NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-NOV-2025 08:46 AM Dkt. 44 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
MARCUS L. KAWATACHI, in his official capacity as Executive Director of the Hawaii Civil Rights Commission, ex relatione, ROBERT A. FAHN and BRENDA A. FAHN, Plaintiff–Appellant, v. THE PARRISH COLLECTION, LLC; THE PARRISH COLLECTION KAUAI; LINDA EVANS, as Trustee of the LAURA P. EVANS REVOCABLE TRUST DATED May 8, 2022; JONATHAN D. PARRISH; and SIMONE McCAFFREY, Defendants–Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO. 5CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and McCullen, JJ.)
Plaintiff-Appellant Marcus L. Kawatachi, in his
official capacity as Executive Director of the Hawai‘i Civil
Rights Commission (Commission), ex relatione Robert A. Fahn
(Robert) and Brenda A. Fahn (Brenda) (together, Fahns), appeal
from the Circuit Court of the Fifth Circuit's 1 October 30, 2023
1 The Honorable Randal G.B. Valenciano presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
order granting Defendants-Appellees The Parrish Collection, LLC;
The Parrish Collection Kauai; Linda Evans, as Trustee of the
Laura P. Evans Revocable Trust Dated May 8, 2002; Jonathan D.
Parrish; and Simone McCaffrey's (collectively, Parrish) motion
for summary judgment (Summary Judgment Order) and February 7,
2024 "Final Judgment in Favor of [Parrish] as to Counts I and II
of the Amended Complaint Filed July 27, 2023" (Final Judgment). 2
(Formatting altered.)
On appeal, the Commission appears to challenge the
granting of summary judgment on Count 1 of its Amended Complaint
alleging failure to provide reasonable accommodations. 3
2 Parrish's motion was fashioned as a Hawai‘i Rules of Civil Procedure (HRCP) Rule 12(b)(6) motion to dismiss, or in the alternative, a motion for summary judgment.
Because the circuit court expressly considered the declarations and exhibits filed by the parties, we treat the motion as a motion for summary judgment. HRCP Rule 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.").
3 The Commission raises five points of error on appeal, all challenging the circuit court's statements related to Count 1 of its Amended Complaint:
1. "The Circuit Court erred in Finding that, as alleged, Complainant Robert Fahn did not have a 'Disability' as Defined Under [Hawai‘i Revised Statutes (HRS)] Chapter 515." (Some formatting altered.)
2. "The Circuit Court erred in Finding that [Parrish's] Offer to Conduct the Weekly House Cleanings While Complainants Were Away from the Subject Property was a 'Reasonable Accommodation' as Required by HRS Chapter 515." (Some formatting altered.)
(continued . . .)
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below and vacate and remand.
The following background is based on the evidence
attached to the motion for summary judgment and the memorandum
in opposition.
In 2006, Robert was diagnosed with heart disease. In
August 2020, Robert and Brenda decided to move from Colorado to
Kaua‘i with their three kids and three dogs because Kaua‘i had so
few COVID-19 cases.
(. . . continued)
3. "The Circuit Court erred in Finding that [the Fahns'] Accommodation Request to Waive the Weekly House Cleaning Lease Term was not 'Necessary' as Required by HRS Chapter 515." (Some formatting altered.)
4. "The Circuit Court erred in Finding that HRS Chapter 515 does not Create Stand-Alone Liability for a Housing Provider's Failure to Engage in the 'Interactive Process.'" (Some formatting altered.)
5. "The Circuit Court Erred in Finding that [Parrish] Engaged in the 'Interactive Process' as Required by HRS Chapter 515." (Some formatting altered.)
