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NO. CAAP-21-0000423

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MICHAEL G. JUSTO; JAMIE L.M. JUSTO, Petitioners-Appellees, v.

THALIA KAUKA, Respondent-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT

NORTH AND SOUTH HILO DIVISION

(CIVIL NO. 3DSS-21-0000430)

SUMMARY DISPOSITION ORDER

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

Respondent-Appellant Thalia Kauka (Kauka) appeals from

the Order Granting Petition for Injunction Against Harassment

(Injunction), entered on July 2, 2021, in the District Court of

the Third Circuit, North and South Hilo Division (District

Court).1/ Following an evidentiary hearing, the District Court

enjoined Kauka from, among other things, contacting, threatening,

or harassing self-represented Petitioners-Appellees Michael G.

Justo (Michael) and Jamie L.M. Justo (Jamie) (collectively, the

Justos), and any persons residing at their residence, for a

period of three years. 

On appeal, Kauka contends that: (1) the District Court

erred in finding that Kauka engaged in harassment against the

Justos pursuant to Hawaii Revised Statutes (HRS) § 604-

10.5(a)(2), where there was no evidence that Kauka made

intentional or knowing statements directed at the Justos; and (2)

Kauka's statements were protected by her "right of privacy in the

1/ The Honorable M. Kanani Laubach presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-21-0000423

16-OCT-2023

07:47 AM

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confines of her own home" and "the right to say whatever she

wishes."2/

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

Kauka's contentions as follows and affirm.

I. Background

On June 1, 2021, the Justos filed a Petition for Ex

Parte Temporary Restraining Order and for Injunction Against

Harassment (Petition). In an accompanying declaration, Michael

attested that Jeremy Costa (Costa) and Kauka are neighbors that

"have threatened and harassed us for years." As to Kauka,

Michael stated: 

. . . Kauka has verbally harassed my wife and children for

years, on occasion calling her a "cunt" and saying things

like "you and your fucking kids." She has harassed me on

the road as I leave for work in the morning and will stand

at the end of our driveway and video (on her cell phone) me

leaving. This has happened on multiple occasions. I have

video documentation of her verbally describing us as

"ignorant neighbors," "cunts," and "mother fuckers." In one

video from 05-03-2021 she says (directed at us), "suck my

ass, suck my dick all day long."

Both of these individuals are mentally unstable and very

unpredictable. I am afraid for the safety of my two

children and wife. . . . Costa and . . . Kauka have caused

much psychological distress for myself and my family. Every

day we are living in fear. Due to these incidents my two

young children are afraid to live in their own home, which

should be a safe environment for them. As a result of the

most recent incidents on 05-19-21 and 05-23-21 we have been

forced to relocate to a family member's home. This has also

caused much distress and financial hardship for our family.

On June 2, 2021, the District Court entered a Temporary

Restraining Order Against Harassment as to Costa and Kauka, and

set a June 16, 2021 hearing date on the Petition. On June 16,

2021, Costa failed to appear, and the District Court entered an

Order Granting Petition for Injunction Against Harassment as to

2/ Kauka's points of error have been reordered and restated for

clarity. Kauka's opening brief does not comply with HRAP Rule 28(b) in

numerous respects. Nevertheless, Hawai#i appellate courts have "consistently

adhered to the policy of affording litigants the opportunity 'to have their

cases heard on the merits, where possible.'" Marvin v. Pflueger, 127 Hawai #i

490, 496, 280 P.3d 88, 94 (2012) (quoting Morgan v. Plan. Dep't, Cty. of

Kauai, 104 Hawai#i 173, 180–81, 86 P.3d 982, 989–90 (2004)).

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Costa. The Court continued the matter as to Kauka and held an

evidentiary hearing on July 2, 2021. 

At the hearing, Jamie, Michael, and Kauka testified. 

Jamie testified to the following during her direct examination: 

For years, since buying their house in 2016, the Justos and their

children have endured Kauka yelling at them. Kauka, who lives

next door to the Justos, has yelled at Jamie through the hedges

of the Justos' driveway, calling Jamie a "cunt." Kauka "has said

things like, 'You and your fucking kids[,]'" when the Justos'

children were present. The children are afraid, and Jamie is

afraid for them. Kauka's tone is aggressive and unprovoked. 

During the prior two months, Kauka has "driven by [the Justos']

house and made gagging noises like, 'Urrk.'"

Jamie also testified during cross-examination as

follows: The Justos had security cameras installed because of

their neighbors and have had those cameras since at least

September 2019. Jamie does not believe that a tree-trimming

incident between the Justos and Kauka has anything to do with

Kauka's conduct, because that matter was settled. Jamie's last

contact with Kauka was when Kauka drove by the Justos' house and

gagged at Jamie – '"'Aack,' like that" – "just prior to [the

Justos] putting the TRO on her." 

