Preview
Chris A. Tarkington (SBN 043132) ctark@to2law.com ELECTRONICALLY FILED
Norman L. Chong (SBN 111439) nchong@to2law.com Superior Court of California
Joseph D. O’Neil (SBN 226806) joneil@to2law.com County of Santa Cruz
Samantha Lewin (SBN 320868) slewin@to2law.com 4/17/2020 11:
Alex Calvo, C|
TARKINGTON, O’NEILL, BARRACK & CHONG
By: Flore! fen, Deputy
A Professional Corporation
201 Mission Street, Suite 710 + Pe
San Francisco, CA 94105
Telephone: (415) 777-5501
Facsimile: (415) 546-4962
Attorneys for Defendant
NAJPREET SINGH KAHLON
10 SUPERIOR COURT OF CALIFORNIA
11 COUNTY OF SANTA CRUZ UNLIMITED JURISDICTION
12
13 DAPHNE BELETSIS, individually, and as Case No. 19CV03287
Administrator of the ESTATE OF
14 ALEXANDER BELETSIS, et al., DEFENDANT NAJPREET SINGH
KAHLON’S MEMORANDUM OF
15 Plaintiffs, POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE
16 Vv. PORTIONS OF PLAINTIFFS’ FIRST
AMENDED COMPLAINT
17
THETA CHI FRATERNITY, INC., a New CCP §§ 435-436
18 York corporation, individually, as a
member of and t/a the Theta Iota Chapter, Hearing Date: June 1, 2020
19 University of California, Santa Cruz, as a Hearing Time: 8:30 a.m.
member of the fraternal order known as Department: 10
20 Theta Chi Fraternity; et al.,
The Honorable John Gallagher, presiding
21 Defendants.
Complaint Filed: 10/31/2019
22 Trial Date: Not Set
23
Mt
24
Mt
25
Mt
26
27
28
aw Oe
TARKINGTON,
O”NEILL, BARRACK
& CHONG
Profesional Corporation
(MISSION STREET, -1-
‘Sure 110 BELETSIS V. THETA CHI FRATERNITY, INC. Case No. 19CV03287|
sa 10s
MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE
I. INTRODUCTION
On or about June 2, 2018, Alexander Beletsis fell from a second story window of a house
while allegedly under the influence of alcohol and drugs. First Amended Complaint (FAC), at {J
11, 83-85. Mr. Beletsis, a sophomore at the University of California at Santa Cruz (UCSC) and al
previously initiated member of Theta Chi Fraternity (Theta Chi), died eighteen days later. FAC
at §/ 82, 85. Mr. Beletsis became an initiated member to Theta Chi during the Fall of 2017, his
sophomore year at UCSC. FAC, at §§ 81-83. In the spring academic semester, on June 2, 2018,
Mr. Beletsis attended a “Crossover Ceremony” held by Theta Chi to commemorate the latest
10
pledge class, of which Mr. Beletsis did not belong, as they “crossed-over” into brotherhood.
ll
12 FAC, at 84.
13 The Crossover Ceremony itself was held at a house on 636 Market Street in Santa Cruz.
14 The after-party, intended to facilitate bonding between the new brothers, was held nearby at
15
511 Broadway in Santa Cruz, a property used as student housing. FAC, {ff 14, 43. In conjunction
16
with these events, Mr. Beletsis consumed alcohol and drugs, and due to his erratic behavior, was
17
directed to a bathroom to settle down. FAC, fff 14-15. After he closed the bathroom door, Mr.
18
19 Beletsis tragically fell out of the bathroom window, landing on the concrete below, and died
20 eighteen days later. FAC, {J 15-16.
21
Plaintiffs rely on these allegations in their First Amended Complaint to support four
22
negligence-based causes of action! and one social host liability cause of action against
23
NAJPREET SINGH KAHLON (“Kahlon”), then treasurer of Theta Chi and resident of
24
25 511 Broadway.
26
27
| The four negligence causes of action are First Cause of Action: Negligence (Failure to Manage and Supervise);
28 Second Cause of Action: Negligence; Fourth Cause of Action: Negligence (Assumed Duty); and, Fifth Cause of
aw Oe Action: Negligence (Duty to Prevent Harm).
TARKINGTON,
O”NEILL, BARRACK
& CHONG
‘A Professional Corporation
1 MISSION STREET, -2-
Sue 710 BELETSIS V. THETA CHI FRATERNITY, INC. CASE No. 19CV03287|
Say i
15) sea MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE
II. LEGAL AUTHORITY AND ARGUMENT
California Code of Civil Procedure Section 436 provides in pertinent part, that upon a
motion to strike a pleading in whole or in part, a court may” [s]trike out any irrelevant, false, or
improper matter inserted in any pleading.”
A. Plaintiffs’ Allegations that Alexander Beletsis Was Subjected to
“Hazing” on June 2, 2018 are Premised Upon a Faulty and Invalid
Definition of Hazing, and All References to Such “Hazing” Should be
9 Stricken from the First Amended Complaint
10
Plaintiffs have made numerous assertions throughout their First Amended Complaint that
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Mr. Beletsis was subjected to “hazing” in connection with the students’ activities on the date of
12
his fatal injury, while simultaneously admitting that Mr. Beletsis was at that time (June 2018)
13
already an active, initiated member of Theta Chi Fraternity.” For example, plaintiffs allege that
14
after Mr. Beletsis “obtained membership in the Fraternity, he was being groomed for an officer
15
position in spring of 2018. Again, [Mr. Beletsis] was required to participate in dangerous
16
hazing, including being forced to consume large amounts of alcohol . . .” (FAC, at § 11.)
17
Plaintiffs also allege that in the Spring of his sophomore year, Mr. Beletsis “was being groomed
18
for initiation as a Brotherhood Officer and was again subjected to hazing and dangerous
19
misconduct in order to obtain such position and maintain and satisfy the requirements of his
20
membership.” (FAC, at § 83.) Plaintiffs thereafter conclude that, “[a]s a result of the hazing and
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other misconduct at the Crossover Ceremony and membership and officer-grooming rituals, [Mr.
22
Beletsis] was visibly incoherent, mentally unstable, and panicky.” (FAC, at § 85.)
23
California Penal Code Section 245.6 (Matt’s Law) embodies California’s anti-hazing
24
policy. Sub-Section 245.6(b) provides:
25
(b) “Hazing” means any method of initiation or preinitiation into a student
26 organization or student body, whether or not the organization or body is officially
27
? Defendant moves to strike all such irrelevant, false, and improper allegations that Mr. Beletsis was subjected to
28 “hazing” after he became an initiated member of Theta Chi Fraternity, as identified and set forth in detail in
aw Oe defendant’s Notice of Motion to Strike Portions of Plaintiffs’ First Amended Complaint.
TARKINGTON,
O”NEILL, BARRACK
& CHONG
‘A Professional Corporation
201 MISSION STREET, -3-
‘Sure7 BELETSIS V. THETA CHI FRATERNITY, INC. CASE No. 19CV03287|
te is) sta MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE
recognized by an educational institution, which is likely to cause serious bodily
injury to any former, current, or prospective student of any school, community
college, college, university, or other educational institution in this state. The term
“hazing” does not include customary athletic events or school-sanctioned events.”
