Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Cruz
1 THE FIERBERG NATIONAL LAW GROUP, PLLC 10/16/2020 10:10 AM
DOUGLAS E. FIERBERG (admitted pro hac vice) Alex Calvo, Clerk
2 dfierberg@tfnlgroup.com By: Sandra Gonzalez, Deputy
JONATHON N. FAZZOLA (admitted pro hac vice)
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. Rebecca Connolly, Dept. 4)
16 ALEXANDER BELETSIS, and
YVONNE RAINEY, surviving parent of NOTICE OF ENTRY OF ORDERS
17
ALEXANDER BELETSIS, deceased Hearing Date: October 05, 2020
18 Time: 8:30 a.m.
Plaintiffs, Dept.: 4
19 vs.
Complaint Filed: October 31, 2019
20 THETA CHI FRATERNITY, INC., et al., FAC Filed: February 5, 2020
Trial Date: Not Yet Set
21
Defendants.
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NOTICE OF ENTRY OF ORDERS
1 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on October 14, 2020, the Court entered the following
3 Orders:
4 1. Order Denying Defendant Najpreet Singh Kahlon’s Motion to Strike Portions of
5 the First Amended Complaint, which was joined by Defendants Moises Garcia,
Emmanuel Thomas, Bobby Karki, John Dylan Leitch, and Brad Visacki, attached
6 hereto as Exhibit A;
7 2. Order Denying Defendant Theta Chi Fraternity, Inc.’s Motion to Strike Portions of
the First Amended Complaint, attached hereto as Exhibit B;
8
3. Order Overruling Defendant Stefan Matias Leon’s Demurrer to First Amended
9
Complaint, which was joined by Defendant Zachary Nash Davis, attached hereto
10 as Exhibit C;
11 4. Order Granting in Part and Denying in Part Defendants Thomas, Karki, Leitch,
Takayama, Visacki, Davis, Garcia and Guevara (the “Student Defendants”) Joint
12 Motion to Quash the Subpoena Duces Tecum to the University of California, Santa
Cruz, attached hereto as Exhibit D; and
13
5. Order Denying Defendant Theta Iota Chapter of Theta Chi Fraternity’s Motion to
14
Quash Service of Summons and Complaint, attached hereto as Exhibit E.
15
DATED: October 16, 2020 SAWYER & LABAR LLP
16
By:
17
Ivo Labar
18
19
THE FIERBERG NATIONAL LAW GROUP, PLLC
20
21 By:
Jonathon N. Fazzola (admitted pro hac vice)
22
23 Attorneys for Plaintiffs
DAPHNE BELETSIS
24 YVONNE RAINEY
25
26
27
28
2
NOTICE OF ENTRY OF ORDERS
Exhibit A
ELECTRONICALLY RECEIVED
Electronically Filed Electronically Filed
Superior Court of California Superior Court of California
County of Santa Cruz County of Santa Cruz
October 14, 2020 October 14, 2020
Alex Calvo, Clerk Alex Calvo, Clerk
By Deputy, Gonzalez, Sandra By Deputy, Gonzalez, Sandra
Electronically Filed
10/13/2020 12:20 PM Superior Court of California
County of Santa Cruz
1 THE FIERBERG NATIONAL LAW GROUP, PLLC
DOUGLAS E. FIERBERG (admitted pro hac vice) October 14, 2020
2 dfierberg@tfnlgroup.com Alex Calvo, Clerk
JONATHON N. FAZZOLA (admitted pro hac vice) By Deputy, Gonzalez, Sandra
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. Rebecca Connolly, Dept. 4)
16 ALEXANDER BELETSIS, and
YVONNE RAINEY, surviving parent of [PROPOSED] ORDER DENYING
17 DEFENDANT KAHLON’S MOTION TO
ALEXANDER BELETSIS, deceased STRIKE PORTIONS OF THE FIRST
18 AMENDED COMPLAINT
Plaintiffs,
19 vs. Hearing Date: October 05, 2020
Time: 8:30 a.m.
20 THETA CHI FRATERNITY, INC., et al., Dept.: 4
21 Complaint Filed: October 31, 2019
Defendants. FAC Filed: February 5, 2020
22 Trial Date: Not Yet Set
23
24
25
26
27
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[PROPOSED] ORDER DENYING KAHLON’S MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED
COMPLAINT
1 Defendant Kahlon’s Motion to Strike Portions of the First Amended Complaint, which was
2 joined by Defendants Moises Garcia, Emmanuel Thomas, Bobby Karki, John Dylan Leitch, and
3 Brad Visacki, came before the Court at 8:30 a.m. on October 05, 2020. Having read and
4 considered the written motion, opposition, and reply, having heard arguments from the parties’
5 counsel regarding the same, and good cause appearing, the Court ORDERS as follows:
6 Kahlon’s motion to strike the allegations related to hazing is denied.
7 The definitions of hazing referenced and set forth in paragraphs 78 and 97 of the FAC are
8 not restricted to initiation or pre-initiation into a campus organization. (see definitions of hazing
9 set forth in the University’s Anti-Hazing Policy and the Standards for Student Conduct for the
10 University of California System, CAL. Code Regs. tit. 5, § 41301 (2012) at ¶¶ 78 & 97 of FAC.)
11 Kahlon’s motion to strike (including the Joinders filed by Defendants Garcia, Thomas,
12 Karki, Leitch, and Visacki) Plaintiffs’ allegations of post-accident conduct and investigations as
13 irrelevant is denied.
14 Plaintiffs’ post-incident allegations are relevant to the issue of whether Theta Chi is
15 vicariously liable for the alleged misconduct of the Chapter and/or the individual Defendants by
16 ratifying their alleged misconduct.
17 IT IS SO ORDERED.
18
19 DATED: ________________________, 2020
Signed: 10/14/2020 02:12 PM
20
21
22
Hon. Rebecca Connolly Timothy Volkmann
23 JUDGE OF THE SUPERIOR COURT
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2
[PROPOSED] ORDER DENYING KAHLON’S MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED
COMPLAINT
Exhibit B
ELECTRONICALLY RECEIVED
10/13/2020 12:20 PM
Electronically Filed
Superior Court of California
1 THE FIERBERG NATIONAL LAW GROUP, PLLC County of Santa Cruz
DOUGLAS E. FIERBERG (admitted pro hac vice)
2 dfierberg@tfnlgroup.com October 14, 2020
JONATHON N. FAZZOLA (admitted pro hac vice) Alex Calvo, Clerk
3 jfazzola@tfnlgroup.com By Deputy, Gonzalez, Sandra
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. Rebecca Connolly, Dept. 4)
16 ALEXANDER BELETSIS, and
YVONNE RAINEY, surviving parent of [PROPOSED] ORDER DENYING
17 DEFENDANT THETA CHI FRATERNITY
ALEXANDER BELETSIS, deceased INC.’S MOTION TO STRIKE PORTIONS
18 OF THE FIRST AMENDED COMPLAINT
Plaintiffs,
19 vs. Hearing Date: October 05, 2020
Time: 8:30 a.m.
