The granting of a UPEPA special motion to strike means that the plaintiff’s complaint was without substantial factual or legal support. A Rule 11 motion is based on a frivolous pleading, which is sort of another way of saying that the plaintiff’s complaint was without substantial factual or legal support. Can the granting of a UPEPA special motion to strike thus lay the foundations for Rule 11 sanctions against the plaintiff or plaintiff’s counsel?
David Hallums was a police sergeant in Hawaii who was also the vice-president of the association that represented police officers nationwide. The president of that association, Robert Cavaco, wrote a letter to the chief of the Honolulu police department to the effect that Hallum’s time spent at conferences should be treated as his own leave and not a police assignment. Hallums then sued the labor union and others, including Cavaco, on the grounds that they had conspired to wrongfully remove him as the vice-president of the association.
The defendants were represented by two attorneys, Paul Alston and Galen Chee. Attorney Chee wrote two letters to the Honolulu police department’s professional standards office, and one letter to the chief of the Honolulu police department, which encouraged investigations of Hallums’ conduct for possible misconduct and criminal conduct.
In response to this, Hallums amended his complaint to include attorneys Alston and Chee as defendants. Hallums’ amended complaint alleged a number of wrongs, including defamation, false light invasion of privacy, civil conspiracy and other related causes of action. This triggered Alson and Chee to filed a special motion to dismiss under Hawaii’s Uniform Public Expression Protection Act (“HUPEPA”), which is Hawaii’s Anti-SLAPP law, seeking the dismissal of Hallums’ lawsuit against them and for their attorney fees. Alston and Chee also sought Rule 11 sanctions against Hallums and his attorney, Robert Cavaco, for filing a frivolous complaint.
The trial court granted the HUPEPA special motion to dismiss and awarded Alston and Chee their attorney fees against Hallums. However, the trial court denied their motion for Rule 11 sanctions against Hallums and Cavaco.
Hallums appealed the granting of the HUPEPA special motion and the award of attorney fees. Alston and Chee appealed the failure to award Rule 11 sanctions. These appeals to the Intermediate Court of Appeals of Hawaii resulted in the opinion in Hallums v. Alston, 2026 WL 1905523 (Ha.App., July 2, 2026), that we shall now examine.
The appeals court started its opinion with a discussion of the standards to be employed in determining these appeals. Issues relating to the HUPEPA would be examined de novo (read: fresh, without deference to the trial court’s ruling). The trial court’s award of its attorney fees and its failure to award Rule 11 sanctions would both be reviewed under an abuse of discretion standard (read: the trial court’s rulings would be given substantial deference and would be overruled only if clearly wrong).
The first step in a HUPEPA analysis is whether the plaintiff’s cause (or causes) of action fall within the scope of that Act. Here, Hallums’ causes of action were all based upon Chee’s three letters to the Honolulu police department, a governmental entity, and were about a matter of public concern, i.e., whether a police offer had engaged in misconduct. Thus, Hallums’ causes of action were within the scope of the HUPEPA’s protections, whether or not Chee’s allegations were truthful or false.
This determination did not end the HUPEPA analysis, but it did put the ball back into Hallums’ court to prove that he could nonetheless succeed with his lawsuit. This Hallums could not do. Although Hallums submitted evidence to show the circumstances surrounding the police association’s desires to remove him from being vice-president, this was not sufficient to prove that he could ultimately succeed on his causes of action. Hallums was required to introduce evidence which supported each and every element of all his causes of action, but his evidence fell short of that standard.
The next issue on appeal was whether Alston and Chee should have been awarded their attorney fees incurred in asserting their HUPEPA special motion. This was an easy issue for the appeals court, since the HUPEPA provides for a mandatory attorney fee award to a successful HUPEPA moving party.
All of this was pretty standard stuff for a UPEPA case, whether in Hawaii or any other UPEPA state. Now let’s turn to a unique issue which hasn’t come up before, which is whether Petricevic as Hallums’ attorney should have been sanctioned for violating the Rule 11 prohibition against filing a frivolous (not well-founded) complaint. The trial court had determined that Petricevic should not be sanctioned, although the trial court commented that “it was a very thin line” and that Petricevec would be given “the benefit of the doubt” on this issue.
As mentioned, Rule 11 sanctions are measured by an abuse of discretion standard by which the trial court’s ruling is accorded substantial deference. The appeals court noted, however, that this standard was not without its guidelines, and those guidelines included the trial court making specific finding sufficient for the appeals court to be able to measure whether the trial court’s discretion had been abused. Although the trial court found in favor of Petricevic, the trial court had not made those required findings. Thus, the trial court would be required on remand to make the necessary findings.