Pursuant to this definition, “hazing” necessarily requires that the alleged acts be part of a
“method of initiation or preinitiation into a student organization.” (See, e.g., Doe v. Napa Valley
Unified School District (N.D. Cal. Apr. 24, 2018) Dkt No. 17-cv-03753-SK, at pp. 4-5
(attached as Exhibit A) (granting defendants’ Motion to Dismiss hazing-related claims under
California Penal Code Section 245.6 for the precise reason that plaintiff was already a member
of the football team at the time the alleged hazing occurred and, as such, could not have been
10 subject to “hazing” under the statute).)
ll Plaintiffs’ First Amended Complaint also references the definition utilized by the
12 University of California at Santa Cruz, as set forth in the Standards for Student Conduct for the
13 University of California System, Cal. Code Regs. Tit. 5, Section 41301 (2012). (FAC, at J 78.)
14 These standards similarly apply only to acts committed in the course of initiation or pre-initiatior
15 into a student organization.
16
Plaintiffs allege that Mr. Beletsis became a fraternity member during the Fall 2017 term.
17
(FAC, at {{] 7, 11.) By definition, even if the actual acts alleged occurred as described, he was
18
not subject to any “hazing” activity. Therefore, any allegation that he was subjected to “hazing”
19
(as defined by state statute and University standard) in June of 2018 is an irrelevant, false, and
20
improper allegation that may be stricken by this Court under Code of Civil Procedure Section
21
436.
22
Plaintiffs’ Allegations of Post-Accident Conduct and Investigations
23
Are Irrelevant and Improper Matter that Have No Probative Value
24 Regarding the Liability of Defendant Kahlon or Plaintiffs’ Damages
and All References to Such Post Accident Conduct and Investigations
25 Should be Stricken from the First Amended Complaint
26
27 As noted above, plaintiffs’ claim that Mr. Beletsis was injured as a result of acts or
28 omissions by defendants including Defendant Kahlon which occurred on June 2, 2018.
aw Oe
TARKINGTON,
O”NEILL, BARRACK
& CHONG
‘A Professional Corporation
201 MISSION STREET, -4-
‘Sure7 BELETSIS V. THETA CHI FRATERNITY, INC. CASE No. 19CV03287|
te is) sta MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE
Plaintiffs’ First Amended Complaint, however, contains many allegations relating to alleged
subsequent acts relating to an investigation by the University of California. (FAC at J 86 — 91.)
None of these alleged subsequent activities, acts or omissions have any tendency to prove or
disprove the circumstances surrounding the incident in which Mr. Beletsis was injured.
California Evidence Code Section 210 defines relevance as “having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the determination of the
action.” Plaintiffs’ five causes of action® against Defendant Kahlon all sound in negligence.
As a negligence action, the ultimate issues in this case relate to whether defendants owed
a duty of care to Mr. Beletsis, whether defendants breached their duty(ies) to Mr. Beletsis, and
10
whether the breach resulted in injury to plaintiffs. Lawrence v La Jolla Beach & Tennis Club,
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Inc. (2014) 231 Cal.App.4 11, 21. None of the alleged post-accident matters have any tendency|
12
to prove or disprove any of these elements as to Defendant Kahlon and are irrelevant.
13
For the reasons stated above, the allegations in the First Amended Complaint relating to
14 post-accident conduct and investigations are irrelevant and should be stricken without leave to
15
amend.
16 Ill. CONCLUSION
17
18
For all of the foregoing reasons, Defendant Najpreet Singh Kahlon respectfully requests
19 this court to grant his motion to strike portions of Plaintiffs’ First Amended Complaint in this
action as set forth in Defendant’s Notice of Motion.
20
21
DATED: April 16, 2020 TARKINGTON, O’NEILL, BARRACK & CHONG
22 A Professional Corporation
23
BE
24
Chris A. Tarkington
25 Attorneys for Defendant
NAJPREET SINGH KAHLON,
26
27
28 > The Third Cause of Action is alleged only against Theta Chi National and the Seventh Cause of Action is only
aw Oe alleged against the “Defendants Landlord.”
TARKINGTON,
O”NEILL, BARRACK
& CHONG
‘A Professional Corporation
201 MISSION STREET, -5-
‘Sure7 BELETSIS V. THETA CHI FRATERNITY, INC. CASE No. 19CV03287|
te is) sta MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE
EXHIBIT A
Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 1 of 7
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
B. DOE,
Case No. 17-cv-03753-SK
Plaintiff,
Vv. ORDER REGARDING MOTION TO
DISMISS AND MOTION TO STRIKE
NAPA VALLEY UNIFIED SCHOOL
10 DISTRICT, et al., Regarding Docket Nos. 42, 43
11 Defendants.
12 This matter comes before the Court upon consideration of the motions to dismiss and to
13 strike filed by Defendants Annie Petrie, Troy Mott, Gerald Harris, and Jesus Martinez (“Individual
14 District Defendants”) and Napa Valley Unified School District (“NVUSD”) (collectively referred
15 to as the “District Defendants”). Having carefully considered the parties’ papers, relevant legal
16 authority, the record in the case, and having had the benefit of oral argument, the Court hereby
eg 17 GRANTS IN PART and DENIES IN PART the District Defendants’ motion for the reasons set
a
p Ss
18 forth below.
19 BACKGROUND
20 Plaintiff filed this action regarding an alleged hazing incident in which Plaintiff contends
21 that other students physically and sexually assaulted him. Plaintiff accuses the District Defendants
22 of failing to protect him. The Court accepts Plaintiff's factual allegations as true for purposes of
23 this motion.
24 Plaintiff was on the Napa High School freshman football team until, shortly before the
25 “Big Game” against a rival high school, “the coaches for Napa High School promoted Plaintiff
26 and several other freshman players to the junior varsity squad.” (Dkt. 33 (First Amended
27 Complaint (“FAC”), { 19.) The incident occurred in the boys’ locker room “as a regular football
28 practice concluded leading up to the Big Game[.]” (/d., 120.) These motion are brought only by
Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 2 of 7
the District Defendants and do not contest all of Plaintiff's claims against them.
ANALYSIS
A District Defendants’ Motion to Strike.
Under Rule 12(f), a court may strike from a pleading “any insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Immaterial
matter “is that which has no essential or important relationship to the claim for relief or the
defenses being pleaded.” Fantasy Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on
other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (internal citations and quotations
omitted). Impertinent material “consists of statements that do not pertain, and are not necessary,
10 to the issues in question.” /d. (internal citations and quotations omitted). Motions to strike are
11 regarded with disfavor because they are often used as delaying tactics and because of the limited
12 importance of pleadings in federal practice. Colaprico v. Sun Microsystems Inc., 758 F. Supp.
13 1335, 1339 (N.D. Cal. 1991). A motion to strike should be resorted to only when the matter to be
14 stricken could have no possible bearing on the issues in litigation. LeDuc v. Kentucky Central Life
15 Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Ultimately, the decision as to whether to strike
16 allegations is a matter within the Court’s discretion. Colaprico, 758 F. Supp. at 1339.
= 17 The District Defendants move to strike paragraphs 18(c) through (f) of Plaintiff's First
ar
5 6
18 Amended Complaint (“FAC”) on the grounds that Plaintiff appears to have deleted its allegations
19 regarding any mandatory duties from its negligence cause of action but then confusingly retained
20 his allegations regarding mandatory duties in its “common allegations” section. To the extent
21 Plaintiff intends to assert that the District Defendants violated mandatory duties under California
22 Government Code§ 815.6 as part of his negligence claim, the District Defendants argue that none
23 of the statutes or regulations to which Plaintiff cites contain a cognizable mandatory duty. At oral
24 argument, Plaintiff represented that he was willing to strike his reference to any mandatory duties.
25 Accordingly, based on Plaintiff’s representation, the Court HEREBY STRIKES Plaintiff's
26 allegation in paragraph 18(e) of his FAC.