Jamie engaged in the following exchange with Kauka's

counsel, in which counsel and Jamie referenced the Justos'

exhibit list, which identified Exhibits 1 through 4 as four

"[v]ideo clip" recordings taken from the Justos' security

cameras:3/

3/ The Justos' exhibit list identifies the following exhibits:

Exhibit 1, described as "Video clip from 9/21/19, 4:37 am. 

[Kauka] yelling 'Fuck you!'"

Exhibit 2, described in part as "Video Clip from 12/21/2020,

4:22 am."

Exhibit 3, described as "Video clip from 3/25/21, 10:48 am. 

[Kauka] yelling loudly from her home."

Exhibit 4, described in part as "Video clip from 4/26/21,

4:49 am. . . . [Kauka] yells 'cunts' and calls us 'ignorant

neighbors' Says . . . 'They can suck my ass, suck my dick all

night long[.]'"

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[KAUKA'S COUNSEL] . . . . [W]hen's the last time you

heard something from Miss Kauka before she gagged at you?

[JAMIE] Not for awhile. Probably the videos would be

the last. The one[,] the April 2021.

Q. . . . Miss Kauka's utterances that you are

concerned with that would be April 26, 2021. Is that right?

A. Yes.

Q. And before that would be, um, the March 25th, 2021

event?

A. Yes.

Q. And before that would be the . . . December 21st,

2020 event?

A. Yeah, and then this.

Q. So that would be the accurate succession of times

that –-

A. Yes.

Q. -- Miss Kauka said –-

A. Yes.

Q. -- things to you?

A. Yes, and that's why I put it in that order.

Q. Okay. And before the December 21st, 2020 event it

would be the September 21st, 2019 event?

A. Yes.

Q. So that would be the succession of times –-

A. Yes.

Q. -- that you heard Miss Kauka screaming at you or

carrying on improperly?

A. In recent times, yeah.

The Justos' Exhibits 1 through 4 were admitted into

evidence after Kauka's counsel stated: "I'm happy with their

entry into evidence. . . . If they're gonna move it in I'd be

okay." The District Court then took a recess to view and listen

to Exhibits 1 through 4, which were on a "jump drive." 

After Jamie testified, Michael testified in part as

follows: He leaves in the morning at 4:30 a.m. "[J]ust out of

the blue [Kauka] say[s] things[.]" She says things "[l]ike, you

know, 'Niggers.' She always says that. Just, 'Niggers.'" One

time, Kauka "came driving up the driveway with a bathing suit on

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her bike" and "knock[ed] on the window saying, . . . 'You guys

home?'" Michael is scared for his family due to Kauka's actions

and "this unnecessary yelling at us[.]" 

In her testimony, Kauka stated that she has had

essentially no contact with the Justos "[f]or years." Regarding

the video recordings, Kauka testified as follows:

[KAUKA'S COUNSEL] And in those videotapes were you

aiming your language in any way, shape or form towards the

Justos?

[KAUKA] Part of the conversation's between [Costa]

and I.

Q. Who's [Costa]?

A. My son. And he's deteriorating and it's been

very hard.

. . . .

Q. And the conversations that you heard on the tape

is that conversations between you and [Costa]?

A. Yes.

Q. Any of those conversations directed at the

Justos?

A. Never.

Kauka further testified:

Q. Mrs. Justo said that you were gagging when you

drove by your house. Do you remember that?

A. I -- I do gag. I have heart problems. I do gag. 

It doesn't make -- mean that it was directly directed at

them. . . .

Following closing arguments, the District Court ruled:

I am gonna find that the plaintiffs have met their

burden. I'm gonna find that they have done so by clear and

convincing evidence. That the allegations underlying the

request for an order for protection are true.

So even if . . . I buy [Kauka's counsel's] argument

that, you know, Miss Kauka was doing this all in the

sanctity of her own home –-

. . . .

. . . -- I have [a] very hard time to believe those

things and this is the reason why. Right?

I mean you're saying that they are private

conversations with your child who is deteriorating mentally. 

Right? So first thing in my mind is why would you yell --

and -- and I only hear your voice. Right? I don't hear a

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male party speaking at all.

So that's . . . the first thing I'm looking at. 

Right? . . . I don't think it's conversations with your

child. . . .

So even if I then take [Kauka's counsel's] argument,

"Well, Judge, you know, it wasn't directed at the

neighbors," the last clip Exhibit 4 I have [a] hard time

because you -- you actually mention your neighbors. Right? 

