Preview
ELECTRONICALLY FILED
Superior Court of California
1 THE FIERBERG NATIONAL LAW GROUP, PLLC County of Santa Cruz
DOUGLAS E. FIERBERG (admitted pro hac vice) 8/18/2020 4:12 PM
2 dfierberg@tfnlgroup.com Alex Calvo, Clerk
JONATHON N. FAZZOLA (admitted pro hac vice) By: Declan Salsedo, Deputy
3 jfazzola@tfnlgroup.com
LISA N. CLOUTIER (admitted pro hac vice)
4 lcloutier@tfnlgroup.com
161 East Front Street, Suite 200
5 Traverse City, MI 49684
Telephone: (231) 933-0180
6 Fax: (231) 252-8100
7 SAWYER & LABAR LLP
IVO LABAR, State Bar No. 203492
8 labar@sawyerlabar.com
201 Mission Street, Suite 2240
9 San Francisco, CA 94105
Telephone: (415) 262-3820
10
Attorneys for Plaintiffs
11 DAPHNE BELETSIS
YVONNE RAINEY
12
13 SUPERIOR COURT OF CALIFORNIA
14 COUNTY OF SANTA CRUZ
15 DAPHNE BELETSIS, individually, and as Case No. 19CV03287
Administrator of the ESTATE OF (Assigned to Hon. John Gallagher, Dept. 10)
16 ALEXANDER BELETSIS, and
YVONNE RAINEY, surviving parent of PLAINTIFFS’ OPPOSITION TO
17 THETA IOTA CHAPTER OF THETA
ALEXANDER BELETSIS, deceased CHI FRATERNITY’S MOTION TO
18 QUASH SERVICE OF SUMMONS AND
Plaintiffs, COMPLAINT
19 vs.
Hearing Date: August 31, 2020
20 THETA CHI FRATERNITY, INC., et al., Time: 8:30 a.m.
Dept.: 10
21
Defendants. Complaint Filed: October 31, 2019
22 FAC Filed: February 5, 2020
Trial Date: Not Yet Set
23
24
25
26
27
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PLAINTIFFS’ OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT
1 I. INTRODUCTION
2 On June 2, 2018, Plaintiffs’ son, Alex, fell from the second story bathroom window of a
3 Santa Cruz residence used as a satellite fraternity house by the Theta Iota Chapter of Theta Chi
4 Fraternity (the “Chapter”). As a result of the fall, Alex sustained traumatic injuries on the concrete
5 below. Alex was on life support for 18 days before he passed. An investigation by the University
6 of California, Santa Cruz (“UCSC”) later revealed that the Chapter hosted the events leading up to
7 and causing Alex’s death, which was preceded and caused by deeply appalling behavior by the
8 Chapter and its members.
9 On September 5, 2019, counsel for Theta Chi Fraternity, Inc., emailed counsel for
10 Plaintiffs, to follow up “on our conversation regarding your intended filing of a complaint in this
11 matter.” See September 5, 2019 Email from Michael Osborne to Douglas Fierberg, attached as
12 Exhibit B to the Declaration of Jonathon N. Fazzola (“Fazzola Decl.”). In his email, counsel for
13 Theta Chi represented to counsel for Plaintiffs that:
14 The chapter has been closed and in March its charter was revoked. Attached are
the Grand Chapter’s minutes documenting the vote that revoked the Theta Iota
15 charter. The University also withdrew recognition and that chapter has ceased
operations and no longer exists. As you know, the chapter was an unincorporated
16
association. Under California law, a dissolved unincorporated association cannot
17 be sued as it does not exist as a legal entity.
18 See id. Based on those representations, counsel for Theta Chi asked for Plaintiffs’ counsel’s
19 “agreement not to name the dissolved chapter as a defendant, whether at the time of the lawsuit is
20 filed or at any later time.” Id.
21 That request – which Plaintiffs’ counsel rejected – just like Theta Chi’s strategic
22 revocation of the Chapter’s charter, was one step in a transparent (and ongoing) gambit by Theta
23 Chi to leverage its control over the Chapter to try to insulate Theta Chi from vicarious liability for
24 the acts and misconduct of the Chapter that caused and contributed Alex’s fall and death. Indeed,
25 since Plaintiffs initiated this action on October 31, 2019, Theta Chi has filed a motion to strike “all
26 allegations relating to claims of vicarious liability against defendant Theta Chi Fraternity based on
27
28
2
PLAINTIFFS’ OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT
1 agency and respondeat superior theories,”1 which Plaintiffs have separately opposed, and now the
2 purportedly legally nonexistent Chapter – with the assistance of a declaration from Theta Chi’s
3 Chief Executive Officer – has filed a Motion to Quash Service of Summons and Complaint (the
4 “Motion to Quash”), parroting Theta Chi’s counsel’s argument that the Chapter is “legally
5 nonexistent” and cannot be sued.2 The Motion to Quash – which advocates for a manifestly unjust
6 result – is unsupported by law and fact and should be denied.
7 II. ARGUMENT
8 A. THE CHAPTER HAS NOT BEEN DISSOLVED AND HAS BEEN PROPERLY
AND VALIDLY SERVED WITH PROCESS IN THIS CASE
9
1. The Chapter Has Not Been Dissolved and Remains an Existent Legal Entity
10
The Chapter is wrong, as a matter of law, that “the Chapter ceased to be an unincorporated
11
association following revocation of its charter by the national fraternity on March 12, 2019.”3 It is
12
not true, as the Chapter contends, that “[a]n unincorporated association that is subordinate to
13
another organization is subject to dissolution by order of the superior organization.”4 In fact, the
14
single case the Chapter relies on to support that proposition – Holt v. Santa Clara County Sheriff’s
15
Benefit Association (1967) 250 Cal. App. 2d 925, 930 – is inapposite, because it was decided
16
decades before the California Legislature enacted California Corporation Code section 18410,5
17
which controls here.
18
Under Section 18410, an unincorporated association, like the Chapter, can be dissolved by
19
four methods:
20
(a) If the association’s governing documents provide a method for dissolution, by
21
that method.
22
(b) If the association’s governing documents do not provide a method for
23
24 1
See Theta Chi’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint, filed on
March 10, 2020, at ¶ 1.
25
2
Theta Chi Mem. at 6.
26 3
See Chapter Mem. at 5. Indeed, the fact that the Chapter has filed a Motion to Quash serves as
27 definitive proof that it continues to exists as a legal entity.
4
See Chapter Mem. at 5.
28
5
Cal. Corp. Code § 18410 became effective January 1, 2006.
3
1 dissolution, by the affirmative vote of a majority of the voting power of the
association.
2
(c) If the association’s operations have been discontinued for at least three years,
3 by the board or, if the association has no incumbent board, by the members of its
4 last preceding incumbent board.
5 (d) If the association’s operations have been discontinued, by court order.
6 See Cal. Corp. Code § 18410.
7 Here, the Chapter does not offer any argument or evidence that the Chapter has been
8 dissolved by an affirmative vote of a majority of the voting power of the Chapter, that the
9 Chapter’s operations have been discontinued for at least three years, or that a court has ordered the
10 Chapter’s dissolution. Nor has the Chapter shown that the Chapter was dissolved in accordance
11 with the method provided for dissolution in the Chapter’s “governing documents,” the single
12 remaining method by which the Chapter could be validly dissolved under California law. In fact,
13 the Chapter relies exclusively on Theta Chi’s governing documents – The Constitution and
14 Bylaws of Theta Chi Fraternity, Inc. (“Theta Chi’s Constitution”) – not the Chapter’s governing
15 documents, which the Chapter (tellingly) neither discusses nor files with the Court. The Chapter’s
16 reliance on Theta Chi’s Constitution is misplaced.
