Justo v. Kauka

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-OCT-2023
07:47 AM
Dkt. 44 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MICHAEL G. JUSTO; JAMIE L.M. JUSTO, Petitioners-Appellees, v.
THALIA KAUKA, Respondent-Appellant

APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH HILO DIVISION
(CIVIL NO. 3DSS-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Ginoza, C.J., and Wadsworth and McCullen, JJ.)

Respondent-Appellant Thalia Kauka (Kauka) appeals from
the Order Granting Petition for Injunction Against Harassment
(Injunction), entered on July 2, 2021, in the District Court of
the Third Circuit, North and South Hilo Division (District
Court).1/ Following an evidentiary hearing, the District Court
enjoined Kauka from, among other things, contacting, threatening,
or harassing self-represented Petitioners-Appellees Michael G.
Justo (Michael) and Jamie L.M. Justo (Jamie) (collectively, the
Justos), and any persons residing at their residence, for a
period of three years.
On appeal, Kauka contends that: (1) the District Court
erred in finding that Kauka engaged in harassment against the
Justos pursuant to Hawaii Revised Statutes (HRS) § 604-
10.5(a)(2), where there was no evidence that Kauka made
intentional or knowing statements directed at the Justos; and (2)
Kauka's statements were protected by her "right of privacy in the

1/
The Honorable M. Kanani Laubach presided.
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confines of her own home" and "the right to say whatever she
wishes."2/
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
Kauka's contentions as follows and affirm.

I. Background

On June 1, 2021, the Justos filed a Petition for Ex
Parte Temporary Restraining Order and for Injunction Against
Harassment (Petition). In an accompanying declaration, Michael
attested that Jeremy Costa (Costa) and Kauka are neighbors that
"have threatened and harassed us for years." As to Kauka,
Michael stated:

. . . Kauka has verbally harassed my wife and children for
years, on occasion calling her a "cunt" and saying things
like "you and your fucking kids." She has harassed me on
the road as I leave for work in the morning and will stand
at the end of our driveway and video (on her cell phone) me
leaving. This has happened on multiple occasions. I have
video documentation of her verbally describing us as
"ignorant neighbors," "cunts," and "mother fuckers." In one
video from 05-03-2021 she says (directed at us), "suck my
ass, suck my dick all day long."
Both of these individuals are mentally unstable and very
unpredictable. I am afraid for the safety of my two
children and wife. . . . Costa and . . . Kauka have caused
much psychological distress for myself and my family. Every
day we are living in fear. Due to these incidents my two
young children are afraid to live in their own home, which
should be a safe environment for them. As a result of the
most recent incidents on 05-19-21 and 05-23-21 we have been
forced to relocate to a family member's home. This has also
caused much distress and financial hardship for our family.

On June 2, 2021, the District Court entered a Temporary
Restraining Order Against Harassment as to Costa and Kauka, and
set a June 16, 2021 hearing date on the Petition. On June 16,
2021, Costa failed to appear, and the District Court entered an
Order Granting Petition for Injunction Against Harassment as to

2/
Kauka's points of error have been reordered and restated for
clarity. Kauka's opening brief does not comply with HRAP Rule 28(b) in
numerous respects. 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, Cty. of
Kauai, 104 Hawai#i 173, 180–81, 86 P.3d 982, 989–90 (2004)).

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Costa. The Court continued the matter as to Kauka and held an
evidentiary hearing on July 2, 2021.
At the hearing, Jamie, Michael, and Kauka testified.
Jamie testified to the following during her direct examination:
For years, since buying their house in 2016, the Justos and their
children have endured Kauka yelling at them. Kauka, who lives
next door to the Justos, has yelled at Jamie through the hedges
of the Justos' driveway, calling Jamie a "cunt." Kauka "has said
things like, 'You and your fucking kids[,]'" when the Justos'
children were present. The children are afraid, and Jamie is
afraid for them. Kauka's tone is aggressive and unprovoked.
During the prior two months, Kauka has "driven by [the Justos']
house and made gagging noises like, 'Urrk.'"
Jamie also testified during cross-examination as
follows: The Justos had security cameras installed because of
their neighbors and have had those cameras since at least
September 2019. Jamie does not believe that a tree-trimming
incident between the Justos and Kauka has anything to do with
Kauka's conduct, because that matter was settled. Jamie's last
contact with Kauka was when Kauka drove by the Justos' house and
gagged at Jamie – '"'Aack,' like that" – "just prior to [the
Justos] putting the TRO on her."
Jamie engaged in the following exchange with Kauka's
counsel, in which counsel and Jamie referenced the Justos'
exhibit list, which identified Exhibits 1 through 4 as four
"[v]ideo clip" recordings taken from the Justos' security
cameras:3/

3/
The Justos' exhibit list identifies the following exhibits:
Exhibit 1, described as "Video clip from 9/21/19, 4:37 am.
[Kauka] yelling 'Fuck you!'"