Although the circuit court made statements during the hearing, it correctly made no factual findings in its Summary Judgment Order. See McKellar v. Outfitters Kauai, Ltd., 156 Hawai‘i 381, 575 P.3d 38, No. CAAP-23- 0000102, 2025 WL 2605385, at *3 (App. Sep. 9, 2025) (SDO) ("We emphasize that a circuit court deciding a motion for summary judgment does not make findings of fact. If the facts are controverted, summary judgment should be denied."); State v. Milne, 149 Hawai‘i 329, 335, 489 P.3d 433, 439 (2021) ("[A] trial court's written order controls over its oral statements." (footnote omitted)). 3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On August 22, 2020, the Fahns and Parrish executed a
rental agreement. The rental agreement included Special Term #4
regarding weekly cleaning of the unit (Cleaning Clause):
"Cleaning to be scheduled every week and completed by the Parrish Collection Housekeeping staff and paid for by the tenant. This will be done hourly at $40.00 per hour and the number of hours dependent on property condition."
On or about September 16, the Fahns moved into the
rental house.
On September 30, Brenda stated she did "not want
cleaning service if the cleaners are also entering residences of
individuals who have only taken the Covid negative test."
Although not expressly requesting a reasonable accommodation
based on Robert's heart disease, she stated that Robert "has a
5-6% mortality rate and almost 20% hospital rate (because of his
age and conditions)." Brenda ended with, "I hope you understand
wanting to delay housekeeping."
On November 16, Parrish informed the Fahns that they
failed to comply with the Cleaning Clause, and that they "cannot
be selective in allowing [Parrish] access to make repairs but
not allow access for the required cleaning."
On November 23, a Colorado doctor sent Parrish a
letter stating, "I am aware of the nature and extent of
Mr. Fahn's disability and I understand the reason for his
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
request for a reasonable accommodation." The Colorado doctor
concluded "Mr. Fahn meets the definition of 'handicapped' under
the Fair Housing Act and that such a reasonable accommodation
may be necessary to afford Mr. Fahn the equal opportunity to use
and enjoy the dwelling unit in which he resides."
On November 24, Robert sent Parrish a letter stating,
"[a]s a person with a disability, I am hereby requesting a
reasonable accommodation" under the Fair Housing Act, 42 U.S.C.
§ 3604 (1988). Robert specifically requested the "[s]uspension
of cleaning personnel from entering the property." He further
stated, "I need this accommodation because I am at increased
risk of contracting COVID-19 due to my physical disability, as
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 18-NOV-2025 08:46 AM Dkt. 44 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
MARCUS L. KAWATACHI, in his official capacity as Executive Director of the Hawaii Civil Rights Commission, ex relatione, ROBERT A. FAHN and BRENDA A. FAHN, Plaintiff–Appellant, v. THE PARRISH COLLECTION, LLC; THE PARRISH COLLECTION KAUAI; LINDA EVANS, as Trustee of the LAURA P. EVANS REVOCABLE TRUST DATED May 8, 2022; JONATHAN D. PARRISH; and SIMONE McCAFFREY, Defendants–Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NO. 5CCV-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, Leonard and McCullen, JJ.)
Plaintiff-Appellant Marcus L. Kawatachi, in his
official capacity as Executive Director of the Hawai‘i Civil
Rights Commission (Commission), ex relatione Robert A. Fahn
(Robert) and Brenda A. Fahn (Brenda) (together, Fahns), appeal
from the Circuit Court of the Fifth Circuit's 1 October 30, 2023
1 The Honorable Randal G.B. Valenciano presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
order granting Defendants-Appellees The Parrish Collection, LLC;
The Parrish Collection Kauai; Linda Evans, as Trustee of the
Laura P. Evans Revocable Trust Dated May 8, 2002; Jonathan D.
Parrish; and Simone McCaffrey's (collectively, Parrish) motion
for summary judgment (Summary Judgment Order) and February 7,
2024 "Final Judgment in Favor of [Parrish] as to Counts I and II
of the Amended Complaint Filed July 27, 2023" (Final Judgment). 2
(Formatting altered.)
On appeal, the Commission appears to challenge the
granting of summary judgment on Count 1 of its Amended Complaint
alleging failure to provide reasonable accommodations. 3
2 Parrish's motion was fashioned as a Hawai‘i Rules of Civil Procedure (HRCP) Rule 12(b)(6) motion to dismiss, or in the alternative, a motion for summary judgment.