20 THETA CHI FRATERNITY, INC., et al., Dept.: 4
21 Complaint Filed: October 31, 2019
Defendants. FAC Filed: February 5, 2020
22 Trial Date: Not Yet Set
23
24
25
26
27
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[PROPOSED] ORDER DENYING THETA CHI FRATERNITY, INC.’S MOTION TO STRIKE PORTIONS OF
THE FIRST AMENDED COMPLAINT
1 Defendant Theta Chi Fraternity Inc.’s Motion to Strike Portions of the First Amended
2 Complaint came before the Court at 8:30 a.m. on October 05, 2020. Having read and considered
3 the written motion, opposition, and reply, having heard arguments from the parties’ counsel
4 concerning the same, and good cause appearing, the Court ORDERS as follows:
5 First, as to the motion to strike allegations from the FAC that the Fraternity is liable under
6 the theories of vicarious liability and respondent superior based on Barenborg v. Sigma Alpha
7 Epsilon Fraternity (2019) 33 Cal.App.5th 70, the complaint as a whole contains sufficient facts to
8 apprise the defendant of the basis upon which the plaintiff is seeking relief therefore the motion to
9 strike on that basis is denied. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6)
10 The motion to strike the allegations that Decedent Alexander Beletsis was subjected to
11 hazing on the ground that the definition of hazing makes it only applicable to initiation or pre-
12 initiation acts is denied. The definitions of hazing referenced and alleged in paragraphs 78 and 97
13 of the FAC are not restricted to initiation or pre-initiation into a campus organization. (see
14 definitions of hazing set forth in the University’s Anti-Hazing Policy and the Standards for
15 Student Conduct for the University of California System, CAL. Code Regs. tit. 5, § 41301 (2012)
16 at ¶¶ 78 & 97 of FAC).
17 The motion to strike the punitive damage allegations is denied as those claims have been
18 sufficiently pled. (see FAC ¶ 20, Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1148-
19 1149)
20 IT IS SO ORDERED.
21
22 DATED: ________________________, 2020
Signed: 10/14/2020 02:12 PM
23
24
25
Hon. Rebecca Connolly Timothy Volkmann
26 JUDGE OF THE SUPERIOR COURT
27
28
2
[PROPOSED] ORDER DENYING THETA CHI FRATERNITY, INC.’S MOTION TO STRIKE PORTIONS OF
THE FIRST AMENDED COMPLAINT
Exhibit C
ELECTRONICALLY RECEIVED
10/13/2020 12:20 PM Electronically Filed
Superior Court of California
County of Santa Cruz
1 THE FIERBERG NATIONAL LAW GROUP, PLLC
DOUGLAS E. FIERBERG (admitted pro hac vice) October 14, 2020
2 dfierberg@tfnlgroup.com Alex Calvo, Clerk
JONATHON N. FAZZOLA (admitted pro hac vice) By Deputy, Gonzalez, Sandra
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. Rebecca Connolly, Dept. 4)
16 ALEXANDER BELETSIS, and
YVONNE RAINEY, surviving parent of [PROPOSED] ORDER OVERRULING
17 DEFENDANT LEON’S DEMURRER TO
ALEXANDER BELETSIS, deceased THE FIRST AMENDED COMPLAINT
18
Plaintiffs, Hearing Date: October 05, 2020
19 vs. Time: 8:30 a.m.
Dept.: 4
20 THETA CHI FRATERNITY, INC., et al.,
Complaint Filed: October 31, 2019
21 FAC Filed: February 5, 2020
Defendants. Trial Date: Not Yet Set
22
23
24
25
26
27
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[PROPOSED] ORDER OVERRULING LEON’S DEMURRER
1 Defendant Leon’s Demurrer to the First Amended Complaint, which was joined by
2 Defendant Zachary Nash Davis, came before the Court at 8:30 a.m. on October 05, 2020. Having
3 read and considered the written motion and opposition, having heard arguments from the parties’
4 counsel concerning the same, and good cause appearing, the Court ORDERS as follows:
5 Leon’s demurrer (joined by Defendant Davis) to the First, Second, Fourth and Fifth causes
6 of action on the basis Leon and Davis had no special relationship with Decedent, therefore had no
7 duty to prevent harm to him is overruled.
8 “The rule that a person has no general duty to safeguard another from harm or to rescue an
9 injured person… has no application where the person has caused another to be put in a position of
10 peril of a kind from which the injuries occurred.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th
11 879, 883.) The FAC alleges Leon and Davis created the peril, therefor the negligence causes of
12 action state facts sufficient to constitute causes of action. (see FAC ¶¶ 21, 34, 36, 84.)
13 As to foreseeability, based on the allegations in the FAC, the kind of harm Decedent
14 experienced was foreseeable and sufficiently likely to result from the negligent conduct alleged.
15 (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.)
16 Leon’s Request for Judicial Notice
17 1. FAC filed in this action on 2/5/20: Granted.
18 IT IS SO ORDERED.
19
Signed: 10/14/2020 02:11 PM
20 DATED: ________________________, 2020
21
22
23
Hon. Rebecca Connolly Timothy Volkmann
24 JUDGE OF THE SUPERIOR COURT
25
26
27
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2
[PROPOSED] ORDER OVERRULING LEON’S DEMURRER
Exhibit D
ELECTRONICALLY RECEIVED
10/13/2020 12:20 PM Electronically Filed
Superior Court of California
County of Santa Cruz
1 THE FIERBERG NATIONAL LAW GROUP, PLLC
DOUGLAS E. FIERBERG (admitted pro hac vice) October 14, 2020
2 dfierberg@tfnlgroup.com Alex Calvo, Clerk
JONATHON N. FAZZOLA (admitted pro hac vice) By Deputy, Gonzalez, Sandra
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. Rebecca Connolly, Dept. 4)
16 ALEXANDER BELETSIS, and
YVONNE RAINEY, surviving parent of [PROPOSED] ORDER GRANTING IN
17 PART AND DENYING IN PART THE
ALEXANDER BELETSIS, deceased STUDENT DEFENDANTS’ JOINT
18 MOTION TO QUASH SUBPOENA TO UC
Plaintiffs, SANTA CRUZ
19 vs.