Exhibit 2, described in part as "Video Clip from 12/21/2020,
4:22 am."
Exhibit 3, described as "Video clip from 3/25/21, 10:48 am.
[Kauka] yelling loudly from her home."
Exhibit 4, described in part as "Video clip from 4/26/21,
4:49 am. . . . [Kauka] yells 'cunts' and calls us 'ignorant
neighbors' Says . . . 'They can suck my ass, suck my dick all
night long[.]'"

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[KAUKA'S COUNSEL] . . . . [W]hen's the last time you
heard something from Miss Kauka before she gagged at you?
[JAMIE] Not for awhile. Probably the videos would be
the last. The one[,] the April 2021.

Q. . . . Miss Kauka's utterances that you are
concerned with that would be April 26, 2021. Is that right?
A. Yes.

Q. And before that would be, um, the March 25th, 2021
event?
A. Yes.

Q. And before that would be the . . . December 21st,
2020 event?
A. Yeah, and then this.

Q. So that would be the accurate succession of times
that –-

A. Yes.
Q. -- Miss Kauka said –-
A. Yes.

Q. -- things to you?
A. Yes, and that's why I put it in that order.

Q. Okay. And before the December 21st, 2020 event it
would be the September 21st, 2019 event?
A. Yes.

Q. So that would be the succession of times –-
A. Yes.

Q. -- that you heard Miss Kauka screaming at you or
carrying on improperly?
A. In recent times, yeah.

The Justos' Exhibits 1 through 4 were admitted into
evidence after Kauka's counsel stated: "I'm happy with their
entry into evidence. . . . If they're gonna move it in I'd be
okay." The District Court then took a recess to view and listen
to Exhibits 1 through 4, which were on a "jump drive."
After Jamie testified, Michael testified in part as
follows: He leaves in the morning at 4:30 a.m. "[J]ust out of
the blue [Kauka] say[s] things[.]" She says things "[l]ike, you
know, 'Niggers.' She always says that. Just, 'Niggers.'" One
time, Kauka "came driving up the driveway with a bathing suit on

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her bike" and "knock[ed] on the window saying, . . . 'You guys
home?'" Michael is scared for his family due to Kauka's actions
and "this unnecessary yelling at us[.]"
In her testimony, Kauka stated that she has had
essentially no contact with the Justos "[f]or years." Regarding
the video recordings, Kauka testified as follows:

[KAUKA'S COUNSEL] And in those videotapes were you
aiming your language in any way, shape or form towards the
Justos?
[KAUKA] Part of the conversation's between [Costa]
and I.

Q. Who's [Costa]?
A. My son. And he's deteriorating and it's been
very hard.
. . . .

Q. And the conversations that you heard on the tape
is that conversations between you and [Costa]?

A. Yes.

Q. Any of those conversations directed at the
Justos?

A. Never.

Kauka further testified:

Q. Mrs. Justo said that you were gagging when you
drove by your house. Do you remember that?
A. I -- I do gag. I have heart problems. I do gag.
It doesn't make -- mean that it was directly directed at
them. . . .

Following closing arguments, the District Court ruled:

I am gonna find that the plaintiffs have met their
burden. I'm gonna find that they have done so by clear and
convincing evidence. That the allegations underlying the
request for an order for protection are true.
So even if . . . I buy [Kauka's counsel's] argument
that, you know, Miss Kauka was doing this all in the
sanctity of her own home –-
. . . .

. . . -- I have [a] very hard time to believe those
things and this is the reason why. Right?

I mean you're saying that they are private
conversations with your child who is deteriorating mentally.
Right? So first thing in my mind is why would you yell --
and -- and I only hear your voice. Right? I don't hear a

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male party speaking at all.
So that's . . . the first thing I'm looking at.
Right? . . . I don't think it's conversations with your
child. . . .