17 First, even if Theta Chi had the unilateral authority to dissolve the Chapter under
18 California law (and it does not), the version of Theta Chi’s Constitution that the Chapter filed with
19 its Motion to Quash6 does not “provide a method of dissolution” for the Chapter, or any of the
20 other collegiate chapters Theta Chi charters (and reaps substantial revenue from) across the
21 country. Under the August 1, 2019 version of Theta Chi’s Constitution, a vote by Theta Chi’s
22 Grand Chapter to “revoke the charter of any active chapter” does not “dissolve” a chapter.7
23
24
25 The version of Theta Chi’s Constitution that the Chapter filed with the Court was “Revised
6
August 1, 2019,” months after Theta Chi purportedly revoked the Chapter’s charter. Thus, the
26 version of the Theta Chi’s Constitution that the Chapter filed in support of its Motion to Quash is,
on its face, inapplicable. See Theta Chi Constitution, [p. 1], attached as Exhibit A to the
27 Declaration of Michael Mayer, filed on July 17, 2020 with the Chapter’s Motion to Quash Service
of Summons and Complaint (“Mayer Decl.”).
28
7
See Theta Chi Constitution, Art. IV, Sec. 4(d) [p. 13], attached as Exhibit A to Mayer Decl.
4
1 Rather, it renders the chapter “inactive,”8 which California law makes clear is a status wholly
2 unique from dissolution. See Cal. Corp. Code § 18410(c)-(d).9 Theta Chi’s Constitution also
3 makes clear that Theta Chi does not equate the revocation of a chapter’s charter with the legal
4 dissolution of that chapter, and expressly contemplates that the chapter may resume operations in
5 the future. Theta Chi’s Constitution provides:
6 Re-Installation. The Grand Chapter, by a three-fourths vote of all members then
in office, shall have the right to re-install any inactive chapter, including an
7 inactive chapter of any fraternity merged with or into the Fraternity. In
conjunction with a decision whether or not to re-install any such chapter, the
8
Grand Chapter may follow any procedures, impose any conditions, and assess any
9 charges, as if the decision were one to approve a petition for a new charter
pursuant to Section 3(A) of this Article IV.10
10
Theta Chi already has evidenced an intention to re-install the Chapter at UCSC, despite
11
concluding that that the Chapter “had repeatedly violated Theta Chi alcohol policies even after
12
prior corrective action,” and that “hazing activities were taking place within the chapter.”11
13
According to March 12, 2019 Meeting Minutes of the Grand Chapter, Theta Chi’s Chief
14
Executive Officer, Michael Mayer, “attempted to secure a recolonization agreement” with UCSC
15
for the Chapter, but UCSC “was not interested in pursuing that agreement at this time.”12
16
Second, even if it were true, as Defendant Christopher Guevara asserts in his Declaration,
17
that following UCSC’s revocation of the Chapter’s recognition of a Registered Campus
18
Organization in April 2019, the Chapter “ceased all operations,”13 that is not evidence that the
19
Chapter has been dissolved. Under Cal. Corp. Code § 18410(c), an unincorporated association’s
20
21
8
See id.
22
Under Sections 18410(c) and 18410(d), the cessation of an unincorporated association’s
9
23 activities is a necessary predicate for dissolution by “the board or, if the association has no
incumbent board, by the members of its last preceding incumbent board,” or by court order; the
24 cessation of activities, in and of itself, is not tantamount to dissolution.
10
25 See Theta Chi Constitution, Art. IV, Sec. 4(g) [p. 13], Exhibit A to Mayer Decl.
11
See April 2, 2019 letter from Michael Mayer to the “Collegiate Brothers of Theta Iota Chapter,”
26
attached as Exhibit C to the Mayer Decl.
27 12
See March 12, 2019 Meeting Minutes of the Grand Chapter of Theta Chi, attached as Exhibit B
to Mayer Decl.
28
13
See Declaration of Christopher Guevara (“Guevara Decl.”) ¶ 7.
5
1 operations have to have been “discontinued for at least three years,” before the association’s
2 “board, or if the association has no incumbent board, by the members of its last preceding board”
3 is permitted to formally dissolve the association on that basis. See Cal. Corp. Code § 18410(c).
4 By Defendant Guevara’s own admission, the Chapter’s operations have not been discontinued for
5 at least three years. And the Chapter’s actions in filing of its Motion to Quash definitively shows
6 that the Chapter continues to operate and exist (at least when it serves its interests to do so).
7 Thus, the Chapter’s argument that the Court lacks jurisdiction over the Chapter because the
8 Chapter is “legally nonexistent” is legally and factually unfounded. In fact, the Declarations and
9 documents the Chapter submitted in support of its Motion to Quash, along with the Chapter’s
10 action in filing the Motion to Quash, fully and affirmatively establish that the Chapter has not
11 been dissolved in accordance with California law, that the Chapter continues to legally exist, and
12 that the Court can and should exercise personal jurisdiction over the Chapter in this case.
13 2. Service on the Chapter Through Its Preceding Incumbent President Was
Valid
14
In addition, Plaintiffs properly served the Chapter though Defendant Guevara, who admits
15
both that he “was served with the Summons and Complaint by substitute service on June 9, 2020
16
and by mail service on June10, 2020,” and that he was the last serving President of the Chapter.14
17
Under California Code of Civil Procedure section 416.40(b), an unincorporated
18
association, like the Chapter, may be served by delivering a copy of the summons and complaint
19
to “to the president or other head of the association, a vice president, a secretary or assistant
20
secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the
21
association to receive service of process.” See Cal. Civ. Code § 416.40(b). Given that California
22
law provides that in circumstances where an unincorporated association discontinues its operations
23
and the association “has no incumbent board,” the “members of its last preceding incumbent
24
board” retain power to act for and on behalf of the association, including by formally dissolving
25
it,15 it would it lead to an anomalous and absurd result – and one that is divorced from the realities
26
27
14
See Guevara Decl. ¶¶ 2, 8, 10.
28
15
See Cal. Corp. Code § 18410(c).
6
1 of many unincorporated associations, including, apparently, the Chapter – to construe California
2 Code of Civil Procedure section 416.40 as disallowing service of process on the last incumbent
3 members of the board of an unincorporated association that, though inactive, has not been
4 formally dissolved in accordance with Cal. Corp. Code section 18410. As the California Supreme
5 Court has explained:
6 It is a settled principle of statutory interpretation that language of the statute
should not be given a literal meaning if doing so would result in absurd
7 consequences which the legislature did not intend. To the extent this examination
of the statutory language leaves uncertainty, it is appropriate to consider the
8
consequences that will flow from a particular interpretation. Where more than
9 one statutory construction is arguably possible, our policy has long been to favor
the construction that leads to the more reasonable result. This policy derives from
10 the presumption that the Legislature intends reasonable results consistent with its
apparent purpose. Thus, our task is to select the construction that comports most
11 closely with the Legislature’s apparent intent, with a view to promoting rather
than defeating the statutes’ general purpose, and to avoid a construction that
12
would lead to unreasonable, impractical, or arbitrary results.
13
Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal. 4th 278,
14
290.
15
Consistent with those principles, Section 4 of the Code of Civil Procedure makes clear that
16
the Code’s “provisions are to be liberally constructed with a view to effect its objects and promote
17
justice.” See Cal. Code § 4. In circumstances like the ones at bar, it would unequivocally
18
promote justice to read Section 416.40(b) in conjunction with Section 18410 of the Corporations
19
Code, and construe Section 416.40(b) to allow service on the last preceding incumbent president
20
of an inactive – though not legally dissolved – unincorporated association. In contrast, it would be
21
manifestly unjust if unincorporated associations, like the Chapter, could skirt service of process
22
and evade liability by declaring themselves inactive (and not subject to suit or process) after
23
engaging in tortious and wrongful conduct.
24
Cappello v. Mucke – a case from the Superior Court of Connecticut – though not
25
controlling, is persuasive on this issue. In Cappello, the Delta Chi chapter of Sigma Nu Fraternity,
26
Inc. sought dismissal of the complaint filed against it by a victim of hazing, arguing – like the
27
Chapter here – that it had not been properly served because it had been dissolved by Sigma Nu
28
before service. See Cappello v. Mucke, 2012 Conn. Super. LEXIS 274, at *3 (2012) (attached
7
1 hereto as Exhibit A).16 The Cappello court denied the Motion to Dismiss, ruling that
2 unincorporated fraternal associations cannot evade liability by conveniently dissolving
3 immediately after an act of wrongdoing because that would effectively deny plaintiff the statutory
4 period in which to bring suit. See id. at *4. The Cappello court held that the chapter existed at the
5 time of the wrongdoing and did, as a matter of law, existed as an organization for purposes of
6 service of process through the time limits for filing suit based upon that wrongdoing. See id. at *5.
