City and County of Honolulu v. Sunoco LP

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-JUL-2022
08:24 AM
Dkt. 31 ORD
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

CITY AND COUNTY OF HONOLULU AND HONOLULU BOARD OF WATER SUPPLY,
Plaintiffs-Appellees, v. SUNOCO LP; ALOHA PETROLEUM LLC;
EXXON MOBIL CORP.; EXXONMOBIL OIL CORPORATION;
ROYAL DUTCH SHELL OIL PRODUCTS COMPANY; SHELL OIL PRODUCTS
COMPANY LLC; BHP GROUP LIMITED; BHP GROUP PLC; BP AMERICA INC.;
MARATHON PETROLEUM CORP.; CONOCOPHILLIPS; CONOCOPHILLIPS COMPANY;
PHILLIPS 66; PHILLIPS 66 COMPANY; AND
DOES 1 through 100, inclusive, Defendants-Appellees, and
CHEVRON CORP.; CHEVRON USA INC., Defendants-Appellants.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV200000380)

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)
Upon consideration of the "Motion to Dismiss Appeal"
filed by Plaintiffs-Appellees City and County of Honolulu and
Honolulu Board of Water Supply (collectively, City) on June 7,
2022, the papers in support and in opposition, and the record, it
appears that:
1. On March 16, 2022, Defendants-Appellants Chevron
Corporation and Chevron U.S.A., Inc. (collectively, Chevron)
filed a notice of appeal from the "Order Denying Chevron
Defendants' Special Motion to Strike and/or Dismiss the Complaint
Pursuant to California's Anti-SLAPP Law" (Order Denying Anti-
SLAPP Motion) entered by the Circuit Court of the First Circuit
on February 15, 2022;
2. City contends that the court lacks jurisdiction
over Chevron's appeal because the circuit court has not entered a
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

final, appealable judgment, and the Order Denying Anti-SLAPP
Motion is not independently appealable;
3. Chevron argues that appellate jurisdiction exists
because: (a) the circuit court certified the Order Denying Anti-
SLAPP Motion for interlocutory appeal under Hawaii Revised
Statutes (HRS) § 641-1(b)(2016); and (b) the collateral order
doctrine applies;
4. HRS § 641-1(b) applies only "[u]pon application
made within the time provided by the rules of court"; Chevron's
motion for leave to file an interlocutory appeal addressed only
the circuit court's orders entered March 29, 2022, and March 31,
2022; the record does not contain an application by Chevron for
certification of the February 15, 2022 Order Denying Anti-SLAPP
Motion for interlocutory appeal; thus, the circuit court acted
beyond its authority when it sua sponte included the Order
Denying Anti-SLAPP Motion in its ruling on Chevron's motion for
leave to file an interlocutory appeal and "Order Granting
Defendants' Motion for Leave to File an Interlocutory Appeal";
5. A portion of the Order Denying Anti-SLAPP Motion
qualifies for appellate review under the collateral order
doctrine; Chevron's Anti-SLAPP Motion argued (among other things)
that Chevron was immune from suit under California's anti-SLAPP
law; the circuit court conclusively determined that Chevron was
not entitled to immunity under California's anti-SLAPP law,
requiring Chevron to defend against liability; such an order
"falls squarely under the collateral order doctrine,"
Greer v. Baker, 137 Hawai i 249, 254, 369 P.3d 832, 837 (2016);
6. However, the circuit court's conclusion that "it
is premature to apply the [Noerr-Pennington] doctrine at this
early stage" is not subject to review under the collateral order
doctrine, see Nunag-Tanedo v. E. Baton Rouge Par. Sch. Bd.,
711 F.3d 1136, 1140 (9th Cir. 2013) (holding that "unlike
California's anti-SLAPP statute, which is in the nature of an
immunity from suit, the Noerr–Pennington doctrine provides only a
defense to liability") (cleaned up), or the Forgay doctrine,
see Greer, 137 Hawai i at 253, 369 P.2d at 836 (noting that
Forgay doctrine authorizes appeal from a judgment for immediate

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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

execution against an interest in real property that is
effectively unreviewable on appeal from a final judgment).
Therefore, IT IS HEREBY ORDERED that the Motion to
Dismiss is granted in part and denied in part as follows:
(1) The Motion to Dismiss is granted in part;
Chevron's appeal from the circuit court's declination to rule on
the applicability of the Noerr-Pennington doctrine is dismissed.
(2) The Motion to Dismiss is denied as to Chevron's
appeal from the remainder of the Order Denying Anti-SLAPP Motion.
DATED: Honolulu, Hawai i, July 22, 2022.
/s/ Keith K. Hiraoka
Presiding Judge

/s/ Clyde J. Wadsworth
Associate Judge

/s/ Sonja M.P. McCullen
Associate Judge

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