So even if I then take [Kauka's counsel's] argument,
"Well, Judge, you know, it wasn't directed at the
neighbors," the last clip Exhibit 4 I have [a] hard time
because you -- you actually mention your neighbors. Right?
And you say, you know, "They can suck my ass. Suck my
dick." Right?
So -- and I have to look -- like I said earlier I have
to look at it not in a vacuum. Right? Not only this one
piece, this one piece separately. I gotta look at all of
it.
But what turned the table for the Court is Miss
Justo's testimony about the incidents that happened before
the video. I mean that's the reason why they ended up
getting a camera, right, because all these other incidents
happened.

. . . .
So I am gonna find that they have proven their
case. . . . And I'm gonna issue the order and it's gonna be
for three years.

And I do find that Miss Justo's testimony is credible.
That even before the video clips there were multiple
incidences involving herself with her children and Miss
Kauka.

The Injunction was entered the same day.

II. Discussion

Under HRS § 604–10.5(a)(2) and (g) (2016 and Supp.
2022), 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
or continually bother[ed] the [petitioner] and 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 an intentional or knowing pattern of conduct composed of
a series of acts over any period of time and evidencing a
continuity of purpose that is not legitimate, and is directed at,

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seriously alarms, disturbs consistently, or continually bothers
an individual and would cause a reasonable person to suffer
emotional distress. It is conduct that involves systematic and
continuous intimidation that stops short of assault or threats .
. . ." Id. at 342, 991 P.2d at 852.
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). "A conclusion of law that
presents mixed questions of fact and law is reviewed under the
clearly erroneous standard because the conclusion is dependent
upon the facts and circumstances of the particular case." Id.
(brackets omitted) (quoting Booth v. Booth, 90 Hawai#i 413, 416,
978 P.2d 851, 854 (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.
2021) (quoting Conservatorship of O.B., 470 P.3d 41, 55 (Cal.
2020)).

A. Intentional or Knowing Course of Conduct

Kauka contends that there was no evidence to support
the conclusion that she made intentional or knowing statements
directed at the Justos. She argues that "the words heard on the
Jump Drive . . . were not 'directed' at [the Justos] and further
do not thereby amount to an 'intentional [or] knowing course of
conduct' as the words heard appear random and aimless." Kauka

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also asserts that she "did not know that [the Justos] were
listening" to her statements.
After hearing testimony and argument from Kauka and the
Justos, the District Court rejected Kauka's characterization of
the evidence. Specifically, the District Court acknowledged
Kauka's claim that she "was doing this all in the sanctity of her
own home[,]" but then stated:

THE COURT: -- I have [a] very hard time to believe
those things and this is the reason why. Right?
I mean you're saying that they are private
conversations with your child who is deteriorating mentally.
Right? So first thing in my mind is why would you yell --
and -- and I only hear your voice. Right? I don't hear a
male party speaking at all.
. . . I don't think it's conversations with your
child. . . .
So even if I then take [your counsel's] argument,
"Well, Judge, you know, it wasn't directed at the
neighbors," the last clip Exhibit 4 I have [a] hard time
because you -- you actually mention your neighbors. Right?
And you say, you know, "They can suck my ass. Suck my
dick."

(Emphases added.) The District Court found that Kauka engaged in
multiple incidents of harassment.
Based on our review of the record, we conclude that
this mixed conclusion of law and fact was supported by the
substantial, credible evidence presented at the hearing and was
therefore not clearly erroneous. We further conclude that based
on the evidence of Kauka's acts, statements, and the surrounding
circumstances, including Jamie's testimony on these subjects and
the Justos' Exhibits 1 through 4, there was substantial evidence
from which the District Court could reasonably have found it
highly probable that Kauka engaged in an intentional or knowing
course of conduct that was directed at the Justos as defined in
HRS § 604-10.5(a)(2). See State v. Calaycay, 145 Hawai#i 186,
200, 449 P.3d 1184, 1198 (2019) ("[T]he mind of an alleged
offender may be read from his acts, conduct, and inferences
fairly drawn from all of the circumstances." (quoting State v.
Kiese, 126 Hawai#i 494, 502-03, 273 P.3d 1180, 1188-89 (2012))).
In disputing her intent, Kauka argues the weight of the evidence,
ignoring the District Court's express finding that Jamie's

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testimony was credible, and its implied finding that Kauka's
explanation for her conduct was not credible. 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 conclusion that
Kauka engaged in an intentional or knowing course of conduct that
was directed at the Justos, which constituted harassment as
defined in HRS § 604-10.5(a)(2).

B. Right of Privacy

Kauka contends that she has "a right of privacy in the
confines of her own home, with the right to say whatever she
wishes." She argues that "[t]here was no testimony that [her]
words were shouted or that [the Justos] heard [Kauka] directly
and independently of the Jump Drive." She also argues that the
Circuit Court "erred as a matter of law in considering the Jump
Drive as evidence of a continued course of harassment."
During the July 2, 2021 hearing, however, Kauka's
counsel acknowledged in closing argument: "[T]he house is
apparently close together, and what it appears . . . from the
video or the audio/video evidence is [Miss] Kauka is indeed
yelling and screaming but it's inside her house . . . ."
(Emphasis added.) Additionally, during her testimony at the
hearing, Jamie confirmed that she heard Kauka's utterances, as
summarized in the Justos' exhibit list:

[KAUKA'S COUNSEL] So that would be the accurate
succession of times that –-
[JAMIE] Yes.

Q. -- Miss Kauka said –-
A. Yes.
Q. -- things to you?

A. Yes, and that's why I put it in that order.
. . . .

Q. So that would be the succession of times –-
A. Yes.

Q. -- that you heard Miss Kauka screaming at you or
carrying on improperly?

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A. In recent times, yeah.

(Emphases added.) Based on Jamie's testimony, the Circuit Court
could reasonably have concluded that during the identified
incidents, Kauka was yelling or talking loud enough at the Justos
for Jamie to hear her, and that Jamie did hear her.
A person cannot reasonably have a privacy interest in
that which is knowingly exposed to the public, such as yelling or
screaming that can be heard outside of the person's home. See
State v. Texeira, 62 Haw. 44, 49, 609 P.2d 131, 135 (1980),
overruled on other grounds by State v. Chang, 144 Hawai#i 535,
553, 445 P.3d 116, 134 (2019); State v. Augafa, 92 Hawai#i 454,
465, 992 P.2d 723, 734 (App. 1999); see also Moysa v. Davies, No.
28753, 2009 WL 1178659, at *2 (Haw. App. May 4, 2009) (SDO)
(concluding that special condition in injunction against
harassment that restricted sound that could be heard outside of
the respondents' home did not interfere with their right to
privacy), vacated on other grounds, 2009 WL 3166784, at *2 (Haw.
Oct. 2, 2009) (SDO). Here, substantial evidence supports the
conclusion that Kauka's acts and statements constituted
harassment directed at the Justos. Neither Kauka's right to
privacy nor to freedom of speech insulates her from liability for
harassment in these circumstances. See Moysa, 2009 WL 1178659,
at *2 ("Courts may properly restrict statements made with the
intent to harass." (citing Brekke v. Wills, 125 Cal. App. 4th
1400, 1409 (Cal. Ct. App. 2005), and Thorne v. Bailey, 846 F.2d
241, 243 (4th Cir. 1988))).
We also reject Kauka's contention that the Circuit
Court erred in considering the video recordings of Kauka's
actions and statements as evidence of a continued course of
harassment. During the July 2, 2021 hearing, Kauka's counsel
expressly agreed to the admission of the Justos' Exhibits 1
through 4 into evidence, and did not object when the Circuit
Court took a recess to view and listen to them. Kauka thus
waived any objections to the admission of the recordings into
evidence, and to their consideration by the Circuit Court as
evidence of a continued course of conduct by Kauka directed at
the Justos. See State v. Gonzalez, 128 Hawai#i 314, 317, 288

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P.3d 788, 791 (2012) (noting that "the failure to properly raise
an issue at the trial level precludes a party from raising that
issue on appeal" (quoting State v. Kikuta, 125 Hawai#i 78, 89,
253 P.3d 639, 650 (2011))); Hawaii Rules of Evidence Rule
103(a)(1).
III. Conclusion

For the reasons discussed above, the Order Granting
Petition for Injunction Against Harassment, entered on July 2,
2021, in the District Court of the Third Circuit, North and South
Hilo Division, is affirmed.

DATED: Honolulu, Hawai#i, October 16, 2023.

On the briefs:
/s/ Lisa M. Ginoza
Ivan L. Van Leer Chief Judge
for Respondent-Appellant.

Michael G. Justo and /s/ Clyde J. Wadsworth
Jamie L.M. Justo, Associate Judge
Self-represented Petitioners-
Appellees.
/s/ Sonja M.P. McCullen
Associate Judge

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