CourtListener 10738339

Gesamter Gesetzestext

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-NOV-2025
08:46 AM
Dkt. 44 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

MARCUS L. KAWATACHI, in his official capacity as
Executive Director of the Hawaii Civil Rights Commission,
ex relatione, ROBERT A. FAHN and BRENDA A. FAHN,
Plaintiff–Appellant,
v.
THE PARRISH COLLECTION, LLC; THE PARRISH COLLECTION KAUAI;
LINDA EVANS, as Trustee of the LAURA P. EVANS REVOCABLE TRUST
DATED May 8, 2022; JONATHAN D. PARRISH; and SIMONE McCAFFREY,
Defendants–Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CASE NO. 5CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Nakasone, Chief Judge, Leonard and McCullen, JJ.)

Plaintiff-Appellant Marcus L. Kawatachi, in his

official capacity as Executive Director of the Hawai‘i Civil

Rights Commission (Commission), ex relatione Robert A. Fahn

(Robert) and Brenda A. Fahn (Brenda) (together, Fahns), appeal

from the Circuit Court of the Fifth Circuit's 1 October 30, 2023

1 The Honorable Randal G.B. Valenciano presided.
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order granting Defendants-Appellees The Parrish Collection, LLC;

The Parrish Collection Kauai; Linda Evans, as Trustee of the

Laura P. Evans Revocable Trust Dated May 8, 2002; Jonathan D.

Parrish; and Simone McCaffrey's (collectively, Parrish) motion

for summary judgment (Summary Judgment Order) and February 7,

2024 "Final Judgment in Favor of [Parrish] as to Counts I and II

of the Amended Complaint Filed July 27, 2023" (Final Judgment). 2

(Formatting altered.)

On appeal, the Commission appears to challenge the

granting of summary judgment on Count 1 of its Amended Complaint

alleging failure to provide reasonable accommodations. 3

2 Parrish's motion was fashioned as a Hawai‘i Rules of Civil Procedure
(HRCP) Rule 12(b)(6) motion to dismiss, or in the alternative, a motion for
summary judgment.

Because the circuit court expressly considered the declarations and
exhibits filed by the parties, we treat the motion as a motion for summary
judgment. HRCP Rule 12(b) ("If, on a motion asserting the defense numbered
(6) to dismiss for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56.").

3 The Commission raises five points of error on appeal, all challenging
the circuit court's statements related to Count 1 of its Amended Complaint:

1. "The Circuit Court erred in Finding that, as alleged, Complainant
Robert Fahn did not have a 'Disability' as Defined Under [Hawai‘i
Revised Statutes (HRS)] Chapter 515." (Some formatting altered.)

2. "The Circuit Court erred in Finding that [Parrish's] Offer to
Conduct the Weekly House Cleanings While Complainants Were Away from
the Subject Property was a 'Reasonable Accommodation' as Required by
HRS Chapter 515." (Some formatting altered.)

(continued . . .)

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Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below and vacate and remand.

The following background is based on the evidence

attached to the motion for summary judgment and the memorandum

in opposition.

In 2006, Robert was diagnosed with heart disease. In

August 2020, Robert and Brenda decided to move from Colorado to

Kaua‘i with their three kids and three dogs because Kaua‘i had so

few COVID-19 cases.

(. . . continued)

3. "The Circuit Court erred in Finding that [the Fahns'] Accommodation
Request to Waive the Weekly House Cleaning Lease Term was not
'Necessary' as Required by HRS Chapter 515." (Some formatting
altered.)

4. "The Circuit Court erred in Finding that HRS Chapter 515 does not
Create Stand-Alone Liability for a Housing Provider's Failure to
Engage in the 'Interactive Process.'" (Some formatting altered.)

5. "The Circuit Court Erred in Finding that [Parrish] Engaged in the
'Interactive Process' as Required by HRS Chapter 515." (Some
formatting altered.)

Although the circuit court made statements during the hearing, it
correctly made no factual findings in its Summary Judgment Order. See
McKellar v. Outfitters Kauai, Ltd., 156 Hawai‘i 381, 575 P.3d 38, No. CAAP-23-
0000102, 2025 WL 2605385, at *3 (App. Sep. 9, 2025) (SDO) ("We emphasize that
a circuit court deciding a motion for summary judgment does not make findings
of fact. If the facts are controverted, summary judgment should be
denied."); State v. Milne, 149 Hawai‘i 329, 335, 489 P.3d 433, 439 (2021)
("[A] trial court's written order controls over its oral statements."
(footnote omitted)).
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On August 22, 2020, the Fahns and Parrish executed a

rental agreement. The rental agreement included Special Term #4

regarding weekly cleaning of the unit (Cleaning Clause):

"Cleaning to be scheduled every week and
completed by the Parrish Collection Housekeeping
staff and paid for by the tenant. This will be
done hourly at $40.00 per hour and the number of
hours dependent on property condition."

