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NOS. CAAP-17-0000634 & CAAP-18-0000306

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

YUKO KAKAZU, Petitioner-Appellee, v.

PETER CHRISTOPHER, Respondent-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

NORTH AND SOUTH HILO DIVISION

(CIVIL NO. 3SS17-1-0093)

MEMORANDUM OPINION

(By: Ginoza, C.J., and Wadsworth and Nakasone, JJ.)

These consolidated appeals arise from a June 7, 2017

Order Granting Petition for Injunction Against Harassment

(Injunction), entered in favor of self-represented PetitionerAppellee 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/ The Honorable Peter Bresciani presided.

2/ HRS § 604-10.5 provides, in relevant part:

Power to enjoin and temporarily restrain harassment.

(a) For the purposes of this section:

"Course of conduct" means a pattern of conduct

composed of a series of acts over any period of time

evidencing a continuity of purpose.

continue...

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000634

28-FEB-2022

07:50 AM

Dkt. 177 MO
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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/ ...continue

"Harassment" means:

(1) Physical harm, bodily injury, assault, or the

threat of imminent physical harm, bodily injury,

or assault; or

(2) An intentional or knowing course of conduct

directed at an individual that seriously alarms

or disturbs consistently or continually bothers

the individual and serves no legitimate purpose;

provided that such course of conduct would cause

a reasonable person to suffer emotional

distress.

(b) The district courts shall have the power to

enjoin, prohibit, or temporarily restrain harassment.

(c) Any person who has been subjected to harassment

may petition the district court of the district in which the

petitioner resides for a temporary restraining order and an

injunction from further harassment.

. . . .

(g) . . . .

. . . .

If the court finds by clear and convincing evidence

that harassment as defined in paragraph (1) of that

definition exists, it may enjoin for no more than three

years further harassment of the petitioner, or that

harassment as defined in paragraph (2) of that definition

exists, it shall enjoin for no more than three years further

harassment of the petitioner; provided that this paragraph

shall not prohibit the court from issuing other injunctions

against the named parties even if the time to which the

injunction applies exceeds a total of three years.

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In appellate case no. CAAP-18-0000306, Christopher

appeals from the following post-judgment orders3/ 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/ Because the Injunction was a final, appealable order, it qualified

as a "judgment" under Hawai#i District Court Rules of Civil Procedure (DCRCP) 

Rule 54(a). See infra note 13. We thus refer to subsequent motions filed by

the parties, and subsequent orders filed by the District Court, as "postjudgment" motions and orders, respectively.

4/ The Honorable Darien W.L. Ching Nagata issued the Order Denying

Motion to Compel.

5/ The Honorable Peter Bresciani issued the Order Denying Rule 60(b)

Motion and the Order Granting Fees.

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(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; 

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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). 

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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

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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 P.3d at 1188 (quoting Masaki, 71 Haw.

at 15, 780 P.2d at 574).

"Whether there was substantial evidence to support an

injunction against an alleged harasser is reviewed under the

'clearly erroneous standard.'" Duarte v. Young, 134 Hawai#i 459,

462, 342 P.3d 878, 881 (App. 2014) (citing Bailey v. Sanchez, 92

Hawai#i 312, 316 n.6, 990 P.2d 1194, 1198 n.6 (App. 1999)). "A

conclusion of law that presents mixed questions of fact and law

is reviewed under the clearly erroneous standard because the

conclusion is dependent upon the facts and circumstances of the

particular case." Id. (quoting Bailey, 92 Hawai#i at 316 n.6,

990 P.2d at 1198 n.6).

Where, as here, findings of fact require proof by clear

and convincing evidence, we apply the clearly erroneous standard

as follows:

When reviewing a finding that a fact has been proved by

clear and convincing evidence, the question before the

appellate court is whether the record as a whole contains

substantial evidence from which a reasonable factfinder

could have found it highly probable that the fact was true.

In conducting its review, the court must view the record in

the light most favorable to the prevailing party below and

give appropriate deference to how the trier of fact may have

evaluated the credibility of witnesses, resolved conflicts

in the evidence, and drawn reasonable inferences from the

evidence.

JK, 149 Hawai#i at 409-10, 491 P.3d at 1188-89 (quoting

Conservatorship of O.B., 470 P.3d 41, 55 (Cal. 2020)).

In applying this standard of review, we also take heed

of the following caution:

[A]s in criminal appeals involving a challenge to the

sufficiency of the evidence, an appellate court reviewing a

finding made pursuant to the clear and convincing standard

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does not reweigh the evidence itself. In assessing how the

evidence reasonably could have been evaluated by the trier

of fact, an appellate court reviewing such a finding is to

view the record in the light most favorable to the judgment

below; it must indulge reasonable inferences that the trier

of fact might have drawn from the evidence; it must accept

the factfinder's resolution of conflicting evidence; and it

may not insert its own views regarding the credibility of

witnesses in place of the assessments conveyed by the

judgment. . . . [T]he question before a court reviewing a

finding that a fact has been proved by clear and convincing

evidence is not whether the appellate court itself regards

the evidence as clear and convincing; it is whether a

reasonable trier of fact could have regarded the evidence as

satisfying this standard of proof.

Id. at 410, 491 P.3d at 1189 (quoting Conservatorship of O.B.,

470 P.3d at 53). 

Thus, in this case, we review whether the evidence

before the District Court, viewed in the light most favorable to

Kakazu, could have led a reasonable fact-finder to find it was

highly probable that the challenged FOFs (and mixed findings and

conclusions) were true.

1. FOFs 3, 18, 21, 22, and 23

In POEs 6 through 11, Christopher contends that the

District Court erred in FOFs 3, 18,6/ 21, 22, and 23. 

POE 6: In POE 6, Christopher challenges FOF 3. FOF 3

states: "On or about October 7, 2016, [Christopher] sent a

message to [Kakazu] through eHarmony. Because of the style and

content of the message, [Kakazu] did not want to engage in

communication with [Christopher] and she blocked him on the

site." Christopher argues that the District Court erred in FOF 3

by finding that Kakazu did not want to communicate with

Christopher. Christopher asserts that, based on the dating

website's automated messages, he believed Kakazu wanted to

continue communications. 

At trial, however, Kakazu testified that she had

blocked Christopher on eHarmony and Facebook and never

communicated or wanted to communicate with him. Kakazu's

testimony was sufficient to allow a reasonable factfinder to find

the facts stated in FOF 3 highly probable, and we are not left

6/ Christopher challenges only the third sentence of FOF 18: "As a

result of the attention from [Christopher], [Kakazu] stopped dancing."

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with a definite and firm conviction that a mistake has been

committed.

POE 7: In POE 7, Christopher challenges FOF 18. FOF

18 states: "Prior to October of 2016, [Kakazu] attended dances

at the YWCA, the Elks Club, the Green Church and the Hon[o]ka#a

People's Theater. Dancing is her major hobby and activity. As a

result of the attention from [Christopher], [Kakazu] stopped

dancing." Christopher argues that the District Court erred in

finding that Kakazu stopped attending dance events because

Christopher began showing up to the events. 