27 Although paragraphs 18(c), (d) and (f) reference provisions in the California Constitution,
Education Code and Code of Regulations, these paragraphs do not reference any mandatory
28
2
Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 3 of 7
duties. The District Defendants’ moved to strike only on the grounds that Plaintiff's allegations
regarding “mandatory duties” were confusing, immaterial and impertinent. In the absence of
Plaintiff's allegation regarding mandatory duties in paragraph 18(e), it is not clear whether or not
the District Defendant still contend that paragraphs 18(c), (d) and (f) should be struck and on what
grounds. The Court thus DENIES the rest of the District Defendant’s motion to strike, but this
Order is without prejudice to the District Defendants’ filing another motion to strike if they
contend that paragraphs 18(c), (d) and (f) should be struck as well.
B. Applicable Legal Standard on Motion to Dismiss.
A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the
10 pleadings fail to state a claim upon which relief can be granted. On a motion to dismiss under
11 Rule 12(b)(6), the Court construes the allegations in the complaint in the light most favorable to
12 the non-moving party and takes as true all material allegations in the complaint. Sanders v.
13 Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard of Rule
14 8(a)(2), “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief” requires
15 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
16 will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain,
17 478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead allege “enough facts to state a claim to
18 relief that is plausible on its face.” Id. at 570.
19 “The plausibility standard is not akin to a probability requirement, but it asks for more than
20 a sheer possibility that a defendant has acted unlawfully. ... When a complaint pleads facts that
21 are merely consistent with a defendant’s liability, it stops short of the line between possibility and
22 plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
23 Twombly, 550 U.S. at 557) (internal quotation marks omitted). If the allegations are insufficient to
24 state a claim, a court should grant leave to amend, unless amendment would be futile. See, e. g.
2S Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Lieche, Inc. v. N.
26 Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990).
27 Cc. District Defendants’ Motion to Dismiss.
28 The District Defendants move to dismiss part of Plaintiff's second claim for negligence
3
Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 4 of 7
against the District Defendants, his eighth claim for violation of California Penal Code § 245.6
against NVUSD, and his ninth claim for violation of 42 U.S.C § 1983 against the Individual
Defendants.
1 Plaintiff's Second Claim for Negligence — Against all District Defendants.
The District Defendants try to reframe Plaintiff's negligence claim as three separate
claims, and then move to dismiss two of Plaintiff's three theories of negligence. However, the
District Defendants have not pointed to any authority demonstrating that it may attack portions of
a single claim on a motion to dismiss. See In re Netopia, Inc., Sec. Litig., 2005 WL 3445631, at
*3 (N.D. Cal. Dec. 15, 2005) (“By its own terms, there does not appear to be any way to grant
10 partial dismissal of a claim under Fed.R.Civ.P. 12(b)(6).”) District Defendants cites Bautista v.
Tf Los Angeles Cty., 216 F.3d 837, 840 (9th Cir. 2000), for the proposition that the Court should
12 construe Plaintiff's different theories of negligence as separate “claims.” However, Bautista is
13 inapplicable. In Bautista, fifty-one different plaintiffs each asserted that the defendant
discriminated against them on the basis their protected class. The Ninth Circuit held that because
14
each plaintiff's claim was founded upon a separate transaction or occurrence, they should be stated
15
in separate counts under Federal Rule of Civil Procedure 10(b). Here, there is only one Plaintiff.
16
Under the heading of “Negligence,” the FAC groups together multiple theories and
17
ps operative facts which, if independently found to be valid, could each “give rise to a right
18
enforceable in the courts.” (Bautista, 216 F.3d at 840.) This requires Defendants to address each
19
potential claim separately.
20
Because Plaintiff has stated a cause of action for negligence, the Court declines at this
21
procedural stage to break Plaintiff's negligence claim apart and reframe it as separate claims.
22
Therefore, the Court DENIES the District Defendants’ motion as to Plaintiff's negligence cause of
23
action. Nevertheless, the Court cautions Plaintiff that at later procedural stages, such as on a
24
motion for summary judgment or at trial, Plaintiff will need to have sufficient evidence for each
25
theory on which he seeks to proceed.
26
2. Plaintiff's Eighth Claim for Violation of California Penal Code § 245.6 —
27 Against NVUSD Only.
28 Under California Penal Code § 245.6, Plaintiff may bring an action against any participant
4
Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 5 of 7
in the hazing or “any organization to which the student is seeking membership.” Cal. Pen. Code §
245.6(e) (emphasis added). The statute also exempts “customary athletic events” and “school-
sanctioned events” from the definition of “hazing.” Cal. Penal Code § 245.6(b). Plaintiff does not
allege that any of the District Defendants participated in the hazing incident. Therefore, Plaintiff
must allege facts to show that he was “seeking membership” in an organization.'
Plaintiff alleges that the hazing occurred as a “regular football practice concluded” and
after he was already promoted to the junior varsity football team. (Dkt. 33, 4 19, 20.) In light of
these allegations, the Court finds that Plaintiff was already promoted to the junior varsity football
team and was not seeking membership when the alleged hazing occurred. At the hearing, Plaintiff
tried to argue that he had not actually been fully promoted, because he had not yet played in a
10
game with the junior varsity football team. Notably, Plaintiff did not allege or argue that, at the
11
time of the incident, Plaintiff's acceptance on the team was still in question or in any way
12.
uncertain. Instead, he merely argued that he had not yet played in a game. According to
13
Plaintiff's own factual allegations, he was already on the team when the incident occurred.
14
Therefore, the Court GRANTS the District Defendants’ motion as to Plaintiffs claim under
15
California Penal Code § 245.6.
16
3 Plaintiff's Ninth Claim for Violation of 42 U.S.C. § 1983 — Against the
17 Individual District Defendants.
18 Plaintiff alleges a claim under 42 U.S.C. § 1983 premised on both Title IX and the Equal
19 Protection Clause of the United States Constitution. However, Plaintiff represented that his
20 Section 1983 claim is premised solely on Title [X. At oral argument, Plaintiff confirmed that he is
21 not bringing a Section 1983 claim premised on the Equal Protection Clause. Therefore, the Court
22 will only address the Individual District Defendants’ motion with respect to Plaintiff's Section
23 1983 claim based on an alleged violation of Title IX.
24 Plaintiff brings his Section 1983 claim against the Individual District Defendants only.
25 The Individual District Defendants argue that, because Plaintiff cannot bring a Title IX claim
26
27
It is not clear whether the practice and the events immediately following practice in the
28 locker room would be considered a “school-sanctioned event” under the statute. However, the
Court need not reach this issue.
5
Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 6 of 7
directly against them, he is precluded from bringing a Section 1983 claim against them premised
on Title IX. Plaintiff counters that he may assert a Section 1983 claim premised on Title IX
against the Individual District Defendants. Both sides rely on the Supreme Court opinion in
Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009).
In Fitzgerald, the Supreme Court held that, in light of the different substantive protections
of the Equal Protection Clause and Title IX, “Title LX was not meant to be an exclusive
mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a
means of enforcing constitutional rights.” Fitzgerald, 555 U.S. at 258. Accordingly, the Court
held that § 1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging
unconstitutional gender discrimination in schools.” Jd. The Fitzgerald Court only explicitly
10
addressed the propriety of bringing constitutional claims under Section 1983, not statutory claims
11
based on violations of Title IX. However, without any explanation, the Supreme Court also
12
reversed the dismissal of the Section 1983 statutory claim brought against both the institutional
13
defendant and a school official. Jd. Nevertheless, the Court finds that Fitzgerald does not provide
14
support for Plaintiff to bring a Section 1983 claim against the Individual District Defendants based
15
on alleged violations of Title IX.
