Kakazu v. Christopher

• Decision Date: 28 February 2022
• Docket Number: CAAP-17-0000634
• Parties: YUKO KAKAZU, Petitioner-Appellee, v. PETER CHRISTOPHER, Respondent-Appellant
• Court: Hawaii Court of Appeals

YUKO KAKAZU, Petitioner-Appellee,
v.
PETER CHRISTOPHER, Respondent-Appellant

No. CAAP-17-0000634

Intermediate Court of Appeals of Hawaii

February 28, 2022

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT NORTH AND SOUTH HILO DIVISION (CIVIL NO. 3SS17-1-0093)

Peter Christopher, Self-represented Respondent- Appellant.

Yuko Kakazu, Self-represented Petitioner- Appellee.

Ginoza, C.J., and Wadsworth and Nakasone, JJ.

MEMORANDUM OPINION

These consolidated appeals arise from a June 7, 2017 Order Granting Petition for Injunction Against Harassment (Injunction), entered in favor of self-represented Petitioner-Appellee Yuko Kakazu (Kakazu) and against self-represented Respondent-Appellant Peter Christopher (Christopher) by the District Court of the Third Circuit, North and South Hilo Division (District Court) .^[1] Following an evidentiary hearing, the District Court enjoined Christopher, pursuant to Hawaii Revised Statutes (HRS) § 604-10.5 (2016), ^[2] from contacting,

1

threatening or harassing Kakazu, entering or visiting her residence or places of employment, and attending certain dance events that Kakazu normally attended.

In appellate case no. CAAP-17-0000634, Christopher appeals from the Injunction, and also challenges the following orders entered by the District Court: (1) the August 2, 2017 Findings of Fact and Conclusions of Law (FOFs/COLs), as amended to correct clerical errors pursuant to an August 9, 2017 order; and (2) the August 3, 2017 "Order Denying [Christopher's] Motions for Reconsideration, etc. Dated June 14, 2017 and Additional Motion for Reconsideration Filed June 19, 2017" (Order Denying Reconsideration).

2

In appellate case no. CAAP-18-0000306, Christopher appeals from the following post-judgment orders^[3] entered by the District Court: (1) the November 2, 2017 order denying Christopher's "Motion to Compel Accurate Answers to Discovery, Compel [Kakuzu's trial counsel ]Stephen [D. ]Strauss to Correct Errors Made on the Record, and Refer Matter to the Hawaii Office of Disciplinary Counsel" (Order Denying Motion to Compel) ^[4] 2) the April 5, 2018 "Order Denying [Christopher's] Motion to Set Aside, and/or Modify, . . . and/or Vacate Orders, and/or For New Trial, and Other Relief Filed January 4, 2018" (Order Denying Rule 60(b) Motion); and (3) the April 5, 2018 "Order Granting . . . Kakazu's Request for Attorney's Fees and Costs" (Order Granting Fees).^[5]

In appellate case no. CAAP-17-0000634, Christopher asserts twenty-six (26) points of error (POEs), contending that the District Court:

(1) erred in failing to properly apply the language of HRS § 604-10.5(a)(2) regarding an "intentional or knowing course of conduct"

(2) erred in issuing the Injunction pursuant to HRS § 604-10.5, because there was no showing that Christopher had violated, or imminently would violate, some other statute

(3) erred in COL 6, by concluding that Christopher engaged in a "course of conduct directed at Kakazu[, ]" which included activities that Christopher asserts were "constitutionally protected and . . . not directed at Ms. Kakazu";

(4) erred in failing to consider the harm to Christopher when the court issued the Injunction;

3

(5) erred in FOFs 7, 8, 10, 11, 12, 13, and 14, and COLs 6 and 10, by failing to account for "freedoms of speech and movement";

(6)-(11) erred in FOFs 3, 18, 21, 22, and 23; (12) erred in COLs 6(h), 11, and 14, which Christopher asserts were not supported by the evidence;

(13) erred in interpreting HRS § 604-10.5 without reference to the First, Ninth, and Tenth Amendments of the U.S. Constitution and Sections 1.2, 1.3, 1.4, 1.5, 1.10, and 1.12 of the Hawai'i Constitution;

(14) erred in issuing an unnecessarily broad injunction;

(15) abused its discretion by denying Christopher's request to allow witness Punky McLemore (McLemore) to testify by telephone at the June 7, 2017 injunction hearing;

(16) abused its discretion by not allowing the testimony of McLemore and other witnesses at the July 7, 2017 hearing on Christopher's motion for reconsideration, filed on June 14, 2017, and additional motion for reconsideration, filed on June 19, 2017 (collectively, motions for reconsideration);

(17)-(18) erred in denying Christopher's motions for reconsideration; (19) erred in dismissing the original petition for a restraining order without prejudice;

(20) erred in issuing ex parte restraining orders, when no violation of law or impending harm was shown;

(21)-(23) erred in denying Christopher's motions for reconsideration, when the "legitimate purpose" language of HRS § 604-10.5(a)(2) is unconstitutionally vague or the entire statute (HRS § 604-10.5) is unconstitutionally vague or broad;

(24) erred in failing to recognize that there were grounds for a new trial, when Kakazu's attorney made false claims in violation of the rules of professional conduct;

(25) erred in denying the motions for reconsideration due to ineffective assistance of Christopher's trial counsel; and

(26) erred in applying "a subjective . . . reasonable person standard" in issuing the Injunction;

4

In appellate case no. CAAP-18-0000306, Christopher asserts five additional points of error, contending that the District Court erred:

(1) in denying Christopher's DCRCP Rule 60(b) motion (Rule 60(b) Motion), filed on January 4, 2018;

(2) in refusing to modify the Injunction by removing specific public locations that Christopher was prohibited from attending;

(3) in granting Kakazu's request for attorney's fees and costs in defending against the Rule 60 (b) Motion;

(4) when the Honorable M. Kanani Laubach declined to hear the DCRCP Rule 60 (b) motion; and

(5) in denying Christopher's motion to compel answers to discovery and to refer the matter to the Office of Disciplinary Counsel (Motion to Compel), filed on November 2, 2017.

We group these contentions by subject matter and address each of them below. After reviewing the record on appeal and the relevant legal authorities, and giving due consideration to the issues raised and the arguments advanced by the parties, we resolve Christopher's contentions as follows:

A. Jurisdiction

The Injunction was ordered effective as of June 7, 2017, for a period of three years "unless terminated or modified by appropriate order by [the District] Court." There is no indication in the record that the Injunction was extended. Christopher stated in a June 30, 2020 letter to this court that the Injunction "has now quietly expired after the passage of 3 years, [and] there remain important issues for this court to address[.]" The issue thus arises as to whether this appeal is moot. Because "mootness is an issue of subject matter jurisdiction," Hamilton ex rel. Lethem v. Lethem, 119 Hawai'i 1, 4, 193 P.3d 839, 842 (2008), we must determine whether we have jurisdiction to decide the issues presented in this appeal before we reach the merits. See Pele Def. Fund v. Puna Geothermal Venture, 77 Hawai'i 64, 67, 881 P.2d 1210, 1213 (1994).

5

We conclude that the reputational harm that Christopher could reasonably suffer from an injunction issued under HRS § 604-10.5(g), based on findings and conclusions that Christopher engaged in harassment as defined in HRS § 604-10.5 (a) (2), is sufficient to trigger the collateral consequences exception to the mootness doctrine. See Luat v. Cacho, 92 Hawai'i 330, 343, 991 P.2d 840, 853 (App. 1999) (recognizing that the clear and convincing proof standard applied under HRS § 604-10.5 "is required to sustain claims which have serious social consequences or harsh or far reaching effects on individuals" (quoting Masaki v. General Motors Corp., 71 Haw. 1, 15-16, 780 P.2d 566, 575 (1989)), and "reduces the risk to the alleged wrongdoer of having his or her reputation tarnished erroneously by increasing the plaintiff's burden of proof" (quoting Coyle v. Compton, 85 Hawai'i 197, 208, 940 P.2d 404, 415 (App. 1997))); cf. Hamilton, 119 Hawai'i at 9-10, 193 P.3d at 847-848 (adopting the collateral consequences exception to the mootness doctrine in a case involving a domestic violence temporary restraining order (TRO), where there was a reasonable possibility that issuance of the TRO would cause harm to the defendant father's reputation); In re JK, 149 Hawai'i 400, 405, 491 P.3d 1179, 1184 (App. 2021) (holding that "the reputational harm that could reasonably result from an order of involuntary hospitalization under HRS § 334-60.2 is sufficient to trigger the collateral consequences exception to the mootness doctrine"). We thus have jurisdiction to decide the merits of Christopher's appeal as to the issues he raises that implicate reasonably resulting reputational harm.

B. Findings of Fact and Conclusions of Law

The District Court issued the Injunction based upon the conclusions, among others, that "[Christopher] intentionally engaged in [a] . . . course of conduct directed at [Kakazu] after becoming aware that she was specifically not interested in him or had generally disengaged from the dating web site of eHarmony[, ]" and that Christopher engaged in "harassment" as defined by HRS § 604-10.5(a)(2). HRS § 604-10.5(g) requires that the clear and convincing standard of proof be applied in

6

determining whether conduct rises to the level of "harassment," as defined in paragraph (a)(2). "Clear and convincing evidence" is:

an intermediate standard of proof greater than a preponderance of the evidence, but less than proof beyond a reasonable doubt required in criminal cases. It is that degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established, and requires the existence of a fact be highly probable.

JK, 149 Hawai'i at 409, 491...