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NO. CAAP-17-0000880

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ERIC Y. SHIBUYA, Plaintiff-Appellant

v.

COUNTY OF KAUAI; KAUAI POLICE DEPARTMENT;

DARRYL D. PERRY; MARK N. BEGLEY,

Defendants-Appellees,

and

JOHN DOES 1-10; JANE DOES 1-10;

DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10,

Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT

(CIVIL NO. 13-1-0345)

MEMORANDUM OPINION

(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)

Plaintiff-Appellant Eric Y. Shibuya (Shibuya), a

retired Commander of the Kauai Police Department (KPD), appeals

from the Final Judgment entered on December 20, 2017, by the

Circuit Court of the Fifth Circuit (Circuit Court).1

 As part of

the appeal, Shibuya challenges the following orders by the

Circuit Court in favor of Defendants-Appellees County of Kauai

(County), KPD, Darryl D. Perry (Chief Perry), and Mark N. Begley

(Deputy Chief Begley), (collectively, Appellees): 

(1) the "Order Granting Defendant Mark N. Begley's, in

his Individual Capacity, Motion to Dismiss Verified Complaint"

entered on June 10, 2014; 

1 The Honorable Randal G.B. Valenciano presided. 

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000880

31-JAN-2023

11:13 AM

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(2) the "Order Granting Defendant Darryl D. Perry's, in

his Individual Capacity, Motion to Dismiss Verified Complaint"

entered on June 10, 2014; and 

(3) the "Order Granting Defendants County of Kauai and

Kauai Police Department's Motion for Summary Judgment" (Order

Granting MSJ) entered on November 14, 2017.

Shibuya contends that the Circuit Court erred in: 

(1) dismissing his claims against Chief Perry and Deputy Chief

Begley in their individual capacities; (2) determining the

exceptions to the exclusivity provision of the Hawai#i Workers'

Compensation Law do not apply to Shibuya's claims against the

County and KPD and the claims are therefore barred by Hawaii

Revised Statutes (HRS) § 386-5; and (3) determining Shibuya was

required to initially pursue his claims as a hybrid action before

the Hawai#i Labor Relations Board (HLRB).

For the reasons set forth below, we affirm. 

I. Background

A. Claims Asserted 

On November 29, 2013, Shibuya filed a Verified

Complaint (Complaint) against the County, KPD, Chief Perry, in

his official and individual capacities, and Deputy Chief Begley,

in his official and individual capacities, alleging: (1)

negligence, (2) civil conspiracy, (3) constructive discharge, (4)

defamation, (5) intentional infliction of emotional distress, (6)

negligent infliction of emotional distress, (7) abuse of process, 

(8) malicious prosecution, (9) invasion of privacy, and 

(10) negligent supervision.

B. Allegations in the Complaint

Shibuya's Complaint alleges, among other things, that

during his appointment as the Commander of the Vice Unit in KPD,

the Vice Unit conducted a raid on a chicken fight in Keapana on

or about March 15, 2009 (2009 Keapana Raid). During the course

of the investigation related to this raid, Shibuya assisted in

the identification of two suspects, whom Shibuya had played golf

with in the past. 

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Shibuya alleged that after Chief Perry and Deputy Chief

Begley learned of the 2009 Keapana Raid and Shibuya's involvement

in the investigation, Chief Perry and Deputy Chief Begley, 

began making false statements about [Shibuya] to other

police officers at KPD that: A. Suspect 1 and Suspect 2 were

members of organized crime . . . on Kauai; B. [Shibuya] had

divulged the name of a cooperating witness in the

investigation of the Keapana Chicken Fight Raid to Suspect 1

and Suspect 2; and C. [Shibuya] had inappropriate ties to

members of [organized crime]. 

Shibuya also alleged that based on their false statements, Chief

Perry and deputy Chief Begley initiated disciplinary transfer

proceedings and Shibuya was involuntarily transferred to the

Kauai Patrol Services Bureau. Shibuya further alleged that

Appellees initiated an "Administrative Investigation" in

retaliation against him for filing a grievance against KPD

through the State of Hawaii Organization of Police Officers

(SHOPO).

