City and County of Honolulu v. Sunoco LP

• Court: Hawaii Intermediate Court of Appeals
• Decided: July 22, 2022
• Docket: CAAP-22-0000135
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER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 City contends that the court lacks jurisdiction over Chevron's appeal because the circuit court has not entered a NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER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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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