On or about September 16, the Fahns moved into the

rental house.

On September 30, Brenda stated she did "not want

cleaning service if the cleaners are also entering residences of

individuals who have only taken the Covid negative test."

Although not expressly requesting a reasonable accommodation

based on Robert's heart disease, she stated that Robert "has a

5-6% mortality rate and almost 20% hospital rate (because of his

age and conditions)." Brenda ended with, "I hope you understand

wanting to delay housekeeping."

On November 16, Parrish informed the Fahns that they

failed to comply with the Cleaning Clause, and that they "cannot

be selective in allowing [Parrish] access to make repairs but

not allow access for the required cleaning."

On November 23, a Colorado doctor sent Parrish a

letter stating, "I am aware of the nature and extent of

Mr. Fahn's disability and I understand the reason for his

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request for a reasonable accommodation." The Colorado doctor

concluded "Mr. Fahn meets the definition of 'handicapped' under

the Fair Housing Act and that such a reasonable accommodation

may be necessary to afford Mr. Fahn the equal opportunity to use

and enjoy the dwelling unit in which he resides."

On November 24, Robert sent Parrish a letter stating,

"[a]s a person with a disability, I am hereby requesting a

reasonable accommodation" under the Fair Housing Act, 42 U.S.C.

§ 3604 (1988). Robert specifically requested the "[s]uspension

of cleaning personnel from entering the property." He further

stated, "I need this accommodation because I am at increased

risk of contracting COVID-19 due to my physical disability, as

defined by federal regulations (24 CFR § 100.201)."

On November 25, a California attorney (not licensed in

Hawai‘i) sent Parrish a "CEASE AND DESIST DEMAND RE THREATS TO

INTERFERE WITH HOUSING" and stated she was "representing the

legal interests of Robert and Brenda Fahn with respect to the

issues discussed herein while we are in the process of retaining

local counsel to assist in resolving the matter." The

California attorney asserted the Cleaning Clause was

unenforceable and a violation of the Fair Housing Act. The

California attorney also asserted Parrish breached the lease

agreement and committed fraud. The California attorney

demanded, among other things, that Parrish: (1) "[d]rop [its]

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insistence on weekly cleaning of the Rental House by [its]

cleaners"; (2) reduce rent by fifty percent for September,

October, and November; (3) pay reasonable attorney's fees

"currently approximated at $5,000.00"; and (4) pay $10,000.00 in

general damages.

That same day, Parrish rejected the demands and

asserted "[t]he request to simply not enforce [the Cleaning

Clause] is not reasonable and is rejected." Parrish suggested

the Fahns "could simply not be present in the house during the

weekly cleaning." Parrish asserted it "follows strict industry

protocols for its cleaning crew"; "[a]ll employees are screened

daily, their temperatures are taken, wear full personal

protective equipment (including masks and gloves) and during any

service use of CDC approved cleaning products." Parrish stated,

"this is not a negotiation. Your clients have a binding Lease.

They will comply with the terms of that Lease or it will be

terminated."

On November 30, Parrish filed a complaint for summary

possession.

On December 31, the Fahns notified Parrish that they

vacated the rental house. Parrish retained $5,471.44 of the

$6,000.00 security deposit to clean, replace, and repair the

rental house and items in the rental house.

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On July 27, 2023, the Commission filed its Amended

Complaint asserting: 4

Count 1: "Refusal to Make a Reasonable Accommodation,

Failure to Engage in the [Interactive]

Process"

(Formatting altered.) Parrish moved for summary judgment, which

was granted. The Commission appealed.

We review the granting or denying of a motion for

summary judgment de novo. Hilo Bay Marina, LLC. v. State, 156

Hawai‘i 478, 486, 575 P.3d 568, 576 (2025).

The party moving for summary judgment has the burden

"to show the absence of any genuine issue as to all material

facts, which, under applicable principles of substantive law,

entitles the moving party to judgment as a matter of law."

Umberger v. Dep't of Land & Nat. Res., 140 Hawai‘i 500, 528, 403

P.3d 277, 305 (2017) (citation omitted).

A defendant movant "may satisfy [its] initial burden

of production by either (1) presenting evidence negating an

element of the non-movant's claim, or (2) demonstrating that the

[non-movant] will be unable to carry [its] burden of proof at

4 The Commission also asserted a second count, claiming the
termination of the rental agreement violated HRS § 515-3(1) (2018) and Hawai‘i
Administrative Rules (HAR) § 12-46-305(1). The Commission, however, does not
appear to challenge the granting of summary judgment as to Count 2 in its
points of error on appeal. And the Commission's opening brief makes no
reference to HRS § 515-3(1) or HAR § 12-46-305(1). Thus, we do not address
the dismissal of Count 2.
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trial." Ralston v. Yim, 129 Hawai‘i 46, 60, 292 P.3d 1276, 1290

(2013). "Where the movant attempts to meet [its] burden through

the latter means, [it] must show not only that the non-movant

has not placed proof in the record, but also that the movant

will be unable to offer proof at trial." Id. at 60-61, 292 P.3d

at 1290-91 (citation modified).