16
Another district court thoughtfully analyzed this issue after Fitzgerald and concluded that,
es 17
et based on Congressional intent, a plaintiff cannot bring a Section 1983 claim against individuals
18
based on Title IX. See Doe v. Town of Stoughton, 917 F. Supp. 2d 160, 163-66 (D. Mass. 2013)
19
(“The touchstone in this inquiry is congressional intent.”) (citing Gonzaga Univ. v. Doe, 536 U.S.
20
273, 291 (2002) (Breyer, J., concurring)). Because a plaintiff can only bring a Title IX claim
21
against institutions and programs that receive federal funds, and Section 1983 claims can be
22
brought against individuals, “providing a § 1983 claim against individuals for Title IX liability
23
‘would permit an end run around Title IX’s explicit language limiting liability to funding
24
recipients.’” Doe v. Town of Stoughton, 917 F. Supp. 2d at 66 (quoting Doe v. School Bd. of
25
Broward County, Fla., 604 F.3d 1248, 1266 n. 12 (11th Cir. 2010)); see also Wilkerson v. Univ. of
26
N. Texas, 223 F. Supp. 3d 592, 608 (E.D. Tex. 2016) (finding that the plaintiff could not state a
27
claim under § 1983 based on an underlying violation of Title IX because Title IX does not allow
28
Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 7 of 7
suit against individuals); but see Cartwright v. Regents of the Univ. of Cal., 2009 WL 2190072, at
*7 (E.D. Cal. July 21, 2009) (finding that “the clear import of” the Fitzgerald Court’s reversing
the dismissal of both statutory and constitutional § 1983 claims “is that plaintiffs may use § 1983
as a vehicle for litigating both constitutional and statutory claims.”).
The Court finds the reasoning of Doe v. Town of Stoughton persuasive. Title IX provides:
No person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance.
20 U.S.C. § 1681 (a) (emphasis added). As the Supreme Court noted in Fitzgerald, Title IX “has
consistently been interpreted as not authorizing suit against school officials, teachers, and other
10
individuals.” Fitzgerald, 555 U.S. at 257. Plaintiff may only bring his Title IX claim against the
ll
NVUSD, and allowing him to bring a Section 1983 claim against the Individual District
12
Defendants would “would permit an end run around Title IX’s explicit language limiting liability
13
to funding recipients.” Doe v. School Bd. of Broward County, Fla., 604 F.3d 1248, 1266 n. 12
14 (11th Cir. 2010) Accordingly, the Court GRANTS the Individual District Defendants’ motion as
15 to Plaintiff's Section 1983 claim.
16 CONCLUSION
17 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the
5 6
18 District Defendants’ motion to strike and GRANTS IN PART and DENIES IN PART their motion
19 to dismiss. The Court DENIES the motion to dismiss as to Plaintiff's negligence claim and
20 GRANTS the motion as to Plaintiff's claim under California Penal Code § 245.6 and his Section
21 1983 claim.
22 IT IS SO ORDERED.
23 Dated: April 24, 2018 bythe few:
24
25 SALLIE KIM
United States Magistrate Judge
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27
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PROOF OF SERVICE
I declare that I am a citizen of the United States, that I have attained the age of majority,
and that I am not a party to this action. My business address is 201 Mission Street, Suite 710,
San Francisco, California 94105. On the date set forth below, following ordinary business
practice, | served a true copy of the document(s) described as:
DEFENDANT NAJPREET SINGH KAHLON’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’
FIRST AMENDED COMPLAINT
[ X ] (BY EMAIL) by having personal delivery by ELECTRONIC MAIL of a true copy
of the document(s) listed above to the person(s) and at the address(es) set forth below.
| ] (BY ELECTRONIC SERVICE) by electronically serving the document(s) described
10 above via Court approved vendor (ONE LEGAL) on those recipients designated on the vendor’s
Website.
11
[ ] (BY U.S. MAIL) I caused such envelope(s) with postage thereon fully prepaid to be
12 placed in the United States mail at San Francisco, California.
13 [ ] (BY PERSONAL SERVICE) I caused each such envelope(s) to be delivered by hand
on the below date to the addressee(s) via personal service.
14
[ ] (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an
IS: overnight delivery carrier with delivery fees provided for, addressed to the person(s) on whom it
is to be served.
16
17 addressed as follows:
18 SEE ATTACHED SERVICE LIST
19
20
I declare under penalty of perjury under the laws ofjthe State of California that the
21 foregoing is true and correct. Executed on April 17, 2020, at San Francisco, California.
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Le Oc
TARKINGTON,
O'NEILL, BARRACK
& CHONG 1
A Prof orporation BELETSIS V THETA CHI FRATERNITY 19CV03287|
0 mE PROOF OF SERVICE
tos
SERVICE LIST
Attorneys for Plaintiffs Tel: (202) 351-0510
Douglas E. Fierberg Fax: (231) 252-8100
Jonathon N. Fazzola Em: dfierberg@tfnlgroup.com
Lisa N. Cloutier jfazzola@tfnlgroup.com
THE FIERBERG NATIONAL LAW Icloutier@tfnlgroup.com
GROUP tpicard@tfnlgroup.com
161 East Front Street, Suite 200
Traverse City, MI 49684
Attorneys for Plaintiffs Tel: (415) 262-3820
Ivo Labar Fax:
Stevie Brynne Newton Em: labar@sawyerlabar.com
10 SAWYER & LABAR LLP guzman@sawyerlabar.cor
201 Mission Street, Suite 2240
11 San Francisco, CA 94105
12
Attorneys for Theta Chi Fraternity, Inc. Tel: 415-228-0208
13: Michael C. Osborn Cell: 650-291-1446
Jaskiran Samra Em: mosborne@cokinoslaw.com
mMosborne@cokinosiaw.Ccom
14 COKINOS YOUNG Em: jsamra@cokinoslaw.com
15 One Embarcadero Center, Suite 390
San Francisco, CA 94111
16
Attorneys for Quinn McLaughlin Tel: (408) 271-5325
17 Andrew M. Lauderdale Fax: (408) 271-5301
18 HARTSUYKER STRATMAN & Em:
WILLIAMS-ABREGO Andrew. lauderdale@farmersinsurance.com
19 One Almaden Blvd., Suite 400
San Jose, CA 95113
20
21 Attorneys for Jordan Keiichi Takayama Tel: 415-438-5920, JA
Julie Azevedo Tel: 415-438-6662, ST
22 Shawn Toliver Fax:
LEWIS BRISBOIS BISGAARD & SMITH Em: dJulie.Azevedo@lewisbrisbois.com
23 2185 N. California Blvd, Suite 300 Em: Shawn.Toliver@lewisbrisbois.com
24 Walnut Creek, CA 94596
25 Attorneys for Brad Visacki & Tel: 415-949-1900
Christopher Guevar: Fax:
26 Derek H. Lim Em: lim@darlaw.com
a
27 Shannon Mallory Em: mal @ darlay
Maladarlaw.comom
Demler, Armstrong & Rowland, LLP
28 1350 Treat Boulevard #400
Lawes
TARKINGTON, Walnut Creek, CA 94597
OPNEILL, BARRACK
& CHONG BELETSIS v THETA CHI FRATERNITY «i=
A Profesional Cosporstion 19CV03287|
STR, PROOF OF SERVICE
1869,CA.