At trial, however, Kakazu testified that she stopped

attending dance events because she discovered that Christopher

had begun attending the events. Christopher himself testified

that he received an email from Kakazu stating, "[p]lease don't

come to any more tango dances in Hilo." Christopher also

testified that the last time he went tango dancing before October

2016 was in 1995. The testimony of Kakazu and Christopher was

sufficient to allow a reasonable factfinder to find the facts

stated in FOF 18 highly probable, and we are not left with a

definite and firm conviction that a mistake has been committed.

POEs 8 and 9: In POEs 8 and 9, Christopher challenges

FOF 21. FOF 21 states: 

Although [Christopher] had contacted some of the dance

groups in the Hilo area more than a year before October of

2016, he had not attended any dances. The impetus that

caused [Christopher] to actually attend a dance event in

Hilo was his hope to meet [Kakazu] at one of the dance

events.

Christopher argues that the District Court erred in finding that

he did not attend any dances in Hilo before October 2016, and

that the reason Christopher started to attend dance events in

Hilo was to meet Kakazu. 

At trial, Christopher confirmed that he had been

dancing "other types of dances besides tango and ballroom" five

years earlier. However, Christopher also testified that before

October 2016, the last time he went tango or ballroom dancing was

in 1995, "give or take a couple of years." Similarly, FOF 20,

which Christopher has not challenged, provides: "Prior to

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October of 2016, [Christopher] had last danced Tango, Samba and

Ballroom dancing in 1995. He last danced Salsa in 2005." See

State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435

(2019) ("unchallenged findings of fact are 'binding upon this

court'" (quoting Kelly v. 1250 Oceanside Partners, 111 Hawai#i

205, 227, 140 P.3d 985, 1007 (2006))). Notably, Kakazu testified

that her major hobby was dancing, "particularly tango[,]

Argentine tango[,]" and, in context, it appears the District

Court was referring to this type of dancing in FOF 21. 

Additionally, in a handwritten letter to Kakazu dated October 18,

2016, Christopher stated: 

Can you tell me how you discovered dancing & what you

love about it? Back in college, I took some basic lessons

. . . and since then a few times – but not recently. It

will probably come back quickly – maybe one of these days

I'll plan ahead and get out of my house, go to a dance in

Hilo. If I see you there, I hope you won't mind if I ask

you to dance 

:)

Thus, there was sufficient evidence to allow a reasonable

factfinder to find the facts stated in FOF 21 highly probable,

and we are not left with a definite and firm conviction that a

mistake has been committed.

POE 10: In POE 10, Christopher challenges FOF 22. 

FOF 22 states: "Prior to October of 2016, [Christopher] last

read something about astronomy in 1996." Christopher argues that

the District Court erred in FOF 22 in light of Christopher's

purported testimony that "[his] family has been a member for four

or five years at [#]Imiloa [Astronomy Center][,]" he was invited

to attend an event there on October 20, 2016, and he intended to

go to the event with his daughter before he saw Kakazu's profile

on eHarmony. 

Christopher's assertions do not contradict FOF 22. 

Additionally, at trial, Christopher testified as follows:

Q [by Kakazu's counsel]. Well when's the last time

before you read Miss Kakazu's thesis dealing with astronomy

that you read any other thesis dealing with astronomy before

then? Never happened; did it, Mr. Christopher?

A. I'm going to estimate 1996.

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Accordingly, there was sufficient evidence to allow a reasonable

factfinder to find the facts stated in FOF 22 highly probable,

and we are not left with a definite and firm conviction that a

mistake has been committed.

POE 11: In POE 11, Christopher challenges FOF 23. FOF

23 states:

[Christopher] believed that [Kakazu] either block[ed] his

profile or disabl[ed] her profile on eHarmony[.] Either of

these activities were a clear indication that [Kakazu] did

not want to have contact with [Christopher]. [Christopher]

stated in his letter of October 11, 2016 that regardless of

which was the correct alternative, he wished to pursue her. 

[Christopher] did not wait to see if [Kakazu] responded

affirmatively to this new advance by the pre-address

envelope she received before he sent off the packet of four

additional letters/communications.

Christopher argues that the District Court erred in FOF 23

because at trial, the court stated that Christopher "should have

taken a hint earlier that [Kakazu] wasn't interested[,]" which

Christopher contends did not satisfy the clear and convincing

evidence standard. 

At trial, Kakazu testified that she was contacted by

Christopher on eHarmony and blocked him. Christopher testified

that when he attempted to contact Kakazu on the website, it

showed that her profile was no longer available. Christopher

then testified:

I thought through the possibilities of what could explain

this difference scenarios of what's going on here. And I

had seen her profile recently and I thought that it was a

courageous profile. And I had noticed when I -- when I read

that profile that it seemed like somebody who I could get

along with better than most of the people who I've seen

profiles of on most dating sites that I've ever seen.

And so one of the possibilities that occurred to me

was that she had just joined the eHarmony service that had

been quickly matched to me since I had never seen her in

there before. And then when she got to the screen where it

says she had to pay, she had decided she wanted to quit the

service. And that seemed like one of the scenarios. And on

the basis of that, I searched for her name, the name on the

profile, Yuko. I don't recall the exact search I did but it

was easy to find a few different references for her.

However, in a handwritten letter sent to Kakazu, Christopher

stated, "eHarmony informed me you had also written me a message

in response to mine, but didn't let me read it, as it says you've

'moved on' – apparently that means either [you] disabled your

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profile or blocked mine. Either way, that's fine[.]" Although

the District Court used a colloquial phrase at trial by stating

that Christopher should have "taken a hint," there was sufficient

evidence to allow a reasonable factfinder to find it highly

probable that Christopher knew Kakazu either deactivated her

account or blocked him, and that action was sufficient to

indicate she did not want to have contact with Christopher. We

are not left with a definite and firm conviction that a mistake

has been committed in FOF 23.

In sum, Christopher challenges the above-identified

FOFs primarily on the weight of the evidence, particularly his

own testimony. However, as discussed above, we will not pass on

the credibility of a witness or the weight of the evidence. See

JK, 149 Hawai#i at 409-10, 491 P.3d at 1188-89. The District

Court did not clearly err in FOFs 3, 18, 21, 22, or 23. 

2. COLs 6(h), 11, and 14

POE 12: In POE 12, Christopher contends that the

District Court erred in COLs 6(h), 11, and 14. 

COLs 6(h), 11, and 14 state:

6. The court finds by clear and convincing evidence that

[Christopher] intentionally engaged in the following

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:

. . . .

h) [Christopher] went dancing after an hiatus of at

least ten years with the hope of meeting

[Kakazu] and asking her to dance.

. . . .

11. [Christopher's] going dancing after an hiatus of at

least ten years would further alarm a reasonable

person because it evidenced the intent to seek out

[Kakazu] in person and not just trying to initiate

contact through letter and note.

. . . .

14. In order to permit [Kakazu] to attend her work

functions and her normal social events without fear of

encountering someone who has shown that he does not

have an appropriate sense of boundaries with regards

to her, by clear and convincing evidence, the Court

finds it necessary to have [Christopher] stay away

from the #Imiloa Astronomy Center. Also because of

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the finding [Christopher] attended the dance event

after an hiatus of ten to twenty years with the

specific desire to meet [Kakazu], the Court finds it

is necessary by clear and convincing evidence that

[Christopher] not attend the dance events that

[Kakazu] normally attends.

