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Peter K. Teruya v. Priscilla D. Shaw; et al

August 10, 2012

PETER K. TERUYA,
PLAINTIFF,
v.
PRISCILLA D. SHAW; ET AL.,
DEFENDANTS. FRANK COLUCCIO CONSTRUCTION COMPANY,
THIRD-PARTY PLAINTIFF,
v.
RUBY TERUYA UEHARA AND MARION TOMIE YASUI,
THIRD-PARTY DEFENDANTS.
DIANE FUJIKAMI, WELA KALHOEFER, AND ALL ISLANDS, INC.,
A HAWAII CORPORATION DBA CENTURY 21 ALL ISLANDS, THIRD-PARTY PLAINTIFFS,
v.
RUBY UEHARA AND MARION T. YASUI, THIRD-PARTY DEFENDANTS.
DIANE FUJIKAMI, WELA KALHOEFER; AND ALL ISLANDS, INC., A HAWAII CORPORATION DBA CENTURY 21 ALL ISLANDS, THIRD-PARTY PLAINTIFFS,
v.
PATRICIA KIM PARK, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

) ORDER (1) DENYING WITHOUT ) PREJUDICE THIRD-PARTY ) DEFENDANT PATRICIA KIM ) PARK'S MOTION FOR JUDGMENT ) ON THE PLEADINGS; AND ) (2) DENYING WITHOUT ) PREJUDICE THIRD-PARTY DEFENDANTS RUBY UEHARA ) AND MARION YASUI'S MOTION ) FOR SUMMARY JUDGMENT, AS ) TO THIRD-PARTY PLAINTIFFS ) DBA CENTURY 21 ALL ) ISLANDS' THIRD-PARTY COMPLAINTS DIANE FUJIKAMI, WELA ) KALHOEFER; and ALL ISLANDS, ) INC.,

ORDER (1) DENYING WITHOUT PREJUDICE THIRD-PARTY DEFENDANT PATRICIA KIM PARK'S MOTION FOR JUDGMENT ON THE PLEADINGS; AND (2) DENYING WITHOUT PREJUDICE RUBY UEHARA AND MARION YASUI'S MOTION FOR SUMMARY JUDGMENT, BOTH AS TO THIRD-PARTY PLAINTIFFS DIANE FUJIKAMI, WELA KALHOEFER, AND ALL ISLANDS, INC., DBA CENTURY 21 ALL ISLANDS' THIRD-PARTY COMPLAINTS

I. INTRODUCTION

Before the court are two Motions challenging Third-Party Complaints filed by Defendants/Third-Party Plaintiffs Diane Fujikami ("Fujikami"), Wela Kalhoefer ("Kalhoefer") and All Islands, Inc., dba Century 21 All Islands ("Century 21") (collectively, "the Realtor Defendants") against Third-Party Defendant Patricia Kim Park ("Park"), and against Third-Party Defendants Ruby Uehara ("Uehara") and Marion Yasui ("Yasui"). First, Park has filed a Motion for Judgment on the Pleadings as to the Realtor Defendants' Third-Party Complaint filed against her on May 4, 2012. Doc. No. 201. Second, Uehara and Yasui have filed a Motion for Summary Judgment as to the Realtor Defendants' Third-Party Complaint filed against them on February 17, 2012. Doc. No. 208. Based on the following, the court DENIES both Motions without prejudice.

II. BACKGROUND

A. Factual Background*fn1

1. The Complaint

This action arises out of environmental pollution occurring on ten acres of agricultural land located on Hakimo Road in Waianae, Hawaii ("the property") owned by Plaintiff Peter K. Teruya ("Plaintiff"). Doc. No. 1, Compl. ¶ 18. Plaintiff acquired the property on October 19, 2004 from Defendants Frederick Jacobs ("Jacobs") and Linda Nichols ("Nichols"). Id. ¶¶ 23, 36. Plaintiff's suit concerns pollution and cleanup both before and after Plaintiff acquired the property (although it is not clear whether the alleged injury is confined to, or divisible between, those time periods). Beginning in 2008, the Environmental Protection Agency ("EPA") and the Hawaii Department of Health brought administrative clean-up actions against Plaintiff, and the EPA subsequently spent more than $650,000 in remediation costs. Id. ¶ 78. The EPA intends to recover those and other costs from Plaintiff. Id. ¶ 21. Since then, Plaintiff conducted his own additional cleaning of the property, and further remediation is needed. Id. ¶¶ 82-84. His suit seeks, among other relief, to recover costs and damages related to the clean-up.