On this latter point, there was a dissent which posited that the specific findings required by the appeals court was not required by Rule 11 itself and the “wide discretion” afforded the trial court allowed it to simply rule on the issue without making such findings.
The bottom line to all this was that Hallums’ case was dismissed under the HUPEPA, Hallums would be required to pay Alston’s and Chee’s attorney fees in connection with their HUPEPA special motion, and the matter would be remanded back to the trial court to make specific finding of fact supports its determination not to award Rule 11 sanctions against Petricevic.
ANALYSIS
The most interesting thing about this case is the interrelationship between a UPEPA special motion and Rule 11 sanctions. If a UPEPA special motion is granted, it is because the plaintiff could not prove that the challenged cause of action was viable. Similarly, Rule 11 sanctions will be warranted if the cause of action was filed without it being warranted in law and fact. This facially sounds like the same thing. To a considerable extent it is.
This does not mean that the findings required for a UPEPA special motion and Rule 11 sanctions are exactly alike. There will be a substantial number of cases where the UPEPA special motion will succeed but Rule 11 sanctions are not warranted. Whether there are sufficient facts necessary to satisfy the UPEPA standard ― which is essentially the summary judgment standard ― may be a close call where the litigants will not know until the court ultimately rules. Similarly, a party may take a view of a legal issue which is entirely reasonable but later the court rules otherwise. By contrast, to invoke Rule 11 the asserted cause of action has to be frivolous, meaning that there is literally no credible evidence and/or no legal authority to assert the cause of action. Thus, the fact that a UPEPA special motion is granted should not ipso facto mean that party or attorney bringing that cause of action should be sanctioned under Rule 11.
Nonetheless, there are many cases where the Venn diagram of the UPEPA special motion and Rule 11 sanctions will be a perfect single circle. Many of the lawsuits that implicate UPEPA special motion are true SLAPP lawsuits ― Strategic Lawsuits Against Public Participation. These are lawsuits that are not meritorious but are brought to any of harass, intimidate or retaliate against defendants for their exercise of their free speech and related rights. In other words, these are precisely the type of frivolous lawsuits that Rule 11 is meant to deter and also severely punish those who bring them. In those cases, the findings that support the granting of the UPEPA special motion should indeed support Rule 11 sanctions.
It must be understood that the UPEPA special motion and Rule 11 also operate to accomplish different things in another aspect. If the defendant wins a UPEPA special motion, the court must award the defendant mandatory attorney fees incurred in connection with the special motion. By contrast, Rule 11 sanctions are not so much remedial but are punitive in nature. Rule 11 sanctions punish the party and/or its attorney through sanctions that are based upon the egregiousness of the conduct and are not limited to the amount of attorney fees incurred by the defendant. Thus, it is entirely possible that a court could award a winning special motion defendant both their attorney fees under the UPEPA and then additional moneys by way of sanctions through Rule 11.
The practical problem with a Rule 11 motion for sanctions in the UPEPA special motion context is in coordinating both motions. The UPEPA special motion typically has to be brought within 60 days of the service of the offending cause of action, so this often creates a short fuse to work with, considering that it may take time to set up a meeting with the client, review the complaint, and start drafting the UPEPA special motion. Meanwhile, a Rule 11 motion for sanctions often requires that the Rule 11 motion be drafted (but not filed) and sent to the plaintiff and thei counsel as a warning to dismiss their action or face the consequences. The court must set a UPEPA special motion for hearing within 60 days of its filing, but that might not match up to the court’s motion calendar for the Rule 11 motion. On the other hand, the defendant might want the UPEPA special motion to be heard first since, if granted, the court’s ruling that the plaintiff’s cause of action was not viable might be useful for a later hearing on a Rule 11 motion.
When we were drafting the UPEPA, I advocated for a provision that would conform the UPEPA special motion with Rule 11 sanctions, but couldn’t get enough traction within the drafting committee to make it happen. I’m still keeping my hopes for this alive when it comes time for the drafting of a revised UPEPA someday, should I still be around.
Anyway, this case illustrates the interrelationship between the UPEPA special motion and Rule 11 sanctions. While Rule 11 sanctions were not awarded by the court here, it was the plaintiff’s attorney a very near thing and we’ll have to see what happens on remand.
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