(Breach of Implied Warranty of Habitability) 62) Class Plaintiffs repeat and incorporate the above paragraphs herein. 63) Defendants owe a duty to Class Plaintiffs to provide safe and healthy residential housing for military families. 64) Under the terms of their lease contracts, Class Plaintiffs agreed to pay rent in exchange for safe and healthy residential housing. 65) Defendants breached. their duty to provide safe and healthy residential housing. 12  Lynch Hopper Salzano &Smith Revere &Associates 66) Specifically, Defendants exposed Class Plaintiffs and their families to increased health risks for cancer and other adverse health outcomes without their knowledge and against their will. 67} Because of Defendants' breach of the implied warranty of habitability; it has been necessary for Class members to incur expenses and other special damages in an amount to be proven at trial. 68) Plaintiffs have sustained damages as a result of Defendants' breach, which includes the overpayment of rent and future medical expenses and medical monitoring of their health and the health of their family members. 69) As a proximate and legal result of Defendants' breach of contract, Class members have been compelled to resort to litigation and therefore request an award of all consequential damages, including, but not limited to, attorneys' fees and costs incurred in such litigation; in amounts to be proven at time of trial. (Tortious Breach of Contract) 51) Class Plaintiffs repeat and incorporate the above paragraphs herein. 52) Valid contracts exist between Class P1aizltiffs and Defendants for the lease of residential housing on MCBH. 53) Under the terms of their lease contracts, Class Plaintiffs agreed to pay rent in exchange for safe and healthy residential housing and that the parties' respective lease obligations and responsibilities will be construed exclusively under the substantive laws of the State of Hawaii, including but not limited to, Hawaii Revised Statutes Chapter 521 and the common law interpreting those statutes. 54) Under the terms of their leases and Hawaii law; Defendants tortiously breached their agreement to provide safe and healthy residential housing. 55) Specifically, Defendants intentionally and knowingly exposed Plaintiffs and their families to increased health risks for cancer and other adverse health outcomes without their knowledge and against their will despite specific and express warnings by the Department of Health for the State of Hawaii and other persons. 11  Lynch Hopper Salzano &Smith Revere &Associates 56) Plaintiffs have sustained damages as a result of Defendants' tortious breach, which includes the overpayment of rent and future medical expenses and medical monitoring of their health and the health of their family members. 57} Because of Defendants' tortious breach of contract, it has been necessary for Class members to incur expenses and other special damages in an amount to be proven at trial. 58) Defendants' conduct was undertaken with reckless disregard for the foreseeable consequences to Plaintiffs. 59) Defendants' conduct therefore justifies an award of exemplary or punitive damages in an amount to be proven at the trial of this matter. 60) Under the terms of their lease, Class Plaintiffs are entitled as the prevailing party to reasonable attorneys' fees and costs required to pursue this action. 61) As a proximate and legal result of Defendants' breach of contract, Class members have been compelled to resort to litigation and therefore request an award of all consequential damages, including; but not limited to, attonleys' fees and costs incurred in such litigation, in amounts to be proven at time of trial. 13) A class action is alleged pursuant to Hawaii Rule of Civil Procedure 23. 14) Plaintiffs seek to represent a class of persons ("Class") that includes: All former and present persons who have leased or resided in residential properfy from Ohana MC at Marine Corp Base Hawaii in Kaneohe, Hawaii, from 2006 to the present. 15) The Class consists of thousands of current and former tenants who lived on MCBH from ?006 to the present. The Class is thezefore so numerous that joinder of all individual plaintiffs would be impractical. 16) The Class involves questions of la~~ and fact common to al] individual members of the Class, suc11 as ~vhetller Defendants knowingly exposed military families to toxic pesticides and other toxins without their knowledge or consent. 17) The claims and damages sought by the Class are typical of the claims and relief that could be sought by individual members of the class. Specifically, all members have suffered similar injury and damages as a result of Defendants' failure to provide safe and healthy  20) In 1996, under the provisions of the Military Housing Privatization Initiative, the United States Congress authorized legislation to privatize military housing whereby private companies were allowed to own and manage housing on military bases. 21) Thereafter, Ghana Military Communities, LLC ("Ghana MC") was created to renovate and construct new housing at Marine Corp Base Hawaii ("MCBH") 22) Forest City Residential Management, Inc. ("Forest City RM"), acts as Ghana MC's agent for the Lease of residential housing to military families on MCBH during all relevant times. 