Aiona v. County of Hawai'i

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-FEB-2025
08:11 AM
Dkt. 87 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

CHANG Y. AIONA, V, Plaintiff-Appellant,
v.
COUNTY OF HAWAI‘I; JOHN A. MEDEIROS, individually
and official capacity, Defendants-Appellees,
and
DOE PERSONS 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; ROE "NONPROFIT" CORPORATIONS 1-10;
and ROE GOVERNMENTAL ENTITIES 1-10, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CC16100342K)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)

This appeal arises out of a grant of summary judgment
on Plaintiff-Appellant Chang Y. Aiona, V's (Aiona) defamation
claims in favor of Aiona's former employer Defendants-
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Appellees County of Hawai‘i (County) and John A. Medeiros

(Medeiros) (collectively, Appellees). Aiona's defamation claims
arose out of his employment with the County's Department of
Environment Management (DEM), during which he was investigated
by Medeiros, who was the Deputy Director of DEM, for the alleged
theft of HI-5 recycling containers and other recyclable material
from County recycling stations. We affirm.
Aiona appeals from the (1) May 25, 2021 "Findings of
Fact [(FOFs)], Conclusions of Law [(COLs)] and Order Granting
County Defendants' Motion for Summary Judgment, Filed January
25, 2021" (Order Granting MSJ); and (2) July 7, 2021 "Final
Judgment," both filed and entered by the Circuit Court of the
Third Circuit (Circuit Court). 1
On appeal, Aiona's points of error (POEs) 2 (B)(1)
through (B)(8) challenge various COLs the Circuit Court made in
its Order Granting MSJ 3 on grounds that the COLs "misstated" or
"misapplied" "the law of defamation." Aiona challenges the COLs
for two categories of alleged defamation on appeal:
(1) allegedly defamatory statements Medeiros made to DEM Human
Resources Technician Brandyann Kerr (Medeiros's statements to
Kerr), and (2) alleged publication of defamatory statements by

1 The Honorable Wendy M. DeWeese presided.
2 Aiona's POEs labeled (A)(1) through (A)(4) challenge various
FOFs, but the Opening Brief contains no specific argument how these FOFs are
clearly erroneous. These challenges are waived. See Ass'n of Apartment
Owners of Wailea Elua v. Wailea Resort Co., Ltd., 100 Hawai‘i 97, 110, 58 P.3d
608, 621 (2002) ("Where an appellant raises a point of error but fails to
present any accompanying argument, the point is deemed waived." (citation
omitted)); Hawaiʻi Rules of Appellate Procedure (HRAP) Rule 28(b)(7) ("Points
not argued may be deemed waived.").
3 The pertinent COLs are quoted infra.

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County employees to the community (publication by County
employees). 4
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve Aiona's
contentions as follows.
On October 21, 2016, Aiona filed a Complaint against
Appellees for defamation per se and per quod, and derivative
claims of false light and intentional infliction of emotional
distress.
On January 25, 2021, Appellees filed a Motion for
Summary Judgment (MSJ), arguing, inter alia, that the statements
did not meet the first element of an actionable defamation claim
because the "statements were not defamatory," as they "were
true," and were "constitutionally protected opinion and
rhetorical hyperbole." Appellees also argued that there was no
evidence that either the County or Medeiros was responsible for
any publication by County employees.
Aiona opposed, arguing, inter alia, that statements
made by the Appellees were not "true" and were not "rhetorical
hyperbole"; that a jury should make the determination "if a
statement can be interpreted as having both an innocent and a
defamatory meaning"; and that the court was required to apply
the applicable defamation caselaw for non-media or non-public
figures.
At the March 19, 2021 MSJ hearing, the Circuit Court
orally granted the MSJ on the defamation claims because the

4 While FOF 22 in the Order Granting MSJ set forth five categories
of "alleged defamatory communications forming the subject matter of this
action," the Opening Brief presents discernible argument for only two
categories, to which we confine our review. See HRAP Rule 28(b)(7).