7 As the court explained, “[b]ecause the fraternity was a functioning voluntary association at the
8 time of the incident it should not be allowed to escape liability by dissolving before the injured
9 plaintiff can effectuate service.” Id. The Capello court further held that service on the last known
10 chapter president prior to expiration of the statute of limitations was sufficient to establish the
11 court’s personal jurisdiction. See id. at *7-8.
12 Like the Capello court, this Court should not allow the Chapter – with the assistance of
13 Theta Chi – to engage in a disappearing act in an attempt to: (1) evade liability for its actions; and
14 (2) insulate Theta Chi from vicarious liability for the Chapter’s actions. Here, it is undisputed that
15 Defendant Guevara was served on behalf of the Chapter by substitute and mail service, and that he
16 was the last serving President of the Chapter.17 Under California law, Defendant Guevara
17 therefore qualifies as a member of the Chapter’s “last preceding incumbent board” and, as such,
18 retains the power to act for and on behalf of the Chapter, as California Corporation Code section
19 18410 makes clear. In light of those undisputed facts, the Court should find that Plaintiff properly
20 and validly served the Chapter through Defendant Guevara, in accordance with Section 416.40(b)
21 of the Code of Civil Procedure.
22 3. Alternatively, the Court Should Order That Service Be Made on the Chapter
Through Theta Chi, the Chapter’s Controlling Member
23
Finally, and alternatively, should the Court deem substitute service on Defendant Guevara
24
25
26 The plaintiff in Cappello did not dispute the chapter’s argument that the chapter ceased to exist
16
as a legal entity when Sigma Nu suspended its charter. Id. Here, in contrast, as set forth above,
27 Plaintiffs dispute the Chapter’s (unfounded) argument that it ceased to be a legal entity when
Theta Chi revoked its charter.
28
17
See Guevara Decl. ¶¶ 2, 8, 10.
8
1 insufficient under Section 416.40(b) to effectuate service on the Chapter, Plaintiffs request that the
2 Court enter an Order directing that service be made on the Chapter by delivering a copy of the
3 process to Theta Chi and mailing a copy of the process to the Chapter at its last known address, in
4 accordance with Section 416.40(c) of the Code of Civil Procedure and Section 18220 of the
5 Corporations Code.
6 Under Section 416.40(c) of the Code of Civil Procedure, a summons may be served on an
7 unincorporated association by delivering a copy of the summons and complaint “[w]hen
8 authorized by Section 18220 of the Corporations Code, as provided by that section.” See Cal.
9 Code Civ. Proc. § 416.40(c). Section 18220 of the Corporations Code, in turn, provides:
10 If designation of an agent for the purpose of service of process has not been made
as provided in Section 18200, or if the agent designated cannot with reasonable
11 diligence be found at the address specified in the index referred to in Section
18205 for delivery by hand of the process, and it is shown by affidavit to the
12
satisfaction of a court or judge that process against an unincorporated association
13 cannot be served with reasonable diligence upon the designated agent by hand or
the unincorporated association in the manner provided for in Section 415.10 or
14 415.30 of the Code of Civil Procedure or subdivision (a) of Section 415.20 of the
Code of Civil Procedure, the court or judge may make an order that service be
15 made upon the unincorporated association by delivery of a copy of the process to
one or more of the association’s members designated in the order and by mailing
16
a copy of the process to the association at its last known address. Service in this
17 manner constitutes personal service upon the unincorporated association.
18 See Cal. Corp. Code § 18220.
19 Here, Theta Chi’s purported actions in voting to revoke the Chapter’s charter,18 and
20 notifying Chapter members that the purported revocation means “the chapter may no longer
21 operate as a collegiate chapter of Theta Chi Fraternity,”19 and its ability to “re-install” the Chapter,
22 as set forth in Theta Chi’s Constitution,20 demonstrate, consistent with Plaintiffs’ allegations, that
23 Theta Chi is a controlling member of the Chapter, with an unequivocal “right to participate in the
24 selection of persons authorized to manage the affairs of the unincorporated association or in the
25
18
See March 12, 2019 Meeting Minutes of the Grand Chapter of Theta Chi, attached as Exhibit B
26
to Mayer Decl.
27 19
See April 2, 2019 letter from Michael Mayer to the “Collegiate Brothers of Theta Iota Chapter,”
attached as Exhibit C to the Mayer Decl.
28
20
See Theta Chi Constitution, Art. IV, Sec. 4(g) [p. 13], Exhibit A to Mayer Decl.
9
1 development of policy of the unincorporated association.” See Cal. Corp. Code § 18105(b)
2 (defining “member” of an unincorporated association for the purposes of Corp. Code sections
3 18000, et seq.). Thus, an Order authorizing service on the Chapter through Theta Chi would be
4 consistent both with the purpose of Section 18220 of the Corporations Code and the Chapter’s
5 legal relationship to Theta Chi, its controlling member.
6 III. CONCLUSION
7 For the foregoing reasons, Plaintiffs respectfully request that the Court deny the Chapter’s
8 Motion to Quash Service of Summons and Complaint, in its entirety. In the alternative, Plaintiffs
9 respectfully request that the Court enter an Order, in accordance with Section 416.40(c) of the
10 Code of Civil Procedure and Section 18220 of the Corporations Code, directing that service be
11 made on the Chapter by delivering a copy of the process to Theta Chi Fraternity, Inc., and mailing
12 a copy of the process to the Chapter at its last known address.
13
14 DATED: August 18, 2020 SAWYER & LABAR LLP
15
By:
16 Ivo Labar
17 THE FIERBERG NATIONAL LAW GROUP, PLLC
18 By:
19 Jonathon N. Fazzola (admitted pro hac vice)
20 Attorneys for Plaintiffs
DAPHNE BELETSIS and
21 YVONNE RAINEY
22
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25
26
27
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10
Exhibit A
Cappello v. Mucke
Superior Court of Connecticut, Judicial District of Hartford At Hartford
January 25, 2012, Decided; January 25, 2012, Filed
CV 11-6021745-S
Reporter
2012 Conn. Super. LEXIS 274 *; 2012 WL 527681
Fraternity, Delta Chi Chapter (Delta Chi).2 In the
complaint, the plaintiff alleges the following facts.
Andrew J. Cappello v. Bryan M. Mucke et al.
On April 15, 2010, and into the early morning of
April 16, 2010, the defendants hosted or conducted
fraternity pledging events at which alcoholic liquor
Notice: THIS DECISION IS UNREPORTED was made available to the plaintiff, and engaged in
AND MAY BE SUBJECT TO FURTHER hazing the plaintiff. As a result, the plaintiff
APPELLATE REVIEW. COUNSEL IS became severely intoxicated and suffered
CAUTIONED TO MAKE AN INDEPENDENT significant injuries to his head, neck and face. Due
DETERMINATION OF THE STATUS OF THIS to these injuries, the plaintiff incurred medical bills
CASE. and expenses, and experienced pain, suffering and
other losses.
On July 21, 2011, Delta Chi filed a timely motion
to dismiss on the ground that the court lacks
Judges: [*1] Susan A. Peck, J. personal jurisdiction because Delta Chi is an
unincorporated voluntary association that ceased to
exist when its charter was suspended by Sigma Nu
Fraternity, Inc., in December 2010. In addition,
Opinion by: Susan A. Peck Delta Chi argued that the court lacks jurisdiction
because the plaintiff failed to effectuate service of
process upon Delta Chi as required by statute. The
issues have been fully briefed and the matter was
Opinion heard on the short calendar on October 24, 2011.