Christopher argues that the District Court erred in reaching

these conclusions because FOF 21 was clearly erroneous. 

COLs 6(h), 11, and 14 present mixed issues of fact and

law and, as such, are reviewed under the clearly erroneous

standard.7/ See Duarte, 134 Hawai#i at 462, 342 P.3d at 881; JK,

149 Hawai#i at 409-10, 491 P.3d at 1188-89. For the reasons

discussed above, we have concluded there was sufficient evidence

to allow a reasonable factfinder to find the facts stated in FOF

21 highly probable. Based on the record, substantial evidence

supports COLs 6(h), 11, and 14, and we are not left with a

definite and firm conviction that a mistake has been committed. 

Accordingly, we conclude that COLs 6(h), 11, and 14 are not

clearly erroneous.

3. FOFs 7, 8, 10, 11, 12, 13, and 14, and COLs 6

and 10

POEs 3 and 5: In POEs 3 and 5, Christopher raises

constitutional issues regarding the following FOFs and COLs:

FINDINGS OF FACTS:

. . . .

7. On October 13, 2016, at her work place, [Kakazu]

received a letter dated October 11, 2016 from

[Christopher]. The letter starts out with the words,

"Can we be friends? Maybe? OK that's a good start[.]"

He indicated that he saw her profile on eHarmony[.] 

He indicated that eHarmony had informed him that she

had written a message in response to his but that

didn't let him read it meaning that she had either

blocked his profile or disabled her profile. He then

writes that either way, it's fine because he prefers

letters or meeting in person to endless online mazes. 

He also thanks her "for. . . leaving me some crumbs

how to write back. Don't worry - you can trust me." 

At the end of this four page letter, he indicates that

he has included a stamped pre-addressed envelope to

make it easy for her to contact him with a yes, no or

7/ In particular, COL 11 presents mixed findings of fact, as well as

a conclusion of law as to whether a reasonable person would suffer alarm as a

result of the identified activity. The conclusion of law is reviewed de novo. 

See infra Section B.4. 

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maybe. In a postscript to the letter, he wrote, "The

picture with you and your grandmother is adorable."

8. [Kakazu] was shocked and frightened by this letter in

that she had never communicated with [Christopher] and

he had obtained her work address. She was also

bothered by his assumption in the first lines of the

letter that she might want to be friends with him.

. . . .

10. In the letter that appears to be dated October 14,

2016, he half seriously invites her to go to Kona with

him and his children. He talks about his children,

and his farm. The letter also contains the following:

 Can you tell me how you discovered dancing &

what you love about it? Back in college, I took

some basic lessons . . . and since then a few

times – but not recently. It will probably come

back quickly – maybe one these days I'll plan

ahead and get out [of] my house, go to a dance

in Hilo. If I see you there, I hope you won't

mind if I ask you to dance :). 

Please forgive me if I ever repeat

anything from a previous letter. I'm not

going to keep copies of what I send you

and I don't have a photographic memory.

11. In a note dated October 15, 2016, [Christopher] starts

the note with the sentence[:] "On a small notepad

I'll try to share the feeling of our adventure[.]" He

then talks about his children. He finishes the note

with the sentence: "The kids are eager now to water

slide so early[. T]alk to you later." 

12. In a four page letter dated October 17, 2016,

[Christopher] indicates that his children love the

water slides at the Hilton Hotel. [Christopher]

states: "I have some good news! I went dancing & I

can mostly remember how, PLUS I even found my dancing

shoes.["] [Christopher] then states: "I hope you

don't mind, I spied on your graduate thesis." He goes

on to "confess" that he found and watched a television

show about her. The program was apparently in

Japanese, a language he does not speak. He invited

her to go to the summit of Mauna Kea with his four

children on his birthday, December 10th. He also

wrote, "What I do know is that ever since I saw you[r]

picture and name in eHarmony, I have felt something

very special about you. I hope you will be open to

getting to know each other some more. I want to hear

more of your stories, dance across the floor with you,

make up theories and salads together."

13. In a card dated October 18, 2016, [Christopher]

invited [Kakazu] to a talk at the #Imiloa Astronomy

Center and dinner first. The card was signed

"Affectionately yours Peter."

14. [Kakazu] was further[] disturbed by the receipt of the

four letter/communication packet and was particularly

disturbed because he had started dancing which was one

of her activities; he stated he spied on her graduate

thesis; was writing about his children and divorce and

invited her to a birthday trip for him for his

birthday to the summit of Mauna Kea. 

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. . . . 

CONCLUSIONS OF LAW:

. . . .

6. The court finds by clear and convincing evidence that

[Christopher] intentionally engaged in the following

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:

a. He used the internet to find her full name and

work address;

b. He attempted to contact her on Facebook;

c. After not receiving a reply from Facebook, he

wrote her the October 11, 2016 letter;

d. He did not wait to see if she responded

positively to his October[ 11, 2016 letter.] He

wrote her the October 14, 2016 letter;

e. He wrote her the October 15, 2016 letter[;]

f. He researched/spied on her graduate thesis and

told her he did so in his October 17, 2016

letter[;]

g. He confessed that he researched and found a

television program about her and told her he had

done so[;]

h. He went dancing after an hiatus of at least ten

years with the hope of meeting her and asking

her to dance[;]

i. He wrote her the October 17, 2016 letter[;]

j. He wrote he[r] an October 18, 2016 card[;]

k. He sent her the October 14th, 15th, 17[th] and

18th letters/communications to her in one

packet.

. . . .

10. [Christopher's] four letter packet would have further

alarmed any reasonable person because of the excessive

person[al] detail and the fact that he did not wait

for a response from his October 1[1], 2016 letter.

(Original bracketed material omitted.)

In POE 3, Christopher contends that the District Court

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." In POE 5,

Christopher contends that the District Court erred in FOFs 7, 8,

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10, 11, 12, 13, and 14, and COLs 6 and 10, "by considering the

content of [Christopher's] communications to Ms. Kakazu beyond

testing them for exceptions to freedoms of speech and

movement[.]" 

These constitutional arguments were not raised at trial

or otherwise preserved for appeal. "As a general rule, if a

party does not raise an argument at trial, that argument will be

deemed to have been waived on appeal; this rule applies in both

criminal and civil cases." County of Hawai#i v. C & J Coupe

Family Ltd. P'ship, 119 Hawai#i 352, 373, 198 P.3d 615, 636

(2008) (quoting State v. Moses, 102 Hawai#i 449, 456, 77 P.3d

940, 947 (2003)); see Hawai#i Rules of Appellate Procedure (HRAP)

Rule 28(b)(4)(iii). 

In POE 3, Christopher asserts that his contention "was

raised indirectly by [Christopher's trial counsel] in shortened

form by stating 'Well that wasn't the evidence' and by

[Christopher] in [his] alternate proposed FOF/COL." (Record

citations omitted.) However, in the portions of the record that

Christopher cites, neither his trial counsel nor Christopher

himself argued that the activities at issue, which were later

listed by the court in COL 6, were constitutionally protected. 

In POE 5, Christopher concedes that "[t]his First

Amendment claim was not raised below aside from one reference in

my additional motion for reconsideration . . . ." However, that

brief reference, improperly raised for the first time in a motion

for reconsideration, was general, and did not mention any of the

communications that are the subject of Christopher's appeal. 