Hearing Date: October 05, 2020
20 THETA CHI FRATERNITY, INC., et al., Time: 8:30 a.m.
Dept.: 4
21
Defendants. Complaint Filed: October 31, 2019
22 FAC Filed: February 5, 2020
Trial Date: Not Yet Set
23
24
25
26
27
28
[PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART THE STUDENT DEFENDANTS’ JOINT
MOTION TO QUASH SUBPOENA TO UC SANTA CRUZ
1 Defendants Thomas, Karki, Leitch, Takayama, Visaki, Davis, Garcia, and Guevara (the
2 “Student Defendants”) Joint Motion to Quash the Subpoena Duces Tecum to the University of
3 California, Santa Cruz came before the Court at 8:30 a.m. on October 05, 2020. Having read and
4 considered the written motion and opposition, having heard arguments from the parties’ counsel
5 concerning the same, and good cause appearing, the Court ORDERS as follows:
6 The motion to quash is granted in part and denied in part.
7 The records requested are relevant. (Southern Pacific Co. v. Superior Court of Los
8 Angeles County (1940) 15 Cal.2d 206, 209.)
9 Regarding the scope of protection offered by FERPA (34 CFR 99.3), FERPA “does not
10 create an evidentiary privilege, nor does it prohibit production of otherwise confidential
11 documents pursuant to a court order. Moreover, the FERPA statute itself contains an express
12 exception allowing disclosure of education records in compliance with a judicial order or pursuant
13 to any lawfully issued subpoena. 20 U.S.C. § 1232g(b)(2)(B).” (Doe v. Rutherford County
14 (M.D.Tenn. Apr. 24, 2014, No. 3:13-0328) 2014 U.S.Dist.LEXIS 58696, at *3-4.)
15 The request for records is overbroad, therefore the subpoena will be modified pursuant to
16 CA Code Civ Proc § 1987.1(a)) as follows:
17 The production of records shall be limited in that except for any records pertaining to
18 Request number 11, (the records concerning the death and/or hazing of Alexander Beletsis and/or
19 any investigation by UCSC related to his death and/or hazing), no records will be produced
20 regarding any other student’s:
21 a) Application for admissions (and accompanying documents or enclosures);
22 b) Financial records;
23 c) Applications for housing;
24 d) Grades/transcripts;
25 e) Medical information.
26 Finally, a Protective Order will be issued as to any records produced. Records produced
27 will be designated and treated as “Confidential” records described in the Confidentiality and
28 Protective Order filed in this case on 12/31/19 including paragraph numbered 12: “[A]ll
2
[PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART THE STUDENT DEFENDANTS’ JOINT
MOTION TO QUASH SUBPOENA TO UC SANTA CRUZ
1 documents, testimony and information designated “Confidential” shall be used solely in
2 connection with this litigation and for no other purpose whatsoever and shall not be disclosed to
3 any person or used in any manner, except in accordance with the terms hereof.”
4 IT IS SO ORDERED.
5
Signed:
Signed: 10/14/2020
10/14/2020 02:11
02:11 PM
PM
6 DATED: ________________________, 2020
7
8
9
Hon. Rebecca Connolly Timothy Volkmann
10 JUDGE OF THE SUPERIOR COURT
11
12
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3
[PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART THE STUDENT DEFENDANTS’ JOINT
MOTION TO QUASH SUBPOENA TO UC SANTA CRUZ
Exhibit E
ELECTRONICALLY RECEIVED
10/13/2020 12:20 PM Electronically Filed
Superior Court of California
1 THE FIERBERG NATIONAL LAW GROUP, PLLC County of Santa Cruz
DOUGLAS E. FIERBERG (admitted pro hac vice) October 14, 2020
2 dfierberg@tfnlgroup.com Alex Calvo, Clerk
JONATHON N. FAZZOLA (admitted pro hac vice)
3 jfazzola@tfnlgroup.com By Deputy, Gonzalez, Sandra
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. Rebecca Connolly, Dept. 4)
16 ALEXANDER BELETSIS, and
YVONNE RAINEY, surviving parent of [PROPOSED] ORDER DENYING
17 DEFENDANT THETA IOTA CHAPTER
ALEXANDER BELETSIS, deceased OF THETA CHI FRATERNITY’S
18 MOTION TO QUASH SERVICE OF
Plaintiffs, SUMMONS AND COMPLAINT
19 vs.
Hearing Date: October 05, 2020
20 THETA CHI FRATERNITY, INC., et al., Time: 8:30 a.m.
Dept.: 4
21
Defendants. Complaint Filed: October 31, 2019
22 FAC Filed: February 5, 2020
Trial Date: Not Yet Set
23
24
25
26
27
28
[PROPOSED] ORDER DENYING THETA IOTA CHAPTER OF THETA CHI FRATERNITY’S MOTION TO
QUASH SERVICE OF SUMMONS AND COMPLAINT
1 Defendant Theta Iota Chapter of Theta Chi Fraternity’s Motion to Quash Service of
2 Summons and Complaint came before the Court at 8:30 a.m. on October 05, 2020. Having read
3 and considered the written motion and opposition, having heard arguments from the parties’
4 counsel regarding the same, and good cause appearing, the Court ORDERS as follows:
5 Defendant contends based on Holt v. Santa Clara County Sheriff’s Benefits Assn. (1967)
6 250 Cal.App.2d 925, 929-930 that as an unincorporated association subordinate to another
7 organization (Theta Chi Fraternity), that it was subject to dissolution by order of the superior
8 organization. Specifically, the Chapter contends that Theta Chi Fraternity’s revocation of the
9 charter of the Theta Iota Chapter on 3/12/19 dissolved the Chapter, making it a nonentity
10 incapable of suing or being sued. (Defendants’ Motion p.5:23, 6:26)
11 However, Holt was decided prior to the enactment of Cal Corp Code § 18410 (effective
12 1/1/2006). That section provides:
13 An unincorporated association may be dissolved by any of the following methods:
14 (a) If the association’s governing documents provide a method for dissolution, by
15 that method.
16 (b) If the association’s governing documents do not provide a method for
17 dissolution, by the affirmative vote of a majority of the voting power of the association.
18 (c) If the association’s operations have been discontinued for at least three years,
19 by the board or, if the association has no incumbent board, by the members of its last
20 preceding incumbent board.
21 (d) If the association’s operations have been discontinued, by court order.
22 The manner of the dissolution described in Holt, by the decision of some superior
23 organization, is not one of the manners for dissolution listed in Cal Corp Code § 18410
24 Dissolution.
25 Defendant has not provided the Court with the Chapter’s governing documents; therefore it
26 is unknown whether the Chapter’s governing documents provide a method for dissolution and if
27 so, what that method is. However, because the Chapter has not been dissolved pursuant to the
28
2
[PROPOSED] ORDER DENYING THETA IOTA CHAPTER OF THETA CHI FRATERNITY’S MOTION TO
QUASH SERVICE OF SUMMONS AND COMPLAINT
1 methods described in Cal Corp Code § 18410, the Chapter was not dissolved at the time of the
2 attempted service and was a legal entity capable of being served with legal process.