And you say, you know, "They can suck my ass. Suck my

dick." Right?

So -- and I have to look -- like I said earlier I have

to look at it not in a vacuum. Right? Not only this one

piece, this one piece separately. I gotta look at all of

it.

But what turned the table for the Court is Miss

Justo's testimony about the incidents that happened before

the video. I mean that's the reason why they ended up

getting a camera, right, because all these other incidents

happened.

. . . .

So I am gonna find that they have proven their

case. . . . And I'm gonna issue the order and it's gonna be

for three years.

And I do find that Miss Justo's testimony is credible. 

That even before the video clips there were multiple

incidences involving herself with her children and Miss

Kauka.

The Injunction was entered the same day.

II. Discussion

Under HRS § 604–10.5(a)(2) and (g) (2016 and Supp.

2022), the district court "shall" grant an injunction prohibiting

the respondent from harassing the petitioner if "the court finds

by clear and convincing evidence that" the respondent engaged in

an "intentional or knowing course of conduct directed at [the

petitioner] that seriously alarm[ed] or disturb[ed] consistently

or continually bother[ed] the [petitioner] and serve[d] no

legitimate purpose; provided that such course of conduct would

cause a reasonable person to suffer emotional distress." See

Luat v. Cacho, 92 Hawai#i 330, 340–41, 991 P.2d 840, 850–51 (App.

1999). "[T]he type of harassment that the courts are mandated to

restrain or enjoin under paragraph (2) [of HRS § 604–10.5(a)]

involves an intentional or knowing pattern of conduct composed of

a series of acts over any period of time and evidencing a

continuity of purpose that is not legitimate, and is directed at,

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seriously alarms, disturbs consistently, or continually bothers

an individual and would cause a reasonable person to suffer

emotional distress. It is conduct that involves systematic and

continuous intimidation that stops short of assault or threats .

. . ." Id. at 342, 991 P.2d at 852.

Whether there was substantial evidence to support an

injunction against harassment is reviewed under the "clearly

erroneous standard." 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.

(brackets omitted) (quoting Booth v. Booth, 90 Hawai#i 413, 416,

978 P.2d 851, 854 (1999)).

In addition, HRS § 604-10.5(g) requires that the clear

and convincing standard of proof be applied in determining

whether conduct rises to the level of "harassment," as defined in

paragraph (a). On appeal, 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.

In re JK, 149 Hawai#i 400, 409-10, 491 P.3d 1179, 1188-89 (App.

2021) (quoting Conservatorship of O.B., 470 P.3d 41, 55 (Cal.

2020)).

A. Intentional or Knowing Course of Conduct

Kauka contends that there was no evidence to support

the conclusion that she made intentional or knowing statements

directed at the Justos. She argues that "the words heard on the

Jump Drive . . . were not 'directed' at [the Justos] and further

do not thereby amount to an 'intentional [or] knowing course of

conduct' as the words heard appear random and aimless." Kauka

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also asserts that she "did not know that [the Justos] were

listening" to her statements. 

After hearing testimony and argument from Kauka and the

Justos, the District Court rejected Kauka's characterization of

the evidence. Specifically, the District Court acknowledged

Kauka's claim that she "was doing this all in the sanctity of her

own home[,]" but then stated:

THE COURT: -- I have [a] very hard time to believe

those things and this is the reason why. Right?

I mean you're saying that they are private

conversations with your child who is deteriorating mentally. 

Right? So first thing in my mind is why would you yell --

and -- and I only hear your voice. Right? I don't hear a

male party speaking at all.

. . . I don't think it's conversations with your

child. . . .

So even if I then take [your counsel's] argument,

"Well, Judge, you know, it wasn't directed at the

neighbors," the last clip Exhibit 4 I have [a] hard time

because you -- you actually mention your neighbors. Right? 

And you say, you know, "They can suck my ass. Suck my

dick."

(Emphases added.) The District Court found that Kauka engaged in

multiple incidents of harassment. 

Based on our review of the record, we conclude that

this mixed conclusion of law and fact was supported by the

substantial, credible evidence presented at the hearing and was

therefore not clearly erroneous. We further conclude that based

on the evidence of Kauka's acts, statements, and the surrounding

circumstances, including Jamie's testimony on these subjects and

the Justos' Exhibits 1 through 4, there was substantial evidence

from which the District Court could reasonably have found it

highly probable that Kauka engaged in an intentional or knowing

course of conduct that was directed at the Justos as defined in

HRS § 604-10.5(a)(2). See State v. Calaycay, 145 Hawai#i 186,

200, 449 P.3d 1184, 1198 (2019) ("[T]he mind of an alleged

offender may be read from his acts, conduct, and inferences

fairly drawn from all of the circumstances." (quoting State v.

