CourtListener 10839942

Texte intégral

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-APR-2026
07:52 AM
Dkt. 108 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

RAYLANI F. LUPTON, Petitioner-Appellee, v.
KEITH D. KARDASH, Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DSS-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Guidry, JJ.)

Self-represented Respondent-Appellant Keith D. Kardash
(Kardash) appeals from the Amended Injunction Against Harassment
(Amended Injunction), entered on December 18, 2023, by the
District Court of the First Circuit, Honolulu Division (District
Court).1/ Following a bench trial, the District Court enjoined
Kardash from, among other things, contacting, threatening, or
harassing his neighbor, self-represented Petitioner-Appellee
Raylani F. Lupton (Lupton) for a period of three years.2/
On appeal, Kardash appears to contend that the District
Court erred in finding that he engaged in harassment against
Lupton pursuant to Hawaii Revised Statutes (HRS) § 604-10.5,

1/
The Honorable Chris A.K. Thomas presided.
2/
In a September 19, 2025 filing, Kardash asserts that Lupton sold
her residence and moved. He does not assert that his appeal is moot, instead
requesting "an expedited ruling in [his] favor with attorney fees and costs."
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

where: (1) Lupton and Kardash testified that they have not
communicated with each other in over five years; (2) Lupton's
trial Exhibits A through K did not support her allegations of
harassment; (3) the Honolulu Police Commission (HPC) allegedly
sustained Kardash's complaint against Honolulu Police Department
Officer Eric Hokama (Officer Hokama); (4) Kardash's floodlights
serve a legitimate purpose; and (5) the court mistakenly relied
on Moysa v. Davies, No. 28753, 2009 WL 1178659 (Haw. App. May 4,
2009) (SDO), vacated in part, 2009 WL 3166784, at *2 (Haw. Oct.
2, 2009) (SDO), in finding that Kardash harassed Lupton.3/
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
Kardash's contentions as follows and affirm.
(1), (2), and (4) Kardash appears to contend that he
could not have engaged in harassment under HRS § 604-10.5 because
he and Lupton have not communicated with each other in over five
years; various exhibits Lupton presented at trial did not support
her allegations of harassment;4/ and certain alleged conduct
served a legitimate purpose.
Under HRS § 604–10.5(a)(2) (2016), 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

3/
Kardash's opening brief fails to comply in numerous material
respects with Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b). In
particular, Kardash fails to provide: (1) a "concise statement of the points
of error set forth in separately numbered paragraphs[,]" as required by HRAP
Rule 28(b)(4); and (2) a statement of "where in the record the alleged error[s
were] objected to or the manner in which the alleged error[s were] brought to
the attention of the court[,]" as required by HRAP Rule 28(b)(4)(iii). In
addition, the argument section is conclusory and fails to provide citations to
relevant authorities. HRAP Rule 28(b)(7). 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, Cnty. of Kauai, 104 Hawai #i 173, 180–81, 86 P.3d 982,
989–90 (2004)). We thus address Kardash's arguments to the extent
discernible.
4/
Kardash was represented by counsel at trial.

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

or continually bother[ed] the [petitioner], and that 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 . . . systematic and continuous intimidation that stops
short of assault or threats[.]" Id. at 342, 991 P.2d at 852.
Although the respondent's course of conduct must be "directed at"
the petitioner, the statute's plain language encompasses forms of
conduct that may seriously alarm or disturb the petitioner, and
does not restrict such conduct to face-to-face interactions or
direct communications between the parties. HRS § 604–10.5(a);
see, e.g., Dung v. Ching, No. CAAP-XX-XXXXXXX, 2015 WL 3936910,
at *2 (Haw. App. June 25, 2015) (affirming injunction against
harassment based on respondent's conduct in "systematically and
continuously mov[ing petitioner's] tires, potted plants, and
sawhorses out of the easement; toss[ing] roof shingles into
[petitioner's] yard, and caus[ing petitioner's] dogs to bark by
taking photos of them from the easement").
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). 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.

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

2021) (quoting Conservatorship of O.B., 470 P.3d 41, 55 (Cal.
2020)).
On March 25, 2024, the District Court entered its
Findings of Facts, Conclusions of Law and Order (FOFs/COLs).
Although Kardash argues that certain exhibits presented at trial
were not relevant (see infra), he does not specifically challenge
any of the FOFs. They are therefore binding on appeal. See
Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 458,
40 P.3d 73, 81 (2002) (unchallenged findings of fact are binding
on appeal). The FOFs detailed a long history of conflict between
Kardash and Lupton, with Lupton previously obtaining a temporary
restraining order (TRO) in June 2023, the parties reaching an
agreement in mediation, Kardash resuming the alleged harassment
when the TRO was dissolved, and Lupton then filing the petition
in this case. The uncontested FOFs further stated:

25. [Lupton] testified that after [Kardash] moved in
[Kardash] installed security floodlights which were directly
aimed into [Lupton]'s residence and were continually kept on
during hours of darkness ([Lupton]'s Exhibits "D", "G" and
"H").

