Following the 2020-09-29 filing of the Initial Verified Complaint, the Defense quickly made the case that the Lawsuit must be dismissed because the four Plaintiffs did not have standing to sue. The requirement for standing in Hawaii law requires that a substantial number of corporation members be plaintiffs. This requirement prevents the filing of frivolous lawsuits against a Board of Directors by a few disgruntled members. In this case, four is not a substantial number.

As a result, the Plaintiffs moved to add Philip A. Denney, at the time a LCA Board Director, as a Plaintiff. This move was rebuffed by the Defense arguing that the remaining four Plaintiffs still did not have standing and the Complaint must be dismissed. After many back and forths, the Judge ruled that the original four be removed, that Denney did indeed have standing as a Board Director, and ordered the Plaintiff to submit the 2nd Amended Complaint.

Reading the Initial Complaint next to the 2nd Amended Complaint shows virtually no difference between the two. The former has 121 paragraphs of accusations while the latter has 119. Each of the comparable paragraphs are literally verbatim copies. A significant statement in the paragraphs following 119 and 121 is this for Count 1: "120. Plaintiffs hereby re-allege and incorporate by reference, as if fully set forth herein, all of the allegations contained in paragraphs 1 through 119 above." [From the 2nd Amended Complaint Count 1; the Initial Complaint and 1st Amended Complaint has identical language for their respective Count 1 paragraphs.]

As noted in the section discussing the Initial Complaint and Count 1 [see section], the judge ordered that the Plaintiffs' motion to affirm the validity of their allegations in paragraphs 1-121 & 122 (Count 1) was DENIED in its entirety. Now, given that the 2nd Amended Complaint is identical in content to the Initial and 1st Amended Complaints, and given that the Initial Complaint has been dismissed and that the judicial affirmation of Count 1 (including all of the previous paragraphs) of the 1st Amended Complaint has been denied in entirety, it would seem logical to a non-lawyer that Count 1 of the 2nd Amended Complaint should also be rejected by the court.

UPDATE 1: On 2021-12-13, the Plaintiff moved that Count 1 of the 2nd Amended Complaint be abjudicated. This would be a repeat of the first motion for Summary Judgement on Count 1 of the 1st Amended Complaint (denied in entirety) since the contents of these two Complaints are virtually identical. However, the Plaintiffs claim they have new evidence that will reverse the decision. This includes LCA documents dated from the 1970's and late 1990's that purport to show adoption of By-law changes that contradict the procedures used by the existing BoD in 2020.

UPDATE 2: On 2021-12-30, the Defense filed a separate motion for Summary Judgement on Count 1 of the 2nd Amended Complaint. It has been unusual in this lawsuit for the Defense to file a separate motion rather than responding to Plaintiff's motions. The Defense argues that the new evidence brought forth by the Plaintiff was not properly registered as amended by-laws with the State of Hawaii nor was the evidence incorporated into the By-laws document used by all Boards of Directors for the previous 50 years. A court hearing of both these motions is set for January 19, 2022.

UPDATE 3: As of 2022-01-20, the Judge has made no ruling on either motion. As a result, the 2021 BoD has ruled that the January regular monthly meeting has been "cancelled pending the outcome of the January 19th judicial review and judgement" [Official LCA email to members January 19, 2022 at 3:30 pm]. If previous intervals between hearings and judicial rulings are followed, the meeting may be canceled for weeks or even months.

UPDATE 4: On 2022-02-11, the Judge issued a decision (see below, Docket 387) on the motions filed earlier by the Plaintiff (Docket 313) and the Defense (Docket 319). Both motions requested a Summary Judgement with respect to the proper procedure for changing the LCA By-Laws; both motions were denied. Below, I quote some key statements from the Judge.

The order continues some lines later:

So, the Court denies both motions because a Summary judgement is inappropriate in this situation since there are material facts in play. It is important to accept that, with this order, there has been no resolution of any of the substantive allegations made in the Second Amended Complaint. Indeed, it appears to a non-lawyer that the Judge also did not rule on the specific claims made in the Memoranda by both parties (Dockets 344 and 360) that accompanied the original motions. For example, the Judge did not deny the plaintiffs' claim that candidates must comply with the CC&Rs (nor did he provide legal authority that the policy is valid). Similarly, the Judge did not deny that the Defendants' view that the By-Law change procedure is moot (he never used the word 'moot'); he only ruled that he would not make a Summary judgement. It is a very limited decision on a matter of legal procedures, and does not address specific allegations in the Plaintiff's complaint.

A formal definition of "mitigation of damages" is: "The mitigation of damages doctrine, also known as the doctrine of avoidable consequences, prevents an injured party from recovering damages that could have been avoided through reasonable efforts" https://www.law.cornell.edu/wex/mitigation_of_damages. Accessed 2022-02-13. (Ref). In the current decision, this refers to the Defense's claim that the current BoD has the authority to change the By-Laws.