3 Because the Chapter was not dissolved at the time of the Summons and Complaint, the
4 service on Christopher Guevara, President of the Chapter, by substitute service following three
5 unsuccessful attempts, was valid service of the Summons and Complaint on the individual
6 authorized to accept service. (CA CCP §§ 416.40(b), 415.20)
7 Moreover, because members of the association’s last preceding incumbent board have the
8 authority to dissolve the unincorporated association pursuant to CA Corp. Code §18410 (c), it
9 stands to reason that service may be effected on members of the last preceding incumbent board.
10 This would liberally construe the provisions and all proceedings under the Code of Civil
11 Procedure with a view to effect its objects and to promote justice. (CA CCP § 4)
12 Finally, as to Defendant’s argument that only members, not former members of an
13 association may be served with process, (Reply p. 4:3) Mr. Guevara is a member, now being
14 classified as an alumnus member. (Dec. Mayer Ex. A. pg. 20 Section 1 Classes; Ex. C 4/2/19 letter
15 p. 1 ¶ 4)
16 IT IS SO ORDERED.
17
Signed: 10/14/2020 02:10 PM
18 DATED: ________________________, 2020
19
20
21
Hon. Rebecca Connolly Timothy Volkmann
22 JUDGE OF THE SUPERIOR COURT
23
24
25
26
27
28
3
[PROPOSED] ORDER DENYING THETA IOTA CHAPTER OF THETA CHI FRATERNITY’S MOTION TO
QUASH SERVICE OF SUMMONS AND COMPLAINT
PROOF OF SERVICE
1 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Grand Traverse, State of Michigan. My business address is 161 East
2
Front Street, Suite 200, Traverse City, Michigan 49684.
3
On October 16, 2020, I served a true copy of the foregoing document described as
4 NOTICE OF ENTRY OF ORDERS on the interested parties in this action as follows:
5 Ray Tamaddon, Esq. Matthew C. Jaime, Esq.
Hinshaw & Culbertson LLP Robert W. Sweetin, Esq.
6 350 S. Grand Avenue, Suite 3600 K. Moji Majekodunmi, Esq.
Los Angeles, CA 90071 Rhonda Ladrido, Esq.
7 rtamaddon@hinshawlaw.com Matheny Sears Linkert & Jaime, LLP
3638 American River Drive
8 Robert J. Romero, Esq. Sacramento, CA 95864
Hinshaw & Culbertson LLP mjaime@mathenysears.com
9 One California Street, 18th Floor rsweetin@mathenysears.com
San Francisco, CA 94111 kmajekodunmi@mathenysears.com
10 rromero@hinshawlaw.com rladrido@mathenysears.com
Attorneys for Defendant Zachary Nash Davis Attorneys for Defendant Christopher Guevara
11
12 Julie Azevedo, Esq. John R. Brydon, Esq.
Shawn Toliver, Esq. Derek H. Lim, Esq.
13 Janet H. Leader, Esq. Shannon Mallory, Esq.
Lewis Brisbois Bisgaard & Smith LLP Demler, Armstrong & Rowland, LLP
14 2185 N. California Boulevard, Suite 300 1350 Treat Boulevard #400
Walnut Creek, CA 94596 Walnut Creek, CA 94597
15 Julie.Azevedo@lewisbrisbois.com bry@darlaw.com
Shawn.Toliver@lewisbrisbois.com lim@darlaw.com
16 Janet.Leader@lewisbrisbois.com
Attorneys for Defendant Jordan Keiichi Takayama
mal@darlaw.com
Attorneys for Defendant Brad Visacki
17
Michael C. Osborne, Esq. Alan F. Hunter, Esq.
18 Jaskiran Samra, Esq. Elizabeth Gong Landess, Esq.
Cokinos | Young Gavin Cunningham & Hunter
19 One Embarcadero Center, Suite 390 1530 The Alameda, Suite 210
San Francisco, CA 94111 San Jose, CA 95126
20 mosborne@cokinoslaw.com hunter@gclitigation.com
jsamra@cokinoslaw.com landess@gclitigation.com
Attorneys for Defendant Theta Chi Fraternity, Inc. Attorneys for Defendant Rafael Garcia, Jr.
21
22 Mary Childs, Esq. Patrick Ball, Esq.
Aaron Case, Esq. Iden Kashefipour, Esq.
23 Yoka & Smith, LLP Messner Reeves LLP
445 South Figueroa Street, 38th Floor 610 Newport Center Drive, Suite 420
24 Los Angeles, CA 90071 Newport Beach, CA 92660
mchilds@yokasmith.com
pball@messner.com
25 acase@yokasmith.com
Attorneys for Defendants Emmanuel Thomas, ikashefipour@messner.com
Bobby Karki & John Dylan Leitch Attorneys for Defendant Moises Tenorio Garcia
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Daphne Beletsis, et al. v. Theta Chi Fraternity, et al. 1 Santa Cruz County Case No. 19CV03287
PROOF OF SERVICE
1 Thomas M. Phillips, Esq. Andrew M. Lauderdale, Esq.
Jodi Rosner, Esq. Timothy Feeney, Esq.
2 The Phillips Firm, APC Hartsuyker, Stratman & Williams-Abrego
800 West 6th Street, Suite 980 One Almaden Boulevard #400
3 Los Angeles, CA 90017 San Jose, CA 95113
tphillips@thephillipsfirm.com andrew.lauderdale@farmersinsurance.com
4 jrosner@thephillipsfirm.com timothy.feeney@farmersinsurance.com
Attorneys for Defendant Stefan Matias Leon Attorneys for Defendant Quinn McLaughlin
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Norman L. Chong, Esq. Elaine Kobylecki, Esq.
6 Samantha Lewin, Esq. Friedenthal, Heffeman & Brown, LLP
Joseph D. O’Neil, Esq. 1520 W. Colorado Blvd., 2nd Floor
7 Tarkington, O’Neill, Barrack & Chong
Pasadena, CA 91105
201 Mission Street, Suite 710
8 San Francisco, CA 94105 ekobylecki@fhblawyers.com
nchong@to2law.com Attorney for Defendant Theta Iota Chapter of Theta
9 slewin@to2law.com Chi Fraternity
joneil@to2law.com
10 Attorneys for Defendant Najpreet Singh Kahlon
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12 BY E-MAIL OR ELECTRONIC TRANSMISSION: In accordance with the consents
to electronic service filed by the majority of counsel of record in this case and/or Emergency Rule
13 12 of the California Emergency Rules Related to COVID-19, I caused the document(s) to be sent
14 to the person(s) at the email address(es) above. No electronic message or other indication that the
transmission was unsuccessful was received within a reasonable time after the transmission.
