Akau v. Villareal

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER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,

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

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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