23) After Defendants took control of military housing at MCBH in approximately 2006, Defendants have entered several thousand leases with military families for residential housing at MCBH. 5  Lynch Hopper Salzano &Smith Revere &Associates 24) Plaintiffs and the Class are present and former tenants who have leased residential housing at MCBH after 2006 from Ohana MC. 25} Under the terms of their leases, Ohana MC and tenants agree: a. Military families will pay monthly rent equal to their Basic Allowance for Military Housing (``BAH");  I b. Ohana MC will provide safe and habitable housing;2 and c. To mediate any disputes or claim between them arising out of this Lease.3 26} After assuming confrol of MCBH residential housing, Ohana MC began to lease newly and previously constructed residential housing to military families in 2006. Upon information and belief, the older residential housing contained asbestos, lead-based paint, extensive mold infestation, etc. During this time Ohana MC began demolishing portions of the older residential housing to build new residential units for future lease. 27) Before taking control of MCBH housing, Defendants were warned by the contractor previously hired by the Department of the Navy to carry out demolition and construction of military housing that MCBH soils were contaminated with pesticides including chlordane, heptachlor, and heptachlor epoxide, and that all contaminated topsoil should be removed in addition to other measures.4 S`ee, e.g. Ohana MC Lease Agreement at 2, ~(3 ("Resident agrees to pay monthly Rent equal to the Basic Allowance for Military Housing at the `with dependent' rate (the `BAH') at the Resident's duty station of the pay grade of the Resident service member."). Note that assignment to privatized housing is voluntary. In other words, service members have the ability to use their BAH as they see fit; i.e. rent in the civilian market or purchase real estate in the civilian market. '' Id. at 5, X12 ("Owner is responsible ... for ensuring that the Premises are safe and habitable.") (emphasis added). 3 Id. at 10, X34. 4 Chlordane was baru~ed by the EPA in 1988 and is classified as a Group B2 carcinogen by the EPA. Similarly, heptachlor was banned by the EPA in 1974 and is listed as a Group B2 carcinogen. 6  Lynch Hopper Salzano &Smith Revere &Associates 28) Thus, before  taking over MCBH residential housing, Defendants were aware that chlordane levels were many times higher than the EPA's Tier 1 environmental action levels ("EAL") and that chemical contamination at MCBH housing presented increased health risks for military families at MCBH. 29) Despite these warnings, Defendants did not disclose the presence of pesticide- contaminated soils to military families before leasing housing to them at MCBH. 30) Instead, after learning of the presence of pesticide-contaminated soils, Ohana MC investigated and confirmed  the presence of pesticide contamination at MCBH. 31} Because of positive test results within several MCBH neighborhoods, Ohana MC concluded that all neighborhoods should be assumed to contain pesticide impacted soils beneath all existing foundations and surrounding perimeters. 32} Thus, in spite of specific knowledge of chemical contamination of MCBH residential housing, Defendants took over existing leases and entered new leases with military families without disclosure to these families that pesticide-contaminated soils had been found and confirmed at MCBH. 33) Upon information and belief, in addition to heptachlor; chlordane, and heptachlor epoxide levels in excess of EPA Tier 1 and Tier 2 levels EAL levels, Defendants are also aware of chemical contamination for aldrin, dieldrin, and endrin at MCBH in excess of recommended limits, but likewise failed to provide any notice of dangers associated with these risks to military families. 34) After learning of the presence of pesticide-contaminated soils at MCBH, Defendants created a Pesticide Soils Management Plan (the "Plan"} with input from the Hawaii Department of Health (HDOH}. 7  Lynch Hopper Salzano &Smith Revere &Associates 35) Within the Plan, Defendants decided to allow soil contamination levels above the Tier 1 EALs based on the underlying assumption that military families would not live at MCBH longer than 6 years (i.e. two 3-year tours of duty at MCBH). Further, the Plan: a. Confirmed the presence ofpesticide-contaminated soils at MCBH; b. Assumed all neighborhoods contained pesticide-contaminated soils beneath all existing home foundations and surrounding perimeters; c. Recommended specific remediation practices to address pesticide contaminated soils such as confirming that "no visible dust" should occur during demolition and construction because of the danger of pesticide-contaminated soils; d. Claimed that detailed maps would be kept and made available to the Department of the Navy, MCBH property. management, and the HDOH detailing where pesticide- contaminated soils had been found and addressed; and e. Confirmed that written notification would be provided to residents anywhere they may contact pesticide-contaminated soils. 