Additionally, Christopher fails to raise a discernible argument

regarding POE 5. See C & J Coupe Family, 119 Hawai#i at 373, 198

P.3d at 636. 

For these reasons, POE 3 and POE 5, which challenge 

FOFs 7, 8, 10, 11, 12, 13, and 14, and COLs 6 and 10, are deemed

waived.8/ See id.

8/ To the extent that Christopher is making a factual argument that

the actions listed in COL 6 "were not directed at Kakazu," we rule there was

substantial evidence in the record supporting this conclusion, and it is not

clearly erroneous. 

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4. COLs Determining that Christopher's Course of

Conduct Would Cause a Reasonable Person to

Suffer Emotional Distress

POE 26: In POE 26, Christopher contends that the

District Court erred in applying "a subjective, or incorrect,

reasonable person standard" under which the court "incorrectly

evaluat[ed] the severity of the alarm/distress required by

statute[.]" Christopher summarily argues that "[a] reasonable

person would not be seriously alarmed" by his conduct. 

"The reasonable person standard [to be applied under

HRS § 604–10.5(a)(2)] is an objective one," under which the court

must determine "whether 'a reasonable person, normally

constituted,' would have suffered emotional distress as a result

of a particular course of conduct." Luat, 92 Hawai#i at 343, 991

P.2d at 853 (quoting Tabieros v. Clark Equip. Co., 85 Hawai#i

336, 362, 944 P.2d 1279, 1305 (1997)). "[A] trial court's

determination regarding whether a reasonable person would suffer

emotional distress as a result of a course of conduct is reviewed

on appeal de novo." Id. (citing State v. Trainor, 83 Hawai#i

250, 255, 925 P.2d 818, 823 (1996)).

Here, the District Court made the following COLs in

determining that a reasonable person would have suffered

emotional distress as a result of Christopher's course of

conduct:

8. [Christopher's] action in circumventing the anonymity

of eHarmony and attempting to make contact outside of

the site via Facebook, alone would cause a reasonable

person to be alarmed.

9. [Christopher's] action in writing [Kakazu] at her work

after not getting a response from Facebook would cause

heightened alarm for a reasonable person because

[Christopher] had also learned her work place and his

letter included excessive details about his life and

his assumption that she might be interested in getting

to know him.

10. [Christopher's] four letter packet would have further

alarmed any reasonable person because of the excessive

person detail and the fact that he did not wait for a

response from his October 1[1], 2016 letter.

11. [Christopher's] going dancing after an hiatus of at

least ten years would further alarm a reasonable

person because it evidenced the intent to seek out

[Kakazu] in person and not just trying to initiate

contact through letter and note.

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12. The desire to meet a friend or potential dating

partner is a legitimate purpose. The fact that

[Christopher] attempted to engage [Kakazu] after he

was aware that she had either blocked him or had

withdrawn from the dating scene made his efforts

without legitimate purpose and his activities was

excessively intrusive and alarming to any reasonable

person and would cause any reasonable person to suffer

serious emotional distress.

We conclude that these COLs, none of which Christopher

challenges in POE 26, applied the correct objective standard

required under HRS § 604–10.5(a)(2), and that Christopher's

course of conduct as specified by the District Court would have

caused a reasonable person to suffer emotional distress. 

Christopher does not establish, and the record does not support

his assertion, that the District Court applied a subjective

standard in making this determination. See Maukele v. Casumpang,

CAAP–12–0000120, 2014 WL 5470621, at *1 (Haw. App. Oct. 24,

2014). Accordingly, POE 26 is without merit. 

C. Ex Parte Restraining Orders

POE 19: In POE 19, Christopher contends that the

District Court erred in dismissing Kakazu's "original [petition

for] restraining order" without prejudice, and without

considering the factors set forth in State v. Estencion, 63 Haw.

264, 269, 625 P.2d 1040, 1044 (1981). 

Based on the record in this case, it appears that

Kakazu filed a petition for ex parte temporary restraining order

against Christopher in an earlier separate proceeding, Kakazu v.

Christopher, Civ. No. 3SS-17-1-000001 (Case 1); on January 5,

2017, the District Court issued a temporary restraining order

against harassment in Case 1; on March 22, 2017, Kakazu filed a 

Petition for Ex Parte Temporary Restraining Order and for

Injunction Against Harassment initiating the present case, Civ.

No. 3SS-17-1-000093; and on March 29, 2017, Case 1 was dismissed

without prejudice. 

There is no indication in the record that Christopher

appealed from any appealable order or judgment in Case 1. 

Accordingly, we lack jurisdiction to decide the issue he raises

concerning the dismissal of Case 1.

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POE 20: Christopher contends that the District Court

erred in issuing the "ex-parte restraining orders in the original

and subsequent cases" because no impending harm existed and no

violation of law occurred. 

Because there is no indication in the record that

Christopher appealed from any appealable order or judgment in

Case 1 (see supra), we lack jurisdiction to decide the issue he

raises concerning the temporary restraining order in Case 1.

As to the present case, Christopher argues that to

obtain a temporary restraining order, Kakazu was required to show

"impending irreparable harm caused by an impending violation of

statute."9/ We conclude that this issue is moot. The Temporary

Restraining Order Against Harassment (TRO-H) that was entered on

March 22, 2017, has long since expired, and Christopher has shown

no reasonable possibility that issuance of the TRO-H by itself,

based on the probable cause standard set forth in HRS

§ 604-10.5(f), would cause him reputational harm or any other

collateral consequence sufficient to trigger an exception to the

mootness doctrine. See supra Section A. We thus lack subject

matter jurisdiction to decide this issue. 

9/ HRS § 604-10.5(f) and (g) provide, in relevant part:

(f) Upon petition to a district court under this

section, the court may temporarily restrain the person or

persons named in the petition from harassing the petitioner

upon a determination that there is probable cause to believe

that a past act or acts of harassment have occurred or that

a threat or threats of harassment may be imminent. The

court may issue an ex parte temporary restraining order

either in writing or orally; provided that oral orders shall

be reduced to writing by the close of the next court day

following oral issuance.

(g) A temporary restraining order that is granted

under this section shall remain in effect at the discretion

of the court for a period not to exceed ninety days from the

date the order is granted. A hearing on the petition to

enjoin harassment shall be held within fifteen days after

the temporary restraining order is granted. If service of

the temporary restraining order has not been effected before

the date of the hearing on the petition to enjoin, the court

may set a new date for the hearing; provided that the new

date shall not exceed ninety days from the date the

temporary restraining order was granted.

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D. Issuance of the Injunction

Christopher asserts that the District Court made

several errors in issuing the Injunction. 

POE 1: In POE 1, Christopher contends that the

District Court erred in not understanding and failing to properly

apply the language of HRS § 604-10.5(a)(2) regarding an

"intentional or knowing course of conduct." Christopher appears

to argue that under this language, Kakazu should have been

required to prove that Christopher intended or knew that his

actions would cause Kakazu to suffer emotional distress. 

Christopher asserts that this issue was first raised in

his June 14, 2017 motion for reconsideration and was "indirectly

brought up by [his] counsel" in counsel's closing statement

during the injunction hearing. However, the record does not

support Christopher's assertions, and POE 1 is deemed waived. 

