Arquette v. State., 290 P.3d 493

Alden Arquette sued the State of Hawaii, Levins, and Moriyama for malicious prosecution and related torts arising from a 2004 OCP action against him.
The 2004 action alleged unfair or deceptive practices in selling long-term deferred annuities to the elderly, with Petitioner identified in communications as a paralegal for Rodwin Wong and using Dan Fox’s address.
Both sides moved for summary judgment; the circuit court granted partial summary judgment in part on various claims and later granted Moriyama’s summary judgment motion on initiation and maintenance of the prosecution.
Arquette sought review of costs; the circuit court ultimately reduced taxable costs and granted some in part, while the ICA's prior rulings were affirmed in part and vacated in part.
The ICA upheld that HRS § 487-1 does not create a private right of action and that Hawaiʻi does not recognize a tort for maintaining a malicious prosecution, and the Hawaiʻi Supreme Court later reconsidered these points.
The Supreme Court ultimately recognized a cause of action for maintaining a malicious prosecution and affirmed parts of the ICA decision while remanding costs-related issues for further explanation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does a tort of maintaining a malicious prosecution exist?	Arquette contends maintenance is actionable.	Respondents argue no maintenance tort exists.	Yes; maintenance of a malicious prosecution is cognizable.
Was there probable cause to initiate the 2004 prosecution?	Arquette asserts lack of probable cause; Moriyama acted with malice.	Respondents showed a reasonable belief and facts supporting initiation.	There was probable cause to initiate the prosecution.
Does HRS § 487-1 create a private modern duty of care for tort claims?	HRS § 487-1 implies a private duty or standard of care.	Statute creates consumer protections, not a private tort duty.	HRS § 487-1 does not create a private cause of action or a care standard.
Did the circuit court err in depriving or limiting costs without explicit justification?	Costs denial was improper and not reasoned on the record.	Costs decisions may be discretionary and justified by record.	Remand for explicit articulation of the costs rationale; the denial was error without stated justification.
Was the ICA proper in denying recusal based on the asserted partiality?	Petitioner claimed appearance of partiality against Substitute Judge Leonard.	Arguments did not establish disqualifying facts or appearance of impropriety.	ICA did not abuse discretion; no substantial basis for recusal.

Young v. Allstate Ins. Co., 119 Hawaiʻi 403 (Haw. 2008) (malicious defense rejected; distinguishes initiating vs. maintaining actions)
Brodie v. Haw. Ass’n for Justice, 2 Haw. App. 318 (Haw. App. 1981) (probable cause elements; standard for initiation of malicious prosecution)
Cayetano v. City & County of Honolulu, 111 Hawaiʻi 368 (Haw. 2012) (malice inference requires independent evidence; limitations on inferences)
Zamos v. Stroud, 87 P.3d 802 (Cal. 2004) (recognition of continuing malicious prosecution in other jurisdictions)
Fergerstrom v. Hawaiian Ocean View Ests., 50 Haw. 374 (Haw. 1968) (recognition of new torts; adopting new cause of action)
Corregedore v. Hawaii, 83 Hawaiʻi 159 (Haw. 1996) (duty of care may be defined by statute when violation entails tort liability)
Jeyte ex rel. Hobbs v. Jeyte, 88 Hawaiʻi 85 (Haw. 1998) (duty of care where statutorily granted authority is exercised)
Takeuchi v. Hawaii, 88 Hawaiʻi 47 (Haw. 1999) (costs; mediation costs generally not taxable unless court-ordered or justified)