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I declare under penalty of perjury under the laws of the State of Michigan that the
16 foregoing is true and correct.
17 Executed on October 16, 2020, at Traverse City, Michigan.
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Taylor Picard
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Daphne Beletsis, et al. v. Theta Chi Fraternity, et al. 2 Santa Cruz County Case No. 19CV03287
PROOF OF SERVICE
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Cruz 1 THE FIERBERG NATIONAL LAW GROUP, PLLC 10/16/2020 10:10 AM DOUGLAS E. FIERBERG (admitted pro hac vice) Alex Calvo, Clerk 2 dfierberg@tfnlgroup.com By: Sandra Gonzalez, Deputy JONATHON N. FAZZOLA (admitted pro hac vice) 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. Rebecca Connolly, Dept. 4) 16 ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of NOTICE OF ENTRY OF ORDERS 17 ALEXANDER BELETSIS, deceased Hearing Date: October 05, 2020 18 Time: 8:30 a.m. Plaintiffs, Dept.: 4 19 vs. Complaint Filed: October 31, 2019 20 THETA CHI FRATERNITY, INC., et al., FAC Filed: February 5, 2020 Trial Date: Not Yet Set 21 Defendants. 22 23 24 25 26 27 28 NOTICE OF ENTRY OF ORDERS 1 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on October 14, 2020, the Court entered the following 3 Orders: 4 1. Order Denying Defendant Najpreet Singh Kahlon’s Motion to Strike Portions of 5 the First Amended Complaint, which was joined by Defendants Moises Garcia, Emmanuel Thomas, Bobby Karki, John Dylan Leitch, and Brad Visacki, attached 6 hereto as Exhibit A; 7 2. Order Denying Defendant Theta Chi Fraternity, Inc.’s Motion to Strike Portions of the First Amended Complaint, attached hereto as Exhibit B; 8 3. Order Overruling Defendant Stefan Matias Leon’s Demurrer to First Amended 9 Complaint, which was joined by Defendant Zachary Nash Davis, attached hereto 10 as Exhibit C; 11 4. Order Granting in Part and Denying in Part Defendants Thomas, Karki, Leitch, Takayama, Visacki, Davis, Garcia and Guevara (the “Student Defendants”) Joint 12 Motion to Quash the Subpoena Duces Tecum to the University of California, Santa Cruz, attached hereto as Exhibit D; and 13 5. Order Denying Defendant Theta Iota Chapter of Theta Chi Fraternity’s Motion to 14 Quash Service of Summons and Complaint, attached hereto as Exhibit E. 15 DATED: October 16, 2020 SAWYER & LABAR LLP 16 By: 17 Ivo Labar 18 19 THE FIERBERG NATIONAL LAW GROUP, PLLC 20 21 By: Jonathon N. Fazzola (admitted pro hac vice) 22 23 Attorneys for Plaintiffs DAPHNE BELETSIS 24 YVONNE RAINEY 25 26 27 28 2 NOTICE OF ENTRY OF ORDERS Exhibit A ELECTRONICALLY RECEIVED Electronically Filed Electronically Filed Superior Court of California Superior Court of California County of Santa Cruz County of Santa Cruz October 14, 2020 October 14, 2020 Alex Calvo, Clerk Alex Calvo, Clerk By Deputy, Gonzalez, Sandra By Deputy, Gonzalez, Sandra Electronically Filed 10/13/2020 12:20 PM Superior Court of California County of Santa Cruz 1 THE FIERBERG NATIONAL LAW GROUP, PLLC DOUGLAS E. FIERBERG (admitted pro hac vice) October 14, 2020 2 dfierberg@tfnlgroup.com Alex Calvo, Clerk JONATHON N. FAZZOLA (admitted pro hac vice) By Deputy, Gonzalez, Sandra 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. Rebecca Connolly, Dept. 4) 16 ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of [PROPOSED] ORDER DENYING 17 DEFENDANT KAHLON’S MOTION TO ALEXANDER BELETSIS, deceased STRIKE PORTIONS OF THE FIRST 18 AMENDED COMPLAINT Plaintiffs, 19 vs. Hearing Date: October 05, 2020 Time: 8:30 a.m. 20 THETA CHI FRATERNITY, INC., et al., Dept.: 4 21 Complaint Filed: October 31, 2019 Defendants. FAC Filed: February 5, 2020 22 Trial Date: Not Yet Set 23 24 25 26 27 28 [PROPOSED] ORDER DENYING KAHLON’S MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT 1 Defendant Kahlon’s Motion to Strike Portions of the First Amended Complaint, which was 2 joined by Defendants Moises Garcia, Emmanuel Thomas, Bobby Karki, John Dylan Leitch, and 3 Brad Visacki, came before the Court at 8:30 a.m. on October 05, 2020. Having read and 4 considered the written motion, opposition, and reply, having heard arguments from the parties’ 5 counsel regarding the same, and good cause appearing, the Court ORDERS as follows: 6 Kahlon’s motion to strike the allegations related to hazing is denied. 7 The definitions of hazing referenced and set forth in paragraphs 78 and 97 of the FAC are 8 not restricted to initiation or pre-initiation into a campus organization. (see definitions of hazing 9 set forth in the University’s Anti-Hazing Policy and the Standards for Student Conduct for the 10 University of California System, CAL. Code Regs. tit. 5, § 41301 (2012) at ¶¶ 78 & 97 of FAC.) 11 Kahlon’s motion to strike (including the Joinders filed by Defendants Garcia, Thomas, 12 Karki, Leitch, and Visacki) Plaintiffs’ allegations of post-accident conduct and investigations as 13 irrelevant is denied. 14 Plaintiffs’ post-incident allegations are relevant to the issue of whether Theta Chi is 15 vicariously liable for the alleged misconduct of the Chapter and/or the individual Defendants by 16 ratifying their alleged misconduct. 17 IT IS SO ORDERED. 