Because the circuit court expressly considered the declarations and exhibits filed by the parties, we treat the motion as a motion for summary judgment. HRCP Rule 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.").
3 The Commission raises five points of error on appeal, all challenging the circuit court's statements related to Count 1 of its Amended Complaint:
1. "The Circuit Court erred in Finding that, as alleged, Complainant Robert Fahn did not have a 'Disability' as Defined Under [Hawai‘i Revised Statutes (HRS)] Chapter 515." (Some formatting altered.)
2. "The Circuit Court erred in Finding that [Parrish's] Offer to Conduct the Weekly House Cleanings While Complainants Were Away from the Subject Property was a 'Reasonable Accommodation' as Required by HRS Chapter 515." (Some formatting altered.)
(continued . . .)
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below and vacate and remand.
The following background is based on the evidence
attached to the motion for summary judgment and the memorandum
in opposition.
In 2006, Robert was diagnosed with heart disease. In
August 2020, Robert and Brenda decided to move from Colorado to
Kaua‘i with their three kids and three dogs because Kaua‘i had so
few COVID-19 cases.
(. . . continued)
3. "The Circuit Court erred in Finding that [the Fahns'] Accommodation Request to Waive the Weekly House Cleaning Lease Term was not 'Necessary' as Required by HRS Chapter 515." (Some formatting altered.)
4. "The Circuit Court erred in Finding that HRS Chapter 515 does not Create Stand-Alone Liability for a Housing Provider's Failure to Engage in the 'Interactive Process.'" (Some formatting altered.)
5. "The Circuit Court Erred in Finding that [Parrish] Engaged in the 'Interactive Process' as Required by HRS Chapter 515." (Some formatting altered.)
Although the circuit court made statements during the hearing, it correctly made no factual findings in its Summary Judgment Order. See McKellar v. Outfitters Kauai, Ltd., 156 Hawai‘i 381, 575 P.3d 38, No. CAAP-23- 0000102, 2025 WL 2605385, at *3 (App. Sep. 9, 2025) (SDO) ("We emphasize that a circuit court deciding a motion for summary judgment does not make findings of fact. If the facts are controverted, summary judgment should be denied."); State v. Milne, 149 Hawai‘i 329, 335, 489 P.3d 433, 439 (2021) ("[A] trial court's written order controls over its oral statements." (footnote omitted)). 3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On August 22, 2020, the Fahns and Parrish executed a
rental agreement. The rental agreement included Special Term #4
regarding weekly cleaning of the unit (Cleaning Clause):
"Cleaning to be scheduled every week and completed by the Parrish Collection Housekeeping staff and paid for by the tenant. This will be done hourly at $40.00 per hour and the number of hours dependent on property condition."
On or about September 16, the Fahns moved into the
rental house.
On September 30, Brenda stated she did "not want
cleaning service if the cleaners are also entering residences of
individuals who have only taken the Covid negative test."
Although not expressly requesting a reasonable accommodation
based on Robert's heart disease, she stated that Robert "has a
5-6% mortality rate and almost 20% hospital rate (because of his
age and conditions)." Brenda ended with, "I hope you understand
wanting to delay housekeeping."
On November 16, Parrish informed the Fahns that they
failed to comply with the Cleaning Clause, and that they "cannot
be selective in allowing [Parrish] access to make repairs but
not allow access for the required cleaning."
On November 23, a Colorado doctor sent Parrish a
letter stating, "I am aware of the nature and extent of
Mr. Fahn's disability and I understand the reason for his
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
request for a reasonable accommodation." The Colorado doctor
concluded "Mr. Fahn meets the definition of 'handicapped' under
the Fair Housing Act and that such a reasonable accommodation
may be necessary to afford Mr. Fahn the equal opportunity to use
and enjoy the dwelling unit in which he resides."
On November 24, Robert sent Parrish a letter stating,
"[a]s a person with a disability, I am hereby requesting a
reasonable accommodation" under the Fair Housing Act, 42 U.S.C.