On or about March 1, 2010, while Shibuya's SHOPO

grievance and the Administrative Investigation against him were

still pending, Shibuya was reassigned from the KPD Patrol

Services Bureau back to his position as Commander of the Vice

Unit. On April 21, 2011, SHOPO closed Shibuya's grievance

against KPD because Shibuya's reassignment back to his original

position "negated the grievance." On December 30, 2011, the

internal Administrative Review Board found the charges against

Shibuya in the Administrative Investigation meritless and

dismissed the charges against him. However, Shibuya alleged that

because of Appellees' conduct, and "the intolerable working

conditions which continued to exist, Plaintiff retired

involuntarily from KPD on February 29, 2012, and did so

substantially earlier than he otherwise would have, but for said

conduct." 

II. Standards of Review

A. Motion to Dismiss

A trial court's ruling on a motion to dismiss is reviewed de

novo. The court must accept plaintiff's allegations as true

and view them in the light most favorable to the plaintiff;

dismissal is proper only if it appears beyond doubt that the

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plaintiff can prove no set of facts in support of his or her

claim that would entitle him or her to relief.

Nakamoto v. Kawauchi, 142 Hawai#i 259, 268, 418 P.3d 600, 609

(2018) (citation omitted). "However, in weighing the allegations

of the complaint as against a motion to dismiss, the court is not

required to accept conclusory allegations on the legal effect of

the events alleged." Kealoha v. Machado, 131 Hawai#i 62, 74, 315

P.3d 213, 225 (2013) (citations omitted). 

B. Summary Judgment 

"On appeal, the grant or denial of summary judgment is

reviewed de novo." Ralston v. Yim, 129 Hawai#i 46, 55, 292 P.3d

1276, 1285 (2013) (citation omitted). 

Summary judgment is appropriate if the pleadings,

depositions, answers to 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 judgment as a matter of law. A

fact is material if proof of that fact would have the effect

of establishing or refuting one of the essential elements of

a cause of action or defense asserted by the parties. The

evidence must be viewed in the light most favorable to the

non-moving party. In other words, we must view all of the

evidence and inferences drawn therefrom in the light most

favorable to the party opposing the motion. 

Id. at 55-56, 292 P.3d at 1285-86 (brackets and citation

omitted).

III. Discussion

A. Claims Against Chief Perry and Deputy Chief Begley in

Their Individual Capacity 

Shibuya argues that the Circuit Court erred in

dismissing the claims against Chief Perry and Deputy Chief Begley

in their individual capacities because the Complaint sufficiently

alleged that they were motivated by malice, and not by an

otherwise proper purpose.

In granting their respective motions to dismiss the

claims against Chief Perry and Deputy Chief Begley in their

individual capacities, the Circuit Court concluded that the

allegations in the Complaint pertain to matters within Chief

Perry and Deputy Chief Begley's scope of employment with the

County and KPD. The Circuit Court also determined that Shibuya

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failed to state a claim against Chief Perry and Deputy Chief

Begley in their individual capacities. In other words, the

Circuit Court concluded that Shibuya's claims against Chief Perry

and Deputy Chief Begley were related to liability in their

official capacities and that Shibuya failed to state claims in

their individual capacities. 

On appeal, Shibuya does not argue Chief Perry and

Deputy Chief Begley acted in their individual capacities. 

Instead, Shibuya argues that he alleges Chief Perry and Deputy

Chief Begley acted with malice, which Shibuya contends is

sufficient to allow suit against them in their individual

capacities. In support of his argument, Shibuya cites Medeiros

v. Kondo, 55 Haw. 499, 522 P.2d 1269 (1974), and Kajiya v. Dept.

of Water Supply, 2 Haw. App. 221, 629 P.2d 635 (1981). However,

Medeiros considered only whether an official exercising his or

her authority has limited or absolute liability and held that "if

an official in exercising his authority is motivated by malice,

and not by an otherwise proper purpose, then he should not escape

liability for the injuries he causes." 55 Haw. at 503, 522 P.2d

at 1271. Medeiros did not make a distinction between an

official's liability in his or her individual and official

capacity.

In Kajiya, the plaintiff asserted tort claims against,

inter alia, defendant Shigeto Murayama in his individual capacity

and in his capacity as Director of the Department of Water

Supply. 2 Haw. App. at 222 n.2, 629 P.2d at 638 n.2. This Court

explained that, "[i]f it is determined that Mr. Murayama was

acting in his capacity as an individual, then he is liable only

if he committed a tort against plaintiffs." Id. at 226, 629 P.2d

at 640 (emphasis added) (footnote omitted). However, "[i]f it is

determined that Mr. Murayama 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

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committed a tort against plaintiffs[.]" Id. (emphasis added)

(footnote and citations omitted). 