Practice Book §10-30 provides in relevant part:
MEMORANDUM OF DECISION MOTION TO "Any defendant, wishing to contest the court's
DISMISS jurisdiction . . . must do so by filing a motion to
This case involves injuries sustained by the plaintiff dismiss within thirty days of the filing of an
during a hazing incident involving a local appearance." "A motion to dismiss . . . properly
fraternity. On May 17, 2011, the plaintiff, Andrew attacks the jurisdiction of the court, essentially
Cappello, filed a ten-count complaint against
individual members and/or officers of the Quinn and Ayal Feinberg as individual defendants in the present
fraternity,1 and the local chapter of the Sigma Nu action.
2 Counts six through ten, directed against Delta Chi, allege negligent
service [*2] of alcohol to a minor, reckless service of alcohol to a
1 The plaintiff named Bryan Michael Mucke, Joseph Addison person in a visibly and or obviously intoxicated state, negligence,
Matarazzi, Jesse Vazquez, Chris James Richard Gardner, Jonathan T. recklessness and recklessness after the initial incident.
Page 2 of 3
2012 Conn. Super. LEXIS 274, *2
asserting that the plaintiff cannot as a matter of law governs the manner of service upon voluntary
and fact state a cause of action that should be heard associations.5 There is no Connecticut statutory
by the court." (Internal quotation marks omitted.) authority or appellate authority that addresses
Bacon Constr. Co. v. Dep't of Pub. Works, 294 service of process upon a once existing voluntary
Conn. 695, 706, 987 A.2d 348 (2010). association that is dissolved before service of
I process can be effectuated. Nevertheless, this court
finds persuasive the reasoning set forth in
Delta [*3] Chi argues that the court lacks in Pawlowski v. Delta Sigma Phi Fraternity, Superior
personam jurisdiction because, as an Court, judicial district of New Haven, Docket No.
unincorporated voluntary association, it ceased to CV 03 0484661, 2010 Conn. Super. LEXIS 646
exist as a legal entity when Sigma Nu Fraternity, (March 3, 2010, Skolnick, J.T.R.). In that case, the
Inc., suspended its charter in December 2010.3 The court denied a motion to dismiss brought by the
plaintiff counters that the court does not lack defendant, a local chapter of Delta Sigma Phi
personal jurisdiction because a voluntary Fraternity, whose charter had been revoked by the
association is subject to suit for actions occurring Grand Council of the National Fraternity before
while it was operational. service of process was effectuated. The court
reasoned that to do otherwise would allow any
"[A]n action commenced by . . . improper service voluntary association facing potential liability to
must be dismissed." (Internal quotation marks avoid that liability through dissolution. "In other
omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, words the two year statute of limitations which is
338, 951 A.2d 632 (2008). "[W]hen a particular provided to an injured party in which to institute
method of serving process is set forth by statute, suit, is lost because the purported negligent party
that method must be followed . . . Unless service of has voluntarily chosen to cease to exist. Thus, any
process is made as the statute prescribes, the court voluntary association [*5] which incurs a potential
to which it is returnable does not acquire liability can protect itself from liability by revoking
jurisdiction . . . The jurisdiction that is found its charter and ceasing to exist before suit is
lacking . . . is jurisdiction over the person . . ." instituted." Pawlowski v. Delta Sigma Phi
(Internal quotation marks omitted.) Argent Fraternity, supra, Superior Court, Docket No. CV
Mortgage Co., LLC v. Huertas, 288 Conn. 568, 03 0484661, 2010 Conn. Super. LEXIS 646.
576, 953 A.2d 868 (2008).
secretary or treasurer of the voluntary association."
Service [*4] of process in the present case is
governed by General Statutes §52-57(e),4 which 5 Judges of the Superior Court have regarded local chapters of
national fraternities as voluntary associations. See Pawlowski v.
Delta Sigma Phi Fraternity, Superior Court, judicial district of New
3 This
Haven, Docket No. CV 03 0484661, 2010 Conn. Super. LEXIS 646
fact is established by the affidavit of R. Bradley Beacham,
(March 3, 2010, Skolnick, J.T.R.) [*6] (using General Statutes §52-
executive director of Sigma Nu Fraternity, Inc., dated July 20, 2011,
57(e) to determine whether service of process was made on the
submitted by Delta Chi in support of its motion to dismiss and is not
appropriate individual or individuals when defendant was a local
disputed by the plaintiff.
chapter of a national fraternity); Salgado v. Korta, Superior Court,
4 General Statutes §52-57(e) provides in relevant part: "In actions judicial district of Fairfield, Docket No. CV 05 4005829 (August 9,
against a voluntary association, service of process may be made 2005, Gilardi, J.) (39 Conn. L. Rptr. 742, 743-44, 2005 Conn. Super.
upon the presiding officer, secretary or treasurer. If all of such LEXIS 2044) (finding that local fraternity is an unincorporated
officers are not residents of the state and the voluntary association is voluntary association as established by an undisputed affidavit by the
doing business, acting or carrying out its operations or its functions fraternity's vice president). In the present case, Delta Chi presents its
within the state, the voluntary association shall be deemed to have status as a voluntary association in its memorandum in support of a
appointed the Secretary of the State as its attorney and to have motion to dismiss. The plaintiff does not dispute this status in his
agreed that any process in any civil action brought against it may be memorandum in opposition, and instead argues that Delta Chi, as a
served upon the Secretary of the State and that the process shall have voluntary association, is still subject to suit despite its present
the same validity as if served personally upon the presiding officer, defunct status.
Page 3 of 3
2012 Conn. Super. LEXIS 274, *6
Because the fraternity was a functioning voluntary by undisputed facts established by affidavits
association at the time of the incident it should not submitted in support of the motion to dismiss . . .
be allowed to escape liability by dissolving before the trial court, in determining the jurisdictional
the injured plaintiff can effectuate proper service. issue, may consider these supplementary
II undisputed facts and need not conclusively presume
the validity of the allegations of the complaint."
Delta Chi also argues that the plaintiff failed to (Citations omitted; internal quotation marks
effectuate service as to Delta Chi because, upon the omitted.) Conboy v. State, 292 Conn. 642, 651-52,
suspension of its charter, the former [*7] officers 974 A.2d 669 (2009). There is no dispute about
of Delta Chi no longer exercised authority to act as Mucke's status as chapter president as set forth in
agents or officers of the association. Delta Chi Beacham's affidavit.
further argues that service of process was invalid, CONCLUSION
pursuant to §52-57(e), because neither the
plaintiff's summons nor the complaint indicate what For all the foregoing reasons, the court finds that
position the individual defendants occupied within the plaintiff has achieved personal jurisdiction over
Delta Chi. The plaintiff counters that process was Delta Chi, pursuant to General Statutes §52-57(e),
properly served upon Delta Chi in accordance with by serving [*9] process upon Mucke, the last
General Statutes §52-57(e), because he served known president of Delta Chi, at his usual place of
Delta Chi's presiding officer, Bryan Michael abode. Accordingly, the defendant's motion to
Mucke. dismiss is hereby denied.
General Statutes §52-57(e) requires service of Peck, J.
process to be made upon the presiding officer,
secretary or treasurer of a voluntary association.
End of Document
"Where a particular method of serving process is
pointed out by statute, that method must be
followed . . . The designation of a particular officer
or officers on whom service may be made excludes
all others." (Citations omitted.) Board of Education
v. Local 1282, 31 Conn.App. 629, 632, 626 A.2d
1314, cert. granted on other grounds, 227 Conn.
909, 632 A.2d 688 (1993).
In the present case, the plaintiff served several
former members of Delta Chi, including Mucke.6
While the plaintiff's complaint does not specify
Mucke's status within Delta Chi, [*8] Mucke's
position as Delta Chi's last known commander and
chapter president is confirmed by the affidavit of R.
Bradley Beacham, executive director of Sigma Nu
Fraternity, Inc.7 "[I]f the complaint is supplemented
6 The
marshal's return of service, filed on May 17, 2011, states that
Mucke was served at his usual place of abode on May 13, 2011.