See C & J Coupe Family, 119 Hawai#i at 373, 198 P.3d at 636.

POE 2: In POE 2, Christopher contends that the

District Court erred in issuing the Injunction pursuant to HRS

§ 604-10.5, because there was no showing that he had violated, or

imminently would violate, "some provision of statutory or common

law, and that there [was] a 'cognizable danger of recurrent

violation.'" More specifically, Christopher argues that HRS

§ 604-10.5 "was only intended to apply to already-criminal

conduct or conduct that led to clear danger of an impending

violation of statute (other than 604-10.5)." 

Christopher concedes that this argument was not raised

below, and POE 2 is therefore deemed waived. See C & J Coupe

Family, 119 Hawai#i at 373, 198 P.3d at 636.

POE 4: In POE 4, Christopher contends that the

District Court erred in failing to consider the harm to

Christopher when the court issued the Injunction. Christopher

argues that this issue "was implicitly raised by [Christopher's

trial counsel] in referencing Luat" (underscoring added) during

counsel's closing argument. 

However, Christopher did not raise this argument below. 

In the portion of the record that Christopher cites, his trial

counsel merely addresses the clear and convincing standard of

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proof under HRS § 604-10.5, and argues that an injunction issued

under the statute may result in "severe personal consequences"

for the individual enjoined. POE 4 is thus deemed waived.10/ See

C & J Coupe Family, 119 Hawai#i at 373, 198 P.3d at 636.

POE 13: In POE 13, Christopher contends that the

District Court 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. This issue was not raised below, and

Christopher makes no discernible argument on appeal regarding POE

13. POE 13 is thus deemed waived. See C & J Coupe Family, 119

Hawai#i at 373, 198 P.3d at 636; HRAP 28(b)(7).

POE 14: In POE 14, Christopher contends that the

District Court erred in issuing an "unnecessarily broad"

Injunction, because it prohibited him from entering or visiting

#Imiloa Astronomy Center, Subaru Telescope Facility, and dance

events at several venues, for a period of three years. 

COLs 14 and 15 state:

14. In order to permit [Kakazu] to attend her work

functions and her normal social events without fear of

encountering someone who has shown that he does not

have an appropriate sense of boundaries with regards

to her, by clear and convincing evidence, the Court

finds it necessary to have [Christopher] stay away

from the #Imiloa Astronomy Center. Also because of

the finding [Christopher] attended the dance event

after an hiatus of ten to twenty years with the

specific desire to meet [Kakazu], the Court finds it

is necessary by clear and convincing evidence that

[Christopher] not attend the dance events that

[Kakazu] normally attends.

15. The injunction against harassment as issued by the

Court prohibits no more of [Christopher's] conduct

than is necessary to prevent further harassment of

[Kakazu].

Christopher does not challenge COLs 14 and 15, which

present mixed issues of fact and law. These COLs are supported

by, among others, FOFs 9, 10, 12, 13, 14, 17, 18, 20, and 21. 

10/ Morever, in COL 15, the District Court concluded that "[t]he

injunction against harassment as issued by the Court prohibits no more of

[Christopher's] conduct than is necessary to prevent further harassment of

[Kakazu]." 

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Christopher does not challenge FOFs 9, 17 and 20,11/ and has

waived his purported constitutional challenge to FOFs 10, 12, 13,

and 14. See supra. These FOFs are thus binding on this court. 

See Rodrigues, 145 Hawai#i at 494, 454 P.3d at 435. In addition,

we have determined that FOFs 18 and 21, among others, are

supported by substantial evidence. See supra. POE 14 is thus

without merit.

POE 15: In POE 15, Christopher contends that the

District Court abused its discretion in denying Christopher's

March 8, 2017 non-hearing motion to permit witness McLemore to

testify by telephone at the injunction hearing. Christopher

briefly argues that "[t]his testimony was relevant and should

have been permitted by telephone." 

"[T]rial courts have inherent judicial power to require

a party to appear in person for a hearing." State v. Salvas, No.

CAAP-18-0000160, 2021 WL 1232051, at * 11 (Haw. App. Mar. 31,

2021) (mem. op.); see Stump v. Stump, No. CAAP-12-0001056, 2014

WL 1744081, at *7 (Haw. App. April 30, 2014) (mem. op.) (quoting

State v. Sakamoto, 101 Hawai#i 409, 415, 70 P.3d 635, 641 (2003)

(Acoba, J., concurring) (explaining that "courts have inherent

equity, supervisory, and administrative powers as well as

inherent power to control the litigation process before them")). 

Here, Christopher does not explain how McLemore's testimony was

relevant or why she should have been permitted to testify by

telephone. In short, Christopher makes no discernible argument

as to how the District Court abused its wide discretion to

control the courtroom by denying the motion. See HRAP Rule

28(b)(7). POE 15 therefore lacks merit.

E. Motions for Reconsideration

The supreme court recently reiterated:

[T]he 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

11/ Further, Christopher does not dispute the first two sentences of

FOF 18, which state: "Prior to October of 2016, [Kakazu] attended dances at

the YWCA, the Elks Club, the Green Church and the Hon[o]ka#a People's Theater. 

Dancing is her major hobby and activity." 

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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.

Gailliard v. Rawsthorne, 150 Hawai#i 169, 176, 498 P.3d 700, 707

(2021) (quoting Ass'n of Apartment Owners of Wailea Elua v.

Wailea Resort Co., 100 Hawai#i 97, 110, 58 P.3d 608, 621 (2002)).

We review a "trial court's ruling on a motion for reconsideration

under the abuse of discretion standard." Id. (ellipsis omitted)

(quoting Wailea Elua, 100 Hawai#i at 110, 58 P.3d at 621). "An

abuse of discretion occurs if the trial court has 'clearly

exceeded the bounds of reason or disregarded rules or principles

of law or practice to the substantial detriment of a party

litigant.'" Id. (quoting Amfac, Inc. v. Waikiki Beachcomber Inv.

Co., 74 Haw. 85, 114, 839 P.2d 10, 26 (1992)).

POE 16: In POE 16, Christopher contends that the

District Court abused its discretion by not allowing the

testimony of McLemore and other witnesses at the July 7, 2017

hearing on Christopher's motions for reconsideration. 

Christopher summarily argues that the District court should have

allowed the requested testimony "[f]or the same reasons mentioned

in [POE] 15[.]"

The District Court appears to have denied Christopher's

request because the testimony he sought to introduce at the

July 7, 2017 hearing could have been presented during the June 7,

2017 injunction hearing. "Reconsideration is not a device . . .

to raise arguments or evidence that could and should have been

brought during the earlier proceeding." Gailliard, 150 Hawai#i

at 176, 498 P.3d at 707 (quoting Wailea Elua, 100 Hawai#i at 110,

58 P.3d at 621). Christopher does not explain how the District

Court abused its discretion in denying Christopher's request to

present new testimony from McLemore and other, unidentified

witnesses a month after the injunction hearing. He refers to

"the same reasons mentioned in [POE] 15," but as stated above,

Christopher does not explain how McLemore's testimony was

relevant or why she should have been permitted to testify by

telephone at the injunction hearing; nor does he make any

discernible argument as to why reconsideration was warranted in

these circumstances. See C & J Coupe Family, 119 Hawai#i at 373,

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198 P.3d at 636; HRAP 28(b)(7). Thus, Christopher has failed to

show that the District Court abused its discretion in denying

Christopher's request, and POE 16 is without merit. 