‘ais 94105
Attorneys for Christopher Guevara Tel : 916-978-3434, Exten 129
Matthew C. Jaime Fax:
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Chris A. Tarkington (SBN 043132) ctark@to2law.com ELECTRONICALLY FILED Norman L. Chong (SBN 111439) nchong@to2law.com Superior Court of California Joseph D. O’Neil (SBN 226806) joneil@to2law.com County of Santa Cruz Samantha Lewin (SBN 320868) slewin@to2law.com 4/17/2020 11: Alex Calvo, C| TARKINGTON, O’NEILL, BARRACK & CHONG By: Flore! fen, Deputy A Professional Corporation 201 Mission Street, Suite 710 + Pe San Francisco, CA 94105 Telephone: (415) 777-5501 Facsimile: (415) 546-4962 Attorneys for Defendant NAJPREET SINGH KAHLON 10 SUPERIOR COURT OF CALIFORNIA 11 COUNTY OF SANTA CRUZ UNLIMITED JURISDICTION 12 13 DAPHNE BELETSIS, individually, and as Case No. 19CV03287 Administrator of the ESTATE OF 14 ALEXANDER BELETSIS, et al., DEFENDANT NAJPREET SINGH KAHLON’S MEMORANDUM OF 15 Plaintiffs, POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE 16 Vv. PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 17 THETA CHI FRATERNITY, INC., a New CCP §§ 435-436 18 York corporation, individually, as a member of and t/a the Theta Iota Chapter, Hearing Date: June 1, 2020 19 University of California, Santa Cruz, as a Hearing Time: 8:30 a.m. member of the fraternal order known as Department: 10 20 Theta Chi Fraternity; et al., The Honorable John Gallagher, presiding 21 Defendants. Complaint Filed: 10/31/2019 22 Trial Date: Not Set 23 Mt 24 Mt 25 Mt 26 27 28 aw Oe TARKINGTON, O”NEILL, BARRACK & CHONG Profesional Corporation (MISSION STREET, -1- ‘Sure 110 BELETSIS V. THETA CHI FRATERNITY, INC. Case No. 19CV03287| sa 10s MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE I. INTRODUCTION On or about June 2, 2018, Alexander Beletsis fell from a second story window of a house while allegedly under the influence of alcohol and drugs. First Amended Complaint (FAC), at {J 11, 83-85. Mr. Beletsis, a sophomore at the University of California at Santa Cruz (UCSC) and al previously initiated member of Theta Chi Fraternity (Theta Chi), died eighteen days later. FAC at §/ 82, 85. Mr. Beletsis became an initiated member to Theta Chi during the Fall of 2017, his sophomore year at UCSC. FAC, at §§ 81-83. In the spring academic semester, on June 2, 2018, Mr. Beletsis attended a “Crossover Ceremony” held by Theta Chi to commemorate the latest 10 pledge class, of which Mr. Beletsis did not belong, as they “crossed-over” into brotherhood. ll 12 FAC, at 84. 13 The Crossover Ceremony itself was held at a house on 636 Market Street in Santa Cruz. 14 The after-party, intended to facilitate bonding between the new brothers, was held nearby at 15 511 Broadway in Santa Cruz, a property used as student housing. FAC, {ff 14, 43. In conjunction 16 with these events, Mr. Beletsis consumed alcohol and drugs, and due to his erratic behavior, was 17 directed to a bathroom to settle down. FAC, fff 14-15. After he closed the bathroom door, Mr. 18 19 Beletsis tragically fell out of the bathroom window, landing on the concrete below, and died 20 eighteen days later. FAC, {J 15-16. 21 Plaintiffs rely on these allegations in their First Amended Complaint to support four 22 negligence-based causes of action! and one social host liability cause of action against 23 NAJPREET SINGH KAHLON (“Kahlon”), then treasurer of Theta Chi and resident of 24 25 511 Broadway. 26 27 | The four negligence causes of action are First Cause of Action: Negligence (Failure to Manage and Supervise); 28 Second Cause of Action: Negligence; Fourth Cause of Action: Negligence (Assumed Duty); and, Fifth Cause of aw Oe Action: Negligence (Duty to Prevent Harm). TARKINGTON, O”NEILL, BARRACK & CHONG ‘A Professional Corporation 1 MISSION STREET, -2- Sue 710 BELETSIS V. THETA CHI FRATERNITY, INC. CASE No. 19CV03287| Say i 15) sea MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE II. LEGAL AUTHORITY AND ARGUMENT California Code of Civil Procedure Section 436 provides in pertinent part, that upon a motion to strike a pleading in whole or in part, a court may” [s]trike out any irrelevant, false, or improper matter inserted in any pleading.” A. Plaintiffs’ Allegations that Alexander Beletsis Was Subjected to “Hazing” on June 2, 2018 are Premised Upon a Faulty and Invalid Definition of Hazing, and All References to Such “Hazing” Should be 9 Stricken from the First Amended Complaint 10 Plaintiffs have made numerous assertions throughout their First Amended Complaint that ll Mr. Beletsis was subjected to “hazing” in connection with the students’ activities on the date of 12 his fatal injury, while simultaneously admitting that Mr. Beletsis was at that time (June 2018) 13 already an active, initiated member of Theta Chi Fraternity.” For example, plaintiffs allege that 14 after Mr. Beletsis “obtained membership in the Fraternity, he was being groomed for an officer 15 position in spring of 2018. Again, [Mr. Beletsis] was required to participate in dangerous 16 hazing, including being forced to consume large amounts of alcohol . . .” (FAC, at § 11.) 17 Plaintiffs also allege that in the Spring of his sophomore year, Mr. Beletsis “was being groomed 18 for initiation as a Brotherhood Officer and was again subjected to hazing and dangerous 19 misconduct in order to obtain such position and maintain and satisfy the requirements of his 20 membership.” (FAC, at § 83.) Plaintiffs thereafter conclude that, “[a]s a result of the hazing and 21 other misconduct at the Crossover Ceremony and membership and officer-grooming rituals, [Mr. 22 Beletsis] was visibly incoherent, mentally unstable, and panicky.” (FAC, at § 85.) 23 California Penal Code Section 245.6 (Matt’s Law) embodies California’s anti-hazing 24 policy. Sub-Section 245.6(b) provides: 25 (b) “Hazing” means any method of initiation or preinitiation into a student 26 organization or student body, whether or not the organization or body is officially 27 ? Defendant moves to strike all such irrelevant, false, and improper allegations that Mr. Beletsis was subjected to 28 “hazing” after he became an initiated member of Theta Chi Fraternity, as identified and set forth in detail in aw Oe defendant’s Notice of Motion to Strike Portions of Plaintiffs’ First Amended Complaint. TARKINGTON, O”NEILL, BARRACK & CHONG ‘A Professional Corporation 201 MISSION STREET, -3- ‘Sure7 BELETSIS V. THETA CHI FRATERNITY, INC. CASE No. 19CV03287| te is) sta MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. The term “hazing” does not include customary athletic events or school-sanctioned events.” Pursuant to this definition, “hazing” necessarily requires that the alleged acts be part of a “method of initiation or preinitiation into a student organization.” (See, e.g., Doe v. Napa Valley Unified School District (N.D. Cal. Apr. 24, 2018) Dkt No. 17-cv-03753-SK, at pp. 4-5 (attached as Exhibit A) (granting defendants’ Motion to Dismiss hazing-related claims under California Penal Code Section 245.6 for the precise reason that plaintiff was already a member of the football team at the time the alleged hazing occurred and, as such, could not have been 10 subject to “hazing” under the statute).) ll Plaintiffs’ First Amended Complaint also references the definition utilized by the 12 University of California at Santa Cruz, as set forth in the Standards for Student Conduct for the 13 University of California System, Cal. Code Regs. Tit. 5, Section 41301 (2012). (FAC, at J 78.) 14 These standards similarly apply only to acts committed in the course of initiation or pre-initiatior 15 into a student organization. 