7 InBeacham's affidavit, he states that he notified Mucke, as Delta
Chi's commander and chapter president, of the suspension of Delta Chi's charter by letter dated December 9, 2010.
Preview
ELECTRONICALLY FILED Superior Court of California 1 THE FIERBERG NATIONAL LAW GROUP, PLLC County of Santa Cruz DOUGLAS E. FIERBERG (admitted pro hac vice) 8/18/2020 4:12 PM 2 dfierberg@tfnlgroup.com Alex Calvo, Clerk JONATHON N. FAZZOLA (admitted pro hac vice) By: Declan Salsedo, Deputy 3 jfazzola@tfnlgroup.com LISA N. CLOUTIER (admitted pro hac vice) 4 lcloutier@tfnlgroup.com 161 East Front Street, Suite 200 5 Traverse City, MI 49684 Telephone: (231) 933-0180 6 Fax: (231) 252-8100 7 SAWYER & LABAR LLP IVO LABAR, State Bar No. 203492 8 labar@sawyerlabar.com 201 Mission Street, Suite 2240 9 San Francisco, CA 94105 Telephone: (415) 262-3820 10 Attorneys for Plaintiffs 11 DAPHNE BELETSIS YVONNE RAINEY 12 13 SUPERIOR COURT OF CALIFORNIA 14 COUNTY OF SANTA CRUZ 15 DAPHNE BELETSIS, individually, and as Case No. 19CV03287 Administrator of the ESTATE OF (Assigned to Hon. John Gallagher, Dept. 10) 16 ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of PLAINTIFFS’ OPPOSITION TO 17 THETA IOTA CHAPTER OF THETA ALEXANDER BELETSIS, deceased CHI FRATERNITY’S MOTION TO 18 QUASH SERVICE OF SUMMONS AND Plaintiffs, COMPLAINT 19 vs. Hearing Date: August 31, 2020 20 THETA CHI FRATERNITY, INC., et al., Time: 8:30 a.m. Dept.: 10 21 Defendants. Complaint Filed: October 31, 2019 22 FAC Filed: February 5, 2020 Trial Date: Not Yet Set 23 24 25 26 27 28 PLAINTIFFS’ OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT 1 I. INTRODUCTION 2 On June 2, 2018, Plaintiffs’ son, Alex, fell from the second story bathroom window of a 3 Santa Cruz residence used as a satellite fraternity house by the Theta Iota Chapter of Theta Chi 4 Fraternity (the “Chapter”). As a result of the fall, Alex sustained traumatic injuries on the concrete 5 below. Alex was on life support for 18 days before he passed. An investigation by the University 6 of California, Santa Cruz (“UCSC”) later revealed that the Chapter hosted the events leading up to 7 and causing Alex’s death, which was preceded and caused by deeply appalling behavior by the 8 Chapter and its members. 9 On September 5, 2019, counsel for Theta Chi Fraternity, Inc., emailed counsel for 10 Plaintiffs, to follow up “on our conversation regarding your intended filing of a complaint in this 11 matter.” See September 5, 2019 Email from Michael Osborne to Douglas Fierberg, attached as 12 Exhibit B to the Declaration of Jonathon N. Fazzola (“Fazzola Decl.”). In his email, counsel for 13 Theta Chi represented to counsel for Plaintiffs that: 14 The chapter has been closed and in March its charter was revoked. Attached are the Grand Chapter’s minutes documenting the vote that revoked the Theta Iota 15 charter. The University also withdrew recognition and that chapter has ceased operations and no longer exists. As you know, the chapter was an unincorporated 16 association. Under California law, a dissolved unincorporated association cannot 17 be sued as it does not exist as a legal entity. 18 See id. Based on those representations, counsel for Theta Chi asked for Plaintiffs’ counsel’s 19 “agreement not to name the dissolved chapter as a defendant, whether at the time of the lawsuit is 20 filed or at any later time.” Id. 21 That request – which Plaintiffs’ counsel rejected – just like Theta Chi’s strategic 22 revocation of the Chapter’s charter, was one step in a transparent (and ongoing) gambit by Theta 23 Chi to leverage its control over the Chapter to try to insulate Theta Chi from vicarious liability for 24 the acts and misconduct of the Chapter that caused and contributed Alex’s fall and death. Indeed, 25 since Plaintiffs initiated this action on October 31, 2019, Theta Chi has filed a motion to strike “all 26 allegations relating to claims of vicarious liability against defendant Theta Chi Fraternity based on 27 28 2 PLAINTIFFS’ OPPOSITION TO MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT 1 agency and respondeat superior theories,”1 which Plaintiffs have separately opposed, and now the 2 purportedly legally nonexistent Chapter – with the assistance of a declaration from Theta Chi’s 3 Chief Executive Officer – has filed a Motion to Quash Service of Summons and Complaint (the 4 “Motion to Quash”), parroting Theta Chi’s counsel’s argument that the Chapter is “legally 5 nonexistent” and cannot be sued.2 The Motion to Quash – which advocates for a manifestly unjust 6 result – is unsupported by law and fact and should be denied. 7 II. ARGUMENT 8 A. THE CHAPTER HAS NOT BEEN DISSOLVED AND HAS BEEN PROPERLY AND VALIDLY SERVED WITH PROCESS IN THIS CASE 9 1. The Chapter Has Not Been Dissolved and Remains an Existent Legal Entity 10 The Chapter is wrong, as a matter of law, that “the Chapter ceased to be an unincorporated 11 association following revocation of its charter by the national fraternity on March 12, 2019.”3 It is 12 not true, as the Chapter contends, that “[a]n unincorporated association that is subordinate to 13 another organization is subject to dissolution by order of the superior organization.”4 In fact, the 14 single case the Chapter relies on to support that proposition – Holt v. Santa Clara County Sheriff’s 15 Benefit Association (1967) 250 Cal. App. 2d 925, 930 – is inapposite, because it was decided 16 decades before the California Legislature enacted California Corporation Code section 18410,5 17 which controls here. 18 Under Section 18410, an unincorporated association, like the Chapter, can be dissolved by 19 four methods: 20 (a) If the association’s governing documents provide a method for dissolution, by 21 that method. 22 (b) If the association’s governing documents do not provide a method for 23 24 1 See Theta Chi’s Motion to Strike Portions of Plaintiffs’ First Amended Complaint, filed on March 10, 2020, at ¶ 1. 25 2 Theta Chi Mem. at 6. 26 3 See Chapter Mem. at 5. Indeed, the fact that the Chapter has filed a Motion to Quash serves as 27 definitive proof that it continues to exists as a legal entity. 4 See Chapter Mem. at 5. 28 5 Cal. Corp. Code § 18410 became effective January 1, 2006. 3 1 dissolution, by the affirmative vote of a majority of the voting power of the association. 2 (c) If the association’s operations have been discontinued for at least three years, 3 by the board or, if the association has no incumbent board, by the members of its 4 last preceding incumbent board. 5 (d) If the association’s operations have been discontinued, by court order. 6 See Cal. Corp. Code § 18410. 7 Here, the Chapter does not offer any argument or evidence that the Chapter has been 8 dissolved by an affirmative vote of a majority of the voting power of the Chapter, that the 9 Chapter’s operations have been discontinued for at least three years, or that a court has ordered the 10 Chapter’s dissolution. Nor has the Chapter shown that the Chapter was dissolved in accordance 11 with the method provided for dissolution in the Chapter’s “governing documents,” the single 12 remaining method by which the Chapter could be validly dissolved under California law. In fact, 13 the Chapter relies exclusively on Theta Chi’s governing documents – The Constitution and 14 Bylaws of Theta Chi Fraternity, Inc. (“Theta Chi’s Constitution”) – not the Chapter’s governing 15 documents, which the Chapter (tellingly) neither discusses nor files with the Court. The Chapter’s 16 reliance on Theta Chi’s Constitution is misplaced. 17 First, even if Theta Chi had the unilateral authority to dissolve the Chapter under 18 California law (and it does not), the version of Theta Chi’s Constitution that the Chapter filed with 19 its Motion to Quash6 does not “provide a method of dissolution” for the Chapter, or any of the 20 other collegiate chapters Theta Chi charters (and reaps substantial revenue from) across the 21 country. Under the August 1, 2019 version of Theta Chi’s Constitution, a vote by Theta Chi’s 22 Grand Chapter to “revoke the charter of any active chapter” does not “dissolve” a chapter.7 23 24 25 The version of Theta Chi’s Constitution that the Chapter filed with the Court was “Revised 6 August 1, 2019,” months after Theta Chi purportedly revoked the Chapter’s charter. Thus, the 26 version of the Theta Chi’s Constitution that the Chapter filed in support of its Motion to Quash is, on its face, inapplicable. See Theta Chi Constitution, [p. 1], attached as Exhibit A to the 27 Declaration of Michael Mayer, filed on July 17, 2020 with the Chapter’s Motion to Quash Service of Summons and Complaint (“Mayer Decl.”). 