We also consider Costales v. Rosete, 133 Hawai#i 453,

331 P.3d 431 (2014), where the Hawai#i Supreme Court stated:

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."

[Medeiros, 55 Haw. at 505, 522 P.2d at 1272] "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).

Id. at 466, 331 P.3d at 444 (brackets in original and added). 

The supreme court in Costales held that jury instructions were

defective because there had been no jury instruction on malice or

improper purpose, and thus, when the jury assigned damage amounts

to particular defendants in their individual and official

capacities in the special verdict form, the jury "was not

informed that [the plaintiff] had to meet a higher burden of

proof in order to hold the individual defendants personally

liable for her damages." Id. at 467, 331 P.3d at 445.

Under Medeiros, Kajiya and Costales, Shibuya's

allegations that Chief Perry and Deputy Chief Begley acted with

malice is relevant to whether they can be held liable when acting

in their capacity as a public official, but is not determinative

as to whether they can be held liable when acting in their

individual capacity. Shibuya does not otherwise argue the

Complaint alleged claims that Chief Perry and Deputy Chief Begley

were acting in their individual capacities. To the contrary,

Shibuya admits in his opening brief that his "complaint alleges

in relevant part that Defendants-Appellants Chief Perry and

Deputy Chief Begley essentially contrived to destroy Lt.

Shibuya's reputation and ruin his career through fraud, deceit

and the abuse of their newly conveyed powers" and that "to 

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accomplish their objective, Chief Perry and Deputy Chief Begley

fabricated an 'Administrative Investigation'". (emphasis added). 

We agree with the Circuit Court that the allegations in the

Complaint pertain to matters in the scope of Chief Perry and

Deputy Chief Begley's employment as public officials. 

The Circuit Court did not err in dismissing Shibuya's

claims against Chief Perry and Deputy Chief Begley in their

individual capacities.

Dismissal of individual capacity claims does not

preclude a person acting within the scope of their employment as

a public official from being held personally liable if it is

proven by clear and convincing evidence that they acted

maliciously. In this case, however, the claims against Chief

Perry and Deputy Chief Begley in their official capacities were

dismissed by stipulation.2

2 On March 8, 2017, almost three years after the Circuit Court

dismissed Shibuya's claims against Chief Perry and Deputy Chief Begley in

their individual capacities, a "Stipulation to Dismiss Defendants Darryl D.

Perry, in his Official Capacity, and Mark N. Begley, in his Official Capacity"

(Stipulation), signed by all parties in this case, was approved and filed by

the Circuit Court. The stipulation indicates that the parties were dismissing

the claims against Chief Perry and Deputy Chief Begley in their official

capacities "because the claims against the Individual Defendants are

duplicative of the claims asserted against Defendant County of Kauai." The

Stipulation further states:

This Stipulation to Dismiss Defendants DARRYL D. PERRY, in

his official capacity, and MARK N. BEGLEY, in his official

capacity, is subject to and with reservation of all rights

and claims of Plaintiff to appeal any previous Orders(s),

including but not limited to, the dismissal of Defendants

DARRYL D. PERRY and MARK N. BEGLEY, in their individual and

official capacities. Other than effecting the dismissal

from this case of Defendants DARRYL D. PERRY, in his

official capacity, and MARK N. BEGLEY, in his official

capacity, subject to any appeal, this Stipulation shall not

act as a waiver or affect any claims nor prevent Plaintiff

from exercising any rights or remedies available to

Plaintiff, including without limitation, Plaintiffs right to

appeal.

Shibuya does not raise any issues in this appeal related to the stipulated

dismissal of his claims against Chief Perry and Deputy Chief Begley in their

official capacities.

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B. Non-Negligence Based Claims Against the County and KPD3

Shibuya argues that the Circuit Court erred in granting 

the County and KPD's motion for summary judgment based on the

exclusivity provision of the Hawai#i Workers' Compensation Law,

HRS § 386-5, because the statute does not apply where the

employee alleges that co-workers acted outside the course and

scope of their employment and were motivated by malice.4 We

disagree.

The exclusivity provision of Hawai#i's Workers'

Compensation Law, HRS § 386-5 (2015), provides: 

Exclusiveness of right to compensation; exception. The

rights and remedies herein granted to an employee or the

employee's dependents on account of a work injury suffered

by the employee shall exclude all other liability of the

employer to the employee, the employee's legal

representative, spouse, dependents, next of kin, or anyone

else entitled to recover damages from the employer, at

common law or otherwise, on account of the injury, except

for sexual harassment or sexual assault and infliction of

emotional distress or invasion of privacy related thereto,

in which case a civil action may also be brought.

(Emphasis added.) HRS § 386-1 (2015) defines "work injury" as "a

personal injury suffered under the conditions specified in

section 386-3." 

HRS § 386-3 (2015) provides, in pertinent part: 

Injuries covered. (a) If an employee suffers personal

injury either by accident arising out of and in the course

of the employment or by disease proximately caused by or

resulting from the nature of the employment, the employee's

3 On June 10, 2014, the Circuit Court entered an "Order Granting in

Part and Denying in Part [County] and [KPD's] Motion to Dismiss Verified

Complaint" which determined that Shibuya's negligence based claims --

negligence, negligent infliction of emotional distress, and negligent

supervision -- are barred by HRS § 386-5. Shibuya does not challenge the

Circuit Court's dismissal of his negligence based claims. 

Shibuya only challenges the Circuit Court's Order Granting MSJ, which held

that Shibuya's remaining claims against the County and KPD, i.e., the nonnegligence based claims -- civil conspiracy, constructive discharge,

defamation, intentional infliction of emotional distress, abuse of process,

malicious prosecution, and invasion of privacy -- are barred by HRS § 386-5. 

4 Shibuya does not argue that any of his particular claims are not

barred by the Workers' Compensation exclusivity provision. We note that

Shibuya alleges a constructive discharge claim but this claim is unlike the

employment discrimination claim asserted in Furukawa v. Honolulu Zoological

Soc., 85 Hawai#i 7, 936 P.2d 643 (1997), under HRS Chapter 378 and HRS Chapter

368. 

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employer or the special compensation fund shall pay

compensation to the employee or the employee's dependents as

provided in this chapter.

Accident arising out of and in the course of the employment

includes the wilful act of a third person directed against

an employee because of the employee's employment.

(Emphases added.) HRS § 386-8 (2015), which covers the liability

of third persons for a work injury, provides in relevant part: 

Another employee of the same employer shall not be relieved

of his liability as a third party, if the personal injury is

caused by his wilful and wanton misconduct.

Essentially, Shibuya raises the same argument that this

Court expressly rejected in Yang v. Abercrombie & Fitch Stores,

128 Hawai#i 173, 284 P.3d 946 (App. 2012), overruled in part by

Nakamoto v. Kawauchi, 142 Hawai#i 259, 418 P.3d 600 (2018).5 In

Yang, a store employee alleged that she was wrongfully accused of

stealing money by her co-workers and filed a complaint alleging

multiple intentional tort causes of action, including defamation,

wrongful termination, civil conspiracy, and intentional

infliction of emotional distress. Id. at 174-75, 284 P.3d at 947-

48. This Court held that, 

The plain language of HRS § 386–5, and the harmonious

reading of the Workers' Compensation Law as a whole,

mandates the conclusion that the workers' compensation

remedies granted to Yang exclude all other liabilities of

[the employer] to Yang on account of the personal injuries

she allegedly suffered arising out of and in the course of

her employment. As the supreme court discussed in Iddings, HRS § 386–8 clearly limits the immunity provided to a

co-employee who has caused an injury by willful and wanton

misconduct, which includes intentional and reckless acts.

[Iddings v. Mee-Lee, 82 Hawai#i 1, 12, 912 P.2d 263, 274

(1996)]. Neither HRS § 386–5 nor HRS § 386–8 include any

such limitation for the immunity provided to the employer.

Nor do these provisions allow, as Yang seeks to pursue, suit

against the employer for the alleged willful and wanton

misconduct of a complainant's fellow employee.

5 In Nakamoto, the Hawai#i Supreme Court overruled Yang to the extent

it held that HRS § 386-5 precludes employees from bringing defamation claims

against their employers. Nakamoto, 142 Hawai#i at 268-69, 418 P.3d at 609-10. 

The supreme court held that the exclusivity provision does not extend to

injuries to a person's reputation because the purpose of Workers' Compensation

Law is to compensate employees for work-related physical and mental injuries

while the purpose of defamation and false light actions is to compensate a

plaintiff for harm to his or her reputation. Id. at 268, 418 P.3d at 609.