"Only when the moving party satisfies its initial

burden of production does the burden shift to the nonmoving

party to respond to the motion for summary judgment and

demonstrate specific facts, as opposed to general allegations,

that present a genuine issue worthy of trial." Id. at 56-57,

292 P.3d at 1286-87 (citation omitted).

In Count 1, the Commission alleged Parrish refused to

make a reasonable accommodation, in violation of Hawai‘i Revised

Statutes (HRS) § 515-3(9) (2018). 5

HRS § 515-3(9) addresses discrimination by owners or

persons engaging in real estate transactions:

§ 515-3 Discriminatory practices. (a) It is a
discriminatory practice for an owner or any other person
engaging in a real estate transaction, or for a real estate
broker or salesperson, because of race, sex, including
gender identity or expression, sexual orientation, color,
religion, marital status, familial status, ancestry,
disability, age, or human immunodeficiency virus infection:

. . . .

5 The Commission also asserted in Count 1 that Parrish failed to engage
in the "interactive process" under Hawai‘i Administrative Rules § 12-46-
306(a)(3). The Commission makes similar arguments on appeal. In light of
our decision to remand this case on Count 1, we need not reach this argument.

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(9) To refuse to make reasonable accommodations in
rules, policies, practices, or services, when the
accommodations may be necessary to afford a person with a
disability equal opportunity to use and enjoy a housing
accommodation; provided that if reasonable accommodations
include the use of an animal, reasonable restrictions may
be imposed[.]

HRS § 515-3(9) (some formatting altered, emphases added).

Disability is defined as "having a physical or mental

impairment which substantially limits one or more major life

activities, having a record of such an impairment, or being

regarded as having such an impairment. . . ." HRS § 515-2

(2018). HRS Chapter 515 "shall be construed according to the

fair import of its terms and shall be liberally construed." HRS

§ 515-1 (2018).

In other words, to establish a violation under HRS

§ 515-3(9), the Commission would need to prove: (1) Parrish was

an owner, other person engaging in a real estate transaction, or

real estate broker or salesperson who; (2) based on disability;

(3) refused to make (4) reasonable accommodations; (5) in rules,

policies, practices, or services; (6) when the accommodations

were necessary to afford equal opportunity to use and enjoy the

housing unit.

Thus, to prevail on its motion for summary judgment,

Parrish needed to present evidence negating, or evidence showing

the Commission could not prove, one of the HRS § 515-3(9)

elements. In its motion for summary judgment, Parrish made

arguments as to three of the six elements. Parrish argued:
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• The Commission did not establish Robert suffered

from a disability;

• The Commission failed to explain why the desired

accommodation was necessary to afford the Fahns an

"equal opportunity to use and enjoy" the rental; and

• The Fahns' desired accommodation was unreasonable.

Parrish attached various documents to the motion for summary

judgment including email threads, the rental agreement,

correspondence related to the alleged breach, the Colorado

doctor's letter, the California attorney's letter, termination

of the lease, the summary possession complaint, and the security

deposit statement.

None of these documents negated the disability element

or showed the Commission could not prove Robert had a

disability, so as to entitle Parrish to judgment as a matter of

law. None of these documents negated the "equal opportunity to

use and enjoy" element or showed the Commission could not prove

this element, so as to entitle Parrish to judgment as a matter

of law. And none of these documents negated the reasonableness

element or showed the Commission could not prove reasonableness,

so as to entitle Parrish to judgment as a matter of law.

Because Parrish failed to meet its initial burden on summary

judgment, the burden did not shift to the Commission.

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Thus, the circuit court erred in granting summary

judgment.

Based on the foregoing, we vacate the circuit court's

October 30, 2023 Summary Judgment Order and February 7, 2024

Final Judgment as related to Count 1, and we remand for further

proceedings consistent with this summary disposition order.

DATED: Honolulu, Hawaiʻi, November 18, 2025.

On the briefs: /s/ Karen T. Nakasone
Chief Judge
Eric Pililaau,
Joey Badua, /s/ Katherine G. Leonard
Catherine M. Lowenberg, Associate Judge
April L. Wilson-South,
for Plaintiff-Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Mark G. Valencia,
Kenneth V. Go,
(Case Lombardi)
for Defendants-Appellees.