28 7 See Theta Chi Constitution, Art. IV, Sec. 4(d) [p. 13], attached as Exhibit A to Mayer Decl. 4 1 Rather, it renders the chapter “inactive,”8 which California law makes clear is a status wholly 2 unique from dissolution. See Cal. Corp. Code § 18410(c)-(d).9 Theta Chi’s Constitution also 3 makes clear that Theta Chi does not equate the revocation of a chapter’s charter with the legal 4 dissolution of that chapter, and expressly contemplates that the chapter may resume operations in 5 the future. Theta Chi’s Constitution provides: 6 Re-Installation. The Grand Chapter, by a three-fourths vote of all members then in office, shall have the right to re-install any inactive chapter, including an 7 inactive chapter of any fraternity merged with or into the Fraternity. In conjunction with a decision whether or not to re-install any such chapter, the 8 Grand Chapter may follow any procedures, impose any conditions, and assess any 9 charges, as if the decision were one to approve a petition for a new charter pursuant to Section 3(A) of this Article IV.10 10 Theta Chi already has evidenced an intention to re-install the Chapter at UCSC, despite 11 concluding that that the Chapter “had repeatedly violated Theta Chi alcohol policies even after 12 prior corrective action,” and that “hazing activities were taking place within the chapter.”11 13 According to March 12, 2019 Meeting Minutes of the Grand Chapter, Theta Chi’s Chief 14 Executive Officer, Michael Mayer, “attempted to secure a recolonization agreement” with UCSC 15 for the Chapter, but UCSC “was not interested in pursuing that agreement at this time.”12 16 Second, even if it were true, as Defendant Christopher Guevara asserts in his Declaration, 17 that following UCSC’s revocation of the Chapter’s recognition of a Registered Campus 18 Organization in April 2019, the Chapter “ceased all operations,”13 that is not evidence that the 19 Chapter has been dissolved. Under Cal. Corp. Code § 18410(c), an unincorporated association’s 20 21 8 See id. 22 Under Sections 18410(c) and 18410(d), the cessation of an unincorporated association’s 9 23 activities is a necessary predicate for dissolution by “the board or, if the association has no incumbent board, by the members of its last preceding incumbent board,” or by court order; the 24 cessation of activities, in and of itself, is not tantamount to dissolution. 10 25 See Theta Chi Constitution, Art. IV, Sec. 4(g) [p. 13], Exhibit A to Mayer Decl. 11 See April 2, 2019 letter from Michael Mayer to the “Collegiate Brothers of Theta Iota Chapter,” 26 attached as Exhibit C to the Mayer Decl. 27 12 See March 12, 2019 Meeting Minutes of the Grand Chapter of Theta Chi, attached as Exhibit B to Mayer Decl. 28 13 See Declaration of Christopher Guevara (“Guevara Decl.”) ¶ 7. 5 1 operations have to have been “discontinued for at least three years,” before the association’s 2 “board, or if the association has no incumbent board, by the members of its last preceding board” 3 is permitted to formally dissolve the association on that basis. See Cal. Corp. Code § 18410(c). 4 By Defendant Guevara’s own admission, the Chapter’s operations have not been discontinued for 5 at least three years. And the Chapter’s actions in filing of its Motion to Quash definitively shows 6 that the Chapter continues to operate and exist (at least when it serves its interests to do so). 7 Thus, the Chapter’s argument that the Court lacks jurisdiction over the Chapter because the 8 Chapter is “legally nonexistent” is legally and factually unfounded. In fact, the Declarations and 9 documents the Chapter submitted in support of its Motion to Quash, along with the Chapter’s 10 action in filing the Motion to Quash, fully and affirmatively establish that the Chapter has not 11 been dissolved in accordance with California law, that the Chapter continues to legally exist, and 12 that the Court can and should exercise personal jurisdiction over the Chapter in this case. 13 2. Service on the Chapter Through Its Preceding Incumbent President Was Valid 14 In addition, Plaintiffs properly served the Chapter though Defendant Guevara, who admits 15 both that he “was served with the Summons and Complaint by substitute service on June 9, 2020 16 and by mail service on June10, 2020,” and that he was the last serving President of the Chapter.14 17 Under California Code of Civil Procedure section 416.40(b), an unincorporated 18 association, like the Chapter, may be served by delivering a copy of the summons and complaint 19 to “to the president or other head of the association, a vice president, a secretary or assistant 20 secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the 21 association to receive service of process.” See Cal. Civ. Code § 416.40(b). Given that California 22 law provides that in circumstances where an unincorporated association discontinues its operations 23 and the association “has no incumbent board,” the “members of its last preceding incumbent 24 board” retain power to act for and on behalf of the association, including by formally dissolving 25 it,15 it would it lead to an anomalous and absurd result – and one that is divorced from the realities 26 27 14 See Guevara Decl. ¶¶ 2, 8, 10. 28 15 See Cal. Corp. Code § 18410(c). 6 1 of many unincorporated associations, including, apparently, the Chapter – to construe California 2 Code of Civil Procedure section 416.40 as disallowing service of process on the last incumbent 3 members of the board of an unincorporated association that, though inactive, has not been 4 formally dissolved in accordance with Cal. Corp. Code section 18410. As the California Supreme 5 Court has explained: 6 It is a settled principle of statutory interpretation that language of the statute should not be given a literal meaning if doing so would result in absurd 7 consequences which the legislature did not intend. To the extent this examination of the statutory language leaves uncertainty, it is appropriate to consider the 8 consequences that will flow from a particular interpretation. Where more than 9 one statutory construction is arguably possible, our policy has long been to favor the construction that leads to the more reasonable result. This policy derives from 10 the presumption that the Legislature intends reasonable results consistent with its apparent purpose. Thus, our task is to select the construction that comports most 11 closely with the Legislature’s apparent intent, with a view to promoting rather than defeating the statutes’ general purpose, and to avoid a construction that 12 would lead to unreasonable, impractical, or arbitrary results. 13 Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal. 4th 278, 14 290. 15 Consistent with those principles, Section 4 of the Code of Civil Procedure makes clear that 16 the Code’s “provisions are to be liberally constructed with a view to effect its objects and promote 17 justice.” See Cal. Code § 4. In circumstances like the ones at bar, it would unequivocally 18 promote justice to read Section 416.40(b) in conjunction with Section 18410 of the Corporations 19 Code, and construe Section 416.40(b) to allow service on the last preceding incumbent president 20 of an inactive – though not legally dissolved – unincorporated association. In contrast, it would be 21 manifestly unjust if unincorporated associations, like the Chapter, could skirt service of process 22 and evade liability by declaring themselves inactive (and not subject to suit or process) after 23 engaging in tortious and wrongful conduct. 24 Cappello v. Mucke – a case from the Superior Court of Connecticut – though not 25 controlling, is persuasive on this issue. In Cappello, the Delta Chi chapter of Sigma Nu Fraternity, 26 Inc. sought dismissal of the complaint filed against it by a victim of hazing, arguing – like the 27 Chapter here – that it had not been properly served because it had been dissolved by Sigma Nu 28 before service. See Cappello v. Mucke, 2012 Conn. Super. LEXIS 274, at *3 (2012) (attached 7 1 hereto as Exhibit A).16 The Cappello court denied the Motion to Dismiss, ruling that 2 unincorporated fraternal associations cannot evade liability by conveniently dissolving 3 immediately after an act of wrongdoing because that would effectively deny plaintiff the statutory 4 period in which to bring suit. See id. at *4. The Cappello court held that the chapter existed at the 5 time of the wrongdoing and did, as a matter of law, existed as an organization for purposes of 6 service of process through the time limits for filing suit based upon that wrongdoing. See id. at *5. 