Kalhoefer was a real estate agent affiliated with Century 21 who represented Plaintiff in connection with the purchase of the property. Id. ¶ 22. Fujikami, a real estate agent also affiliated with Century 21, represented the sellers Jacobs and Nichols in the transaction. Id. ¶ 23. The court refers to Jacobs, Nichols, Kalhoefer, Fujikami, and Century 21 collectively as "the Seller Defendants."

Three of the Complaint's sixteen Counts allege that the Seller Defendants were negligent, committed fraud, and committed negligent misrepresentation in connection with the October 2004 sales transaction or in clean-up efforts in November and December 2004. Id. ¶¶ 31-33, 155-161, 168-173, 174-176. The precise injury to Plaintiff related to those three Counts, however, is not clear from the Complaint. The present Motions primarily concern the factual allegations related to these three Counts against the Seller Defendants (and the Realtor Defendants in particular). Nevertheless, to place the present Motions in context, the court sets forth the basic allegations of the other Counts of the Complaint against other Defendants.

After acquiring the property, Plaintiff moved to Okinawa and has never occupied the property. Id. ¶ 36; Doc. No. 222-2 at 7, Pl.'s Depo. at 165. In May 2005, Plaintiff leased the property to Defendant Priscilla Shaw ("Shaw") with a farm lease restricted to agricultural uses ("the May 2005 farm lease"). Doc. No. 1, Compl. ¶¶ 37, 39. Shaw allegedly discovered solid waste, including car parts, scrap metal, and construction debris on the property. Id. ¶ 38. Shaw used the property for recycling, burning waste, and as a junkyard. Id. ¶ 40. She also sublet portions of the property in violation of the May 2005 farm lease to Defendants A&A Services ("A&A"); Walter Chung ("Chung"); Cy Taxi Leasing, dba Kapolei Auto Recycling ("Kapolei Auto"); Ivory Transport and Equipment Rentals, LLC ("Ivory Transport"); and Jerry Giordano, individually and dba Giordano's Painting (collectively "Giordano"). Id. ¶¶ 41-43. Thereafter, A&A, Chung, Kapolei Auto, Ivory Transport, and Giordano polluted the property, i.e., "caused the generation, release and/or discharge of solid and/or hazardous waste in and on the [p]roperty in violation of" the May 2005 farm lease. Id. ¶ 47. These Defendants also failed to remediate or remove waste from the property. Id. ¶ 48.

Sometime before June 12, 2008, Defendant Hawk Transport Services ("Hawk Transport") or Defendant Frank Collucio Construction Company ("Frank Collucio") subcontracted with Ivory Transport to transport waste from road work being done by Frank Collucio. Id. ¶ 49. On or before June 12, 2008, Ivory Transport, Hawk Transport, and/or Frank Collucio transported such waste to the property, in violation of the May 2005 farm lease. Id. ¶¶ 50, 51. The court refers to Jacobs, Nichols, Shaw, A&A, Chung, Kapolei Auto, Giordano, Ivory Transport, Hawk Transport, and Frank Collucio as "the Environmental Defendants."

Seven Counts of the Complaint seek relief against the Environmental Defendants under federal and state statutes -- the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and the Hawaii Environmental Response Law ("HERL"), Haw. Rev. Stat. ("HRS") § 128D-1 et seq. -- and four Counts seek recovery against the Environmental Defendants under state common law because of ...


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