A home is often one’s most valuable asset, both financially and emotionally. Preserving the value of the home is thus very important. But what if there is a negative change to a community? The value of the home must be protected and that almost always involves seeking the protection of local and state governments. Challenges to zoning changes and new developments are thus often made by homeowners. That means criticism of the proposed zoning changes and developments, criticism that the real estate developers are not going to like. Thus, the real estate developers will often attempt to sue the challenging homeowners to attempt to get them to withdraw their challenges and just generally shut up about the proposed changes. And that implicates the Anti-SLAPP laws.
Wayne and Tara Hu, husband and wife, purchased a condominium unit in the Marconi Point Condominiums located on the island of Oahu, Hawaii. The Marconi Point condos are unique in that they were not considered a residential development. Instead, the condos were to support local farming and other agricultural operations. Thus, the Marconi Point development was zoned to allow “farm dwellings” housing folks who were engaged in local agriculture. The Hus purchased their condo in 2016.
The next year, 2017, a Hawaii corporation called RCA Trace Center, Inc., went to the City and County of Honolulu to put up eight pre-fabricated steel warehouses within the Marconi Point area. This concerned the Hus who thought that RCA’s warehouses substantially changed the nature and environment of the Marconi Point area. Among the Hus’ concerns were that RCA was leasing space and advertising for non-agricultural uses, RCA was not complying with their Honolulu permits, were using their warehouse spaces to host non-agricultural events like weddings, pop-up markets and other gathering, and also gave non-locals access to the beach areas for “four-wheeling” in sensitive environmental areas.
To finance the construction of its warehouses, RCA obtained a loan of almost $8 million from the U.S. Department of Agriculture, which loan was issued through a company called North Avenue Capital.
Acting on their concerns, the Hus hired local lawyer Peter Lenhart to draft a letter to RCA which addressed these issues. On August 29, 2023, Attorney Lenhart sent a 52-page letter, replete with 17 exhibits, to RCA and its counsel, plus no fewer than 10 governmental entities, including the City and County of Honolulu, the U.S. Department of Agriculture, and two departments of the State of Hawaii.
A couple of days later, being September 1, 2023, the lender on the USDA loan, North Avenue Capital, contacted RCA for more information about the Hus’ complaints. This request for more information was forwarded to North Avenue Capital by the USDA. After further looking into the matter, the USDA instructed North Avenue Capital to put a hold on RCA’s further draws on the loan. Even though RCA attempted to respond to North Avenue Capital’s concerns, including suing the Hus as will next be related, North Avenue Capital eventually declared RCA to have defaulted on the USDA loan.
As noted, RCA sued the Hus based on attorney Lenhart’s letter. The lawsuit was filed on October 25, 2023, and asserted causes of action for declaratory relief, tortious interference, and for an injunction against the Hus.
It is here that the timing of certain things becomes critically important to our understanding of the opinion in this case. RCA served its complaint on the Hus on November 30, 2023. This triggered the 60-day deadline for the Hus to file their special motion to dismiss under Hawaii’s Uniform Public Expression Protection Act (“UPEPA”), which would have meant January 29, 2024.
On the day that the Hus were served with RCA’s complaint, again, November 30, 2023, the Hus’ attorney Lenhart called RCA’s counsel to discuss the case and they agreed to extend to January 17, 2024, the Hus’ deadline to file either an answer or an ordinary non-UPEPA motion to dismiss. Later, attorney Lenhart and RCA’s counsel agreed to delay the deadline for the parties’ initial disclosures to February 15, 2024.
However, the Hus didn’t get around to filing their UPEPA special motion until March 15, 2024 ― which was about 45 days late. RCA objected to the UPEPA special motion as untimely.
The Hawaii circuit court (read: trial court) conducted a hearing on the Hus’ special motion on April 24, 2024. At the hearing, attorney Lenhart explained that the parties’ had agreed to delay their initial disclosures because Lenhart was trying to get one of the Hus’ insurance carriers to pick up the claim. When the last of the Hus’ carriers denied coverage on January 20, 2024, Lenhart treated that as the start of the Hus’ 60-day period to file their UPEPA special motion.
For its part, the circuit court agreed with Lenhart and considered that to be good cause for the Hus’ late filing of their UPEPA special motion. The circuit court noted that the parties had effectively agreed to delay everything until the Hus’ insurance coverage issues were resolved.
Having decided to hear the special motion, the circuit court then considered whether attorney Lenhart’s 52-page letter fell within the scope of the UPEPA’s protections. Since Lenhart’s letter was directed to U.S. and Hawaiian governmental entities, it fell within the right to petition protections, i.e., the right of all citizens to petition their government for the redress of grievances. It was also, in the circuit court’s opinion, constitutionally-protected speech.
That Lenhart’s letter fell within the scope of the UPEPA’s protections then meant that RCA had to prove that its complaint stated viable causes of action. The circuit court found that RCA could not do so because Lenhart’s letter was protected speech and petition. Thus, the circuit court granted the UPEPA special motion and dismissed RCA’s lawsuit against the Hus.
RCA appealed to the Hawaii Intermediate Court of Appeals. This resulted in the opinion in RCA Trade Center, Inc. v. Hu, 2026 WL 1802987 (Ha.App., June 23, 2026), that we shall now explore.
Ominously for RCA, the appeals court started its opinion by noting that SLAPP stands for Strategic Lawsuit Against Public Participation and that: “[t]he paradigm SLAPP is a suit filed by a large developer against environmental activists or a neighborhood association intended to chill the defendants’ continued political or legal opposition to the developers’ plans.” (internal quotation marks and citations omitted). In other words, a case exactly like this one between RCA and the Hus.