POEs 17 and 18: In POEs 17 and 18, Christopher contends

that the District Court erred in denying the motions for

reconsideration. Christopher summarily argues that "[c]onsistent

with the importance that true merits have . . ., the lower court

should have reconsidered and ruled as I requested . . . ."

Again, Christopher fails to make any discernible

argument as to how the District court abused its discretion in

denying the motions for reconsideration. See supra; C & J Coupe

Family, 119 Hawai#i at 373, 198 P.3d at 636; HRAP 28(b)(7). POEs

17 and 18 are thus without merit.

POEs 21, 22, and 23: In POEs 21 through 23,

Christopher contends that 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. 

He asserts that these arguments were raised in the motions for

reconsideration.

We first note that Christopher failed to comply with

HRAP Rule 44, which states:

It shall be the duty of a party who draws in question

the constitutionality of any statute of the State of Hawai#i

in any proceeding in any Hawai#i appellate court to which

the State of Hawai#i, or any agency thereof, or any officer

or employee thereof, as such officer or employee, is not a

party, upon the filing of the record, or as soon thereafter

as the question is raised in the appellate court, to give

immediate notice in writing to the Attorney General of the

State of Hawai#i of the existence of said question.

Moreover, it appears that Christopher first raised an

abbreviated argument that HRS § 604-10.5 is unconstitutionally

vague in his second motion for reconsideration, filed on June 19,

2017, twelve days after entry of the June 7, 2017 Injunction. 

The District Court described the motion as "untimely" and denied

it. Christopher fails to make any discernible argument as to how

the District court abused its discretion in denying the untimely

motion for reconsideration. And even if the motion had been

timely, Christopher does not explain why his constitutional

argument could not have been presented at or before the

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injunction hearing. See Gailliard, 150 Hawai#i at 176, 498 P.3d

at 707. POEs 21, 22, and 23 are therefore without merit.12/

POE 24: Christopher contends that the District Court

erred in failing to recognize there were grounds for a new trial,

based on "false claims" made by Kakazu's counsel, "in violation

of the rules of professional conduct[.]" Christopher appears to

be referring to comments that Kakazu's counsel made and questions

he asked during the injunction hearing, regarding an alleged

violation of the restraining order in Case 1. 

During the injunction hearing, Christopher did not

object to or move to strike any of the comments, or object to any

of the questions (save one on a different ground not at issue in

this appeal), which he deems objectionable on appeal. The basis

for appeal was therefore waived. See State v. Gonzalez, 128

Hawai#i 314, 317, 288 P.3d 788, 791 (2012) (noting that "the

failure to properly raise an issue at the trial level precludes a

party from raising that issue on appeal" (quoting State v.

Kikuta, 125 Hawai#i 78, 89, 253 P.3d 639, 650 (2011))); Hawaii

Rules of Evidence Rule 103(a)(1); see also State v. Alston, No.

28410, 2009 WL 868034, at *16 n.13 (Haw. App. Mar. 31, 2009)

(mem. op.) ("As a general rule, objecting on a specific ground

waives all other grounds for objection." (citing State v. Vliet,

91 Hawai#i 288, 299, 983 P.2d 189, 200 (1999))). 

POE 25: Christopher contends that the District Court

erred in denying the motions for reconsideration due to

ineffective assistance of Christopher's trial counsel. 

The right to effective assistance of counsel applies

only in criminal proceedings. See Rocco v. Kalapana Seaview

Estates Community Ass'n, No. CAAP-15-0000093, 2016 WL 197013, at

*1 (Haw. App. Jan. 12, 2016) (citing Norton v. Admin. Dir. of

Court, State of Hawai#i, 80 Hawai#i 197, 200, 908 P.2d 545, 548

(1995) ("The sixth amendment right to counsel applies only to

criminal proceedings."); State v. Severino, 56 Haw. 378, 380, 537

12/ To the extent Christopher maintains that the District Court erred

in issuing the Injunction because HRS § 604-10.5 is unconstitutionally vague

or broad, he waived that argument by failing to make it at or before the

injunction hearing. See C & J Coupe Family, 119 Hawai#i at 373, 198 P.3d at

636. 

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P.2d 1187, 1189 (1975) ("Under both the Hawaii State and Federal

Constitutions, an accused has the right to assistance of counsel

'in all criminal prosecutions.'")). Christopher cites no

authority supporting his contention that an "exception" applies

in this civil case. POE 25 therefore lacks merit. 

F. Rule 60(b) Motion

In appellate case no. CAAP-18-0000306, Christopher

contends in part that the District Court erred in denying

Christopher's post-judgment Rule 60(b) Motion.13/

DCRCP Rule 60(b) provides in relevant part that a

district court,

may relieve a party or the party's legal representative from

a final judgment, order, or proceeding for the following

reasons: (1) mistake, inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence which by due

diligence could not have been discovered in time to move for

a new trial under Rule 59(b); (3) fraud (whether heretofore

13/ DCRCP Rule 81(a) provides in relevant part that "[e]xcept as

expressly otherwise provided by statute or rule of court, these rules shall

not apply to: . . . (4) Actions for relief from harassment maintained

pursuant to HRS Section 604-10.5, as the same may be renumbered." In turn,

the Rules of the District Courts of the State of Hawai#i (RDC) Rule 31(a)

states in relevant part:

[W]here a civil proceeding is not governed by the [DCRCP]:

. . . .

(3) Service of the petition and order to show cause

and any other process or order shall be made as provided by

the [DCRCP];

. . . .

(5) The court may designate and order that any one or

more of the [DCRCP] shall be applicable in such case.

(Emphasis added.)

Here, Christopher invoked "Rule 60(b)" in the Rule 60(b) Motion. 

It appears that the District Court heard the motion as a DCRCP Rule 60(b)

motion and denied it by order consistent with the requirements of DCRCP Rule

60(b). See infra. Accordingly, we analyze the motion as a DCRCP Rule 60(b)

motion. See Murasko v. Loo, 125 Hawai#i 39, 41-43, 252 P.3d 58, 60-62 (2011)

("The respondent judge, without expressly stating for the record, exercised

her power under RDC Rule 31(a)(5) to apply the DCRCP when she approved the

Curells' ex parte motion for an extension of time to file 'post-verdict

motions' pursuant to '[DCRCP] Rules 59 and 60,' when she explained at the

October 2, 2010 hearing that she had granted the Curells an extension of the

ten-day deadline to file a postjudgment motion under DCRCP Rule 59, and when

she granted the Curells' motion for new trial 'made pursuant to [DCRCP] Rule

59.'").

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denominated intrinsic or extrinsic), misrepresentation, or

other misconduct of an adverse party[.]

We review the District Court's grant or denial of a

DCRCP Rule 60(b) motion for an abuse of discretion. See Credit

Assocs. of Maui, Ltd. v. Freitas, No. CAAP-13-0001182, 2017 WL

2303521, at *2 (Haw. App. May 26, 2017) (SDO); PennyMac Corp. v.