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statements were "not false or defamatory" and did not establish
the first element required for defamation. 5
On May 25, 2021, the Circuit Court filed its Order
Granting MSJ, containing the COLs pertinent to this appeal.
Aiona challenges COLs 18-27 6 relating to Medeiros's alleged
defamatory statements to Kerr, and COLs 28-32, 7 relating to the
alleged publication by County employees:

Protected Opinions and Rhetorical Hyperbole

18. The United States Supreme Court has "'recognized
constitutional limits on the type of speech which may be
subject to state defamation claims.'" Gold, 88 Hawaiʻi at
101, 962 P.2d at 360[.]
19. Although state law primarily governs defamation,
the First Amendment's safeguards for freedom of speech
limit state law. New York Times v. Sullivan, 376 U.S. 254,
264 (1964). New York Times v. Sullivan, 376 U.S. 254, 264
(1964).

20. While opinions and rhetorical hyperbole are
protected by the First Amendment, a statement that implies
"a false assertion of fact" is actionable. Milkovich v.
Lorain Journal Co., 497 U.S. 1, 19 (1990); see also
Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995).
21. First Amendment protection for opinions extends
to non-media defendants. Williams v. Kanemaru, No.
CAAP-XX-XXXXXXX, 130 Hawaiʻi 304, 309 P.3d 972, 2013 WL
4458887, *2 (Haw. Ct. App. Aug. 20, 2013); see, e.g.,

5 A plaintiff must establish the following four elements in order
to sustain a defamation claim: (1) "a false and defamatory statement
concerning another"; (2) "an unprivileged publication to a third party";
(3) "fault amounting at least to negligence on the part of the publisher
[and] actual malice where the plaintiff is a public figure"; and (4) "either
actionability of the statement irrespective of special harm or the existence
of special harm caused by the publication." Gold v. Harrison, 88 Hawai‘i 94,
100, 962 P.2d 353, 359 (1998) (brackets and citation omitted).
6 COL 27 ruled on six alleged defamatory statements to Kerr set
forth in COL 27(a) through (f), but Aiona presents argument only as to four
statements to Kerr -- 27(a), (b), (d), and (e) -- to which we confine our
review.
7 Aiona presents no argument in his challenge to COLs 28 and 29,
which are statements of the law pertaining to publication. This challenge is
waived. See HRAP Rule 28(b)(7). COL 32 relates to a category of statements
that we do not address.

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Farrow v. OʼConnor, Red, Gollihue & Sklarin, 51 A.D.3d 626,
627 (N.Y. App. Div. 2008); Robertson v. Sw. Bell Yellow
Pages, Inc., 190 S.W.3d 899 (Tex. App. 2006).

22. "Pure opinions are those that do not imply facts
capable of being proved true or false." Partington, 56 F.3d
at 1153 n.10 (internal quotation marks and citation
omitted); see also Wilson, 121 Hawaiʻi at 129, 214 P.3d at
1119.
23. "A simple expression of opinion based on
disclosed ... non-defamatory facts is not itself sufficient
for an action of defamation, no matter how unjustified and
unreasonable the opinion may be or how derogatory it is.'"
[sic] Williams, 2013 WL 4458887 at *2 (quoting Restatement
§ 566 cmt. c). "The rationale behind this rule is that when
the facts are disclosed, third parties, will understand
that they are hearing the defendant's 'interpretation of
the facts presented; they are therefore unlikely to
construe the statement as insinuating the existence of
additional, undisclosed facts.'" Williams, 2013 WL 4458887
at *2 (quoting Standing Comm. on Discipline of the U.S.
Dist. Court for the Cent. Dist. of Cal. v. Yagman, 55 F.3d
1430, 1439 (9th Cir. 1995)).

24. Rhetorical hyperbole is "figurative or hyperbolic
language that would negate the impression that a person was
asserting an objective fact." Gold, 88 Hawaiʻi at 101, 962
P.2d at 360. Courts define "rhetorical hyperbole" as lusty
and imaginative expressions of contempt. Old Dominion
Branch No. 496, Nat'l Ass'n of Letter Carriers, AFL-CIO v.
Austin, 218 U.S. 264, 286 (1974); San Antonio Cmty. Hosp.
v. S. Cal. Dist. Council of Carpenters, 137 F.3d 1090, 1091
(9th Cir. 1998).
25. "In reviewing a defamation claim, a court must
ask as a threshold matter whether a reasonable factfinder
could conclude that the contested statement implies an
assertion of objective fact." Partington, 56 F.3d at 1153
(internal quotation marks and brackets and citation
omitted); Wilson, 121 Hawaiʻi at 128, 214 P.3d at 1118
(quotation marks and citation omitted). "If the answer is
no, the claim is foreclosed by the First Amendment."
Partington, 56 F.3d at 1153.