16 Plaintiffs allege that Mr. Beletsis became a fraternity member during the Fall 2017 term. 17 (FAC, at {{] 7, 11.) By definition, even if the actual acts alleged occurred as described, he was 18 not subject to any “hazing” activity. Therefore, any allegation that he was subjected to “hazing” 19 (as defined by state statute and University standard) in June of 2018 is an irrelevant, false, and 20 improper allegation that may be stricken by this Court under Code of Civil Procedure Section 21 436. 22 Plaintiffs’ Allegations of Post-Accident Conduct and Investigations 23 Are Irrelevant and Improper Matter that Have No Probative Value 24 Regarding the Liability of Defendant Kahlon or Plaintiffs’ Damages and All References to Such Post Accident Conduct and Investigations 25 Should be Stricken from the First Amended Complaint 26 27 As noted above, plaintiffs’ claim that Mr. Beletsis was injured as a result of acts or 28 omissions by defendants including Defendant Kahlon which occurred on June 2, 2018. aw Oe TARKINGTON, O”NEILL, BARRACK & CHONG ‘A Professional Corporation 201 MISSION STREET, -4- ‘Sure7 BELETSIS V. THETA CHI FRATERNITY, INC. CASE No. 19CV03287| te is) sta MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE Plaintiffs’ First Amended Complaint, however, contains many allegations relating to alleged subsequent acts relating to an investigation by the University of California. (FAC at J 86 — 91.) None of these alleged subsequent activities, acts or omissions have any tendency to prove or disprove the circumstances surrounding the incident in which Mr. Beletsis was injured. California Evidence Code Section 210 defines relevance as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Plaintiffs’ five causes of action® against Defendant Kahlon all sound in negligence. As a negligence action, the ultimate issues in this case relate to whether defendants owed a duty of care to Mr. Beletsis, whether defendants breached their duty(ies) to Mr. Beletsis, and 10 whether the breach resulted in injury to plaintiffs. Lawrence v La Jolla Beach & Tennis Club, ll Inc. (2014) 231 Cal.App.4 11, 21. None of the alleged post-accident matters have any tendency| 12 to prove or disprove any of these elements as to Defendant Kahlon and are irrelevant. 13 For the reasons stated above, the allegations in the First Amended Complaint relating to 14 post-accident conduct and investigations are irrelevant and should be stricken without leave to 15 amend. 16 Ill. CONCLUSION 17 18 For all of the foregoing reasons, Defendant Najpreet Singh Kahlon respectfully requests 19 this court to grant his motion to strike portions of Plaintiffs’ First Amended Complaint in this action as set forth in Defendant’s Notice of Motion. 20 21 DATED: April 16, 2020 TARKINGTON, O’NEILL, BARRACK & CHONG 22 A Professional Corporation 23 BE 24 Chris A. Tarkington 25 Attorneys for Defendant NAJPREET SINGH KAHLON, 26 27 28 > The Third Cause of Action is alleged only against Theta Chi National and the Seventh Cause of Action is only aw Oe alleged against the “Defendants Landlord.” TARKINGTON, O”NEILL, BARRACK & CHONG ‘A Professional Corporation 201 MISSION STREET, -5- ‘Sure7 BELETSIS V. THETA CHI FRATERNITY, INC. CASE No. 19CV03287| te is) sta MEMOANDUMMEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF KAHLON MOTION TO STRIKE EXHIBIT A Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 1 of 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA B. DOE, Case No. 17-cv-03753-SK Plaintiff, Vv. ORDER REGARDING MOTION TO DISMISS AND MOTION TO STRIKE NAPA VALLEY UNIFIED SCHOOL 10 DISTRICT, et al., Regarding Docket Nos. 42, 43 11 Defendants. 12 This matter comes before the Court upon consideration of the motions to dismiss and to 13 strike filed by Defendants Annie Petrie, Troy Mott, Gerald Harris, and Jesus Martinez (“Individual 14 District Defendants”) and Napa Valley Unified School District (“NVUSD”) (collectively referred 15 to as the “District Defendants”). Having carefully considered the parties’ papers, relevant legal 16 authority, the record in the case, and having had the benefit of oral argument, the Court hereby eg 17 GRANTS IN PART and DENIES IN PART the District Defendants’ motion for the reasons set a p Ss 18 forth below. 19 BACKGROUND 20 Plaintiff filed this action regarding an alleged hazing incident in which Plaintiff contends 21 that other students physically and sexually assaulted him. Plaintiff accuses the District Defendants 22 of failing to protect him. The Court accepts Plaintiff's factual allegations as true for purposes of 23 this motion. 24 Plaintiff was on the Napa High School freshman football team until, shortly before the 25 “Big Game” against a rival high school, “the coaches for Napa High School promoted Plaintiff 26 and several other freshman players to the junior varsity squad.” (Dkt. 33 (First Amended 27 Complaint (“FAC”), { 19.) The incident occurred in the boys’ locker room “as a regular football 28 practice concluded leading up to the Big Game[.]” (/d., 120.) These motion are brought only by Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 2 of 7 the District Defendants and do not contest all of Plaintiff's claims against them. ANALYSIS A District Defendants’ Motion to Strike. Under Rule 12(f), a court may strike from a pleading “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Immaterial matter “is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” Fantasy Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (internal citations and quotations omitted). Impertinent material “consists of statements that do not pertain, and are not necessary, 10 to the issues in question.” /d. (internal citations and quotations omitted). Motions to strike are 11 regarded with disfavor because they are often used as delaying tactics and because of the limited 12 importance of pleadings in federal practice. Colaprico v. Sun Microsystems Inc., 758 F. Supp. 13 1335, 1339 (N.D. Cal. 1991). A motion to strike should be resorted to only when the matter to be 14 stricken could have no possible bearing on the issues in litigation. LeDuc v. Kentucky Central Life 15 Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Ultimately, the decision as to whether to strike 16 allegations is a matter within the Court’s discretion. Colaprico, 758 F. Supp. at 1339. = 17 The District Defendants move to strike paragraphs 18(c) through (f) of Plaintiff's First ar 5 6 18 Amended Complaint (“FAC”) on the grounds that Plaintiff appears to have deleted its allegations 19 regarding any mandatory duties from its negligence cause of action but then confusingly retained 20 his allegations regarding mandatory duties in its “common allegations” section. To the extent 21 Plaintiff intends to assert that the District Defendants violated mandatory duties under California 22 Government Code§ 815.6 as part of his negligence claim, the District Defendants argue that none 23 of the statutes or regulations to which Plaintiff cites contain a cognizable mandatory duty. At oral 24 argument, Plaintiff represented that he was willing to strike his reference to any mandatory duties. 