18 19 DATED: ________________________, 2020 Signed: 10/14/2020 02:12 PM 20 21 22 Hon. Rebecca Connolly Timothy Volkmann 23 JUDGE OF THE SUPERIOR COURT 24 25 26 27 28 2 [PROPOSED] ORDER DENYING KAHLON’S MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT Exhibit B ELECTRONICALLY RECEIVED 10/13/2020 12:20 PM Electronically Filed Superior Court of California 1 THE FIERBERG NATIONAL LAW GROUP, PLLC County of Santa Cruz DOUGLAS E. FIERBERG (admitted pro hac vice) 2 dfierberg@tfnlgroup.com October 14, 2020 JONATHON N. FAZZOLA (admitted pro hac vice) Alex Calvo, Clerk 3 jfazzola@tfnlgroup.com By Deputy, Gonzalez, Sandra 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. Rebecca Connolly, Dept. 4) 16 ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of [PROPOSED] ORDER DENYING 17 DEFENDANT THETA CHI FRATERNITY ALEXANDER BELETSIS, deceased INC.’S MOTION TO STRIKE PORTIONS 18 OF THE FIRST AMENDED COMPLAINT Plaintiffs, 19 vs. Hearing Date: October 05, 2020 Time: 8:30 a.m. 20 THETA CHI FRATERNITY, INC., et al., Dept.: 4 21 Complaint Filed: October 31, 2019 Defendants. FAC Filed: February 5, 2020 22 Trial Date: Not Yet Set 23 24 25 26 27 28 [PROPOSED] ORDER DENYING THETA CHI FRATERNITY, INC.’S MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT 1 Defendant Theta Chi Fraternity Inc.’s Motion to Strike Portions of the First Amended 2 Complaint came before the Court at 8:30 a.m. on October 05, 2020. Having read and considered 3 the written motion, opposition, and reply, having heard arguments from the parties’ counsel 4 concerning the same, and good cause appearing, the Court ORDERS as follows: 5 First, as to the motion to strike allegations from the FAC that the Fraternity is liable under 6 the theories of vicarious liability and respondent superior based on Barenborg v. Sigma Alpha 7 Epsilon Fraternity (2019) 33 Cal.App.5th 70, the complaint as a whole contains sufficient facts to 8 apprise the defendant of the basis upon which the plaintiff is seeking relief therefore the motion to 9 strike on that basis is denied. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6) 10 The motion to strike the allegations that Decedent Alexander Beletsis was subjected to 11 hazing on the ground that the definition of hazing makes it only applicable to initiation or pre- 12 initiation acts is denied. The definitions of hazing referenced and alleged in paragraphs 78 and 97 13 of the FAC are not restricted to initiation or pre-initiation into a campus organization. (see 14 definitions of hazing set forth in the University’s Anti-Hazing Policy and the Standards for 15 Student Conduct for the University of California System, CAL. Code Regs. tit. 5, § 41301 (2012) 16 at ¶¶ 78 & 97 of FAC). 17 The motion to strike the punitive damage allegations is denied as those claims have been 18 sufficiently pled. (see FAC ¶ 20, Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1148- 19 1149) 20 IT IS SO ORDERED. 21 22 DATED: ________________________, 2020 Signed: 10/14/2020 02:12 PM 23 24 25 Hon. Rebecca Connolly Timothy Volkmann 26 JUDGE OF THE SUPERIOR COURT 27 28 2 [PROPOSED] ORDER DENYING THETA CHI FRATERNITY, INC.’S MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT Exhibit C ELECTRONICALLY RECEIVED 10/13/2020 12:20 PM Electronically Filed Superior Court of California County of Santa Cruz 1 THE FIERBERG NATIONAL LAW GROUP, PLLC DOUGLAS E. FIERBERG (admitted pro hac vice) October 14, 2020 2 dfierberg@tfnlgroup.com Alex Calvo, Clerk JONATHON N. FAZZOLA (admitted pro hac vice) By Deputy, Gonzalez, Sandra 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. Rebecca Connolly, Dept. 4) 16 ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of [PROPOSED] ORDER OVERRULING 17 DEFENDANT LEON’S DEMURRER TO ALEXANDER BELETSIS, deceased THE FIRST AMENDED COMPLAINT 18 Plaintiffs, Hearing Date: October 05, 2020 19 vs. Time: 8:30 a.m. Dept.: 4 20 THETA CHI FRATERNITY, INC., et al., Complaint Filed: October 31, 2019 21 FAC Filed: February 5, 2020 Defendants. Trial Date: Not Yet Set 22 23 24 25 26 27 28 [PROPOSED] ORDER OVERRULING LEON’S DEMURRER 1 Defendant Leon’s Demurrer to the First Amended Complaint, which was joined by 2 Defendant Zachary Nash Davis, came before the Court at 8:30 a.m. on October 05, 2020. Having 3 read and considered the written motion and opposition, having heard arguments from the parties’ 4 counsel concerning the same, and good cause appearing, the Court ORDERS as follows: 5 Leon’s demurrer (joined by Defendant Davis) to the First, Second, Fourth and Fifth causes 6 of action on the basis Leon and Davis had no special relationship with Decedent, therefore had no 7 duty to prevent harm to him is overruled. 8 “The rule that a person has no general duty to safeguard another from harm or to rescue an 9 injured person… has no application where the person has caused another to be put in a position of 10 peril of a kind from which the injuries occurred.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 11 879, 883.) The FAC alleges Leon and Davis created the peril, therefor the negligence causes of 12 action state facts sufficient to constitute causes of action. (see FAC ¶¶ 21, 34, 36, 84.) 13 As to foreseeability, based on the allegations in the FAC, the kind of harm Decedent 14 experienced was foreseeable and sufficiently likely to result from the negligent conduct alleged. 15 (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.) 16 Leon’s Request for Judicial Notice 17 1. FAC filed in this action on 2/5/20: Granted. 18 IT IS SO ORDERED. 19 Signed: 10/14/2020 02:11 PM 20 DATED: ________________________, 2020 21 22 23 Hon. Rebecca Connolly Timothy Volkmann 24 JUDGE OF THE SUPERIOR COURT 25 26 27 28 2 [PROPOSED] ORDER OVERRULING LEON’S DEMURRER Exhibit D ELECTRONICALLY RECEIVED 10/13/2020 12:20 PM Electronically Filed Superior Court of California County of Santa Cruz 1 THE FIERBERG NATIONAL LAW GROUP, PLLC DOUGLAS E. FIERBERG (admitted pro hac vice) October 14, 2020 2 dfierberg@tfnlgroup.com Alex Calvo, Clerk JONATHON N. FAZZOLA (admitted pro hac vice) By Deputy, Gonzalez, Sandra 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. Rebecca Connolly, Dept. 4) 16 ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of [PROPOSED] ORDER GRANTING IN 17 PART AND DENYING IN PART THE ALEXANDER BELETSIS, deceased STUDENT DEFENDANTS’ JOINT 18 MOTION TO QUASH SUBPOENA TO UC Plaintiffs, SANTA CRUZ 19 vs. Hearing Date: October 05, 2020 20 THETA CHI FRATERNITY, INC., et al., Time: 8:30 a.m. Dept.: 4 21 Defendants. Complaint Filed: October 31, 2019 22 FAC Filed: February 5, 2020 Trial Date: Not Yet Set 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART THE STUDENT DEFENDANTS’ JOINT MOTION TO QUASH SUBPOENA TO UC SANTA CRUZ 1 Defendants Thomas, Karki, Leitch, Takayama, Visaki, Davis, Garcia, and Guevara (the 2 “Student Defendants”) Joint Motion to Quash the Subpoena Duces Tecum to the University of 3 California, Santa Cruz came before the Court at 8:30 a.m. on October 05, 2020. Having read and 4 considered the written motion and opposition, having heard arguments from the parties’ counsel 5 concerning the same, and good cause appearing, the Court ORDERS as follows: 6 The motion to quash is granted in part and denied in part. 7 The records requested are relevant. (Southern Pacific Co. v. Superior Court of Los 8 Angeles County (1940) 15 Cal.2d 206, 209.) 