§ 3604 (1988). Robert specifically requested the "[s]uspension
of cleaning personnel from entering the property." He further
stated, "I need this accommodation because I am at increased
risk of contracting COVID-19 due to my physical disability, as
defined by federal regulations (24 CFR § 100.201)."
On November 25, a California attorney (not licensed in
Hawai‘i) sent Parrish a "CEASE AND DESIST DEMAND RE THREATS TO
INTERFERE WITH HOUSING" and stated she was "representing the
legal interests of Robert and Brenda Fahn with respect to the
issues discussed herein while we are in the process of retaining
local counsel to assist in resolving the matter." The
California attorney asserted the Cleaning Clause was
unenforceable and a violation of the Fair Housing Act. The
California attorney also asserted Parrish breached the lease
agreement and committed fraud. The California attorney
demanded, among other things, that Parrish: (1) "[d]rop [its]
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
insistence on weekly cleaning of the Rental House by [its]
cleaners"; (2) reduce rent by fifty percent for September,
October, and November; (3) pay reasonable attorney's fees
"currently approximated at $5,000.00"; and (4) pay $10,000.00 in
general damages.
That same day, Parrish rejected the demands and
asserted "[t]he request to simply not enforce [the Cleaning
Clause] is not reasonable and is rejected." Parrish suggested
the Fahns "could simply not be present in the house during the
weekly cleaning." Parrish asserted it "follows strict industry
protocols for its cleaning crew"; "[a]ll employees are screened
daily, their temperatures are taken, wear full personal
protective equipment (including masks and gloves) and during any
service use of CDC approved cleaning products." Parrish stated,
"this is not a negotiation. Your clients have a binding Lease.
They will comply with the terms of that Lease or it will be
terminated."
On November 30, Parrish filed a complaint for summary
possession.
On December 31, the Fahns notified Parrish that they
vacated the rental house. Parrish retained $5,471.44 of the
$6,000.00 security deposit to clean, replace, and repair the
rental house and items in the rental house.
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
On July 27, 2023, the Commission filed its Amended
Complaint asserting: 4
Count 1: "Refusal to Make a Reasonable Accommodation,
Failure to Engage in the [Interactive]
Process"
(Formatting altered.) Parrish moved for summary judgment, which
was granted. The Commission appealed.
We review the granting or denying of a motion for
summary judgment de novo. Hilo Bay Marina, LLC. v. State, 156
Hawai‘i 478, 486, 575 P.3d 568, 576 (2025).
The party moving for summary judgment has the burden
"to show the absence of any genuine issue as to all material
facts, which, under applicable principles of substantive law,
entitles the moving party to judgment as a matter of law."
Umberger v. Dep't of Land & Nat. Res., 140 Hawai‘i 500, 528, 403
P.3d 277, 305 (2017) (citation omitted).
A defendant movant "may satisfy [its] initial burden
of production by either (1) presenting evidence negating an
element of the non-movant's claim, or (2) demonstrating that the
[non-movant] will be unable to carry [its] burden of proof at
4 The Commission also asserted a second count, claiming the termination of the rental agreement violated HRS § 515-3(1) (2018) and Hawai‘i Administrative Rules (HAR) § 12-46-305(1). The Commission, however, does not appear to challenge the granting of summary judgment as to Count 2 in its points of error on appeal. And the Commission's opening brief makes no reference to HRS § 515-3(1) or HAR § 12-46-305(1). Thus, we do not address the dismissal of Count 2. 7 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
trial." Ralston v. Yim, 129 Hawai‘i 46, 60, 292 P.3d 1276, 1290
(2013). "Where the movant attempts to meet [its] burden through
the latter means, [it] must show not only that the non-movant
has not placed proof in the record, but also that the movant
will be unable to offer proof at trial." Id. at 60-61, 292 P.3d
at 1290-91 (citation modified).