25 Accordingly, based on Plaintiff’s representation, the Court HEREBY STRIKES Plaintiff's 26 allegation in paragraph 18(e) of his FAC. 27 Although paragraphs 18(c), (d) and (f) reference provisions in the California Constitution, Education Code and Code of Regulations, these paragraphs do not reference any mandatory 28 2 Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 3 of 7 duties. The District Defendants’ moved to strike only on the grounds that Plaintiff's allegations regarding “mandatory duties” were confusing, immaterial and impertinent. In the absence of Plaintiff's allegation regarding mandatory duties in paragraph 18(e), it is not clear whether or not the District Defendant still contend that paragraphs 18(c), (d) and (f) should be struck and on what grounds. The Court thus DENIES the rest of the District Defendant’s motion to strike, but this Order is without prejudice to the District Defendants’ filing another motion to strike if they contend that paragraphs 18(c), (d) and (f) should be struck as well. B. Applicable Legal Standard on Motion to Dismiss. A motion to dismiss is proper under Federal Rule of Civil Procedure 12(b)(6) where the 10 pleadings fail to state a claim upon which relief can be granted. On a motion to dismiss under 11 Rule 12(b)(6), the Court construes the allegations in the complaint in the light most favorable to 12 the non-moving party and takes as true all material allegations in the complaint. Sanders v. 13 Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). Even under the liberal pleading standard of Rule 14 8(a)(2), “a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief” requires 15 more than labels and conclusions, and a formulaic recitation of the elements of a cause of action 16 will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. Allain, 17 478 U.S. 265, 286 (1986)). Rather, a plaintiff must instead allege “enough facts to state a claim to 18 relief that is plausible on its face.” Id. at 570. 19 “The plausibility standard is not akin to a probability requirement, but it asks for more than 20 a sheer possibility that a defendant has acted unlawfully. ... When a complaint pleads facts that 21 are merely consistent with a defendant’s liability, it stops short of the line between possibility and 22 plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 23 Twombly, 550 U.S. at 557) (internal quotation marks omitted). If the allegations are insufficient to 24 state a claim, a court should grant leave to amend, unless amendment would be futile. See, e. g. 2S Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, Perkiss & Lieche, Inc. v. N. 26 Cal. Collection Serv., Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). 27 Cc. District Defendants’ Motion to Dismiss. 28 The District Defendants move to dismiss part of Plaintiff's second claim for negligence 3 Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 4 of 7 against the District Defendants, his eighth claim for violation of California Penal Code § 245.6 against NVUSD, and his ninth claim for violation of 42 U.S.C § 1983 against the Individual Defendants. 1 Plaintiff's Second Claim for Negligence — Against all District Defendants. The District Defendants try to reframe Plaintiff's negligence claim as three separate claims, and then move to dismiss two of Plaintiff's three theories of negligence. However, the District Defendants have not pointed to any authority demonstrating that it may attack portions of a single claim on a motion to dismiss. See In re Netopia, Inc., Sec. Litig., 2005 WL 3445631, at *3 (N.D. Cal. Dec. 15, 2005) (“By its own terms, there does not appear to be any way to grant 10 partial dismissal of a claim under Fed.R.Civ.P. 12(b)(6).”) District Defendants cites Bautista v. Tf Los Angeles Cty., 216 F.3d 837, 840 (9th Cir. 2000), for the proposition that the Court should 12 construe Plaintiff's different theories of negligence as separate “claims.” However, Bautista is 13 inapplicable. In Bautista, fifty-one different plaintiffs each asserted that the defendant discriminated against them on the basis their protected class. The Ninth Circuit held that because 14 each plaintiff's claim was founded upon a separate transaction or occurrence, they should be stated 15 in separate counts under Federal Rule of Civil Procedure 10(b). Here, there is only one Plaintiff. 16 Under the heading of “Negligence,” the FAC groups together multiple theories and 17 ps operative facts which, if independently found to be valid, could each “give rise to a right 18 enforceable in the courts.” (Bautista, 216 F.3d at 840.) This requires Defendants to address each 19 potential claim separately. 20 Because Plaintiff has stated a cause of action for negligence, the Court declines at this 21 procedural stage to break Plaintiff's negligence claim apart and reframe it as separate claims. 22 Therefore, the Court DENIES the District Defendants’ motion as to Plaintiff's negligence cause of 23 action. Nevertheless, the Court cautions Plaintiff that at later procedural stages, such as on a 24 motion for summary judgment or at trial, Plaintiff will need to have sufficient evidence for each 25 theory on which he seeks to proceed. 26 2. Plaintiff's Eighth Claim for Violation of California Penal Code § 245.6 — 27 Against NVUSD Only. 28 Under California Penal Code § 245.6, Plaintiff may bring an action against any participant 4 Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 5 of 7 in the hazing or “any organization to which the student is seeking membership.” Cal. Pen. Code § 245.6(e) (emphasis added). The statute also exempts “customary athletic events” and “school- sanctioned events” from the definition of “hazing.” Cal. Penal Code § 245.6(b). Plaintiff does not allege that any of the District Defendants participated in the hazing incident. Therefore, Plaintiff must allege facts to show that he was “seeking membership” in an organization.' Plaintiff alleges that the hazing occurred as a “regular football practice concluded” and after he was already promoted to the junior varsity football team. (Dkt. 33, 4 19, 20.) In light of these allegations, the Court finds that Plaintiff was already promoted to the junior varsity football team and was not seeking membership when the alleged hazing occurred. At the hearing, Plaintiff tried to argue that he had not actually been fully promoted, because he had not yet played in a 10 game with the junior varsity football team. Notably, Plaintiff did not allege or argue that, at the 11 time of the incident, Plaintiff's acceptance on the team was still in question or in any way 12. uncertain. Instead, he merely argued that he had not yet played in a game. According to 13 Plaintiff's own factual allegations, he was already on the team when the incident occurred. 14 Therefore, the Court GRANTS the District Defendants’ motion as to Plaintiffs claim under 15 California Penal Code § 245.6. 16 3 Plaintiff's Ninth Claim for Violation of 42 U.S.C. § 1983 — Against the 17 Individual District Defendants. 18 Plaintiff alleges a claim under 42 U.S.C. § 1983 premised on both Title IX and the Equal 19 Protection Clause of the United States Constitution. However, Plaintiff represented that his 20 Section 1983 claim is premised solely on Title [X. At oral argument, Plaintiff confirmed that he is 21 not bringing a Section 1983 claim premised on the Equal Protection Clause. Therefore, the Court 22 will only address the Individual District Defendants’ motion with respect to Plaintiff's Section 23 1983 claim based on an alleged violation of Title IX. 24 Plaintiff brings his Section 1983 claim against the Individual District Defendants only. 25 The Individual District Defendants argue that, because Plaintiff cannot bring a Title IX claim 26 27 It is not clear whether the practice and the events immediately following practice in the 28 locker room would be considered a “school-sanctioned event” under the statute. However, the Court need not reach this issue. 