9 Regarding the scope of protection offered by FERPA (34 CFR 99.3), FERPA “does not 10 create an evidentiary privilege, nor does it prohibit production of otherwise confidential 11 documents pursuant to a court order. Moreover, the FERPA statute itself contains an express 12 exception allowing disclosure of education records in compliance with a judicial order or pursuant 13 to any lawfully issued subpoena. 20 U.S.C. § 1232g(b)(2)(B).” (Doe v. Rutherford County 14 (M.D.Tenn. Apr. 24, 2014, No. 3:13-0328) 2014 U.S.Dist.LEXIS 58696, at *3-4.) 15 The request for records is overbroad, therefore the subpoena will be modified pursuant to 16 CA Code Civ Proc § 1987.1(a)) as follows: 17 The production of records shall be limited in that except for any records pertaining to 18 Request number 11, (the records concerning the death and/or hazing of Alexander Beletsis and/or 19 any investigation by UCSC related to his death and/or hazing), no records will be produced 20 regarding any other student’s: 21 a) Application for admissions (and accompanying documents or enclosures); 22 b) Financial records; 23 c) Applications for housing; 24 d) Grades/transcripts; 25 e) Medical information. 26 Finally, a Protective Order will be issued as to any records produced. Records produced 27 will be designated and treated as “Confidential” records described in the Confidentiality and 28 Protective Order filed in this case on 12/31/19 including paragraph numbered 12: “[A]ll 2 [PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART THE STUDENT DEFENDANTS’ JOINT MOTION TO QUASH SUBPOENA TO UC SANTA CRUZ 1 documents, testimony and information designated “Confidential” shall be used solely in 2 connection with this litigation and for no other purpose whatsoever and shall not be disclosed to 3 any person or used in any manner, except in accordance with the terms hereof.” 4 IT IS SO ORDERED. 5 Signed: Signed: 10/14/2020 10/14/2020 02:11 02:11 PM PM 6 DATED: ________________________, 2020 7 8 9 Hon. Rebecca Connolly Timothy Volkmann 10 JUDGE OF THE SUPERIOR COURT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 [PROPOSED] ORDER GRANTING IN PART AND DENYING IN PART THE STUDENT DEFENDANTS’ JOINT MOTION TO QUASH SUBPOENA TO UC SANTA CRUZ Exhibit E ELECTRONICALLY RECEIVED 10/13/2020 12:20 PM Electronically Filed Superior Court of California 1 THE FIERBERG NATIONAL LAW GROUP, PLLC County of Santa Cruz DOUGLAS E. FIERBERG (admitted pro hac vice) October 14, 2020 2 dfierberg@tfnlgroup.com Alex Calvo, Clerk JONATHON N. FAZZOLA (admitted pro hac vice) 3 jfazzola@tfnlgroup.com By Deputy, Gonzalez, Sandra 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. Rebecca Connolly, Dept. 4) 16 ALEXANDER BELETSIS, and YVONNE RAINEY, surviving parent of [PROPOSED] ORDER DENYING 17 DEFENDANT THETA IOTA CHAPTER ALEXANDER BELETSIS, deceased OF THETA CHI FRATERNITY’S 18 MOTION TO QUASH SERVICE OF Plaintiffs, SUMMONS AND COMPLAINT 19 vs. Hearing Date: October 05, 2020 20 THETA CHI FRATERNITY, INC., et al., Time: 8:30 a.m. Dept.: 4 21 Defendants. Complaint Filed: October 31, 2019 22 FAC Filed: February 5, 2020 Trial Date: Not Yet Set 23 24 25 26 27 28 [PROPOSED] ORDER DENYING THETA IOTA CHAPTER OF THETA CHI FRATERNITY’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT 1 Defendant Theta Iota Chapter of Theta Chi Fraternity’s Motion to Quash Service of 2 Summons and Complaint came before the Court at 8:30 a.m. on October 05, 2020. Having read 3 and considered the written motion and opposition, having heard arguments from the parties’ 4 counsel regarding the same, and good cause appearing, the Court ORDERS as follows: 5 Defendant contends based on Holt v. Santa Clara County Sheriff’s Benefits Assn. (1967) 6 250 Cal.App.2d 925, 929-930 that as an unincorporated association subordinate to another 7 organization (Theta Chi Fraternity), that it was subject to dissolution by order of the superior 8 organization. Specifically, the Chapter contends that Theta Chi Fraternity’s revocation of the 9 charter of the Theta Iota Chapter on 3/12/19 dissolved the Chapter, making it a nonentity 10 incapable of suing or being sued. (Defendants’ Motion p.5:23, 6:26) 11 However, Holt was decided prior to the enactment of Cal Corp Code § 18410 (effective 12 1/1/2006). That section provides: 13 An unincorporated association may be dissolved by any of the following methods: 14 (a) If the association’s governing documents provide a method for dissolution, by 15 that method. 16 (b) If the association’s governing documents do not provide a method for 17 dissolution, by the affirmative vote of a majority of the voting power of the association. 18 (c) If the association’s operations have been discontinued for at least three years, 19 by the board or, if the association has no incumbent board, by the members of its last 20 preceding incumbent board. 21 (d) If the association’s operations have been discontinued, by court order. 22 The manner of the dissolution described in Holt, by the decision of some superior 23 organization, is not one of the manners for dissolution listed in Cal Corp Code § 18410 24 Dissolution. 