7 As the court explained, “[b]ecause the fraternity was a functioning voluntary association at the 8 time of the incident it should not be allowed to escape liability by dissolving before the injured 9 plaintiff can effectuate service.” Id. The Capello court further held that service on the last known 10 chapter president prior to expiration of the statute of limitations was sufficient to establish the 11 court’s personal jurisdiction. See id. at *7-8. 12 Like the Capello court, this Court should not allow the Chapter – with the assistance of 13 Theta Chi – to engage in a disappearing act in an attempt to: (1) evade liability for its actions; and 14 (2) insulate Theta Chi from vicarious liability for the Chapter’s actions. Here, it is undisputed that 15 Defendant Guevara was served on behalf of the Chapter by substitute and mail service, and that he 16 was the last serving President of the Chapter.17 Under California law, Defendant Guevara 17 therefore qualifies as a member of the Chapter’s “last preceding incumbent board” and, as such, 18 retains the power to act for and on behalf of the Chapter, as California Corporation Code section 19 18410 makes clear. In light of those undisputed facts, the Court should find that Plaintiff properly 20 and validly served the Chapter through Defendant Guevara, in accordance with Section 416.40(b) 21 of the Code of Civil Procedure. 22 3. Alternatively, the Court Should Order That Service Be Made on the Chapter Through Theta Chi, the Chapter’s Controlling Member 23 Finally, and alternatively, should the Court deem substitute service on Defendant Guevara 24 25 26 The plaintiff in Cappello did not dispute the chapter’s argument that the chapter ceased to exist 16 as a legal entity when Sigma Nu suspended its charter. Id. Here, in contrast, as set forth above, 27 Plaintiffs dispute the Chapter’s (unfounded) argument that it ceased to be a legal entity when Theta Chi revoked its charter. 28 17 See Guevara Decl. ¶¶ 2, 8, 10. 8 1 insufficient under Section 416.40(b) to effectuate service on the Chapter, Plaintiffs request that the 2 Court enter an Order directing that service be made on the Chapter by delivering a copy of the 3 process to Theta Chi and mailing a copy of the process to the Chapter at its last known address, in 4 accordance with Section 416.40(c) of the Code of Civil Procedure and Section 18220 of the 5 Corporations Code. 6 Under Section 416.40(c) of the Code of Civil Procedure, a summons may be served on an 7 unincorporated association by delivering a copy of the summons and complaint “[w]hen 8 authorized by Section 18220 of the Corporations Code, as provided by that section.” See Cal. 9 Code Civ. Proc. § 416.40(c). Section 18220 of the Corporations Code, in turn, provides: 10 If designation of an agent for the purpose of service of process has not been made as provided in Section 18200, or if the agent designated cannot with reasonable 11 diligence be found at the address specified in the index referred to in Section 18205 for delivery by hand of the process, and it is shown by affidavit to the 12 satisfaction of a court or judge that process against an unincorporated association 13 cannot be served with reasonable diligence upon the designated agent by hand or the unincorporated association in the manner provided for in Section 415.10 or 14 415.30 of the Code of Civil Procedure or subdivision (a) of Section 415.20 of the Code of Civil Procedure, the court or judge may make an order that service be 15 made upon the unincorporated association by delivery of a copy of the process to one or more of the association’s members designated in the order and by mailing 16 a copy of the process to the association at its last known address. Service in this 17 manner constitutes personal service upon the unincorporated association. 18 See Cal. Corp. Code § 18220. 19 Here, Theta Chi’s purported actions in voting to revoke the Chapter’s charter,18 and 20 notifying Chapter members that the purported revocation means “the chapter may no longer 21 operate as a collegiate chapter of Theta Chi Fraternity,”19 and its ability to “re-install” the Chapter, 22 as set forth in Theta Chi’s Constitution,20 demonstrate, consistent with Plaintiffs’ allegations, that 23 Theta Chi is a controlling member of the Chapter, with an unequivocal “right to participate in the 24 selection of persons authorized to manage the affairs of the unincorporated association or in the 25 18 See March 12, 2019 Meeting Minutes of the Grand Chapter of Theta Chi, attached as Exhibit B 26 to Mayer Decl. 27 19 See April 2, 2019 letter from Michael Mayer to the “Collegiate Brothers of Theta Iota Chapter,” attached as Exhibit C to the Mayer Decl. 28 20 See Theta Chi Constitution, Art. IV, Sec. 4(g) [p. 13], Exhibit A to Mayer Decl. 9 1 development of policy of the unincorporated association.” See Cal. Corp. Code § 18105(b) 2 (defining “member” of an unincorporated association for the purposes of Corp. Code sections 3 18000, et seq.). Thus, an Order authorizing service on the Chapter through Theta Chi would be 4 consistent both with the purpose of Section 18220 of the Corporations Code and the Chapter’s 5 legal relationship to Theta Chi, its controlling member. 6 III. CONCLUSION 7 For the foregoing reasons, Plaintiffs respectfully request that the Court deny the Chapter’s 8 Motion to Quash Service of Summons and Complaint, in its entirety. In the alternative, Plaintiffs 9 respectfully request that the Court enter an Order, in accordance with Section 416.40(c) of the 10 Code of Civil Procedure and Section 18220 of the Corporations Code, directing that service be 11 made on the Chapter by delivering a copy of the process to Theta Chi Fraternity, Inc., and mailing 12 a copy of the process to the Chapter at its last known address. 13 14 DATED: August 18, 2020 SAWYER & LABAR LLP 15 By: 16 Ivo Labar 17 THE FIERBERG NATIONAL LAW GROUP, PLLC 18 By: 19 Jonathon N. Fazzola (admitted pro hac vice) 20 Attorneys for Plaintiffs DAPHNE BELETSIS and 21 YVONNE RAINEY 22 23 24 25 26 27 28 10 Exhibit A Cappello v. Mucke Superior Court of Connecticut, Judicial District of Hartford At Hartford January 25, 2012, Decided; January 25, 2012, Filed CV 11-6021745-S Reporter 2012 Conn. Super. LEXIS 274 *; 2012 WL 527681 Fraternity, Delta Chi Chapter (Delta Chi).2 In the complaint, the plaintiff alleges the following facts. Andrew J. Cappello v. Bryan M. Mucke et al. On April 15, 2010, and into the early morning of April 16, 2010, the defendants hosted or conducted fraternity pledging events at which alcoholic liquor Notice: THIS DECISION IS UNREPORTED was made available to the plaintiff, and engaged in AND MAY BE SUBJECT TO FURTHER hazing the plaintiff. As a result, the plaintiff APPELLATE REVIEW. COUNSEL IS became severely intoxicated and suffered CAUTIONED TO MAKE AN INDEPENDENT significant injuries to his head, neck and face. Due DETERMINATION OF THE STATUS OF THIS to these injuries, the plaintiff incurred medical bills CASE. and expenses, and experienced pain, suffering and other losses. On July 21, 2011, Delta Chi filed a timely motion to dismiss on the ground that the court lacks Judges: [*1] Susan A. Peck, J. personal jurisdiction because Delta Chi is an unincorporated voluntary association that ceased to exist when its charter was suspended by Sigma Nu Fraternity, Inc., in December 2010. In addition, Opinion by: Susan A. Peck Delta Chi argued that the court lacks jurisdiction because the plaintiff failed to effectuate service of process upon Delta Chi as required by statute. The issues have been fully briefed and the matter was Opinion heard on the short calendar on October 24, 2011. Practice Book §10-30 provides in relevant part: MEMORANDUM OF DECISION MOTION TO "Any defendant, wishing to contest the court's DISMISS jurisdiction . . . must do so by filing a motion to This case involves injuries sustained by the plaintiff dismiss within thirty days of the filing of an during a hazing incident involving a local appearance." "A motion to dismiss . . . properly fraternity. On May 17, 2011, the plaintiff, Andrew attacks the jurisdiction of the court, essentially Cappello, filed a ten-count complaint against individual members and/or officers of the Quinn and Ayal Feinberg as individual defendants in the present fraternity,1 and the local chapter of the Sigma Nu action. 