5 Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 6 of 7 directly against them, he is precluded from bringing a Section 1983 claim against them premised on Title IX. Plaintiff counters that he may assert a Section 1983 claim premised on Title IX against the Individual District Defendants. Both sides rely on the Supreme Court opinion in Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009). In Fitzgerald, the Supreme Court held that, in light of the different substantive protections of the Equal Protection Clause and Title IX, “Title LX was not meant to be an exclusive mechanism for addressing gender discrimination in schools, or a substitute for § 1983 suits as a means of enforcing constitutional rights.” Fitzgerald, 555 U.S. at 258. Accordingly, the Court held that § 1983 suits based on the Equal Protection Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools.” Jd. The Fitzgerald Court only explicitly 10 addressed the propriety of bringing constitutional claims under Section 1983, not statutory claims 11 based on violations of Title IX. However, without any explanation, the Supreme Court also 12 reversed the dismissal of the Section 1983 statutory claim brought against both the institutional 13 defendant and a school official. Jd. Nevertheless, the Court finds that Fitzgerald does not provide 14 support for Plaintiff to bring a Section 1983 claim against the Individual District Defendants based 15 on alleged violations of Title IX. 16 Another district court thoughtfully analyzed this issue after Fitzgerald and concluded that, es 17 et based on Congressional intent, a plaintiff cannot bring a Section 1983 claim against individuals 18 based on Title IX. See Doe v. Town of Stoughton, 917 F. Supp. 2d 160, 163-66 (D. Mass. 2013) 19 (“The touchstone in this inquiry is congressional intent.”) (citing Gonzaga Univ. v. Doe, 536 U.S. 20 273, 291 (2002) (Breyer, J., concurring)). Because a plaintiff can only bring a Title IX claim 21 against institutions and programs that receive federal funds, and Section 1983 claims can be 22 brought against individuals, “providing a § 1983 claim against individuals for Title IX liability 23 ‘would permit an end run around Title IX’s explicit language limiting liability to funding 24 recipients.’” Doe v. Town of Stoughton, 917 F. Supp. 2d at 66 (quoting Doe v. School Bd. of 25 Broward County, Fla., 604 F.3d 1248, 1266 n. 12 (11th Cir. 2010)); see also Wilkerson v. Univ. of 26 N. Texas, 223 F. Supp. 3d 592, 608 (E.D. Tex. 2016) (finding that the plaintiff could not state a 27 claim under § 1983 based on an underlying violation of Title IX because Title IX does not allow 28 Case 3:17-cv-03753-SK Document 121 Filed 04/24/18 Page 7 of 7 suit against individuals); but see Cartwright v. Regents of the Univ. of Cal., 2009 WL 2190072, at *7 (E.D. Cal. July 21, 2009) (finding that “the clear import of” the Fitzgerald Court’s reversing the dismissal of both statutory and constitutional § 1983 claims “is that plaintiffs may use § 1983 as a vehicle for litigating both constitutional and statutory claims.”). The Court finds the reasoning of Doe v. Town of Stoughton persuasive. Title IX provides: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. 20 U.S.C. § 1681 (a) (emphasis added). As the Supreme Court noted in Fitzgerald, Title IX “has consistently been interpreted as not authorizing suit against school officials, teachers, and other 10 individuals.” Fitzgerald, 555 U.S. at 257. Plaintiff may only bring his Title IX claim against the ll NVUSD, and allowing him to bring a Section 1983 claim against the Individual District 12 Defendants would “would permit an end run around Title IX’s explicit language limiting liability 13 to funding recipients.” Doe v. School Bd. of Broward County, Fla., 604 F.3d 1248, 1266 n. 12 14 (11th Cir. 2010) Accordingly, the Court GRANTS the Individual District Defendants’ motion as 15 to Plaintiff's Section 1983 claim. 16 CONCLUSION 17 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the 5 6 18 District Defendants’ motion to strike and GRANTS IN PART and DENIES IN PART their motion 19 to dismiss. The Court DENIES the motion to dismiss as to Plaintiff's negligence claim and 20 GRANTS the motion as to Plaintiff's claim under California Penal Code § 245.6 and his Section 21 1983 claim. 22 IT IS SO ORDERED. 23 Dated: April 24, 2018 bythe few: 24 25 SALLIE KIM United States Magistrate Judge 26 27 28 PROOF OF SERVICE I declare that I am a citizen of the United States, that I have attained the age of majority, and that I am not a party to this action. My business address is 201 Mission Street, Suite 710, San Francisco, California 94105. On the date set forth below, following ordinary business practice, | served a true copy of the document(s) described as: DEFENDANT NAJPREET SINGH KAHLON’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT [ X ] (BY EMAIL) by having personal delivery by ELECTRONIC MAIL of a true copy of the document(s) listed above to the person(s) and at the address(es) set forth below. | ] (BY ELECTRONIC SERVICE) by electronically serving the document(s) described 10 above via Court approved vendor (ONE LEGAL) on those recipients designated on the vendor’s Website. 11 [ ] (BY U.S. MAIL) I caused such envelope(s) with postage thereon fully prepaid to be 12 placed in the United States mail at San Francisco, California. 13 [ ] (BY PERSONAL SERVICE) I caused each such envelope(s) to be delivered by hand on the below date to the addressee(s) via personal service. 14 [ ] (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an IS: overnight delivery carrier with delivery fees provided for, addressed to the person(s) on whom it is to be served. 16 17 addressed as follows: 18 SEE ATTACHED SERVICE LIST 19 20 I declare under penalty of perjury under the laws ofjthe State of California that the 21 foregoing is true and correct. Executed on April 17, 2020, at San Francisco, California. 22 23 24 25 26 27 28 Le Oc TARKINGTON, O'NEILL, BARRACK & CHONG 1 A Prof orporation BELETSIS V THETA CHI FRATERNITY 19CV03287| 0 mE PROOF OF SERVICE tos SERVICE LIST Attorneys for Plaintiffs Tel: (202) 351-0510 Douglas E. Fierberg Fax: (231) 252-8100 Jonathon N. Fazzola Em: dfierberg@tfnlgroup.com Lisa N. Cloutier jfazzola@tfnlgroup.com THE FIERBERG NATIONAL LAW Icloutier@tfnlgroup.com GROUP tpicard@tfnlgroup.com 161 East Front Street, Suite 200 Traverse City, MI 49684 Attorneys for Plaintiffs Tel: (415) 262-3820 Ivo Labar Fax: Stevie Brynne Newton Em: labar@sawyerlabar.com 10 SAWYER & LABAR LLP guzman@sawyerlabar.cor 201 Mission Street, Suite 2240 11 San Francisco, CA 94105 12 Attorneys for Theta Chi Fraternity, Inc. Tel: 415-228-0208 13: Michael C. Osborn Cell: 650-291-1446 Jaskiran Samra Em: mosborne@cokinoslaw.com mMosborne@cokinosiaw.Ccom 14 COKINOS YOUNG Em: jsamra@cokinoslaw.com 15 One Embarcadero Center, Suite 390 San Francisco, CA 94111 16 Attorneys for Quinn McLaughlin Tel: (408) 271-5325 17 Andrew M. Lauderdale Fax: (408) 271-5301 18 HARTSUYKER STRATMAN & Em: WILLIAMS-ABREGO Andrew. lauderdale@farmersinsurance.com 19 One Almaden Blvd., Suite 400 San Jose, CA 95113 20 21 Attorneys for Jordan Keiichi Takayama Tel: 415-438-5920, JA Julie Azevedo Tel: 415-438-6662, ST 22 Shawn Toliver Fax: LEWIS BRISBOIS BISGAARD & SMITH Em: dJulie.Azevedo@lewisbrisbois.com 23 2185 N. California Blvd, Suite 300 Em: Shawn.Toliver@lewisbrisbois.com 24 Walnut Creek, CA 94596 25 Attorneys for Brad Visacki & Tel: 415-949-1900 Christopher Guevar: Fax: 26 Derek H. Lim Em: lim@darlaw.com a 27 Shannon Mallory Em: mal @ darlay Maladarlaw.comom Demler, Armstrong & Rowland, LLP 28 1350 Treat Boulevard #400 Lawes TARKINGTON, Walnut Creek, CA 94597 OPNEILL, BARRACK & CHONG BELETSIS v THETA CHI FRATERNITY «i= A Profesional Cosporstion 19CV03287| STR, PROOF OF SERVICE 1869,CA. ‘ais 94105 Attorneys for Christopher Guevara Tel : 916-978-3434, Exten 129 Matthew C. Jaime Fax: