Preview
ELECTRONICALLY FILED
John R. Brydon (Bar No. 83365) Superior Court of California
Derek H. Lim (Bar No. 209496) County of Sant:
Shannon E. Mallory (Bar No. 285569 5/7/2020 1:04
oS
DEMLER, ARMSTRONG & ROWLAND, LLP Alex Calvo,
1350 Treat Boulevard, Suite 400 By: el n, Deputy
Walnut Creek, CA 94597
Telephone: (415) 949-1900
Facsimile: (415) 354-8380
Email: bry@darlaw.com
lim@darlaw.com
mal@darlaw.com
Attorneys for Defendant
BRAD VISACKI
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SANTA CRUZ
12
13 DAPHNE BELETSIS, individually, and as Case No. 19CV03287
Administrator of the ESTATE OF
14 ALEXANDER BELETSIS, and YVONNE
RAINEY, surviving parent of MEMORANDUM OF POINTS AND
15 ALEXANDER BELETSIS, deceased, AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S
16 Plaintiffs, DEMURRER TO FIRST AMENDED
COMPLAINT
17 Vv.
18 THETA CHI FRATERNITY, INC., a Accompanying Documents:
New York corporation, individually, as a Notice of Demurrer and Demurrer;
19 member of t/a the Theta Iota Chapter, Declaration of Derek H. Lim; Proposed
University of California, Santa Cruz, as a Order
20 member of the fraternal order known as
Theta Chi Fraternity, and as an alter-ego
21 and successor entity of the Theta Iota Hearing Date: July 22, 2020
Chapter of Theta Chi Fraternity, Time: 8:30 a.m.
22 individually, and as an agent and alter-ego Dept.: 10
of the Theta Chi Fraternity, Inc.;
23 CHRISTOPHER GUEVARA,
individually, and as an agent/member of Complaint Filed: October 31, 2019
24 Theta Chi fraternity, Inc. and Theta Iota FAC Filed: February 5, 2020
Chapter of Theta Chi Fraternity; BRAD Trial Date: Not Yet Set
25 VISACKI, individually, and/or as an
agent/member of Theta Chi fraternity, Inc.
26 and Theta Iota Chapter of Theta Chi
Fraternity; JORDAN KEIICHI
27 TAKAYAMA individually, and/or as an
agent/member of Theta Chi fraternity, Inc.
28 and Theta Iota Chapter of Theta Chi
Fraternity; ZACHARY NASH DAVIS,
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
individuall and/or as an agent/member of
Theta Chi fraternity, Inc. and Theta Iota
Chapter of Theta Chi Fraternity:
NAJPREET SINGH KAHLON
individually, and/or as an agent/member of
Theta Chi fraterni Inc. and Theta Iota
Chapter of Theta C. Fraternity; STEFAN
MATIAS LEON individuall and/oras an
agent/member of Theta Chi fraternity, Inc.
and Theta Iota Chapter of Theta Chi
Fraternity; MOISES FRANCISCO
TENORIO GARCIA, individually, and/or
as an agent/member of Theta Chi
fraternii Inc. and Theta Iota Chapter of
Theta Chi Fratemity; RAFAEL GARICA
individuall and/or as an agent/member of
Theta Chi fraternity, Inc. and Theta Iota
Chapter of Theta Chi Fraterni
10 EMMANUEL THOMAS, individually,
and/or as an agent/member of Theta Chi
11 fraterni! , Inc. and Theta Iota Chapter of
Theta C i Fratemity; BOBBY KARKI,
12 individuall and/or as an ageni/member of
Theta Chi fraternity, Inc. and Theta Iota
13 Chapter of Theta Chi Fraternity; DEREK
KING, individually, and/or as an
14 agent/member of Theta Chi fratemity, Inc.
and Theta Iota Chapter of Theta Chi
15 Fraternity; JOHN DY LAN LEITCH,
individually, and/or as an agent/member of
16 Theta Chi fra Inc. and Theta Iota
Chapter of Thetafa Chi Fratemity; QUINN
17 MCLAUGHLIN, individuall and as
Trustee of the QUINN M MCLAUGHLIN
18 LIVING TRUST, 117 Pasture Rd., Santa
Cruz, CA 95060; and JOHN DOES 1
19 through 10, inclusive, individually, and as
agents/members of Theta Chi Fratemni
20 Inc. and Theta Lota Chapter of Theta Chi
Fratemity,
21
Defendants
22
23 I SUMMARY OF THE ARGUMENT
24 This hybrid wrongful death/survival action arises from a tragic, but unforeseeable accident
25 that occurred on June 2, 2018. By way of the First Amended Complaint (“FAC”), the parents of
26 the decedent (“Beletsis”) allege that Beletsis was intoxicated at a fraternity party and told to go
27 the bathroom “to settle down. (FAC at 15.) Behind the closed bathroom door, Beletsis then
28 somehow fell out of the window, later dying from his injuries. (FAC at 15-16.)
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
Plaintiffs DAPHNE BELETSIS, individually and as Administrator of the ESTATE OF
ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of ALEXANDER BELETSIS
(collectively, “Plaintiffs”) have cast a wide net of blame for Beletsis’ intoxication, suing the
fraternity, all its officers, the owner and residents of the house where the party took place — and
Visacki. The FAC does not allege that Visacki was an officer of the fraternity chapter. (FAC at
4911, 32.) Moreover, the FAC does not allege that Visacki rented or resided at the house where
the subject incident took place, and Plaintiffs have not pled any specific facts to show that Visacki
transported Beletsis to the house or hosted the party. (FAC at 9914, 32).
Beletsis was finishing his second year at UC Santa Cruz and was an adult. (FAC at 73-
10 74.) Absent a special relationship, Visacki had no legal duty to control or protect Beletsis.
11 Further, Visacki did not assume a legal duty and it was not reasonably foreseeable that Beletsis
12 would fall from the bathroom window. Accordingly, Plaintiffs have not adequately pled causes
13 of action for negligence against Visacki and the court should sustain this demurrer without leave
14 to amend.
15 Il. REQUISITE MEET AND CONFER
16 Pursuant to Code of Civil Procedure section 430.41, Visacki’s counsel timely met and
17 conferred with Plaintiffs’ counsel multiple times regarding the basis for this demurrer. The
18 parties did not reach an agreement resolving the matters raised by the demurrer requiring the
19 filing of the demurrer. (Declaration of Derek H. Lim 42.)
20 Til. LEGAL ARGUMENT
21 Under Code of Civil Procedure section 430.10(e), a defendant may demurrer on the
22 grounds that “[t]he pleading does not state facts sufficient to constitute a cause of action.” Since a
23 demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges
24 facts sufficient to establish every element of each cause of action. When the complaint fails to
25 plead, or if the defendant negates, any essential element of a particular cause of action, the court
26 should affirm the sustaining of a demurrer. (Cantu v. Resolution Trust Corp. (1992) 4 Cal. App.4th
27 857, 879-880; see also Rakestraw v. California Physicians’ Serv. (2002) 81 Cal.App.4th 39, 43.)
28 Mill
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
It is well-established that the elements of a negligence cause of action are: (1) the
existence of a legal duty of care, (2) breach of that duty, and (3) the proximate cause resulting in
injury. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) As such, a defendant may
be liable for negligence, only “where there is a duty of care owed by the defendant to the
plaintiff.” (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803.) “The existence of a duty is a
question of law for the court.” (Melton v. Boustred (2010) 183 Cal.A pp.4th 521, 531.)
Whether there exists a legal duty also depends upon the foreseeability of the risk and a
weighing of policy considerations for and against imposition of liability. (Id. at 529-530.)
“[Floreseeability when analyzed to determine the existence or scope of duty is a question of law
10 to be decided by the court.” (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, internal
11 citations omitted.)
12 As set forth below, Visacki demurrers to the second, fourth, and fifth causes of action in
13 the FAC because he had no duty to supervise Beletsis, assumed no duty toward Beletsis and,
14 accordingly, had no duty to prevent harm to Beletsis. In addition, Beletsis’ death was not
15 reasonably foreseeable. Therefore, this demurrer should be sustained.
16 A There Was No Special Relationship Requiring Visacki To Manage Or
Supervise Beletsis.
17
18 A defendant who has not created a peril is not liable in tort for failing to act affirmatively
19 to assist or protect another unless some relationship between them gives rise to a duty to act.
20 (Regents of Univ. of Calif. v. Sup.Ct. (2018) 4 Cal.5th 607, 669; Delgado v. Trax Bar & Grill
21 (2005) 36 Cal.4th 224, 235-236; Morris v. De La Torre (2005) 36 Cal.4th 260, 269.) A duty
22 arising from such a special relationship, moreover, “is imposed only where the injury is
23 foreseeable and the intended victim is identifiable.” (Rice v. Center Point, Inc. (2007) 154
24 Cal.App.4th 949, 955.) “The custodian must have knowledge of a specific risk to an identifiable
25 and foreseeable victim.” (Megeffv. Doland (1981) 123 Cal. App.3d 251, 257, internal citations
26 omitted.) Stated differently, the courts have created exceptions to the general rule that there is no
27 duty to control another person’s conduct where there are special relationships between a
28 defendant and (1) the person whose conduct needs to be controlled or (2) the foreseeable victim
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
of that conduct. (Romero v. Superior Court (2001) 42 Cal.App.4th 1556, 1564; see also Melton,
supra, at 531-532.) These special relationships have included employers and employees, jailers
and prisoners, schools and their students, common-carriers and passengers, innkeepers and guests,
and ship captains and their seamen. California law, however, has not recognized a special
relationship between fraternity members.
In this instance, there is no special relationship or semblance of a special relationship.
Plaintiffs have not alleged that Visacki was an officer or resided at the subject house.’ Moreover,
Plaintiffs are advocating an associational duty, arguing that because Visacki was a member of an
association, that membership automatically somehow imposes a legal duty to protect regardless of
10 Visacki’s actual involvement in any injury-producing incident. This is not supported by the law
11 and there are no facts pled to even suggest the existence of a special relationship that would
12 trigger a legal duty by Visacki to protect Beletsis. As such, the second, fourth, and fifth causes of
13 action fail.