2 Counts six through ten, directed against Delta Chi, allege negligent service [*2] of alcohol to a minor, reckless service of alcohol to a 1 The plaintiff named Bryan Michael Mucke, Joseph Addison person in a visibly and or obviously intoxicated state, negligence, Matarazzi, Jesse Vazquez, Chris James Richard Gardner, Jonathan T. recklessness and recklessness after the initial incident. Page 2 of 3 2012 Conn. Super. LEXIS 274, *2 asserting that the plaintiff cannot as a matter of law governs the manner of service upon voluntary and fact state a cause of action that should be heard associations.5 There is no Connecticut statutory by the court." (Internal quotation marks omitted.) authority or appellate authority that addresses Bacon Constr. Co. v. Dep't of Pub. Works, 294 service of process upon a once existing voluntary Conn. 695, 706, 987 A.2d 348 (2010). association that is dissolved before service of I process can be effectuated. Nevertheless, this court finds persuasive the reasoning set forth in Delta [*3] Chi argues that the court lacks in Pawlowski v. Delta Sigma Phi Fraternity, Superior personam jurisdiction because, as an Court, judicial district of New Haven, Docket No. unincorporated voluntary association, it ceased to CV 03 0484661, 2010 Conn. Super. LEXIS 646 exist as a legal entity when Sigma Nu Fraternity, (March 3, 2010, Skolnick, J.T.R.). In that case, the Inc., suspended its charter in December 2010.3 The court denied a motion to dismiss brought by the plaintiff counters that the court does not lack defendant, a local chapter of Delta Sigma Phi personal jurisdiction because a voluntary Fraternity, whose charter had been revoked by the association is subject to suit for actions occurring Grand Council of the National Fraternity before while it was operational. service of process was effectuated. The court reasoned that to do otherwise would allow any "[A]n action commenced by . . . improper service voluntary association facing potential liability to must be dismissed." (Internal quotation marks avoid that liability through dissolution. "In other omitted.) Jimenez v. DeRosa, 109 Conn.App. 332, words the two year statute of limitations which is 338, 951 A.2d 632 (2008). "[W]hen a particular provided to an injured party in which to institute method of serving process is set forth by statute, suit, is lost because the purported negligent party that method must be followed . . . Unless service of has voluntarily chosen to cease to exist. Thus, any process is made as the statute prescribes, the court voluntary association [*5] which incurs a potential to which it is returnable does not acquire liability can protect itself from liability by revoking jurisdiction . . . The jurisdiction that is found its charter and ceasing to exist before suit is lacking . . . is jurisdiction over the person . . ." instituted." Pawlowski v. Delta Sigma Phi (Internal quotation marks omitted.) Argent Fraternity, supra, Superior Court, Docket No. CV Mortgage Co., LLC v. Huertas, 288 Conn. 568, 03 0484661, 2010 Conn. Super. LEXIS 646. 576, 953 A.2d 868 (2008). secretary or treasurer of the voluntary association." Service [*4] of process in the present case is governed by General Statutes §52-57(e),4 which 5 Judges of the Superior Court have regarded local chapters of national fraternities as voluntary associations. See Pawlowski v. Delta Sigma Phi Fraternity, Superior Court, judicial district of New 3 This Haven, Docket No. CV 03 0484661, 2010 Conn. Super. LEXIS 646 fact is established by the affidavit of R. Bradley Beacham, (March 3, 2010, Skolnick, J.T.R.) [*6] (using General Statutes §52- executive director of Sigma Nu Fraternity, Inc., dated July 20, 2011, 57(e) to determine whether service of process was made on the submitted by Delta Chi in support of its motion to dismiss and is not appropriate individual or individuals when defendant was a local disputed by the plaintiff. chapter of a national fraternity); Salgado v. Korta, Superior Court, 4 General Statutes §52-57(e) provides in relevant part: "In actions judicial district of Fairfield, Docket No. CV 05 4005829 (August 9, against a voluntary association, service of process may be made 2005, Gilardi, J.) (39 Conn. L. Rptr. 742, 743-44, 2005 Conn. Super. upon the presiding officer, secretary or treasurer. If all of such LEXIS 2044) (finding that local fraternity is an unincorporated officers are not residents of the state and the voluntary association is voluntary association as established by an undisputed affidavit by the doing business, acting or carrying out its operations or its functions fraternity's vice president). In the present case, Delta Chi presents its within the state, the voluntary association shall be deemed to have status as a voluntary association in its memorandum in support of a appointed the Secretary of the State as its attorney and to have motion to dismiss. The plaintiff does not dispute this status in his agreed that any process in any civil action brought against it may be memorandum in opposition, and instead argues that Delta Chi, as a served upon the Secretary of the State and that the process shall have voluntary association, is still subject to suit despite its present the same validity as if served personally upon the presiding officer, defunct status. Page 3 of 3 2012 Conn. Super. LEXIS 274, *6 Because the fraternity was a functioning voluntary by undisputed facts established by affidavits association at the time of the incident it should not submitted in support of the motion to dismiss . . . be allowed to escape liability by dissolving before the trial court, in determining the jurisdictional the injured plaintiff can effectuate proper service. issue, may consider these supplementary II undisputed facts and need not conclusively presume the validity of the allegations of the complaint." Delta Chi also argues that the plaintiff failed to (Citations omitted; internal quotation marks effectuate service as to Delta Chi because, upon the omitted.) Conboy v. State, 292 Conn. 642, 651-52, suspension of its charter, the former [*7] officers 974 A.2d 669 (2009). There is no dispute about of Delta Chi no longer exercised authority to act as Mucke's status as chapter president as set forth in agents or officers of the association. Delta Chi Beacham's affidavit. further argues that service of process was invalid, CONCLUSION pursuant to §52-57(e), because neither the plaintiff's summons nor the complaint indicate what For all the foregoing reasons, the court finds that position the individual defendants occupied within the plaintiff has achieved personal jurisdiction over Delta Chi. The plaintiff counters that process was Delta Chi, pursuant to General Statutes §52-57(e), properly served upon Delta Chi in accordance with by serving [*9] process upon Mucke, the last General Statutes §52-57(e), because he served known president of Delta Chi, at his usual place of Delta Chi's presiding officer, Bryan Michael abode. Accordingly, the defendant's motion to Mucke. dismiss is hereby denied. General Statutes §52-57(e) requires service of Peck, J. process to be made upon the presiding officer, secretary or treasurer of a voluntary association. End of Document "Where a particular method of serving process is pointed out by statute, that method must be followed . . . The designation of a particular officer or officers on whom service may be made excludes all others." (Citations omitted.) Board of Education v. Local 1282, 31 Conn.App. 629, 632, 626 A.2d 1314, cert. granted on other grounds, 227 Conn. 909, 632 A.2d 688 (1993). In the present case, the plaintiff served several former members of Delta Chi, including Mucke.6 While the plaintiff's complaint does not specify Mucke's status within Delta Chi, [*8] Mucke's position as Delta Chi's last known commander and chapter president is confirmed by the affidavit of R. Bradley Beacham, executive director of Sigma Nu Fraternity, Inc.7 "[I]f the complaint is supplemented 6 The marshal's return of service, filed on May 17, 2011, states that Mucke was served at his usual place of abode on May 13, 2011. 7 InBeacham's affidavit, he states that he notified Mucke, as Delta Chi's commander and chapter president, of the suspension of Delta Chi's charter by letter dated December 9, 2010.