36) Defendants, however, did not inform military families of the Plan nor did Defendants tell military families that Defendants had agreed to accept pesticide-contaminated soils above the Tier 1 EAL at MCBH. Defendants also failed to follow their own Plan. For example: a. Rather than notifying residents that they may come in contact with pesticide- contaminated soils, Defendants' Residential Community Handbook for Marine Corp Neighborhoods ("Community Handbook") —which was provided to residents after they entered leases with Defendants —only contained anon-specific reference that chlordane and other pesticides "may be found" throughout the United States rather than acknowledging pesticide-contaminated soils had been confirmed at MCBH: 8  Lynch Hopper Salzano &Smith Revere &Associates Chlordane was one of the most common pesticides applied to the soil a~~ound homes and bz~sinesses throughout the United States for protectiofZ against termites from 1948 to 1988. Other pesticides used in and around housing to prevent insect infestation and disease outbreak have also been banned. Althozrgh chlordane and othe~~ pesticides are no longer ztsed, they may be found in soils under and around housing constYztcted in both civilian and military communities. Families can safely woj~k and play in theit~ yards; howevea~, we recommend residents use pYudent pYactices by thoroughly washing theiY hands after diYect soil contact and washing all plants and vegetables g~~own on-site before consuming.5 37) Despite the provisions of the Soil Management Plan, substantial fugitive dust occurred at MCBH throughout the demolition of old housing and the construction of new housing. 38) Further, when military families complained about excessive dust, Defendants never disclosed that pesticide-contaminated soils had been confirmed at MCBH. Instead, Defendants told military families tkere was no danger. 39) Since at least 2006, Defendants have therefore failed to warn military fanulies of pesticide- contaminated soils at MCBH and knowingly and intentionally exposed military families at MCBH to higher rates of cancer and other adverse health outcomes without disclosing these risks to military families or taking sufficient steps to protect military families from such chemical contamination. 40) After military families discovered Defendants' failure to disclose the presence of pesticide- contaminated soils, residents asked L}efendants to confirm what steps had been taken to address pesticide-contaminated soils at their homes and also asked for Defendants to mediate with them to address their concerns about pesticide-contaminated soils at MCBH. 41) Defendants, however, refused to mediate with residents despite the plain language of their lease agreements with the Class to address these issues. 5 Forest City Residential Community Handbook Marine Corp Neighborhoods, at 14. 9  Lynch Hopper Salzano &Smith Revere &Associates 4.  Lynch Hopper Salzano &Smith Revere &Associates living conditions and the claims and defenses of the Class arise front the same conduct by Defendants and a1•e based on the same legal theories. 18) Plaintiffs will adequately and fairly represent the interests of individual members of the proposed Class in that they are similarly situated persons who lived on MCBH and who ~~-ere subjected to unsafe living conditions w°ithaut disclosure by- Defendants. 19) Finally, prosecution of separate actions by individual members of the Class would create a risk of inconsistent and varying adjudications with respect to individual members of the Class, which ~~~ould establish incompatible standards of conduct for the party opposing the Class. Accordingly, a class action under Rule 23 of the Hawaii. Rules of Civil Procedure is in the best interests of judicial economy. II. STATE OF HAWAII CARA BARBER, MELISSA JONES, MELISSA STREETER AND KATIE ECKROTH, On Behalf of Themselves and All Others Similarly Situated, Class Plaintiffs, ss. OHANA MILITARY CON~v1UNITIES, TO ANSWER CIVIL COMPLAINT PLAINTIFF,  VS.  {Breach of Contract) 42) Class Plaintiffs repeat and incorporate the above paragraphs herein. 43) Valid contracts ~~ere entered between Class Plaintiffs and Defendants for the lease of residential housing on MCBH. 44} Under the terms of their lease contracts, Class Plaintiffs agreed to pay rent in exchange for safe and healthy residential housing and that the parties' respective lease obligations and responsibilities will be construed exclusively under the substantive laws of the State of Hawaii, including but not limited to, Hawaii Revised Statutes Chapter 521 and the common law interpreting those statutes. 45) Under the terms of their leases and Hawaii law, Defendants have breached their agreement to provide safe and healthy residential housing. 46) Specifically, Defendants have failed to: a. Disclose the presence ofpesticide-contaminated soils at MCBH; b. Provide safe and healthy housing; c. Fully implement their Pesticide Soii Management Plan; and d. Mediate residents' concerns as required under the terms of Plaintiffs' leases. 47) Class Plaintiffs have sustained damages as a result of this breach, which includes the overpayment of rent, future medical expenses, and medical monitoring of their health and the health of their family members for Defendants' breach of contract. 48) Because of Defendants' breach of contract, it has been necessary for Class members to incur expenses and other special damages in an amount to be proven at trial. 10  Lynch Hopper Salzano &Smith Revere &Associates 49) Under the terms of (heir Tease, Class Plaintiffs are entitled as the prevailing party to reasonable attorneys' fees and costs required to pursue this action. 50) As a proximate and legal result of Defendants' breach of contract, Class members have been compelled to resort to litigation and therefore request an award of all consequential damages, including, but not limited to, attorneys' fees and costs incurred in such litigation, in amounts to be proven at time of trial.