14 B. Visacki Did Not Assume Any Duties Toward Beletsis.
15 The FAC seemingly alleges that Visacki assumed a duty to abide by anti-“hazing”
16 guidelines, which does not confer a duty. (FAC at 911, 146-147.) California courts have
17 consistently held a university does not undertake a duty to protect college students from acts of
18 violence based upon the assertion college student life necessarily involves alcohol and violence,
19 and this is true even where rules and regulations are established to prevent alcohol abuse. (Tanja
20 H. v. Regents of Univ. of California (1991) 228 Cal.App.3d 434; University of Southern Calif. v.
21 Sup.Ct. (Barenborg) (2018) 30 Cal.App.Sth 429, 448-451 [holding that the university, by
22 adopting policies regulating alcohol use and social events at fraternities and providing a security
23 patrol, did not thereby assume a duty to protect students attending off-campus fraternity parties].)
24 Logically, if a university cannot be said to have assumed a duty by creating the regulations, how
25 can a college student be said to have assumed a duty by being a mere member of a fraternity?
26 Moreover, the “Good Samaritan” doctrine, which requires one to act affirmatively if they
27 have placed a person in a position of peril, is not applicable to Visacki. An illustrative case is
28 ' Visacki does not admit or contend that even if he was an officer or lived at the house that would create a special
relationship or duty.
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879. There, the court held that two friends who
took an inebriated companion with them to a cliff to view sunrise put him in peril and were thus
liable when he fell off the cliff and they did not promptly summon aid. The court reasoned that
the friends could be found liable because “[w]hile ‘[t]here may be no duty to take care of a man
who is ill orintoxicated, and unable to look out for himself; ... it is another thing entirely to eject
him into the danger of a street or railroad yard; and if he is injured there will be liability.’” (Id. at
883, quoting Prosser & Keeton, Torts (5th ed. 1984) §56, p. 378, fn. omitted.)
To the contrary, there are no allegations here to support a finding that Visacki
affirmatively agreed to assume any duty to care for Beletsis on the night of the subject accident.
10 Plaintiffs have not alleged that Visacki took Beletsis to the party or agreed to supervise him when
11 he went to the bathroom. Visacki did not assume any duty to protect Beletsis from harm and thus
12 this demurrer should be sustained.
13 Cc There Is No Legal Duty Owed Under The Rowand Factors.
14 The court in Rowland v. Christian (1968) 69 Cal.2d 108, 112-113, stated that determining
15 the existence of a legal duty:
16 involves the balancing of a number of considerations; the major ones are the foreseeability
17 of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant’s conduct and the injury suffered, the
18 moral blame attached to the defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the community of imposing a
19 duty to exercise care with resulting liability for breach, and the availability, cost, and
prevalence of insurance for the risk involved.
20
21 Since there is no special relationship, as discussed above, it may be unnecessary to
22 consider the Rowland factors. (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180
23 Cal.A pp.4th 430, 438 [the common law rule that there is no duty to aid another absent a special
24 relationship is derived from a Rowland analysis and thus, a Rowland analysis is unnecessary
25 when no special relationship is found].) Nevertheless, “some courts have considered the
26 Rowland factors despite concluding that there was no special relationship and no duty, with
27 the Rowland analysis supporting the conclusion of no duty.” (USC, supra, at 452, citing Nally
28 v. Grace Cmty Church (1988) 47 Cal.3d 278, 296-299 and Conti v. Watchtower Bible & Tract
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1227-1230.) Here, a Rowland analysis
supports the conclusion that Visacki did not owe a legal duty to Beletsis.
1 Beletsis’ Death Was Not Reasonably Foreseeable.
In determining whether a duty exists, the court’s task “is not to decide whether a particular
plaintiff's injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather
to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely
to result in the kind of harm experienced that liability may appropriately be imposed on the
negligent party.” (Elsheref v. Applied Matter (2014) 223 Cal.App.4th 451, 460, emphasis added,
internal citations omitted.) Where the court concludes the injury was not foreseeable, and thus
10 there was no duty, there is no need to discuss the remaining considerations. (Sturgeon v. Curnutt
11 (1994) 29 Cal.App 4th 301, 306, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th
12 666, 679-680.) Further, only reasonably foreseeable injuries support a finding of duty.
13 (Sturgeon, supra, at 306.) Thus, “[o]bjective foreseeability (the logical opposite only of
14 impossibility) is tempered by subjective reasonableness, both in our everyday decisions as
15 individuals and in the decisions of the courts concerning duty.” (Id.)
16 The present case is similarto Sakiyama v. AMF Bowling Centers, Inc. (2003) 110
17 Cal.A pp.4th 398. There, the plaintiffs leftan all-night rave and ended up in a car accident. The
18 court held the owners of the property where the party was held owed no duty to protect others
19 from the resulting car accident despite knowledge that attendees would be drinking, possibly
20 taking drugs, and would operate vehicles after staying up in the wee hours of the moming.
21 Additionally, the court also held that foreseeability alone did not create an independent tort duty.
22 (Id. at 402.)
23 In the instant case, Plaintiffs allege that Visacki should have known that Beletsis was
24 consuming alcohol and should have supervised him, despite no allegations demonstrating that
25 Visacki hosted the party or was even near Beletsis when he was injured. Although Plaintiffs
26 attempt to argue that all defendants should have known of a foreseeable risk of harm because of
27 other incidents involving drinking at fraternity events, the facts alleged are too speculative and
28 remote. For instance, there is no allegation that Visacki attended the fraternity event two years
7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
prior where a student allegedly got alcohol poisoning. (FAC at §60.) Moreover, the FAC does
not allege that, Visacki was personally aware of anyone (intoxicated or not) ever falling from a
bathroom window at any fratemity event. Other than insinuating that alcohol consumption
increases the risk of alcohol poisoning, Plaintiffs’ allegations do not support a finding that
Visacki would have reason to suspect that Beletsis would fall from a bathroom window.
While the FAC alleges that Beletsis was “intoxicated, mentally unstable” there are no
allegations that he was unconscious, vomiting, or otherwise unable to move and control himself
(FAC at §147.) There are also no facts alleged that Beletsis was in need of immediate medical
attention prior to the subject accident. The FAC simply alleges he was directed by unidentified
10 individuals to go the bathroom to “settle down.” (FAC at 4 15.) It is not reasonably foreseeable
11 that a conscious and ambulatory person would fall from a bathroom window.
12 Plaintiffs simply allege in a blanket manner that if Beletsis had not been made to
13 overconsume alcohol, he would not have died. Notwithstanding this, by Plaintiffs’ own
14 allegations, Beletsis went to the bathroom and closed the door himself. Plaintiffs do not allege
15 that Beletsis was left unconscious and unattended for hours in the bathroom and succumbed to
16 alcohol poisoning, nor do they allege that going to the bathroom was part of some “hazing” ritual
17 —an impermissibly vague term in and of itself. (See concurrently filed Joinder to Defendant
18 Najpreet Singh Kahlon’s Motion to Strike Portions of Plaintiffs’ FAC.) The fact that Beletsis
19 apparently fell from a window in the bathroom is not foreseeable.
20 2. The Other Rowand Factors Also Do Not Support ImposingA Duty.
21 The other Rowland factors do not weigh in favor of imposing a legal duty on Visacki.
22 There are no facts alleged that Visacki had specific knowledge of the degree of Beletsis’
23 intoxication, or that he should have reasonably perceived the risk of Beletsis’ death, particularly
24 since there are no facts alleged that anyone at the university’s chapter of the fraternity had ever
25 died or been permanently injured at any fraternity-related event.
26 Further, the degree of certainty of injury and closeness of the defendant’s conduct
27 weighs against finding a duty in this case. Going to the bathroom does not have an innate,
28 high degree of certain death. An unknown individual telling Beletsis to go to the bathroom to
8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
“settle down” did not involve physical abuse or alcohol, nor was it “hazing’-related. Plaintiffs
allege that Visacki’s failure to take appropriate steps to protect Beletsis can be causally
connected to Beletsis’ injuries, but (again) no facts allege that Visacki was even near Beletsis at
the party or had anything to do with telling Beletsis to go to the bathroom.
Here, there are no allegations in the FAC that Visacki was an officer, lived at the
residence, hosted or organized the Crossover Ceremony events. Further, there are no specific
allegations regarding any conduct towards or interactions with Beletsis on the night in question.
As such, what is the morally blame worthy conduct? Also, the policy of preventing future harm is
not served by imposing a duty in this case. There was no reason to believe a fratemity member
10 would suffer serious bodily injury or death being told to take a time out.
11 Further, the consequences to the community factor does not support in imposition of a
12 duty. This would discourage student activities if students involved in student groups were to
13 have liability imposed on them for functions of the student group they were not involved in. It
14 would also negatively impact students who might otherwise assume leadership positions in
15 fraternities or student groups.
16 Lastly, the availability of insurance for such risks is not “obvious.” This factor does
17 not support liability. All in all, since there is no legal duty owed, this demurrer should be
18 sustained.
19 D Plaintiffs Cannot Meet Their Burden To Show That Any Defect Can Be Cured
By Amendment.
20
21 Plaintiffs will be unable to cure the defects cited above. The burden is on Plaintiffs to
22 show in what manner they can amend the FAC and how that amendment will change the legal
23 effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, quoting from Cooper v.
24 Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) Where there is no “reasonable possibility” a defect in
25 the pleadings can be cured by amendment, the court should not allow a plaintiff an opportunity to
26 amend. (Hayter Trucking v. Shell Western E&P, Inc. (1993) 18 Cal. App. 4th 1, 12-13.)
27 Mill
28 Mill
9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
Iv. DISPOSITION REQUESTED
In light of the foregoing, Visacki respectfully requests that the court sustain this demurrer to
the FAC in its entirety and without leave to amend.
Dated: May 7, 2020 DEMLER, ARMSTRONG & ROWLAND, LLP
FD Ses
pe es
—_ FEF
\ FA
Derek’ H. Lim
Attomeys for Defendant
BRAD VISACKI
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT
Preview
ELECTRONICALLY FILED John R. Brydon (Bar No. 83365) Superior Court of California Derek H. Lim (Bar No. 209496) County of Sant: Shannon E. Mallory (Bar No. 285569 5/7/2020 1:04 oS DEMLER, ARMSTRONG & ROWLAND, LLP Alex Calvo, 1350 Treat Boulevard, Suite 400 By: el n, Deputy Walnut Creek, CA 94597 Telephone: (415) 949-1900 Facsimile: (415) 354-8380 Email: bry@darlaw.com lim@darlaw.com mal@darlaw.com Attorneys for Defendant BRAD VISACKI 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SANTA CRUZ 12 13 DAPHNE BELETSIS, individually, and as Case No. 19CV03287 Administrator of the ESTATE OF 14 ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of MEMORANDUM OF POINTS AND 15 ALEXANDER BELETSIS, deceased, AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S 16 Plaintiffs, DEMURRER TO FIRST AMENDED COMPLAINT 17 Vv. 18 THETA CHI FRATERNITY, INC., a Accompanying Documents: New York corporation, individually, as a Notice of Demurrer and Demurrer; 19 member of t/a the Theta Iota Chapter, Declaration of Derek H. Lim; Proposed University of California, Santa Cruz, as a Order 20 member of the fraternal order known as Theta Chi Fraternity, and as an alter-ego 21 and successor entity of the Theta Iota Hearing Date: July 22, 2020 Chapter of Theta Chi Fraternity, Time: 8:30 a.m. 22 individually, and as an agent and alter-ego Dept.: 10 of the Theta Chi Fraternity, Inc.; 23 CHRISTOPHER GUEVARA, individually, and as an agent/member of Complaint Filed: October 31, 2019 24 Theta Chi fraternity, Inc. and Theta Iota FAC Filed: February 5, 2020 Chapter of Theta Chi Fraternity; BRAD Trial Date: Not Yet Set 25 VISACKI, individually, and/or as an agent/member of Theta Chi fraternity, Inc. 26 and Theta Iota Chapter of Theta Chi Fraternity; JORDAN KEIICHI 27 TAKAYAMA individually, and/or as an agent/member of Theta Chi fraternity, Inc. 28 and Theta Iota Chapter of Theta Chi Fraternity; ZACHARY NASH DAVIS, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT individuall and/or as an agent/member of Theta Chi fraternity, Inc. and Theta Iota Chapter of Theta Chi Fraternity: NAJPREET SINGH KAHLON individually, and/or as an agent/member of Theta Chi fraterni Inc. and Theta Iota Chapter of Theta C. Fraternity; STEFAN MATIAS LEON individuall and/oras an agent/member of Theta Chi fraternity, Inc. and Theta Iota Chapter of Theta Chi Fraternity; MOISES FRANCISCO TENORIO GARCIA, individually, and/or as an agent/member of Theta Chi fraternii Inc. and Theta Iota Chapter of Theta Chi Fratemity; RAFAEL GARICA individuall and/or as an agent/member of Theta Chi fraternity, Inc. and Theta Iota Chapter of Theta Chi Fraterni 10 EMMANUEL THOMAS, individually, and/or as an agent/member of Theta Chi 11 fraterni! , Inc. and Theta Iota Chapter of Theta C i Fratemity; BOBBY KARKI, 12 individuall and/or as an ageni/member of Theta Chi fraternity, Inc. and Theta Iota 13 Chapter of Theta Chi Fraternity; DEREK KING, individually, and/or as an 14 agent/member of Theta Chi fratemity, Inc. and Theta Iota Chapter of Theta Chi 15 Fraternity; JOHN DY LAN LEITCH, individually, and/or as an agent/member of 16 Theta Chi fra Inc. and Theta Iota Chapter of Thetafa Chi Fratemity; QUINN 17 MCLAUGHLIN, individuall and as Trustee of the QUINN M MCLAUGHLIN 18 LIVING TRUST, 117 Pasture Rd., Santa Cruz, CA 95060; and JOHN DOES 1 19 through 10, inclusive, individually, and as agents/members of Theta Chi Fratemni 20 Inc. and Theta Lota Chapter of Theta Chi Fratemity, 21 Defendants 22 23 I SUMMARY OF THE ARGUMENT 24 This hybrid wrongful death/survival action arises from a tragic, but unforeseeable accident 25 that occurred on June 2, 2018. By way of the First Amended Complaint (“FAC”), the parents of 26 the decedent (“Beletsis”) allege that Beletsis was intoxicated at a fraternity party and told to go 27 the bathroom “to settle down. (FAC at 15.) Behind the closed bathroom door, Beletsis then 28 somehow fell out of the window, later dying from his injuries. (FAC at 15-16.) 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT Plaintiffs DAPHNE BELETSIS, individually and as Administrator of the ESTATE OF ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of ALEXANDER BELETSIS (collectively, “Plaintiffs”) have cast a wide net of blame for Beletsis’ intoxication, suing the fraternity, all its officers, the owner and residents of the house where the party took place — and Visacki. The FAC does not allege that Visacki was an officer of the fraternity chapter. (FAC at 4911, 32.) Moreover, the FAC does not allege that Visacki rented or resided at the house where the subject incident took place, and Plaintiffs have not pled any specific facts to show that Visacki transported Beletsis to the house or hosted the party. (FAC at 9914, 32). Beletsis was finishing his second year at UC Santa Cruz and was an adult. (FAC at 73- 10 74.) Absent a special relationship, Visacki had no legal duty to control or protect Beletsis. 11 Further, Visacki did not assume a legal duty and it was not reasonably foreseeable that Beletsis 12 would fall from the bathroom window. Accordingly, Plaintiffs have not adequately pled causes 13 of action for negligence against Visacki and the court should sustain this demurrer without leave 14 to amend. 15 Il. REQUISITE MEET AND CONFER 16 Pursuant to Code of Civil Procedure section 430.41, Visacki’s counsel timely met and 17 conferred with Plaintiffs’ counsel multiple times regarding the basis for this demurrer. The 18 parties did not reach an agreement resolving the matters raised by the demurrer requiring the 19 filing of the demurrer. (Declaration of Derek H. Lim 42.) 20 Til. LEGAL ARGUMENT 21 Under Code of Civil Procedure section 430.10(e), a defendant may demurrer on the 22 grounds that “[t]he pleading does not state facts sufficient to constitute a cause of action.” Since a 23 demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges 24 facts sufficient to establish every element of each cause of action. When the complaint fails to 25 plead, or if the defendant negates, any essential element of a particular cause of action, the court 26 should affirm the sustaining of a demurrer. (Cantu v. Resolution Trust Corp. (1992) 4 Cal. App.4th 27 857, 879-880; see also Rakestraw v. California Physicians’ Serv. (2002) 81 Cal.App.4th 39, 43.) 28 Mill 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT It is well-established that the elements of a negligence cause of action are: (1) the existence of a legal duty of care, (2) breach of that duty, and (3) the proximate cause resulting in injury. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) As such, a defendant may be liable for negligence, only “where there is a duty of care owed by the defendant to the plaintiff.” (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803.) “The existence of a duty is a question of law for the court.” (Melton v. Boustred (2010) 183 Cal.A pp.4th 521, 531.) Whether there exists a legal duty also depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability. (Id. at 529-530.) “[Floreseeability when analyzed to determine the existence or scope of duty is a question of law 10 to be decided by the court.” (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, internal 11 citations omitted.) 12 As set forth below, Visacki demurrers to the second, fourth, and fifth causes of action in 13 the FAC because he had no duty to supervise Beletsis, assumed no duty toward Beletsis and, 14 accordingly, had no duty to prevent harm to Beletsis. In addition, Beletsis’ death was not 15 reasonably foreseeable. Therefore, this demurrer should be sustained. 16 A There Was No Special Relationship Requiring Visacki To Manage Or Supervise Beletsis. 17 18 A defendant who has not created a peril is not liable in tort for failing to act affirmatively 19 to assist or protect another unless some relationship between them gives rise to a duty to act. 20 (Regents of Univ. of Calif. v. Sup.Ct. (2018) 4 Cal.5th 607, 669; Delgado v. Trax Bar & Grill 21 (2005) 36 Cal.4th 224, 235-236; Morris v. De La Torre (2005) 36 Cal.4th 260, 269.) A duty 22 arising from such a special relationship, moreover, “is imposed only where the injury is 23 foreseeable and the intended victim is identifiable.” (Rice v. Center Point, Inc. (2007) 154 24 Cal.App.4th 949, 955.) “The custodian must have knowledge of a specific risk to an identifiable 25 and foreseeable victim.” (Megeffv. Doland (1981) 123 Cal. App.3d 251, 257, internal citations 26 omitted.) Stated differently, the courts have created exceptions to the general rule that there is no 27 duty to control another person’s conduct where there are special relationships between a 28 defendant and (1) the person whose conduct needs to be controlled or (2) the foreseeable victim 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT of that conduct. (Romero v. Superior Court (2001) 42 Cal.App.4th 1556, 1564; see also Melton, supra, at 531-532.) These special relationships have included employers and employees, jailers and prisoners, schools and their students, common-carriers and passengers, innkeepers and guests, and ship captains and their seamen. California law, however, has not recognized a special relationship between fraternity members. In this instance, there is no special relationship or semblance of a special relationship. Plaintiffs have not alleged that Visacki was an officer or resided at the subject house.’ Moreover, Plaintiffs are advocating an associational duty, arguing that because Visacki was a member of an association, that membership automatically somehow imposes a legal duty to protect regardless of 10 Visacki’s actual involvement in any injury-producing incident. This is not supported by the law 11 and there are no facts pled to even suggest the existence of a special relationship that would 12 trigger a legal duty by Visacki to protect Beletsis. As such, the second, fourth, and fifth causes of 13 action fail. 14 B. Visacki Did Not Assume Any Duties Toward Beletsis. 15 The FAC seemingly alleges that Visacki assumed a duty to abide by anti-“hazing” 16 guidelines, which does not confer a duty. (FAC at 911, 146-147.) California courts have 17 consistently held a university does not undertake a duty to protect college students from acts of 18 violence based upon the assertion college student life necessarily involves alcohol and violence, 19 and this is true even where rules and regulations are established to prevent alcohol abuse. (Tanja 20 H. v. Regents of Univ. of California (1991) 228 Cal.App.3d 434; University of Southern Calif. v. 21 Sup.Ct. (Barenborg) (2018) 30 Cal.App.Sth 429, 448-451 [holding that the university, by 22 adopting policies regulating alcohol use and social events at fraternities and providing a security 23 patrol, did not thereby assume a duty to protect students attending off-campus fraternity parties].) 24 Logically, if a university cannot be said to have assumed a duty by creating the regulations, how 25 can a college student be said to have assumed a duty by being a mere member of a fraternity? 26 Moreover, the “Good Samaritan” doctrine, which requires one to act affirmatively if they 27 have placed a person in a position of peril, is not applicable to Visacki. An illustrative case is 28 ' Visacki does not admit or contend that even if he was an officer or lived at the house that would create a special relationship or duty. 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879. There, the court held that two friends who took an inebriated companion with them to a cliff to view sunrise put him in peril and were thus liable when he fell off the cliff and they did not promptly summon aid. The court reasoned that the friends could be found liable because “[w]hile ‘[t]here may be no duty to take care of a man who is ill orintoxicated, and unable to look out for himself; ... it is another thing entirely to eject him into the danger of a street or railroad yard; and if he is injured there will be liability.’” (Id. at 883, quoting Prosser & Keeton, Torts (5th ed. 1984) §56, p. 378, fn. omitted.) To the contrary, there are no allegations here to support a finding that Visacki affirmatively agreed to assume any duty to care for Beletsis on the night of the subject accident. 10 Plaintiffs have not alleged that Visacki took Beletsis to the party or agreed to supervise him when 11 he went to the bathroom. Visacki did not assume any duty to protect Beletsis from harm and thus 12 this demurrer should be sustained. 13 Cc There Is No Legal Duty Owed Under The Rowand Factors. 14 The court in Rowland v. Christian (1968) 69 Cal.2d 108, 112-113, stated that determining 15 the existence of a legal duty: 16 involves the balancing of a number of considerations; the major ones are the foreseeability 17 of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the 18 moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a 19 duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. 20 21 Since there is no special relationship, as discussed above, it may be unnecessary to 22 consider the Rowland factors. (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 23 Cal.A pp.4th 430, 438 [the common law rule that there is no duty to aid another absent a special 24 relationship is derived from a Rowland analysis and thus, a Rowland analysis is unnecessary 25 when no special relationship is found].) Nevertheless, “some courts have considered the 26 Rowland factors despite concluding that there was no special relationship and no duty, with 27 the Rowland analysis supporting the conclusion of no duty.” (USC, supra, at 452, citing Nally 28 v. Grace Cmty Church (1988) 47 Cal.3d 278, 296-299 and Conti v. Watchtower Bible & Tract 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT Society of New York, Inc. (2015) 235 Cal.App.4th 1214, 1227-1230.) Here, a Rowland analysis supports the conclusion that Visacki did not owe a legal duty to Beletsis. 1 Beletsis’ Death Was Not Reasonably Foreseeable. In determining whether a duty exists, the court’s task “is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” (Elsheref v. Applied Matter (2014) 223 Cal.App.4th 451, 460, emphasis added, internal citations omitted.) Where the court concludes the injury was not foreseeable, and thus 10 there was no duty, there is no need to discuss the remaining considerations. (Sturgeon v. Curnutt 11 (1994) 29 Cal.App 4th 301, 306, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 12 666, 679-680.) Further, only reasonably foreseeable injuries support a finding of duty. 13 (Sturgeon, supra, at 306.) Thus, “[o]bjective foreseeability (the logical opposite only of 14 impossibility) is tempered by subjective reasonableness, both in our everyday decisions as 15 individuals and in the decisions of the courts concerning duty.” (Id.) 16 The present case is similarto Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 17 Cal.A pp.4th 398. There, the plaintiffs leftan all-night rave and ended up in a car accident. The 18 court held the owners of the property where the party was held owed no duty to protect others 19 from the resulting car accident despite knowledge that attendees would be drinking, possibly 20 taking drugs, and would operate vehicles after staying up in the wee hours of the moming. 21 Additionally, the court also held that foreseeability alone did not create an independent tort duty. 22 (Id. at 402.) 23 In the instant case, Plaintiffs allege that Visacki should have known that Beletsis was 24 consuming alcohol and should have supervised him, despite no allegations demonstrating that 25 Visacki hosted the party or was even near Beletsis when he was injured. Although Plaintiffs 26 attempt to argue that all defendants should have known of a foreseeable risk of harm because of 27 other incidents involving drinking at fraternity events, the facts alleged are too speculative and 28 remote. For instance, there is no allegation that Visacki attended the fraternity event two years 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT prior where a student allegedly got alcohol poisoning. (FAC at §60.) Moreover, the FAC does not allege that, Visacki was personally aware of anyone (intoxicated or not) ever falling from a bathroom window at any fratemity event. Other than insinuating that alcohol consumption increases the risk of alcohol poisoning, Plaintiffs’ allegations do not support a finding that Visacki would have reason to suspect that Beletsis would fall from a bathroom window. While the FAC alleges that Beletsis was “intoxicated, mentally unstable” there are no allegations that he was unconscious, vomiting, or otherwise unable to move and control himself (FAC at §147.) There are also no facts alleged that Beletsis was in need of immediate medical attention prior to the subject accident. The FAC simply alleges he was directed by unidentified 10 individuals to go the bathroom to “settle down.” (FAC at 4 15.) It is not reasonably foreseeable 11 that a conscious and ambulatory person would fall from a bathroom window. 12 Plaintiffs simply allege in a blanket manner that if Beletsis had not been made to 13 overconsume alcohol, he would not have died. Notwithstanding this, by Plaintiffs’ own 14 allegations, Beletsis went to the bathroom and closed the door himself. Plaintiffs do not allege 15 that Beletsis was left unconscious and unattended for hours in the bathroom and succumbed to 16 alcohol poisoning, nor do they allege that going to the bathroom was part of some “hazing” ritual 17 —an impermissibly vague term in and of itself. (See concurrently filed Joinder to Defendant 18 Najpreet Singh Kahlon’s Motion to Strike Portions of Plaintiffs’ FAC.) The fact that Beletsis 19 apparently fell from a window in the bathroom is not foreseeable. 20 2. The Other Rowand Factors Also Do Not Support ImposingA Duty. 21 The other Rowland factors do not weigh in favor of imposing a legal duty on Visacki. 22 There are no facts alleged that Visacki had specific knowledge of the degree of Beletsis’ 23 intoxication, or that he should have reasonably perceived the risk of Beletsis’ death, particularly 24 since there are no facts alleged that anyone at the university’s chapter of the fraternity had ever 25 died or been permanently injured at any fraternity-related event. 26 Further, the degree of certainty of injury and closeness of the defendant’s conduct 27 weighs against finding a duty in this case. Going to the bathroom does not have an innate, 28 high degree of certain death. An unknown individual telling Beletsis to go to the bathroom to 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT “settle down” did not involve physical abuse or alcohol, nor was it “hazing’-related. Plaintiffs allege that Visacki’s failure to take appropriate steps to protect Beletsis can be causally connected to Beletsis’ injuries, but (again) no facts allege that Visacki was even near Beletsis at the party or had anything to do with telling Beletsis to go to the bathroom. Here, there are no allegations in the FAC that Visacki was an officer, lived at the residence, hosted or organized the Crossover Ceremony events. Further, there are no specific allegations regarding any conduct towards or interactions with Beletsis on the night in question. As such, what is the morally blame worthy conduct? Also, the policy of preventing future harm is not served by imposing a duty in this case. There was no reason to believe a fratemity member 10 would suffer serious bodily injury or death being told to take a time out. 11 Further, the consequences to the community factor does not support in imposition of a 12 duty. This would discourage student activities if students involved in student groups were to 13 have liability imposed on them for functions of the student group they were not involved in. It 14 would also negatively impact students who might otherwise assume leadership positions in 15 fraternities or student groups. 16 Lastly, the availability of insurance for such risks is not “obvious.” This factor does 17 not support liability. All in all, since there is no legal duty owed, this demurrer should be 18 sustained. 19 D Plaintiffs Cannot Meet Their Burden To Show That Any Defect Can Be Cured By Amendment. 20 21 Plaintiffs will be unable to cure the defects cited above. The burden is on Plaintiffs to 22 show in what manner they can amend the FAC and how that amendment will change the legal 23 effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, quoting from Cooper v. 24 Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) Where there is no “reasonable possibility” a defect in 25 the pleadings can be cured by amendment, the court should not allow a plaintiff an opportunity to 26 amend. (Hayter Trucking v. Shell Western E&P, Inc. (1993) 18 Cal. App. 4th 1, 12-13.) 27 Mill 28 Mill 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT Iv. DISPOSITION REQUESTED In light of the foregoing, Visacki respectfully requests that the court sustain this demurrer to the FAC in its entirety and without leave to amend. Dated: May 7, 2020 DEMLER, ARMSTRONG & ROWLAND, LLP FD Ses pe es —_ FEF \ FA Derek’ H. Lim Attomeys for Defendant BRAD VISACKI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT BRAD VISACKI’S DEMURRER TO FIRST AMENDED COMPLAINT