The opinion
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
14-JAN-2026
07:52 AM
Dkt. 65 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
HEIDI AKAU, as Guardian Prochein Ami of R.A., a minor,
TRISHA BOUCHER, as Guardian Prochein Ami of C.P., a minor,
RHONDA MORALES, as Guardian Prochein Ami of A.M.S., a minor,
RANDELL AKAU, CHEVELLE PETER and ANUHEA MORALES-SNELSON,
Plaintiffs-Appellants, v.
WANDA VILLAREAL, in her individual and official capacity,
KAPOLEI CHARTER SCHOOL, DEPARTMENT OF EDUCATION - STATE OF
HAWAII, HAWAII STATE PUBLIC CHARTER SCHOOL COMMISSION,
Defendants-Appellees
and
JOHN DOES 1-10, DOE PARTNERSHIPS 1-10, DOE CORPORATIONS
1-10, ROE "NON-PROFIT" CORPORATIONS 1-10, ROE GOVERNMENTAL
ENTITIES 1-10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, and Wadsworth and McCullen, JJ.)
This appeal stems from a complaint for damages
sustained by a group of high school students as a result of an
allegedly unlawful school search. Plaintiffs-Appellants Heidi
Akau, Trisha Boucher, and Rhonda Morales, on behalf of their
respective then-minor children, later joined by the children
themselves after reaching age 18, Plaintiffs-Appellants Randell
Akau, Chevelle Peter, and Anuhea Morales Snelson (together,
Plaintiffs), sued Defendants-Appellees Wanda Villareal
(Villareal), in her individual and official capacity; Kapolei
Charter School (KCS); Department of Education – State of Hawaii;
and Hawaii State Public Charter School Commission (together,
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Defendants).1/ Plaintiffs appeal from the Judgment entered in
Defendants' favor on November 3, 2023, by the Circuit Court of
the First Circuit (Circuit Court).2/ Plaintiffs also challenge
the Circuit Court's: (1) August 3, 2023 "Order Granting [KCS] and
. . . Villareal's Motion for Summary Judgment on the Pleadings"
(Order Granting MSJ); and (2) August 17, 2023 "Order Denying
Plaintiffs' Motion for Reconsideration of Court's Ruling Granting
[KCS] and . . . Villareal's Motion for Summary Judgment on the
Pleadings" (Order Denying Reconsideration).
In the SAC, Plaintiffs alleged they were falsely
accused of vaping and smoking marijuana on a school bus while on
a field trip. They alleged that "[o]n October 1, 2019, [they]
were all individually ordered into . . . Villareal's office and
illegally searched, assaulted, battered and had their privacy
invaded by . . . . Villareal[,]" the KCS School Director. Based
on these alleged actions, which Plaintiffs describe as a "strip
search," they asserted a variety of tort claims, as well as
claims for violation of their civil rights under Hawai#i law.
In their answer, KCS and Villareal denied the alleged
wrongdoing and, as relevant here, Villareal asserted that she had
qualified immunity from liability.
On May 30, 2023, KCS and Villareal filed a "motion for
summary judgment on the pleadings" (MSJ), accompanied by a
declaration by Villareal. They asserted several bases for
summary judgment, including that: (1) the State's sovereign
immunity shielded KCS and Villareal in her official capacity from
liability for Plaintiffs' claims; (2) Villareal was protected by
qualified or conditional immunity for claims against her
individually; and (3) Plaintiffs failed to state cognizable tort
and civil rights claims.
1/
The original complaint named Kapolei Charter School by Goodwill
Hawaii Foundation LLC (Goodwill) as a defendant. Summary judgment was granted
in favor of Goodwill early in the case, and Goodwill was not included as a
defendant in subsequent amended complaints. Instead, the First Amended
Complaint and the operative Second Amended Complaint ( SAC) named KCS as a
defendant.
2/
The Honorable Kevin T. Morikone presided.
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On June 20, 2023, Plaintiffs filed a memorandum in
opposition to the MSJ. An accompanying declaration of counsel
referenced four attached exhibits, which were prior orders of the
Circuit Court addressing prior motions in the case.
On July 11, 2023, the Circuit Court held a hearing on
the MSJ and took the matter under advisement. The court entered
a minute order granting the MSJ later the same day, and entered
the Order Granting MSJ on August 3, 2023. The court did not
specify the basis for the grant of summary judgment.
Plaintiffs filed a motion for reconsideration on
July 13, 2023, which the Circuit Court denied on August 17, 2023.
On appeal, Plaintiffs contend that the Circuit Court
erred in granting summary judgment "on the implied ground that
the School Director Villareal had qualified immunity in her
personal capacity for the torts alleged."3/ (Capitalization
altered.)
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
Plaintiffs' contentions as follows, and affirm.
We review a trial court's grant or denial of summary
judgment de novo using the same standard applied by the trial
court. Nozawa v. Operating Eng'rs Local Union No. 3, 142 Hawai#i
331, 338, 418 P.3d 1187, 1194 (2018) (citing Adams v. CDM Media
USA, Inc., 135 Hawai#i 1, 12, 346 P.3d 70, 81 (2015)). "Summary
judgment is appropriate if the pleadings, depositions, answers to
3/
KCS and Villareal argue in their answering brief that because
Plaintiffs raise no issue on appeal other than Villareal's qualified immunity,
they have "waive[d] any ground or legal basis raised in the MSJ below not
based on [this issue], and concede dismissal was properly granted in all
claims against KCS, Dr. Villareal in her official capacity, and Dr. Villareal
individually as to [the tort and civil rights claims]."
It appears that Plaintiffs have waived their claims against KCS
and Dr. Villareal in her official capacity, as they make no argument regarding
those claims. See Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(7).
As to the claims against Villareal individually, the Circuit Court did not
specify the basis for the grant of summary judgment. We decide below that
because Plaintiffs presented no genuine issue as to Villareal's qualified
immunity, the Circuit Court did not err in concluding that Villareal,
individually, was entitled to judgment as a matter of law on Plaintiffs' tort
and civil rights claims. We thus need not reach Defendants' waiver argument
on this issue.
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interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Id. at 342, 418 P.3d at 1198 (brackets
omitted) (quoting Adams, 135 Hawai#i at 12, 346 P.3d at 81). The
evidence and the inferences drawn from the evidence must be
viewed in the light most favorable to the non-moving party.
Yoneda v. Tom, 110 Hawai#i 367, 384, 133 P.3d 796, 813 (2006)
(citing Coon v. City & Cnty. of Honolulu, 98 Hawai#i 233, 244-45,
47 P.3d 348, 359-60 (2002)).
The moving party has the burden to establish that
summary judgment is proper. Nozawa, 142 Hawai#i at 342, 418 P.3d
at 1198 (citing French v. Haw. Pizza Hut, Inc., 105 Hawai#i 462,
470, 99 P.3d 1046, 1054 (2004)).
Where the moving party is the defendant, who does not bear
the ultimate burden of proof at trial, summary judgment is
proper when the non-moving party-plaintiff
fails to make a showing sufficient to establish the
existence of an element essential to that party's
case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be no
genuine issue as to any material fact, since a
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial.
Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 116
Hawai#i 277, 302, 172 P.3d 1021, 1046 (2007) (emphases omitted)
(quoting Hall v. State, 7 Haw. App. 274, 284, 756 P.2d 1048, 1055
(1988)). Further, a defendant moving for summary judgment "may
satisfy his or her initial burden of production by either (1)
presenting evidence negating an element of the non-movant's
claim, or (2) demonstrating that the non[-]movant will be unable
to carry his or her burden of proof at trial." Ralston v. Yim,
129 Hawai#i 46, 60, 292 P.3d 1276, 1290 (2013). In other words,
the movant's "burden may be discharged 'by demonstrating that if
the case went to trial, there would be no competent evidence to
support a judgment for his or her opponent.'" Kondaur Cap. Corp.
v. Matsuyoshi, 136 Hawai#i 227, 240, 361 P.3d 454, 467 (2015)
(ellipsis and brackets omitted) (quoting Exotics Hawaii-Kona,
Inc., 116 Hawai#i at 301, 172 P.3d at 1045).
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"Once a summary judgment movant has satisfied its
initial burden of producing support for its claim that there is
no genuine issue of material fact, the party opposing summary
judgment must 'demonstrate specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial.'"
Nozawa, 142 Hawai#i at 342, 418 P.3d at 1198 (brackets omitted)
(quoting Lales v. Wholesale Motors Co., 133 Hawai#i 332, 359, 328
P.3d 341, 368 (2014)).
Here, Plaintiffs argue, relying on Pogoso v. Sarae, 138
Hawai#i 518, 382 P.3d 330 (App. 2016), and Costales v. Rosete,
133 Hawai#i 453, 331 P.3d 431 (2014), that the Circuit Court
erred in concluding that Villareal had qualified immunity from
liability for the alleged torts where "the question of whether a
school official acted with malice is a question for the jury."
(Emphases added.) This argument is premised on the allegation
that Villareal acted with malice as a public official, which
Plaintiffs appear to contend, based on Pogoso, allows suit
against her individually.4/ Plaintiffs also argue that
Villareal's qualified immunity "cannot be sustained" because her
actions violated a "clearly established" right under the Hawai#i
Constitution.
In Costales, the Hawaii Supreme Court stated:
Ordinarily, a public official is qualifiedly immune from
liability. Medeiros v. Kondo, 55 Haw. 499, 505, 522 P.2d
1269, 1272 (1974). To defeat a public official's claim of
qualified immunity, the burden is on the plaintiff to adduce
"clear and convincing proof that [the public official]
defendant was motivated by malice and not by an otherwise
proper purpose." Id. "If it is determined that [the
individual defendant] was acting within the scope of his
employment as a public official, then he can be held liable
for general, special, and punitive damages (1) if he
maliciously exercised his official discretion, or (2) if he
maliciously committed a tort against plaintiffs. . . ."
Kajiya v. Dep't of Water Supply, 2 Haw. App. 221, 227, 629
P.2d 635, 640 (App. 1981) (citations and footnote omitted).
133 Hawai#i at 466, 331 P.3d at 444. The court also made clear
that "[u]nless the issue is removed from the case by uncontested
affidavits and depositions the existence or absence of malice is
4/
Plaintiffs do not argue that Villareal acted in her individual
capacity in committing the alleged torts. See Shibuya v. Cnty. of Kauai, No.
CAAP-XX-XXXXXXX, 2023 WL 1265542, at *3 (Haw. App. Jan. 31, 2023) (Mem. Op.).
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a question for the jury." Id. at 466-67, 331 P.3d at 444-45
(emphasis added) (quoting Kajiya, 2 Haw. App. at 227, 629 P.2d at
640).
In answer to the SAC, Villareal asserted that she "is
not liable for Plaintiffs' alleged injuries and/or damages on the
basis of qualified immunity and/or qualified privilege." In the
MSJ, Villareal again asserted that "[she], in her individual
capacity, is protected by qualified or conditional immunity."
(Capitalization altered.) She argued that "Plaintiffs have no
evidence that [she] acted with malice." She also presented her
declaration stating, among other things, "I am the School
Director of [KCS] and its lead administrator" and "I have never
acted with malice or ill-will toward Randell Akau, Anuhea
Morales-Snelson and/or Chevelle Peter . . . at any time."
Given Villareal's assertion of qualified immunity,
under Costales, Plaintiffs would have had the burden at trial to
prove by clear and convincing evidence that Villareal was
motivated by malice and not by an otherwise proper purpose. In
opposing the MSJ, however, Plaintiffs submitted no evidence
addressing Villareal's statement in her declaration that she did
not act with malice or ill will toward Plaintiffs, and no
evidence regarding her alleged wrongful actions. Rather,
Plaintiffs argued, relying on Freddy Nobriga Enterprises, Inc. v.
State, Dep't of Hawaiian Home Lands, 129 Hawai#i 123, 295 P.3d
993 (App. 2013), that "Villareal may have no immunity at all for
her violations[,]" if she knew or should have known that her
actions violated a constitutional norm. (Capitalization
altered.) Plaintiffs also asserted, without supporting evidence
of any sort, that "Defendant Villareal was motivated by malice or
another improper purpose."
Plaintiffs did not meet their burden on summary
judgment. Once Villareal satisfied her initial burden of
producing support for her claim that there was no genuine issue
of material fact regarding her qualified immunity, Plaintiffs
were required to "demonstrate specific facts, as opposed to
general allegations, that present[ed] a genuine issue worthy of
trial." Nozawa, 142 Hawai#i at 342, 418 P.3d at 1198. Instead,
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they offered only argument. As to their tort claims, Plaintiffs
presented no evidence that Villareal acted with malice, including
any evidence of her alleged actions from which malice might
reasonably be inferred. The Circuit Court thus did not err in
concluding that Villareal, individually, was entitled to judgment
as a matter of law on Plaintiffs' tort claims. See Kamakeeaina
v. City & Cnty. of Honolulu, No. CIV. 11-00770 JMS/RLP, 2014 WL
1691611, at *11 (D. Haw. Apr. 29, 2014), aff'd sub nom.
Kamakeeaina v. Maalo, 680 F. App'x 631 (9th Cir. 2017) (finding
summary judgment appropriate under Hawai#i law where the prisoner
plaintiff did not refute defendants' affidavits stating they were
not motivated by malice).
In Freddy Nobriga Enterprises, this court held that for
claims alleging state civil rights violations, public officials
are shielded from liability for damages in their individual
capacities "insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." 129 Hawai#i at 131-32, 295
P.3d at 1001-02 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,
(1982)). Again, however, Plaintiffs presented no evidence of the
alleged conduct of Villareal that purportedly violated
Plaintiffs' rights under the Hawai#i Constitution. Absent such
evidence, Plaintiffs presented no genuine issue that Villareal's
conduct violated clearly established statutory or constitutional
rights, and the Circuit Court did not err in concluding that
Villareal, individually, was entitled to judgment as a matter of
law on Plaintiffs' state civil rights claims.
It appears that Plaintiffs attempted to present
evidence of Villareal's alleged conduct in the Motion for
Reconsideration. However,
"the purpose of a motion for reconsideration is to allow the
parties to present new evidence and/or arguments that could
not have been presented during the earlier adjudicated
motion." Reconsideration is not a device to relitigate old
matters or to raise arguments or evidence that could and
should have been brought during the earlier proceeding.
James B. Nutter & Co. v. Namahoe, 153 Hawai#i 149, 162, 528 P.3d
222, 235 (2023) (brackets omitted) (quoting Sousaris v. Miller,
92 Hawai#i 505, 513, 993 P.2d 539, 547 (2000)). The Circuit
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Court thus denied the Motion for Reconsideration.
On appeal, Plaintiffs summarily challenge the Order
Denying Reconsideration, but present no argument as to why it was
wrong. The point is thus deemed waived. See HRAP Rule 28(b)(7).
For the reasons discussed above, we affirm the Circuit
Court's: (1) August 3, 2023 "Order Granting Defendants Kapolei
Charter School and Wanda Villareal's Motion for Summary Judgment
on the Pleadings"; (2) August 17, 2023 "Order Denying Plaintiffs'
Motion for Reconsideration of Court's Ruling Granting Defendants
Kapolei Charter School and Wanda Villareal's Motion for Summary
Judgment on the Pleadings"; and (3) November 3, 2023 Judgment.
DATED: Honolulu, Hawai#i, January 14, 2026.
On the briefs:
/s/ Karen T. Nakasone
William Fenton Sink and Chief Judge
Earle A. Partington
for Plaintiffs-Appellants.
/s/ Clyde J. Wadsworth
Amanda J. Weston and Associate Judge
Justine Hura,
Deputy Attorneys General,
for Defendants-Appellees /s/ Sonja M.P. McCullen
Wanda Villareal, in her Associate Judge
individual and official
capacity, and Kapolei Charter
School.
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