Kiese, 126 Hawai#i 494, 502-03, 273 P.3d 1180, 1188-89 (2012))). 

In disputing her intent, Kauka argues the weight of the evidence,

ignoring the District Court's express finding that Jamie's

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testimony was credible, and its implied finding that Kauka's

explanation for her conduct was not credible. 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. Substantial evidence supports the conclusion that

Kauka engaged in an intentional or knowing course of conduct that

was directed at the Justos, which constituted harassment as

defined in HRS § 604-10.5(a)(2). 

B. Right of Privacy

Kauka contends that she has "a right of privacy in the

confines of her own home, with the right to say whatever she

wishes." She argues that "[t]here was no testimony that [her]

words were shouted or that [the Justos] heard [Kauka] directly

and independently of the Jump Drive." She also argues that the

Circuit Court "erred as a matter of law in considering the Jump

Drive as evidence of a continued course of harassment."

During the July 2, 2021 hearing, however, Kauka's

counsel acknowledged in closing argument: "[T]he house is 

apparently close together, and what it appears . . . from the

video or the audio/video evidence is [Miss] Kauka is indeed

yelling and screaming but it's inside her house . . . ." 

(Emphasis added.) Additionally, during her testimony at the

hearing, Jamie confirmed that she heard Kauka's utterances, as

summarized in the Justos' exhibit list:

[KAUKA'S COUNSEL] So that would be the accurate

succession of times that –-

[JAMIE] Yes.

Q. -- Miss Kauka said –-

A. Yes.

Q. -- things to you?

A. Yes, and that's why I put it in that order.

. . . .

Q. So that would be the succession of times –-

A. Yes.

Q. -- that you heard Miss Kauka screaming at you or

carrying on improperly?

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A. In recent times, yeah.

(Emphases added.) Based on Jamie's testimony, the Circuit Court

could reasonably have concluded that during the identified

incidents, Kauka was yelling or talking loud enough at the Justos

for Jamie to hear her, and that Jamie did hear her. 

A person cannot reasonably have a privacy interest in

that which is knowingly exposed to the public, such as yelling or

screaming that can be heard outside of the person's home. See

State v. Texeira, 62 Haw. 44, 49, 609 P.2d 131, 135 (1980),

overruled on other grounds by State v. Chang, 144 Hawai#i 535,

553, 445 P.3d 116, 134 (2019); State v. Augafa, 92 Hawai#i 454,

465, 992 P.2d 723, 734 (App. 1999); see also Moysa v. Davies, No.

28753, 2009 WL 1178659, at *2 (Haw. App. May 4, 2009) (SDO)

(concluding that special condition in injunction against

harassment that restricted sound that could be heard outside of

the respondents' home did not interfere with their right to

privacy), vacated on other grounds, 2009 WL 3166784, at *2 (Haw.

Oct. 2, 2009) (SDO). Here, substantial evidence supports the

conclusion that Kauka's acts and statements constituted

harassment directed at the Justos. Neither Kauka's right to

privacy nor to freedom of speech insulates her from liability for

harassment in these circumstances. See Moysa, 2009 WL 1178659,

at *2 ("Courts may properly restrict statements made with the

intent to harass." (citing Brekke v. Wills, 125 Cal. App. 4th

1400, 1409 (Cal. Ct. App. 2005), and Thorne v. Bailey, 846 F.2d

241, 243 (4th Cir. 1988))). 

We also reject Kauka's contention that the Circuit

Court erred in considering the video recordings of Kauka's

actions and statements as evidence of a continued course of

harassment. During the July 2, 2021 hearing, Kauka's counsel

expressly agreed to the admission of the Justos' Exhibits 1

through 4 into evidence, and did not object when the Circuit

Court took a recess to view and listen to them. Kauka thus

waived any objections to the admission of the recordings into

evidence, and to their consideration by the Circuit Court as

evidence of a continued course of conduct by Kauka directed at

the Justos. See State v. Gonzalez, 128 Hawai#i 314, 317, 288

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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).

III. Conclusion

For the reasons discussed above, the Order Granting

Petition for Injunction Against Harassment, entered on July 2,

2021, in the District Court of the Third Circuit, North and South

Hilo Division, is affirmed.

DATED: Honolulu, Hawai#i, October 16, 2023.

On the briefs:

Ivan L. Van Leer

for Respondent-Appellant.

Michael G. Justo and

Jamie L.M. Justo,

Self-represented PetitionersAppellees.

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

/s/ Sonja M.P. McCullen

Associate Judge

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