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Id. at 181, 284 P.3d at 954 (footnote omitted) (emphases added). 

Shibuya argues that unlike in Yang, Chief Perry and Deputy Chief

Begley were not merely acting in the course and scope of their

employment and were motivated by malice. However, for purposes

of the County and KPD's liability, the main inquiry is whether

Shibuya suffered "personal injury . . . by accident arising out

of and in the course of the employment[.]" In turn, HRS § 386-3

expressly provides that "[a]ccident arising out of and in the

course of the employment includes the wilful act of a third

person directed against an employee because of the employee's

employment." See HRS § 386-3. Thus, even if the alleged actions

by Chief Perry and Deputy Chief Begley in this case were

motivated by malice, the exclusivity provision under HRS § 386-5

applies with respect to Shibuya's claims against his employers,

the County and KPD.

Given the above, the Circuit Court did not err in

granting the County and KPD's Motion for Summary Judgment and

concluding that Shibuya's non-negligence based claims –- civil

conspiracy, constructive discharge, intentional infliction of

emotional distress, abuse of process, malicious prosecution and

invasion of privacy -- for which he asserts physical and

emotional injury against the County and KPD, were barred by HRS 

§ 386-5.

However, the Circuit Court erred to the extent that it

determined that Shibuya's defamation claim against the County and

KPD were barred by the exclusivity provision. See Nakamoto, 142

Hawai#i at 272, 418 P.3d at 613 (holding that reputational harm

is not a "personal injury" under HRS § 386-3 and thus not barred

by HRS § 386-5).

Nevertheless, it is well settled that "[a]n appellate

court may, however, affirm a decision of a lower court on any

ground in the record which supports affirmance." Peak Capital

Group, LLC v. Perez, 141 Hawai#i 160, 175, 407 P.3d 116, 131

(2017). Appellees argue that Shibuya's defamation claim is time

barred pursuant to HRS § 657-4 (2016), which governs defamation

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actions and which provides, "[a]ll actions for libel or slander

shall be commenced within two years after the cause of action

accrued, and not after." In his reply brief, Shibuya does not

argue that the defamation claim is timely. We agree with the

Appellees that Shibuya's defamation claim is time barred by the

statute of limitations. 

 Shibuya filed his Complaint on November 29, 2013. 

Under HRS § 657-4, the alleged defamatory statements must have

been made no earlier than November 29, 2011. See Bauernfiend v.

AOAO Kihei Beach Condos., 99 Hawai#i 281, 284, 54 P.3d 452, 455

(2002) ("the computation of time under the prescribed two-year

statute of limitations would exclude the first day on which the

cause of action accrues and include the last day, two years

thereafter."). 

Shibuya alleged in his Complaint, inter alia,

203. Defendants, and each of them, knowingly made and

published false accusations and information about Plaintiff

to members of the Kauai Police Department and/or other

persons falsely accusing Plaintiff, inter alia, that Suspect

1 and Suspect 2 were members of [organized crime] on Kauai,

that Plaintiff had divulged the name of a cooperating

witness in the investigation of the Keapana Chicken Fight

Raid to Suspect 1 and Suspect 2, and that Plaintiff had

inappropriate ties to members of [organized crime] on

Kauai[.]

In Shibuya's Declaration dated October 2, 2017, attached to his

Memorandum in Opposition to the County and KPD's Motion for

Summary Judgment, Shibuya attests that after learning of his

involvement in the 2009 Keapana Raid investigation, Chief Perry

and Deputy Chief Begley "began making false statements about

[Shibuya] to other police offers at KPD" and "[b]ased on the

false statements . . . Chief Perry and Deputy Chief Begley, using

the color of their respective offices, initiated disciplinary

transfer proceedings against [Shibuya] on April 16, 2009." In

other words, based on his declaration, the defamatory statements

were alleged to have occurred after the 2009 Keapana Raid and

leading up to Shibuya's disciplinary transfer proceedings in

April 2009, which would render his defamation claim untimely.

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Moreover, the answering brief points to portions of

Shibuya's deposition to further indicate that the defamation

claim is untimely, in which Shibuya testified that his defamation

claim is based on: (1) a document signed by Deputy Chief Begley

titled "Lieutenant Eric Shibuya judgment concerns" dated revised

June 10, 2009; (2) a memo from Deputy Chief Begley to Shibuya

dated April 28, 2009; and (3) general statements made by unknown

persons to third parties that Shibuya was the subject of an

administrative investigation. A defamation claim based on the

two documents is clearly untimely. Shibuya's deposition is

unclear as to when the general statements were made to third

parties that he claims were defamatory. Further, when asked

directly during his deposition, Shibuya was unable to identify

who made the allegedly defamatory statements or what statements

were made. In other words, Shibuya was unable to establish he

could potentially show who made allegedly defamatory statements,

what the statements were and when they were allegedly made. 