"Only when the moving party satisfies its initial
burden of production does the burden shift to the nonmoving
party to respond to the motion for summary judgment and
demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial." Id. at 56-57,
292 P.3d at 1286-87 (citation omitted).
In Count 1, the Commission alleged Parrish refused to
make a reasonable accommodation, in violation of Hawai‘i Revised
Statutes (HRS) § 515-3(9) (2018). 5
HRS § 515-3(9) addresses discrimination by owners or
persons engaging in real estate transactions:
§ 515-3 Discriminatory practices. (a) It is a discriminatory practice for an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesperson, because of race, sex, including gender identity or expression, sexual orientation, color, religion, marital status, familial status, ancestry, disability, age, or human immunodeficiency virus infection:
. . . .
5 The Commission also asserted in Count 1 that Parrish failed to engage in the "interactive process" under Hawai‘i Administrative Rules § 12-46- 306(a)(3). The Commission makes similar arguments on appeal. In light of our decision to remand this case on Count 1, we need not reach this argument.
8 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
(9) To refuse to make reasonable accommodations in rules, policies, practices, or services, when the accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a housing accommodation; provided that if reasonable accommodations include the use of an animal, reasonable restrictions may be imposed[.]
HRS § 515-3(9) (some formatting altered, emphases added).
Disability is defined as "having a physical or mental
impairment which substantially limits one or more major life
activities, having a record of such an impairment, or being
regarded as having such an impairment. . . ." HRS § 515-2
(2018). HRS Chapter 515 "shall be construed according to the
fair import of its terms and shall be liberally construed." HRS
§ 515-1 (2018).
In other words, to establish a violation under HRS
§ 515-3(9), the Commission would need to prove: (1) Parrish was
an owner, other person engaging in a real estate transaction, or
real estate broker or salesperson who; (2) based on disability;
(3) refused to make (4) reasonable accommodations; (5) in rules,
policies, practices, or services; (6) when the accommodations
were necessary to afford equal opportunity to use and enjoy the
housing unit.
Thus, to prevail on its motion for summary judgment,
Parrish needed to present evidence negating, or evidence showing
the Commission could not prove, one of the HRS § 515-3(9)
elements. In its motion for summary judgment, Parrish made
arguments as to three of the six elements. Parrish argued: 9 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
• The Commission did not establish Robert suffered
from a disability;
• The Commission failed to explain why the desired
accommodation was necessary to afford the Fahns an
"equal opportunity to use and enjoy" the rental; and
• The Fahns' desired accommodation was unreasonable.
Parrish attached various documents to the motion for summary
judgment including email threads, the rental agreement,
correspondence related to the alleged breach, the Colorado
doctor's letter, the California attorney's letter, termination
of the lease, the summary possession complaint, and the security
deposit statement.
None of these documents negated the disability element
or showed the Commission could not prove Robert had a
disability, so as to entitle Parrish to judgment as a matter of
law. None of these documents negated the "equal opportunity to
use and enjoy" element or showed the Commission could not prove
this element, so as to entitle Parrish to judgment as a matter
of law. And none of these documents negated the reasonableness
element or showed the Commission could not prove reasonableness,
so as to entitle Parrish to judgment as a matter of law.
Because Parrish failed to meet its initial burden on summary
judgment, the burden did not shift to the Commission.
10 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Thus, the circuit court erred in granting summary
judgment.
Based on the foregoing, we vacate the circuit court's
October 30, 2023 Summary Judgment Order and February 7, 2024
Final Judgment as related to Count 1, and we remand for further
proceedings consistent with this summary disposition order.
DATED: Honolulu, Hawaiʻi, November 18, 2025.
On the briefs: /s/ Karen T. Nakasone Chief Judge Eric Pililaau, Joey Badua, /s/ Katherine G. Leonard Catherine M. Lowenberg, Associate Judge April L. Wilson-South, for Plaintiff-Appellant. /s/ Sonja M.P. McCullen Associate Judge Mark G. Valencia, Kenneth V. Go, (Case Lombardi) for Defendants-Appellees.