit number—in his declaration; and still more of Plaintiff's exhibits could have been authenticated by Plaintiff because they are correspondence either from him or to him.

This Court does not condone Plaintiff's failure to follow the applicable rules, and this Court could rightly refuse to take Plaintiff's exhibits into account because of the lack of authentication. However, this Court, in its discretion, declines to strike Plaintiff's exhibits, and it has taken his exhibits into account in considering Defendants'Motion. Even though this Court has considered Plaintiff's exhibits, they do not establish a genuine issue of material fact for trial.² SeeFed. R. Civ. P. 56(a) ("The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.").

This Court now turns to the merits of the Motion.

II. Claims Subject to Dismissal

Even though Defendants titled their motion "Motion for Summary Judgment," they argue that some of Plaintiff's claims should be dismissed because, based upon the allegations of the Complaint, those claims fail as a matter of law. This Court will therefore apply the dismissal standards in considering those claims. SeeFed. R. Civ. P. 12(b)(6) ("failure to state a claim upon which relief can be granted"); Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir.2014) (stating that, in order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff's "factual allegations must suggest that the claim has at least a plausible chance of success" (alteration, citation, and internal quotation marks omitted)).

A. Bad Faith

Under Hawai'i law, the tort of bad faith is also known as breach of the duty of good faith and fair dealing. Because this Court has supplemental jurisdiction over Plaintiffs' state law claims, it must apply Hawai'i substantive law to those claims. SeeMason & Dixon Intermodal, Inc. v. Lapmaster Int'l LLC, 632 F.3d 1056, 1060 (9th Cir.2011). This Court has recognized that:

When interpreting state law, a federal court is bound by the decisions of a state's highest court. Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 427 (9th Cir.2011). In the absence of a governing state decision, a federal court attempts to predict how the highest state court would decide the issue, using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises, and restatements as guidance. Id.; see alsoBurlington Ins. Co. v. Oceanic Design & Constr., Inc., 383 F.3d 940, 944 (9th Cir.2004) ("To the extent this case raises issues of first impression, our court, sitting in diversity, must use its best judgment to predict how the Hawai'i Supreme Court would decide the issue." (quotation and brackets omitted)).

Evanston Ins. Co. v. Nagano, 891 F.Supp.2d 1179, 1189 (D.Hawai'i 2012) (some citations omitted). This Court has stated:

Hawai'i courts have recognized that "every contract contains an implied covenant of good faith and fair dealing that neither party will do anything that will deprive the other of the benefits of the agreement." Best Place, Inc. v. Penn Am. Ins. Co., 82 Hawai'i 120, 123–24, 920 P.2d 334, 337–38 (1996) (citations omitted). "Good faith performance ‘emphasizes faithfulness to an agreed common purpose and consistency with the

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