The appeals court then went on to note that the Hawaii legislature had adopted as its Anti-SLAPP law the UPEPA in 2022 and before this action was filed. This was followed by a basic explanation as to how the UPEPA operated. Then the appeals court turned to the issue of whether the Hus’ special motion was timely.
The UPEPA requires that a special motion be brought “no later than 60 days” after the offending cause of action has served on the movant. This 60-day bright-line has an exception, being that the trial court can allow a special motion to be brought later than 60 days “on a showing of good cause”.
The determination of what constitutes “good cause” in any situation is left to the discretion of the trial court and, frankly, presents a pretty low bar to cross. One could say quite accurately that “good cause” is any excuse which is reasonable under the circumstances.
In this case, the Hus were trying to figure out if they had insurance coverage against RCA’s claims. This presented a reason for the Hus’ attorney to seek and receive an enlargement of the time to response to RCA’s complaint from RCA’s counsel. When ultimately all three of their insurance carriers denied their claims, the Hus’ counsel started the clock on filing the Hus’ special motion and the trial court exercised its discretion to allow the late filing of that special motion. The appeals court was not willing to disturb the trial court’s exercise of that discretion.
Having disposed of the timeliness issue, the appeal court next turned to the merits of the dismissal of RCA’s causes of action under the Hawaii UPEPA. The appeals court first noted that RCA’s causes of action fell within the scope of the UPEPA’s protections because those claims were based on attorney Lenhart’s letter. That letter was a communication relating to a governmental proceeding and also was a lawful exercise of the Hus’ free speech rights.
On the latter point, RCA argued that even if the letter constituted an exercise of the Hus’ free speech right, it was not “on a matter of public concern” as required by the UPEPA. It is here that the Hus’ complaints about environmental damage saved them, as the appeals court noted that:
“Given the robust environmental protections enshrined in our state constitution, the Hus’ speech regarding development of agricultural land and degradation of the environment can fairly be considered as relating to a matter of value and concern to the people of Hawaii. * * * Thus, the Letter’s content was on a matter of public concern.”
The upshot of all this was that the appeals court held that RCA causes of action fell within the scope of the UPEPA’s protection. This meant that the burden now shifted to RCA to prove the Hus’ speech fell within an exception to those protections. The three exceptions are causes of action (1) asserted against a governmental actor, (2) by a governmental actor if there is an imminent threat to public safety, or about commercial speech. RCA’s causes of action satisfied none of these exceptions.
RCA next had to try to show that its causes of action were viable, which means both adequately plead and at least minimally supported by admissible evidence.
The first cause of action asserted by RCA against the Hus sought a declaratory judgment that RCA had a right to continue to maintain its warehouses and build new warehouses. In support of this cause of action, RCA contended that it was likely to prevail since Honolulu had issued the necessary permits for it to do so. Which sounds good, except for one major problem: RCA did not include Honolulu as a party defendant, and Honolulu was a necessary party to determine if the permits were properly complied with and would be continued. This cause of action thus failed.
RCA’s second cause of action against the Hus was for tortious interference with contractual relations. Here again, RCA argued that its construction and operation of the warehouses was proper because Honolulu had issued the necessary permits. The permits, however, only related to the construction of the warehouses, not how they were operated, and the Hus’ complaints included that the warehouses were used for purposes other than as warehouses, including leasing them out for purposes other than, well, warehousing stuff. This meant that the Hus’ complaints were justified and ― since an element of a tortious interference claim is that the defendants’ conduct was unjustified ― this cause of action by RCA failed as well.
The third and final cause of action asserted by RCA sought injunctive relief against the Hus to basically stop them from continuing to complain about the warehouses. This cause of action failed as well. First, it was premised on RCA winning on its tortious interference claim (which RCA could not as related above). Second, the “balance of irreparable damage” favored the granting of the injunction; and, Third, the “public interest supports granting such an injunction” ― neither of which elements RCA could support.
The bottom line was that none of RCA’s causes of action were viable and the UPEPA special motion was thus properly granted by the trial court.
The last issue was that RCA challenged the trial court’s award of attorney fees and costs to the Hus. Noting that the RCA had presented no argument on this point in its opening brief, the appeals court held that this point had been waived.
Thus, in the end the appeals court affirmed the granting of the Hus’ special motion and the award of attorney fees and costs against RCA. Or, as that quaint Texas litigation phrase goes, RCA was totally “poured out”.
ANALYSIS
The most interesting point of this opinion involves the “on a showing of good cause” phrase that accompanies the 60-day deadline to file a UPEPA special motion. As mentioned, the concept of good cause is typically a relatively low bar for a litigant to hurdle. If the movant’s delay makes reasonably good sense under the circumstances, that should quality as good cause.
But that also makes the exception dangerous, since the determination of good cause is within the trial court’s discretion. To overturn the trial court’s decision would require an appellate court to find that the trial court abused its discretion ― which is a very high bar to hurdle. If the trial court decides that the movant was simply dilatory or lazy, the trial court could rightly decide that good cause does not exist to allow the late filing of the special motion. In that case, the appellate court would not be likely to reverse the trial court’s determination.
Which is to say, whenever possible don’t risk filing late. File within the 60-day deadline if at all possible. If there are good reasons why a party cannot file their special motion within 60-days, the best practice would be to go to the court in advance and request an enlargement of the 60-day deadline. Asking permission in advance in this context will almost always be safer than seeking forgiveness later.
A final interesting point raised by this case doesn’t relate to the UPEPA at all, but instead goes to a practical practice issue: Determining if an Anti-SLAPP defendant has insurance coverage that will cover the claim. This requires the Anti-SLAPP attorney to essentially become an insurance coverage lawyer. Requesting that an insurance pay for the bringing of the special motion becomes a thing. So will sending letters threatening bad faith denial of claim lawsuit to insurance carriers that say no. It is an unexpected part of an Anti-SLAPP practice.
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