26. [Lupton] testified that the effect of the security
floodlights from [Kardash]'s home caused [Lupton]'s bedroom
to be lit up which makes it extremely difficult for [Lupton]
to sleep at night ([Lupton]'s Exhibit "I"). [Lupton]
testified that she asked [Kardash] at the outset if he could
direct his security floodlights so that it was not pointed
directly into her home and [Kardash] replied that [Lupton]
should "buy some black out curtains."
. . . .

32. [Lupton] testified that [Kardash]'s extremely loud
piano playing would sometimes last for 3 to 4 hours and
would occur at all times of the day and night to include
7:00 am in the mornings on holidays and as late at night as
10:30 and 1l:00 pm.
33. [Lupton] testified that she worked at home
remotely during the pandemic and that her work required the
constant and consistent use of her telephone. Callers
commented that they could not hear [Lupton] clearly over the
telephone because of [Kardash]'s piano playing in the
background and consequently, [Lupton] was called back to
work at the office and could not work remotely.
34. [Lupton] testified that [Kardash] started to
display caricatures, cartoons and photographs that depicted
contextual messages to the neighbors that were posted either
on a wooden pole or attached and taped to the City & County
grey trash bin . . . and/or blue recycle bin located on
[Kardash]'s property and facing the public roadway.

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

35. [Lupton] testified that the caricatures and
cartoons included content that contained implicit graphic
sexual depictions and some that depicted firearms and were
violent in nature.

36. [Lupton] testified that she became aware from her
neighbors that [Kardash] referred to her as "Jabba the Hutt"
based on her physical appearance, of which several of these
caricatures depicted.

37. [Lupton] was also of the belief that [Kardash]
also referred to [Lupton] as a pig and that several of the
caricatures included the face of a pig with her hairdo
. . . . ([Lupton]'s Exhibits "E" and "F").

. . . .
39. [Lupton] testified that on June 19, 2023,
[Kardash] displayed a picture of [Lupton] and her minor
daughter on the City & County grey trash bin located on
[Kardash]'s property and facing the public roadway, and
labeled the photo of [Lupton] as "Karen". . . .

. . . .
41. Based on the content of her testimony and demeanor
while testifying, the Court deemed [Lupton]'s testimony
credible.

The FOFs next described the testimony of witness and
neighbor Jerre Psak, which corroborated Lupton's testimony and
was found to be credible by the District Court. The FOFs also
recounted Kardash's testimony, in which he contradicted Lupton's
testimony and offered various explanations for his actions. The
court found that "[b]ased on the court's observation and
[Kardash]'s demeanor in court, . . . [Kardash]'s testimony
contradicting the allegations of [Lupton] are not credible."
The District Court further found:

66. As a result of [Kardash]'s consistent and
continual unremitting intentional acts, [Lupton] felt that
her safety and well-being were physically threatened.
67. [Kardash]'s repeated and continual unremitting
intentional acts seriously alarmed and continually bothered
[Lupton].
68. [Kardash]'s repeated and continual unremitting
intentional acts directed at [Lupton] served no legitimate
purpose.
69. As a result of [Kardash]'s consistent and
continual unremitting intentional acts, [Lupton], a
reasonable person, suffered emotional distress.

The court concluded, "[b]ased on the relevant and
credible evidence, . . . [Lupton] established at trial, by a

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

clear and convincing standard, that harassment as defined in [HRS
§] 604-10.5(a)(2) did exist." The court entered the Amended
Injunction with special conditions, including that: (1) "No
noise, music, piano, television, stereo, or sound reproduction
device shall be heard 50 or more feet away[,]" measured from the
point where the sound is audible to Kardash's residence or to the
sound source if not within the residence (Special Condition 1);
(2) "Kardash will cease and desist from making statements with
the intent to harass[,]" which statements "shall not [be made] to
a third party, or [by] displaying any photographs, caricatures or
cartoons regarding [Lupton,]" referencing as examples Lupton's
trial Exhibits C, E, and F (Special Condition 2); and (3)
"Kardash shall not direct or shine his residential floodlights
into the home and property of . . . Lupton" (Special Condition
3).
Kardash contends that Lupton's Exhibits A through K,
which included, among other things, photographs depicting the
allegedly harassing floodlights, caricatures and cartoons,
"fail[ed] to prove harassment" or were otherwise not relevant.
As to the exhibits' relevance, Kardash fails to state where in
the record the alleged errors occurred and were objected to and
fails to provide a quotation of the grounds urged for each
objection. See HRCP Rule 28(b)(4). The relevance arguments are
therefore disregarded.5/ See id. We address the sufficiency of
the evidence below.
Based on our review of the record as a whole, we
conclude there is substantial evidence from which the District
Court could reasonably have found it highly probable that Kardash
engaged in an intentional or knowing course of conduct directed
at Lupton that served no legitimate purpose and constituted
harassment under HRS § 604–10.5(a)(2). The District Court did
not clearly err in making this determination.