26. The following test is applied to determine
whether a statement is false and defamatory under the First
Amendment to the United States Constitution and article I,
section 4 of the Hawaiʻi Constitution [(Gold test)]:
(1) whether the general tenor of the entire work
negates the impression that the defendant was
asserting an objective fact; (2) whether the
defendant used figurative or hyperbolic language that
negates that impression; and (3) whether the

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statement in question is susceptible of being proved
true or false.

Gold, 88 Hawaiʻi at 101, 962 P.2d at 360 (italics in
original; citation and brackets omitted).

27. Under the Gold test, the following statements are
not false and defamatory as a matter of law because their
general tenor negates the impression the speaker was
asserting an objective fact; instead, they are rhetorical
hyperbole or opinion, not susceptible of being proved true
or false, and incapable of the defamatory meaning [Aiona]
ascribes to them and, therefore, they are not actionable,
see Underwager v. Channel 9 Australia, 69 F.3d 361, 366-67
(9th Cir. 1995); Partington, 56 F.3d at 1160; Gold,
88 Hawaiʻi at 101, 962 P.2d at 360:

a. Mr. Medeiros' statement to Ms. Kerr that [Aiona]
"was like the 'modern day mafia'", FOF No. 22.f, supra;

b. Mr. Medeiros' statement to Ms. Kerr that [Aiona]
"bullied other senior Equipment Operators to say 'no' to
call backs so [Aiona] can get all of the overtime," FOF
No. 22.e, supra;

. . . .

d. Mr. Medeiros' statement to Ms. Kerr "that although
the investigation didn't have substantial evidence against
[Aiona], Mr. Medeiros believes it to be because [Aiona]
'bullied' the other employees into not talking," FOF
No. 22.b, supra;

e. Mr. Medeiros' statement to Ms. Kerr that "he did
not want [Aiona] to get the WS-10 position," FOF No. 22.d,
supra; and

. . . .

No Publication

. . . .

30. None of the statements set forth in FOF No. 22,
supra, were subject to an unprivileged publication to a
third-party.

31. [Aiona]'s claim County employees' publication to
the community at large that [Aiona]'s "job was at jeopardy
as he was accused of stealing HI-5 recyclables," and that
"he might get terminated from his position," FOF No. 22.i,
supra, fails as a matter of law because there is no
evidence Mr. Medeiros or any other County employee was
responsible for the spread of rumors to the public at
large. The lack of admissible evidence about the source of

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the rumor precludes [Aiona]'s defamation claim against
County Defendants based on that alleged statement. See
Illaraza v. Hovensa LLC, 73 F.Supp.3d 588, 606 (D.V.I.
2014). Thus, [Aiona]'s conjecture that County employees
could be the only source is too speculative to defeat
summary judgment, see Andrews v. Hansford Manufacturing
Corp., Index No. 4641/00, 2002 WL 193139, *5 (N.Y. App.
Div. Jan. 22, 2002), and insufficient to establish a
defamation claim against County Defendants. See Szot v.
Allstate Ins. Co., 161 F.Supp.2d 596, 608-09 (D. Md. 2001).