Godinez, 148 Hawai#i 323, 327, 474 P.3d 264, 268 (2020)

(construing substantially identical Hawai#i Rules of Civil

Procedure Rule 60(b)).14/ "The trial court has a very large

measure of discretion in passing upon motions under [DCRCP] Rule

60(b) and its order will not be set aside unless we are persuaded

that under the circumstances of the particular case, the court's

refusal to set aside its order was an abuse of discretion." 

PennyMac Corp., 148 Hawai#i at 327, 474 P.3d at 268 (original

brackets omitted) (quoting Hawai#i Hous. Auth. v. Uyehara, 77

Hawai#i 144, 147, 883 P.2d 65, 68 (1994)). "The burden of

establishing abuse of discretion [in denying a DCRCP Rule 60(b)

motion] is on the appellant, and a strong showing is required to

establish it." Id. (quoting Ditto v. McCurdy, 103 Hawai#i 153,

162, 80 P.3d 974, 983 (2003)).

CAAP-18-0000306, POEs 1 and 2: Christopher contends

that the District Court erred in denying Christopher's Rule 60(b)

motion, which he asserts was "based on the discovery fraud, and

violations of HRPC [sic]" by Kakazu and her counsel. Christopher

argues that a post-judgment deposition and affidavit of Sandra

Walker (Walker), both dated December 28, 2017, show that Kakazu

"lied" about why she stopped attending dance events in Hilo. In

POE 2, Christopher contends, based on this new evidence, that the

District Court erred in refusing to modify the Injunction to

remove specific dance locations. The District Court denied the

Rule 60(b) motion, declining to hear Christopher's new evidence

because it could have been, but was not, raised at trial. The

14/ "DCRCP Rule 60 can be interpreted by analogy to HRCP Rule 60." 

Malasek v. Nolen, No. 28007, 2010 WL 2355450, at *1 n.2 (Haw. App. June 9,

2010); see Casumpang v. ILWU, Local 142, 94 Hawai#i 330, 337, 13 P.3d 1235,

1242 (2000) (applying same standard of review to application of HRCP 12(b)(1)

and DCRCP 12(b)(1) because the two rules are substantially identical).

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District Court also rejected Christopher's request to remove

certain dance locations from the Injunction. 

Christopher has not made the required strong showing

necessary to establish an abuse of discretion by the District

Court in denying the Rule 60(b) motion. See PennyMac Corp., 148

Hawai#i at 327, 474 P.3d at 268. To the extent the motion can be

construed as one for a new trial on the basis of newly-discovered

evidence, Christopher has not shown that the evidence was

previously undiscovered despite a purported exercise of due

diligence.15/ See Kawamata Farms, Inc., v. United Agri. Prods.,

86 Hawai#i 214, 251, 948 P.2d 1055, 1092 (1997). To the extent

the motion can be construed as one for a new trial on the basis

of fraud of an adverse party, Christopher has not "establish[ed]

that the conduct complained of prevented [Christopher] from fully

and fairly presenting his case or defense." Id. at 252, 948 P.2d

at 1093 (quoting Jones v. Aero/Chem Corp., 921 F.2d 875, 878-79

(9th Cir. 1990)). Accordingly, we cannot conclude that the

District Court abused its discretion in denying the Rule 60(b)

motion or in rejecting Christopher's request to modify the

Injunction. 

CAAP-18-0000306, POE 4: Christopher contends that the

District Court erred when Judge Laubach declined to hear

Christopher's Rule 60(b) motion. During a February 7, 2018

hearing, Judge Laubach stated, in declining to hear the Rule

60(b) motion, "[T]he law is clear it has to be before the judge

that heard the trial so which is, uh, Judge Bresciani." The Rule

60(b) motion was subsequently heard by Judge Bresciani on

March 7, 2018. 

Christopher cites no Hawai#i case law or rule requiring

Judge Laubach to have heard the Rule 60(b) motion, and we have

found none. Christopher also provides no reason that Judge

Laubach should have heard the Rule 60(b) motion in these

15/ It also appears that Christopher took post-judgment depositions in

violation of the District Court's July 25, 2017 Order Denying Reconsideration,

which, among other things: (1) denied Christopher's "motion for taking of

discovery in person and/or telephonically[,]" including Walker's deposition;

and (2) denied without prejudice Christopher's oral motion "for an order

allowing him to preserve evidence for appeal via depositions of alleged

witnesses . . . ." 

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circumstances, even if she was permitted to do so. Cf. Wong v.

City & Cty. of Honolulu, 66 Haw. 389, 396, 665 P.2d 157, 162

(1983) ("Unless cogent reasons support the second court's action,

any modification of a prior ruling of another court of equal and

concurrent jurisdiction will be deemed an abuse of discretion.");

Matsushita v. Container Home Supply, Inc., 6 Haw. App. 439, 443,

726 P.2d 273, 276 (1986) (applying Wong in Rule 60(b) context). 

We cannot conclude that Judge Laubach abused her discretion by

declining to hear Christopher's Rule 60(b) motion in these

circumstances. 

G. Award of Fees and Costs

CAAP-18-0000306, POE 3: Christopher contends that the

District Court erred in awarding fees and costs to Kakazu in

defending against the Rule 60(b) motion. Christopher argues that

the Order Granting Fees fails to satisfy the requirements of

Hawai#i law. 

On January 16, 2018, Kakazu filed a motion to strike

and for sanctions regarding Christopher's January 4, 2018 Rule

60(b) Motion (Motion for Sanctions). The Motion for Sanctions,

which was brought pursuant to DCRCP Rule 11, sought an order

striking the Rule 60(b) motion and imposing sanctions on

Christopher for "his abuse of court processes, waste of party and

judicial resources, and willful disregard of Court orders and

District Court Rules." 

On March 7, 2018, the District Court held a hearing on

Christopher's Rule 60(b) Motion. At the hearing, the District

Court announced that it would deny Christopher's Rule 60(b)

Motion and would award Kakazu the attorney's fees and costs that

she incurred in defending against the motion, subject to review

of a declaration of counsel and supporting documentation of fees

and costs incurred. On March 12, 2018, Kakazu filed a request

for attorney's fees and costs, and supporting declaration of

counsel, pursuant to the District Court's instructions. On

April 5, 2018, the District Court entered the Order Granting

Fees. 

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It is not clear from the record, but it appears that

the District Court awarded Kakazu fees and costs in defending

against the Rule 60(b) Motion as a sanction against Christopher. 

The Motion for Sanctions was made pursuant to DCRCP Rule 11, and

no other authority for awarding fees and costs was discussed

during the March 7, 2018 hearing. The Order Denying Rule 60(b)

Motion states in relevant part: "Pursuant to her Motion to

Strike and for Sanctions, etc. filed January 16, 2018 and [HRS]

§ 604-10.5(h),16/ . . . Kakazu is awarded her attorney's fees and

costs incurred in defending against [Christopher's Rule 60(b)

Motion] . . . ." (Footnote added.) However, neither the Motion

for Sanctions nor Kakazu's subsequent request for attorneys' fees

and costs mentioned HRS § 604-10.5(h), and it was not raised at

the March 7, 2018 hearing. The Order Granting Fees does not

specify the authority under which fees and costs were granted.

To the extent that the Order Granting Fees was intended

to impose a sanction pursuant to DCRCP Rule 11 (see supra note

13), case law interpreting HRCP Rule 11 guides our analysis. 