5/
In any event, Exhibits A through K appear to have been relevant to
the issues raised in the case. See Hawai#i Rules of Evidence Rule 401
("'Relevant evidence' means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.").

6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

In challenging the evidentiary value of Lupton's
Exhibits A through K, Kardash argues the weight of the evidence,
ignoring the District Court's express findings that the testimony
of Lupton and Psak was credible, and the testimony of Kardash was
not. In arguing that his floodlights served a legitimate
purpose, Kardash similarly ignores Lupton and Psak's testimony
that the lights were aimed directly into Lupton's residence, and
the court's finding that Kardash's "intentional acts directed at
[Lupton] served no legitimate purpose." 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 District Court's
determination that Kardash engaged in harassment as defined in
HRS § 604-10.5(a)(2).
(3) In FOF 61, the District Court noted that "[Kardash]
filed a complaint against Officer Hokama with the [HPC] based on
his belief that Officer Hokama has an intimate relationship with
[Lupton] and is taking unlawful action against him because of
that bias." Kardash now asserts that on February 28, 2024, the
HPC "sustained" his complaint.
The alleged HPC action is not part of the record and
cannot be considered by this court in this appeal. See HRAP Rule
10; Alford v. City & Cnty. of Honolulu, 109 Hawai#i 14, 25 n.18,
122 P.3d 809, 820 n.18 (2005) ("References . . . not part of the
record on appeal cannot be considered. This is a violation of
HRAP Rule 10 . . . .").
(4) Kardash appears to contend that the District Court
mistakenly relied on Moysa, 2009 WL 1178659, in finding that he
harassed Lupton. In Moysa, this court affirmed in part and
vacated in part an order granting an injunction against
harassment. Specifically, this court affirmed the order with
regard to a "special condition 1" that prohibited the respondents
from "play[ing] any music, sermons, or anything else on a
television, stereo, other sound reproduction device such that the
sound can be heard thirty (30) feet or more away" (the noise

7
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

restriction).6/ Id. at *1. This court vacated the order with
regard to a "special condition 2" that prohibited the respondents
from making any statements to any third party regarding the
petitioners except in limited circumstances involving a
homeowners' association. Id. at *2. The Hawai#i Supreme Court
vacated this court's decision as to the noise restriction,
concluding that this court lacked jurisdiction to decide the
issue, due to an untimely appeal. 2009 WL 3166784, at *1-*2.
In any event, Kardash contends that because the piano
produces rather than reproduces sound, this court's decision in
Moysa regarding the noise restriction (presumably to the extent
it has persuasive value) does not support the finding of
harassment in this case. We are not persuaded by this
distinction. The relevant evidence here was that Kardash played
the piano at "an extremely loud level" for extended periods "at
all times of the day and night" as part of an intentional course
of harassing conduct directed at Lupton, i.e., the issue was the
volume and timing of the loud sound emanating from Kardash's
property, not its source or content. See State v. Ewing, 81
Hawai#i 156, 164, 914 P.2d 549, 557 (App. 1996) (holding that a
Honolulu ordinance that prohibited playing a device for sound
reproduction from a vehicle at a volume audible from 30 feet from
the source of the sound, was not overbroad so as to infringe upon
free speech because it "does not regulate the content of the
sound from the reproducing device."). Hawai#i law supports the
finding of harassment in these circumstances.7/

6/
We held that this provision did not violate the respondents' right
to free speech because it did not restrict the content of the sound, but
rather its volume. 2009 WL 3166784, at *1.
7/
In a November 8, 2024 motion to stay enforcement of the Amended
Injunction, Kardash asserted that he "[was] confused as to what would violate
Special Conditions 1, 2 and 3 . . . ." This court denied the motion in a
November 29, 2024 order. Then-Acting Chief Judge Leonard concurred in the
decision to deny a stay of enforcement of Special Conditions 1 and 3, but
dissented as to Special Condition 2, concluding it appeared vague and
ambiguous, as well as overbroad. Then-Associate Judge Nakasone concurred in
the decision to deny the stay motion based on its failure to meet certain
requirements for a stay, but agreed with the dissent's position regarding
Special Condition 2.

In his November 29, 2024 opening brief, Kardash does not argue
(continued...)

8
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

For the reasons discussed above, the December 18, 2023
Amended Injunction is affirmed.

DATED: Honolulu, Hawai#i, April 9, 2026.

On the briefs:
/s/ Keith K. Hiraoka
Keith D. Kardash, Presiding Judge
Self-represented Respondent-
Appellant.
/s/ Clyde J. Wadsworth
Raylani F. Lupton, Associate Judge
Self-represented Petitioner-
Appellee.
/s/ Kimberly T. Guidry
Associate Judge

7/
(...continued)
that Special Condition 2 of the Amended Injunction is vague, ambiguous, or
overbroad. We therefore do not address the issue in this summary disposition
order. See HRAP Rule 28(b)(4), (7).

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
09-APR-2026
07:52 AM
Dkt. 108 SO

NO. CAAP-XX-XXXXXXX

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