25 Defendant has not provided the Court with the Chapter’s governing documents; therefore it 26 is unknown whether the Chapter’s governing documents provide a method for dissolution and if 27 so, what that method is. However, because the Chapter has not been dissolved pursuant to the 28 2 [PROPOSED] ORDER DENYING THETA IOTA CHAPTER OF THETA CHI FRATERNITY’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT 1 methods described in Cal Corp Code § 18410, the Chapter was not dissolved at the time of the 2 attempted service and was a legal entity capable of being served with legal process. 3 Because the Chapter was not dissolved at the time of the Summons and Complaint, the 4 service on Christopher Guevara, President of the Chapter, by substitute service following three 5 unsuccessful attempts, was valid service of the Summons and Complaint on the individual 6 authorized to accept service. (CA CCP §§ 416.40(b), 415.20) 7 Moreover, because members of the association’s last preceding incumbent board have the 8 authority to dissolve the unincorporated association pursuant to CA Corp. Code §18410 (c), it 9 stands to reason that service may be effected on members of the last preceding incumbent board. 10 This would liberally construe the provisions and all proceedings under the Code of Civil 11 Procedure with a view to effect its objects and to promote justice. (CA CCP § 4) 12 Finally, as to Defendant’s argument that only members, not former members of an 13 association may be served with process, (Reply p. 4:3) Mr. Guevara is a member, now being 14 classified as an alumnus member. (Dec. Mayer Ex. A. pg. 20 Section 1 Classes; Ex. C 4/2/19 letter 15 p. 1 ¶ 4) 16 IT IS SO ORDERED. 17 Signed: 10/14/2020 02:10 PM 18 DATED: ________________________, 2020 19 20 21 Hon. Rebecca Connolly Timothy Volkmann 22 JUDGE OF THE SUPERIOR COURT 23 24 25 26 27 28 3 [PROPOSED] ORDER DENYING THETA IOTA CHAPTER OF THETA CHI FRATERNITY’S MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT PROOF OF SERVICE 1 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Grand Traverse, State of Michigan. My business address is 161 East 2 Front Street, Suite 200, Traverse City, Michigan 49684. 3 On October 16, 2020, I served a true copy of the foregoing document described as 4 NOTICE OF ENTRY OF ORDERS on the interested parties in this action as follows: 5 Ray Tamaddon, Esq. Matthew C. Jaime, Esq. Hinshaw & Culbertson LLP Robert W. Sweetin, Esq. 6 350 S. Grand Avenue, Suite 3600 K. Moji Majekodunmi, Esq. Los Angeles, CA 90071 Rhonda Ladrido, Esq. 7 rtamaddon@hinshawlaw.com Matheny Sears Linkert & Jaime, LLP 3638 American River Drive 8 Robert J. Romero, Esq. Sacramento, CA 95864 Hinshaw & Culbertson LLP mjaime@mathenysears.com 9 One California Street, 18th Floor rsweetin@mathenysears.com San Francisco, CA 94111 kmajekodunmi@mathenysears.com 10 rromero@hinshawlaw.com rladrido@mathenysears.com Attorneys for Defendant Zachary Nash Davis Attorneys for Defendant Christopher Guevara 11 12 Julie Azevedo, Esq. John R. Brydon, Esq. Shawn Toliver, Esq. Derek H. Lim, Esq. 13 Janet H. Leader, Esq. Shannon Mallory, Esq. Lewis Brisbois Bisgaard & Smith LLP Demler, Armstrong & Rowland, LLP 14 2185 N. California Boulevard, Suite 300 1350 Treat Boulevard #400 Walnut Creek, CA 94596 Walnut Creek, CA 94597 15 Julie.Azevedo@lewisbrisbois.com bry@darlaw.com Shawn.Toliver@lewisbrisbois.com lim@darlaw.com 16 Janet.Leader@lewisbrisbois.com Attorneys for Defendant Jordan Keiichi Takayama mal@darlaw.com Attorneys for Defendant Brad Visacki 17 Michael C. Osborne, Esq. Alan F. Hunter, Esq. 18 Jaskiran Samra, Esq. Elizabeth Gong Landess, Esq. Cokinos | Young Gavin Cunningham & Hunter 19 One Embarcadero Center, Suite 390 1530 The Alameda, Suite 210 San Francisco, CA 94111 San Jose, CA 95126 20 mosborne@cokinoslaw.com hunter@gclitigation.com jsamra@cokinoslaw.com landess@gclitigation.com Attorneys for Defendant Theta Chi Fraternity, Inc. Attorneys for Defendant Rafael Garcia, Jr. 21 22 Mary Childs, Esq. Patrick Ball, Esq. Aaron Case, Esq. Iden Kashefipour, Esq. 23 Yoka & Smith, LLP Messner Reeves LLP 445 South Figueroa Street, 38th Floor 610 Newport Center Drive, Suite 420 24 Los Angeles, CA 90071 Newport Beach, CA 92660 mchilds@yokasmith.com pball@messner.com 25 acase@yokasmith.com Attorneys for Defendants Emmanuel Thomas, ikashefipour@messner.com Bobby Karki & John Dylan Leitch Attorneys for Defendant Moises Tenorio Garcia 26 27 28 Daphne Beletsis, et al. v. Theta Chi Fraternity, et al. 1 Santa Cruz County Case No. 19CV03287 PROOF OF SERVICE 1 Thomas M. Phillips, Esq. Andrew M. Lauderdale, Esq. Jodi Rosner, Esq. Timothy Feeney, Esq. 2 The Phillips Firm, APC Hartsuyker, Stratman & Williams-Abrego 800 West 6th Street, Suite 980 One Almaden Boulevard #400 3 Los Angeles, CA 90017 San Jose, CA 95113 tphillips@thephillipsfirm.com andrew.lauderdale@farmersinsurance.com 4 jrosner@thephillipsfirm.com timothy.feeney@farmersinsurance.com Attorneys for Defendant Stefan Matias Leon Attorneys for Defendant Quinn McLaughlin 5 Norman L. Chong, Esq. Elaine Kobylecki, Esq. 6 Samantha Lewin, Esq. Friedenthal, Heffeman & Brown, LLP Joseph D. O’Neil, Esq. 1520 W. Colorado Blvd., 2nd Floor 7 Tarkington, O’Neill, Barrack & Chong Pasadena, CA 91105 201 Mission Street, Suite 710 8 San Francisco, CA 94105 ekobylecki@fhblawyers.com nchong@to2law.com Attorney for Defendant Theta Iota Chapter of Theta 9 slewin@to2law.com Chi Fraternity joneil@to2law.com 10 Attorneys for Defendant Najpreet Singh Kahlon 11 12 BY E-MAIL OR ELECTRONIC TRANSMISSION: In accordance with the consents to electronic service filed by the majority of counsel of record in this case and/or Emergency Rule 13 12 of the California Emergency Rules Related to COVID-19, I caused the document(s) to be sent 14 to the person(s) at the email address(es) above. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. 15 I declare under penalty of perjury under the laws of the State of Michigan that the 16 foregoing is true and correct. 17 Executed on October 16, 2020, at Traverse City, Michigan. 18 19 20 Taylor Picard 21 22 23 24 25 26 27 28 Daphne Beletsis, et al. v. Theta Chi Fraternity, et al. 2 Santa Cruz County Case No. 19CV03287 PROOF OF SERVICE