Electronically Filed

FIRST CIRCUIT
1CCV-21-0001490
31-AUG-2023
04:45 PM
Dkt. 195 ORDD

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAIʻI

, ) Civil No. 1CCV-21-0001490 (LWC)

) (Assault and Battery)
Plaintiff, )
)
vs. ) ORDER DENYING PLAINTIFF’S
) PETITION FOR DETERMINATION OF
SAINT LOUIS SCHOOL; JAYDEN DE ) GOOD FAITH SETTLEMENTS WITH
LAURA; KAMOI LATU; JACOB DE ) DEFENDANTS JAYDEN DE LAURA,
LAURA; MALINDA PETERS; ) JACOB DE LAURA, MALINDA PETERS,
KAMALUHIAOLAOKALANI ELENEKE; ) KAMOI LATU, PAULA LATU AND
and JOHN DOES 1-10, ) KAMALUHIAOLAOKALANI ELENEKE,
) FILED MAY 18, 2023 (DKT. 116)
Defendants. )
) JUDGE: Lisa W. Cataldo
) TRIAL DATE: None Set
)
) HEARING MOTION
) Date: July 18, 2023
) Time: 9:30 a.m.
)
)

ORDER DENYING PLAINTIFF’S PETITION FOR DETERMINATION OF

GOOD FAITH SETTLEMENTS WITH DEFENDANTS JAYDEN DE LAURA, JACOB
DE LAURA, MALINDA PETERS, KAMOI LATU, PAULA LATU AND
KAMALUHIAOLAOKALANI ELENEKE, FILED MAY 18, 2023 (DKT. 116)

The Court has reviewed and considered Plaintiff’s Petition for Determination of

Good Faith Settlements with Defendants Jayden De Laura, Jacob De Laura, Malinda
Peters, Kamoi Latu, Paula Latu and Kamaluhiaolaokalani Eleneke, filed May 18, 2023

(Dkt. 116) (“Petition”), the original related submissions (Dkt. Nos. 163, 167/175, 169,

171, and 183), the arguments of counsel at the July 18, 2023, hearing, and post-hearing

supplemental submissions (Dkt. Nos. 188, 190 and 192). Being duly advised of the

record and files herein, and good cause appearing therefor, the Court denies the

Petition.

The analytical framework for an HRS section 663-15.5 petition is set forth in

Troyer v. Adams, 102 Hawaiʻi 399, 77 P.3d 83 (2003). There, the Hawai ʻi Supreme

Court held that the determination of good faith is left to the trial court’s discretion based

on the totality of circumstances surrounding the settlement. Accordingly, when reaching

its decision,

the trial court may consider the following factors to the extent that they are
known at the time of settlement: (1) the type of case and difficulty of proof
at trial . . . ; (2) the realistic approximation of total damages that the
plaintiff seeks; (3) the strength of the plaintiff's claim and the realistic
likelihood of his or her success at trial; (4) the predicted expense of
litigation; (5) the relative degree of fault of the settling tortfeasors; (6) the
amount of consideration paid to settle the claims; (7) the insurance policy
limits and solvency of the joint tortfeasors; (8) the relationship among the
parties and whether it is conducive to collusion or wrongful conduct; and
(9) any other evidence that the settlement is aimed at injuring the interests
of a non-settling tortfeasor or motivated by other wrongful purpose. The
foregoing list is not exclusive, and the court may consider any other factor
that is relevant to whether a settlement has been given in good faith. On
appeal, the trial court's determination will be reviewed for abuse of
discretion.

Id. at 427, 77 P.3d at 111. Plaintiff addresses the Troyer factors (1), (2), (3), (5), (6),

and (7) as follows.

The Petition describes Plaintiff’s “brutal sexual assault” (also referred to as rape)

by football teammates Jayden De Laura and Kamoi Latu, which Jayden De Laura

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subsequently admitted to in writing and for which he “eventually apologized.” Dkt. 116

at 1 and 3. 1 Ultimately, Plaintiff alleges, Jayden De Laura and Kamoi Latu pled guilty to

sexually assaulting Plaintiff. Dkt. Nos. 116 at 3; 183 at 6. As to Plaintiff’s assessment

of the strength of her claim and the likelihood of success at trial, based on the alleged

pleas and messages from Jayden De Laura, Plaintiff states that “[t]here is no question

as to whether Plaintiff was sexually assaulted.” Dkt. 183 at 4, 6. When Defendant Saint

Louis School (“Defendant School”) indicated that there was a question whether Plaintiff

was assaulted or willingly engaged in a sexual encounter, Plaintiff called the suggestion

“deeply offensive and disrespectful.” Dkt. 183 at 6. 2

According to Plaintiff, the settling defendants are uninsured. No specific

information was provided regarding their solvency and Plaintiff does not recall whether

the mediator raised any possibility of bankruptcy. Dkt. 188 at ¶. 10.