(Brackets omitted.)
On July 7, 2021, the Circuit Court entered Final
Judgment. Aiona timely appealed.
"This court reviews a circuit court's grant or denial
of summary judgment de novo." Bhakta v. Cnty. of Maui,
109 Hawai‘i 198, 207, 124 P.3d 943, 952 (2005) (citation

omitted). "This court reviews the trial court's COLs de novo."
Id. at 208, 124 P.3d at 953 (citation omitted). Summary
judgment may be "properly granted if the court found that the
communication was incapable of bearing the defamatory meaning
ascribed to it by the appellant as a matter of law." Fernandes
v. Tenbruggencate, 65 Haw. 226, 228, 649 P.2d 1144, 1147 (1982).
Medeiros's statements to Kerr were non-actionable
opinions as a matter of law.
Aiona specifically challenges the following allegedly
defamatory statements Medeiros made to Kerr: (1) that Medeiros
"did not want . . . Aiona to get that job" (referring to a
promotion); (2) that Aiona "was like the 'modern day mafia'";
and (3) that Aiona was "bullying other co-workers." (Bolding
omitted.) Aiona argues that Medeiros's statements to Kerr "were
not 'rhetorical hyperbole'"; that this conclusion was
"inherently flawed because [it was] premised" on the three-part
Gold test for determining whether a statement in a defamation
case is false and defamatory; and that the Gold test is only
"applicable to public figures and media defendants." Aiona

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maintains that the Circuit Court erred in COLs 18 through 27 by
applying "the wrong standard of law of defamation by extending
the First Amendment principles applicable to public figures and
media defendants to defamatory statements about a private
person."
The Circuit Court set forth the three-part Gold test
in COL 26, and applied it along with related First Amendment
case law in its other COLs. The Hawai‘i Supreme Court adopted
the Gold test, which derived from federal precedent that
designed the test to protect First Amendment concerns in
defamation suits involving either public figures, matters of
public concern, or media defendants. See Milkovich v. Lorain
Journal Co., 497 U.S. 1, 3 (1990) (involving a defamation suit
by a former high school wrestling coach against a newspaper and
reporter because of a newspaper article implying that the former
coach lied under oath at a judicial proceeding); Unelko Corp. v.
Rooney, 912 F.2d 1049, 1050 (9th Cir. 1990) (involving a
defamation suit by a car products manufacturer over statements
made by a television personality regarding one of its products
made on a televised broadcast of "60 Minutes"). The Milkovich
Court reaffirmed its prior ruling in Philadelphia Newspapers,
Inc. v. Hepps, 475 U.S. 767 (1986), that "a statement on matters
of public concern must be provable as false before there can be
liability under state defamation law, at least in situations,
like the present, where a media defendant is involved."
497 U.S. at 19-20 (emphasis added). It noted that "rhetorical
hyperbole" in public debate must be protected under the First
Amendment, and cannot form the basis for a defamation claim.
See id. at 20 (protecting "statements that cannot 'reasonably be
interpreted as stating actual facts' about an individual" so
that "public debate will not suffer for lack of 'imaginative

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expression' or the 'rhetorical hyperbole' which has
traditionally added much to the discourse of our Nation"
(citation and brackets omitted)).
Gold also involved a suit by private-figure plaintiffs
against a public-figure defendant (George Harrison of the
Beatles) and media defendants (the Honolulu Advertiser) over a
matter of public concern (Harrison's legal battle against
neighboring property owners regarding an easement over
Harrison's Maui property). 88 Hawaiʻi at 96, 962 P.2d at 355.
The Gold court concluded that Harrison's statements in a
newspaper article that he was "being raped by all these people"
and his "privacy [was] being violated[,]" were "not false and
defamatory, but rhetorical hyperbole –- figurative or hyperbolic
language that would negate the impression that Harrison was
asserting an objective fact about the Plaintiffs." Id. at 97,
101, 962 P.2d at 356, 360.
Here, because Aiona is a private figure suing a non-
media defendant over a matter that is apparently not a public
concern, Aiona's contention that the Gold test does not apply
appears correct. While the Circuit Court may have erred by
applying the Gold test to conclude that the statements were
protected "rhetorical hyperbole" in COLs 18-20 and 24, the
Circuit Court was nevertheless correct as to its ultimate
conclusion that Medeiros's statements to Kerr consisted of non-
actionable opinion under Williams v. Kanemaru, No. CAAP-11-
0000419, 2013 WL 4458887, at *2 (App. Aug. 20, 2013) (SDO), 8
which applied a defamation test from the Restatement of Torts
(Restatement defamation test). See Prudential Locations, LLC v.
Gagnon, 151 Hawaiʻi 136, 146, 509 P.3d 1099, 1109 (2022)