Deutsche Bank Nat'l Tr. Co. v. Greenspon, 143 Hawai#i 237, 244,

428 P.3d 749, 756 (2018). "The determination of whether [DCRCP

Rule 11] requirements have been met is fact intensive, requiring

specific findings regarding the nature of the potentially

sanctionable conduct and surrounding circumstances." Id. at 244,

428 P.3d at 756 (citing In re Hawaiian Flour Mills, Inc., 76

Hawai#i 1, 15, 868 P.2d 419, 433 (1994), and Enos v. Pac.

Transfer & Warehouse, Inc., 79 Hawai#i 452, 459, 903 P.2d 1273,

1280 (1995)). Similarly:

It is well established . . . that orders imposing sanctions

should "set forth findings that describe, with reasonable

specificity, the perceived misconduct (such as harassment or

bad faith conduct), as well as the appropriate sanctioning

authority." [Bank of Hawaii v. Kunimoto, 91 Hawai#i 372,

390, 984 P.2d 1198, 1216 (1999)]; see also Kawamata Farms,

Inc. v. United Agri Prods., 86 Hawai#i 214, 257, 948 P.2d

1055, 1098 (1997); Enos[,] 79 Hawai#i [at] 459, 903 P.2d

[at] 1280 []; Kaina v. Gellman, 119 Hawai#i 324, 331, 197

P.3d 776, 783 (App. 2008) (stating that a sanctioning order

"must inform the party of the authority pursuant to which he

or she is to be sanctioned"). The requirement that a court

16/ HRS § 604-10.5(h) states: "The court may grant the prevailing

party in an action brought under this section costs and fees, including

attorney's fees."

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should make findings that state the perceived misconduct

with reasonable specificity when sanctions are imposed has

been applied in multiple situations, such as sanctions for

discovery violations, filing a complaint, and delay in

withdrawing a motion. Fujimoto v. Au, 95 Hawai#i 116, 153,

19 P.3d 699, 736 (2001) (failure to review court rule before

filing the complaint); Kawamata Farms, 86 Hawai#i at 256,

948 P.2d at 1097 (discovery fraud); Enos, 79 Hawai#i at 460,

903 P.2d at 1281 (undue delay in withdrawing motion).

Trustees of Estate of Bishop v. Au, 146 Hawai#i 272, 282-83, 463

P.3d 929, 939-40 (2020); see Erum v. Llego, 147 Hawai#i 368, 389,

465 P.3d 815, 836 (2020).

The supreme court has further explained that the making

of findings regarding the purported misconduct "serves multiple

important purposes":

First, it clearly identifies and explains to the sanctioned

person the conduct underlying the sanction. Additionally,

findings that describe with reasonable particularity the

perceived misconduct facilitate a meaningful and more

efficient appellate review. Kunimoto, 91 Hawai#i at 390,

984 P.2d at 1216. Specifying the sanctioning authority,

including the court's inherent authority if applicable, is

also necessary for meaningful appellate review. Kaina, 119

Hawai#i at 331, 197 P.3d at 783. Finally, the findings

assure both the litigants and the court that the decision to

impose sanctions was the result of reasoned consideration. 

See Enos, 79 Hawai#i at 459, 903 P.2d at 1280 (stating that

specific findings assure litigants and the judge that the

decision was the product of thoughtful deliberation). 

Trustees of Estate of Bishop, 146 Hawai#i at 283, 463 P.3d 929,

940.

Here, the Order Granting Fees was deficient because it

failed to specify the authority supporting an award of attorney's

fees and costs to Kakazu in defending against the Rule 60(b)

Motion. Moreover, to the extent that the Order Granting Fees was

intended to impose a sanction against Christopher, the order

failed to set forth findings that describe, with reasonable

specificity, the perceived misconduct by Christopher, as well as

the appropriate sanctioning authority. Accordingly, we conclude

that the District Court's award of $2,040.49 in attorney's fees

and costs against Christopher must be vacated and remanded to the

District Court for: (1) specification of the authority

supporting the award of attorney's fees and costs to Kakazu in

defending against the Rule 60(b) Motion; and (2) if the award of

attorney's fees and costs imposes a sanction against Christopher,

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findings that describe, with reasonable specificity, the

perceived misconduct by Christopher, as well as the appropriate

sanctioning authority.

H. Motion to Compel

CAAP-18-0000306, POE 5: Christopher contends that the

District Court erred in denying Christopher's post-judgment

Motion to Compel. 

The District Court appears to have stamped the Motion

to Compel indicating it was "Denied," signed the denial, dated it

November 2, 2017, and then filed the denied Motion to Compel on

the same date. Thus, the Order Denying Motion to Compel was

entered on November 2, 2017. Pursuant to HRS § 641-1(a), this

post-judgment order (see supra note 3) was an appealable final

order. See McCurdy, 103 Hawai#i at 157, 80 P.3d at 978. 

However, Christopher did not file his April 5, 2018 notice of

appeal in appellate case no. CAAP-18-0000306 within 30 days after

entry of the Order Denying Motion to Compel. The failure to file

a timely notice of appeal in a civil matter is a jurisdictional

defect that the parties cannot waive and the appellate courts

cannot disregard in the exercise of judicial discretion. Bacon

v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1128 (1986); HRAP

Rule 26(b). Accordingly, this court lacks jurisdiction to review

the Order Denying Motion to Compel and, thus, POE 5 in appellate

case no. CAAP-18-0000306.

I. Conclusion

For the reasons discussed above:

In appellate case no. CAAP-17-0000634, we affirm: (1)

the June 7, 2017 Order Granting Petition for Injunction Against

Harassment; (2) the August 2, 2017 Findings of Fact and

Conclusions of Law, as amended to correct clerical errors

pursuant to the August 9, 2017 order; and (3) the August 3, 2017

"Order Denying Respondent's Motions for Reconsideration, etc.

Dated June 14, 2017 and Additional Motion for Reconsideration

Filed June 19, 2017."

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In appellate case no. CAAP-18-0000306, we vacate: (1)

that portion of the April 5, 2018 "Order Denying Respondent's

Motion to Set Aside, and/or Modify, and/or Modify [sic], and/or

Vacate Orders, and/or For New Trial, and Other Relief Filed

January 4, 2018" that awards Kakazu her attorney's fees and costs

"incurred in defending against Respondent's Motion to Set Aside,

etc."; and (2) the April 5, 2018 "Order Granting Petitioner Yuko

Kakazu's Request for Attorney's Fees and Costs." We remand to

the District Court for: (a) specification of the authority

supporting the award of attorney's fees and costs to Kakazu; and

(b) if the award of attorney's fees and costs imposes a sanction

against Christopher, findings that describe, with reasonable

specificity, the perceived misconduct by Christopher, as well as

the appropriate sanctioning authority. We affirm in all other

respects the April 5, 2018 "Order Denying Respondent's Motion to

Set Aside, and/or Modify, and/or Modify [sic], and/or Vacate

Orders, and/or For New Trial, and Other Relief Filed January 4,

2018."

DATED: Honolulu, Hawai#i, February 28, 2022.

On the briefs:

Peter Christopher,

Self-represented RespondentAppellant.

Yuko Kakazu,

Self-represented PetitionerAppellee. 

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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