Plaintiff maintains that a “greater-than-seven-figures approximation of her

damages is realistic[,]” (Dkt. 183 at 4) and further claims: “the value of Plaintiff’s claims

1 Elsewhere, Plaintiff states that through direct/text messages with her, Jayden
De Laura “apologizes for forcing Plaintiff to engage in sexual acts with him and Kamoi,
and . . . laments at having jeopardized his future by raping Plaintiff with Kamoi.” Dkt.
183 at 6.
2 The settling defendants filed simple joinders to the Petition. They did not
represent that the settlement amounts reflected all they could pay, nor did they take
issue with any of the statements in the Petition, including Plaintiff’s characterization of
the “brutal sexual assault,” the admission by Jayden De Laura, or the alleged guilty
pleas. Dkt. Nos. 163, 171. At the hearing, however, counsel for the Latu-settling
defendants claimed that any sexual conduct between Plaintiff and Kamoi Latu was
consensual, and directed the Court to the amended counterclaim filed by Kamoi Latu.
Dkt. 55. Plaintiff’s counsel did not address these comments as it related to the Troyer
factors, or concede any ground as to the strength of her case and the likelihood of her
success at trial.

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are considerable and Defendants Jayden De Laura and Kamoi Latu have the majority of

liability . . . .” Dkt. 116 at 5. See also Dkt. 183 at 3 (“significant liability for Plaintiff’s

injuries and damages lies with Defendants Jayden De Laura . . . and Kamoi Latu.”).

The settlement agreements, which were filed under seal, reflect a combined settlement

figure that is “less than one-tenth of the demand Plaintiff made on [Defendant School].”

Dkt. 167 at 7. Plaintiff describes the settlement amounts as “too low,” (Dkt. 183 at 4),

and “far from ideal given the conduct of Defendants Jayden De Laura and Latu Kamoi,

and the harm suffered by Plaintiff.” Dkt. 116 at 6.

As to the remaining Troyer factors ((4), (8) and (9)), Plaintiff maintains that

“litigation involving one defendant will be less expensive than litigation involving seven

defendants[;]” (Dkt. 183 at 6); and states “[t]here is no relationship among the settling

parties;” “no collusion[;]” and “no wrongful conduct.” Dkt. 183 at 10.

In addition to the Troyer factors, Plaintiff’s written submissions focus substantial

attention on her contention that the settlement amounts represent all the settling

defendants could afford to pay. For example, the Petition states:

Plaintiff’s counsel has performed an asset investigation and analysis and

has determined that the settling Defendants are not viable targets for
executing any significant judgment obtained at the trial of this matter.
Further, during mediation, the settling Defendants represented an inability
to pay larger settlements.

Petition at 5; see also Dkt. 183 at 4 (“Here, Jayden and Kamoi and their parents have

agreed to pay everything that they can[;]” and based on representations by counsel for

the settling defendants and the mediator, the settling defendants “are paying everything

they are able to pay.”) Plaintiff asserts that “[i]f either Defendant family was able to pay

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more, Plaintiff would demand they do[;]” and there is no evidence to dispute the

representation that the “current settlement agreements constitute everything that

Defendant families can pay.” Id. at 4, 6.

The information provided to the Court after the hearing calls these statements

into serious question. For example, the “asset investigation and analysis” from which

Plaintiff’s counsel determined “the settling Defendants are not viable targets for

executing any significant judgment obtained at the trial of this matter” (emphasis added)

related to Jayden De Laura’s grandparents. Prior to the mediation, Jayden De Laura’s

parents were substituted for his grandparents; and as such, the grandparents are not

settling defendants. Moreover, despite the substitution, counsel did not perform “a new

formal asset check” for Jayden De Laura’s parents, nor apparently for any of the other

settling defendants. Dkt. 190, Ex. T.

Additionally, seven months after the mediation and after Defendant School filed

its opposition to the Petition, Kamoi Latu amended his response to Defendant School’s

discovery request regarding income he has received since 2020. The amendment

significantly increased the amount previously provided. As Defendant School

describes: “the income that he received in the month of May 2023 alone is more than

the total income previously reported;” and “[t]hat one month of income alone represents

nearly half the settlement that Kamoi Latu and his parents combined agreed to pay in

the settlement.” Dkt. Nos. 190 at 4-5 (emphasis in original); 192, Exs. U and V.

Similarly, almost eight months after the mediation, and after the hearing on the

Petition, Defendant Jayden De Laura provided an amended discovery response

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regarding income to Defendant School. The amended response significantly increased

the amount previously disclosed in June 2023. Dkt. Nos. 190 and 192 at Ex. W.