8 The Circuit Court cited Williams in COL 21.

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(affirming summary judgment on different grounds than the trial
court).
"Statements of opinions are not automatically immune
from defamation actions[.]" Williams, 2013 WL 4458887, at *2
(citation omitted). The Restatement defamation test
distinguishes between statements of opinion that imply
undisclosed defamatory facts (which are actionable), and
statements of opinion that are based on disclosed facts known to
the recipient (which are not actionable), as follows:

A defamatory communication may consist of a statement in
the form of an opinion, but a statement of this nature is
actionable only if it implies the allegation of undisclosed
defamatory facts as the basis for the opinion. Restatement
(Second) of Torts § 566 (1977). A simple expression of
opinion based on disclosed nondefamatory facts is not
itself sufficient for an action of defamation, no matter
how unjustified and unreasonable the opinion may be or how
derogatory it is. The rationale behind this rule is that
when the facts are disclosed, third parties will understand
that they are hearing the defendant's interpretation of the
facts presented; they are therefore unlikely to construe
the statement as insinuating the existence of additional,
undisclosed facts.

Id. (emphases added) (cleaned up).
Kerr's declaration related the statements at issue as
follows:

I was told by the Deputy Director of DEM . . . Medeiros
there was an investigation in regards to stealing
recyclables and that they suspected . . . Aiona to be the
leader of this operation. He then stated that although the
investigation didn't have substantial evidence against Mr.
Aiona, he believes it to be because [Aiona] "bullied" the
other employees into not talking. . . . I was told by
[Medeiros] also that [sic] when the WS10 position opened up
at Waimea, he stated that he did not want . . . Aiona to
get that job. Mr. Medeiros also stated that [Aiona] bullied
the other senior Equipment Operators to say "no" to call
backs so [Aiona] can get all of the overtime. When I asked
why he believed that, he stated that [Aiona] was like the
"modern day mafia" and whatever hold [Aiona] had on the
other guys is why they are afraid to confront [Aiona] or
speak up against him.

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In Kerr's deposition, Aiona's counsel inquired about the
circumstances under which Medeiros expressed his opinions that
Aiona had "bullied" other employees and that he (Medeiros) did
not want Aiona to get the job, as follows:

Q. [(BY AIONA'S COUNSEL)] Did [Medeiros] say
anything else about who [Aiona] bullied or how he was
bullying people?

A. [(BY KERR)] No. I can't remember that. The
only thing I do remember, when it came to that, was what I
got from it -- I should say it that way. What I got from
it was [Aiona] was a well-known person in that area, and
because of his stronger attitude, I guess, or whatever, and
the people that he knew, a lot of the times the impression
I got was he got his way because of that.

. . . .

Q. And [Medeiros] specifically told you he wanted
to make sure my client would not get the job?

A. He -- when we were speaking, I remembered that
statement. So what [Medeiros] had said, "Ah, it's going to
be -- it's going to be stressful" or "It's going to be" --
I can't remember the word. He gave me the impression that
he didn't want [Aiona] to get the job because it's going to
be [Aiona] ruling the Waimea baseyard. . . . He gave me the
impression that if . . . Aiona got the supervisory
position, he will then control the other employees in that
baseyard more so than he did then.

(Emphasis added.) When Kerr asked Medeiros why he had
those opinions, Medeiros responded that Aiona was "like the
'modern day mafia[,]'" as follows:

[(BY KERR)] And that's when I asked [Medeiros], "What
are you talking about?" And then that leads into the next
statement that I made, and that's the reason why I made it,
"he stated that [Aiona] was like the 'modern day mafia.'"

And so I was like, "Well, what do you mean by that?"
And then through our conversation, [Medeiros] just
explained to me that [Aiona] was a very popular guy, his
family name is a very big name here in Hawaii and that, you
know, sometimes you get what you want.

(Emphasis added.)