Discovery was closed when the Order Granting MSJ was entered on

November 14, 2017, and thus the County and KPD satisfied its

initial burden as the movant by demonstrating that Shibuya would

be unable to carry his burden of proof at trial.6 See Ralston,

129 Hawai#i at 57, 292 P.3d at 1287 ("where the non-movant bears

the burden of proof at trial, a movant may demonstrate that there

is no genuine issue of material fact by . . . demonstrating that

the non-movant will be unable to carry his or her burden of proof

at trial."). 

The undisputed record indicates that Shibuya filed his

defamation claim beyond the applicable two-year statute of

limitations in HRS § 657-4. Thus, as to the defamation claim, we

affirm the Circuit Court on this basis.

6 The Order Setting Trial Date does not specify a discovery deadline.

Trial was set for the week of December 4, 2017. Pursuant to the Rules of the

Circuit Court of the State of Hawai#i (RCCH) Rule 12(r) (2007), the discovery

deadline was 60 days before the assigned trial date, which means the discovery

deadline was October 5, 2017. See RCCH Rule 12(r) ("Discovery shall be cut

off 60 days before the assigned trial date."). 

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C. HLRB Hybrid Action and Exhaustion of Remedies

Finally, Shibuya contends that the Circuit Court erred

in determining he was required to initially pursue his claims

against the County and KPD as a hybrid action before the HLRB and

exhaust his administrative remedies. Shibuya argues that his

claims do not allege a violation, misinterpretation, or

misapplication of a provision of the collective bargaining

agreement and thus he was not required to exhaust his

administrative remedies.

In its Order Granting MSJ, the Circuit Court ordered,

inter alia, as follows:

1. The exceptions to the exclusivity provision of the

Workers' Compensation Law, Haw. Rev. Stat. § 386-5, do not

apply to the claims asserted by Plaintiff in this case. As

such, all of Plaintiff's remaining claims are barred by Haw.

Rev. Stat. § 386-5, and Defendants' Motion is granted on

this basis.

2. It is undisputed that Plaintiff asked the union to file a

grievance on his behalf and the union refused. As such,

Plaintiff was required to initially pursue his claims as a

hybrid action before the Hawaii Labor Relations Board

("HLRB"), as set forth in Lee v. United Pub. Workers,

AFSCME, Local 646, 125 Hawai#i 317, 260 P.3d 1135 (Haw. Ct.

App. 2011). Although Plaintiff may appeal an adverse HLRB

decision to this Court, this Court lacks original

jurisdiction over Plaintiff's claims, and Defendants' Motion

is granted on this additional basis.

(Emphases added.) 

The Circuit Court granted the County and KPD's motion

for summary judgment on the basis that Shibuya's claims were

barred by the workers' compensation statute, and further

concluded that Shibuya was required to initially pursue his claim

as a "hybrid action" as an additional basis. Given our

determination above that the Circuit Court did not err in

granting summary judgment for the County and KPD based on the

workers' compensation exclusivity provision and the statute of

limitations as to the defamation claim, we need not reach

Shibuya's third point of error. 

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IV. Conclusion

For the forgoing reasons, we affirm the Circuit Court's

Final Judgment entered on December 20, 2017, and the following: 

(1) "Order Granting Defendant Mark N. Begley's, in his

Individual Capacity, Motion to Dismiss Verified Complaint"

entered on June 10, 2014;

(2) "Order Granting Defendant Darryl D. Perry's, in his

Individual Capacity, Motion to Dismiss Verified Complaint"

entered on June 10, 2014; and 

(3) "Order Granting Defendants County of Kauai and

Kauai Police Department's Motion for Summary Judgment" entered on

November 14, 2017.

DATED: Honolulu, Hawai#i, January 31, 2023. 

On the briefs:

Eric Shibuya,

(Charley Foster on opening

brief),

Self-Represented PlaintiffAppellant

Sarah O. Wang,

Emily R. Marr,

for Defendants-Appellees

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Karen T. Nakasone

Associate Judge

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