Moreover, and as related to the Latu-settling defendants, at the hearing, the

Court requested their counsel provide the 2022 tax returns for Kamoi Latu’s parents to

Defendant School. These tax returns were the subject of an outstanding discovery

request. Counsel agreed to produce the returns. However, without any response or

explanation to the Court or Defendant School, no tax returns have been provided. Dkt.

190 at 5, ¶ 8.

Based on the totality of circumstances surrounding the settlements, the Court

cannot reach a good faith settlement determination. As reflected in the written

submissions, Plaintiff has unwavering and rock-solid confidence in her case and her

likelihood of success at trial, and approximates her total damages at greater than seven

figures. As to the settling defendants, Plaintiff acknowledges that the settlement

amounts are too low despite the fact that, as she claims, Jayden De Laura and Kamoi

Latu bear the majority of the liability. Her rationale for accepting these “too low”

settlements is that the settling defendants paid all they could. However, nothing in the

record supports this justification. Plaintiff did not conduct any “asset investigation and

analysis” as to the settling defendants prior to the mediation and the financial

information provided by the settling defendants has been incomplete or subject to

significant upward revision since the filing of the Petition. While the Court is unaware of

what information was provided to the mediator to lead him to believe the settling

defendants could not pay more, his conclusion was not based on any of the disclosures

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in the discovery responses, the amended discovery responses, or the still-yet

unproduced tax returns.

“[C]ourts are free to police collusive settlements that unfairly saddle one

tortfeasor with a disproportionate share of liability,” by “enabl[ing] the trial court to

consider the potential proportionate liability of the parties in cases where such

determinations are appropriate.” Brooks v. Dana Nance & Co., 113 Hawaiʻi 406, 414,

153 P.3d 1091, 1099 (2007) (internal citations omitted). Here, Plaintiff asserts that

Jayden De Laura and Kamoi Latu — not Defendant School — bear the majority of

liability. This representation, combined with Plaintiff’s approximation of her damages at

more than seven figures, her acknowledgment that the settlements amount to less than

one-tenth of the demand Plaintiff made on Defendant School and the unpersuasive

representations that the settling defendants have paid all they can afford compel the

denial of the Petition.

Further, to the extent that the settlement agreement with the De Laura-settling

defendants seeks to bar any claims against them by an alleged joint tortfeasor,

including claims based on a written indemnity agreement, the settlement is not in good

faith. As the Hawaiʻi Supreme Court has stated: “a settlement wherein a party seeks to

accomplish indirectly that which it is expressly barred by applicable law from

accomplishing directly, is not in good faith.” Brooks v. Dana Nance & Co., 113 Hawaiʻi

at 417, 153 P.3d at 1102.

Finally, in his Supplemental Declaration (Dkt. 188), Plaintiff’s counsel discusses

additional reasons in support of a finding of good faith, including (a) Plaintiff is “of limited

means” and the litigation is likely to last 1-2 years at a minimum; (b) her desire for

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“assurances that truthful testimony would be provided at the appropriate time[]” by

“Jayden De Laura and Kamoi Latu, if possible” (Dkt. 188 at ¶ 7); and (c) her incentive to

“reduce the chances that she will have to see Jayden De Laura and/or Kamoi Latu in

person ever again []” (id. at 8). None of these reasons warrant ignoring the significant

disproportionate share of liability Plaintiff admittedly seeks to shift to Defendant School

through an order finding the settlements in good faith.

Plaintiff filed this case in 2021 and has chosen to litigate it in such a way that as

of the date of the hearing in July 2023, Plaintiff has not sought a trial setting status

conference, has not taken any depositions; and, according to Defendant School, has

granted Jayden De Laura an open-ended extension time to answer the operative

complaint. Given these strategic decisions, the estimate for the duration of litigation as

a rationale to find the settlement agreements in good faith is unpersuasive. As to the

testimony of Jayden De Laura and Kamoi Latu, as an initial matter, Plaintiff’s counsel

undercuts the certainty of any such benefit by stating Plaintiff “is interested in obtaining

truthful testimony . . . if possible.” Dkt. 188 at 7. Also, there is no provision in the

agreement with the Latu-settling defendants that requires Kamoi Latu to provide “truthful

testimony;” and the value of such testimony to Plaintiff is questionable given the

allegations in the counterclaim (Dkt. 55). Also, her written submissions make clear that

Plaintiff places significant reliance on her written messages with Jayden De Laura as

evidence of her claims. Finally, setting aside the fact that Plaintiff initiated the lawsuit

and must have contemplated the ongoing possibilities of seeing Jayden De Laura and

Kamoi Latu during the course of litigation, settling with them does little to reduce the

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chance she will have to see them “in person ever again.” In any event, however, this

reason is insufficient in and of itself to warrant granting the Petition.

DATED: Honolulu, Hawaii, August 31, 2023.

___________________________
Judge of the Above-Entitled Court

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