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Under the Restatement defamation test, Medeiros's
statements to Kerr were in the form of opinions that Aiona had
"bullied" or controlled other employees and was like "the modern
day mafia" based on the following facts that he disclosed to
Kerr: Aiona was well-known in the area, had a "stronger
attitude," knew a lot of people, was "very popular," and his
"family name [was] a very big name here in Hawaii." See
Williams, 2013 WL 4458887, at *2. Assuming arguendo Medeiros's
opinions were derogatory, the evidence reflects that they were
"based on disclosed nondefamatory facts," which do not
constitute actionable defamation under the Restatement
defamation test, as a matter of law. See id.; Fernandes,
65 Haw. at 228, 649 P.2d at 1147.
Accordingly, while the Circuit Court erred in its
analysis in COLs 18-22 and 24-27 to the extent it relied on
"rhetorical hyperbole" under the Gold test for media defendants,
it did not err in its citation to the Restatement defamation
test set forth in COL 23, and its ultimate conclusion that
Medeiros's statements to Kerr were non-actionable opinion. See
Prudential Locations, LLC, 151 Hawaiʻi at 146, 509 P.3d at 1109.
There was no admissible evidence of publication by
County employees.
Aiona contends that the County "allowed information to
be published to non-County employees, that [Aiona]'s job was in
jeopardy including being terminated." Aiona argues that
Appellees "had a legal duty not to leak any information" about
"the nature of the internal investigation, the criminal
investigation or . . . the consequences" of the alleged theft
investigation. Appellees argue that Aiona "submitted no
evidence reasonably inferring [Appellees] were responsible for

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spreading [the] false and defamatory information to unprivileged
parties."
The record reflects that Aiona would regularly meet a
social group at Burger King (Burger King group); and that during
one of the meet-ups, it was rumored that "Aiona's job was at
jeopardy as he was accused of stealing HI-5 recyclables," and
that "Aiona might get terminated from his position[.]" None of
the witnesses from the Burger King group, Michael Happy Hanohano
(Hanohano), Edwin Akana, Jr. (Akana), and Joseph Kealoha
(Kealoha), testified that the statement came from Medeiros or
any other County employee. Hanohano testified that he heard of
the theft allegations through Aiona. Akana testified that he
could not remember who made the statement. Kealoha testified
that Hanohano made the statement, but Hanohano was not then
employed by the County. Thus, the Circuit Court did not err in
concluding in COLs 30 and 31 that there was a "lack of
admissible evidence about the source of the rumor preclud[ing]
[Aiona]'s defamation claim." See Bhakta, 109 Hawai‘i at 208,

124 P.3d at 953.
In addition, Aiona wrongly argues that because
"Hanohano knew about the investigation, then the County failed
in its legal duty [not to disclose] under the doctrine of res
ipsa loquitur." A plaintiff asserting res ipsa loquitur must
establish that: (1) the occurrence "must be one which
ordinarily does not occur in the absence of someone's
negligence"; (2) the occurrence "must be caused by an agency or
instrumentality within the exclusive control of the defendant";
and (3) the occurrence "must not have been due to any voluntary
action or contribution on the part of the plaintiff." Carlos v.
MTL, Inc., 77 Hawai‘i 269, 277-78, 883 P.2d 691, 699-700 (App.
1994) (citation omitted). Here, the investigation of the HI-5

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theft included agencies outside of the County's control. Res
ipsa loquitur does not apply.
We conclude that the Circuit Court did not err in
granting the MSJ. See Bhakta, 109 Hawai‘i at 207, 124 P.3d at
952. Because we affirm the Circuit Court's Order Granting MSJ
rejecting the defamation claims, we need not address Aiona's
remaining arguments regarding qualified privilege and proof of
damages.
For the foregoing reasons, we affirm the (1) May 25,
2021 Order Granting MSJ; and (2) July 7, 2021 "Final Judgment,"
both filed and entered by the Circuit Court of the Third
Circuit.
DATED: Honolulu, Hawai‘i, February 27, 2024.
On the briefs:
/s/ Clyde J. Wadsworth
Ted H.S. Hong,
Presiding Judge
for Plaintiff-Appellant.
/s/ Karen T. Nakasone
Lerisa L. Heroldt,
Associate Judge
Deputy Corporation Counsel,
for Defendants-Appellees.
/s/ Sonja M.P. McCullen
Associate Judge

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