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1 Michael C. Osborne (Bar No. 95839) Superior Court of California
mosborne@cokinoslaw.com County of Santa Cruz
2 Jaskiran K. Samra (Bar No. 296149) 3/12/2020 8:36 AM
jsamra@cokinoslaw.com Alex Calvo, Clerk
3 COKINOS | YOUNG By: Dajah de los Santos, Deputy
One Embarcadero Center, Suite 390
4 San Francisco, CA 94111
Telephone: 415-228-0208
5
Attorneys for Defendant
6 THETA CHI FRATERNITY, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SANTA CRUZ
10
11 DAPHNE BELETSIS, et al., Case No. 19CV03287
12 Plaintiff,
13 v. DEFENDANT THETA CHI FRATERNITY
INC.’S MEMORANDUM OF POINTS AND
14 THETA CHI FRATERNITY, INC., et al. AUTHORITIES IN SUPPORT OF
MOTION TO STRIKE PORTIONS OF
15 Defendant. PLAINTIFFS’ FIRST AMENDED
COMPLAINT
16
17 Action Filed: October 31, 2019
18 First Amended Complaint
Filed: February 5, 2020
19
Date: June 1, 2020
20 Time: 8:30 a.m.
Department: 10
21 Judge: Hon. John Gallagher
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
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MEMORANDUM OF POINTS AND AUTHORITIES
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I. INTRODUCTION
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This action arises from the tragic death of Alexander Beletsis in June 2018, at the time a
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sophomore at the University of California at Santa Cruz and a previously-initiated member of
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defendant Theta Chi Fraternity (an international fraternal organization headquartered in
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Indianapolis). (First Amended Complaint (“FAC”), at ¶¶ 1, 11, 83-85.) Mr. Beletsis sought
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membership in Theta Chi during the Fall of his sophomore year at UCSC, and became an initiated
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member of Theta Chi during the Fall 2017 academic term. (See FAC, at ¶¶ 81-83.) On June 2,
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2018, defendant Theta Iota Chapter of Theta Chi Fraternity – the local undergraduate chapter
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located at the University – held a “Crossover Ceremony” to mark the end of pledging, and to bond
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with the new brothers. (FAC, at ¶ 84.) Part of this Crossover Ceremony was held at 511 Broadway
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in Santa Cruz, a property used as student hosing owned by defendant Quinn McLaughlin as Trustee
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of the Quinn M. McLaughlin Living Trust. (FAC, ¶¶ 14, 43.) In conjunction with the activities
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that evening, Mr. Beletsis consumed both alcohol and drugs, and thereafter entered the second-
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story bathroom at the house. (FAC, ¶¶ 14-15.) After the door closed, Mr. Beletsis fell out of the
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bathroom window, landing on the concrete below, and died eighteen days later. (FAC, ¶¶ 15-16.)
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Plaintiffs rely on these allegations in their First Amended Complaint to support five
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negligence-based causes of action against Theta Chi, which they claim is both directly liable for
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negligence and vicariously liable for negligence.
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II. DEFENDANT’S MOTION TO STRIKE
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Over the past 15 to 20 years, plaintiffs’ attorneys (both the Fierberg National Law Group
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located in Michigan and Ivo Labar in San Francisco) have litigated a number of cases against
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Fraternities in California. They have the distinction of being the attorneys who assisted Debbie
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Smith and the California Legislature in enacting California’s anti-hazing statute (“Matt’s Law,”
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named after Ms. Smith’s son Matthew Carrington who passed away in 2005 from the forced
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consumption of fatal quantities of water while he was a student at Chico State).
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Last March, in a case of first impression, the California Court of Appeal issued California’s
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
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first appellate decision on the issues of the liability of national fraternal organizations for the torts
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and crimes committed by undergraduate members located at collegiate chapters on campuses
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around the country. (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, rev.
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denied July 17, 2019.) Following cases from the Supreme Courts of Pennsylvania, Nevada, Indiana
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and Illinois, and from the intermediate appellate courts of Oregon, Louisiana, Michigan, and
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Kentucky, the Barenborg Court, in affirming the granting of summary judgment in favor of a
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national fraternal organization, ruled as a matter of law that the Fraternity did not owe a duty to the
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local chapter nor to third persons and that it was not vicariously liable for the torts of individual
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undergraduate members nor for those of the local undergraduate chapters.
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In an effort to avoid application of the clear rulings set forth in Barenborg, plaintiffs in this
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lawsuit have alleged in their First Amended Complaint that defendant Theta Chi Fraternity is
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vicariously liable under theories of alter ego, agency, and respondeat superior. Defendant does not
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seek to strike the alter ego theories of liability as they may have been sufficiently alleged to
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withstand a motion to strike and a demurrer; however, by way of this motion, defendant moves to
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strike certain allegations asserting vicarious liability based on a principal/agent relationship that
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was rejected as a matter of law by the Court in Barenborg, as well as allegations of “hazing” and
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of punitive damages.1
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III. LEGAL AUTHORITY PERTAINING TO MOTIONS TO STRIKE
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Under California Code of Civil Procedure section 436, upon ruling on a motion to strike,
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the Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” and
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may “[s]trike out all or any part of a pleading not drawn or filed in conformity with the laws of this
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state.” “The grounds for a motion to strike shall appear on the face of the challenged pleading or
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from any matter of which the court is required to take judicial notice.” (C.C.P. § 437(a).)
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Defendant also brings a Demurrer, filed concurrently with this Motion to Strike, as to plaintiffs’ Third and Fourth
Causes of Action for Negligent Undertaking and Negligent Breach of Assumed Duties, based on the rulings and
28 authority of the Barenborg opinion.
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
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IV. LEGAL ARGUMENT
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A. Plaintiffs’ Allegations that Defendant Theta Chi is Vicariously Liable as the Principal
3 for the Conduct and Torts of its Supposed Agents are not Drawn in Conformity with the
Laws of this State, and Therefore Should be Stricken from the First Amended
4
Complaint
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6 Plaintiffs’ First Amended Complaint includes the following repeated allegations that
7 defendant Theta Chi Fraternity is vicariously liable based on a principal/agency relationship with
8 the co-defendant Theta Iota Chapter: “Theta Chi National additionally is vicariously liable for
9 negligence as principal for its agent, the Chapter, which acted and failed to act in breach of these
10 duties with Theta Chi National’s authority and subject to its control, to which arrangement the
11 Chapter consented” (FAC, First Cause of Action for Negligence, ¶ 118, lines 4-7) and a variation
12 of that allegation, “Theta Chi National is vicariously liable as principal for its agent, the Chapter,
13 which acted negligently in performing and failing to perform actions with Theta Chi National’s
14 authority and subject to its control, to which arrangement the Chapter consented” (FAC, First Cause
15 of Action for Negligence, ¶ 122, lines 16-19; FAC, Second Cause of Action for Negligence, ¶ 129,
16 lines 6-9; FAC, Fourth Cause of Action for Negligent Breach of Assumed Duties, ¶ 151, lines 3-6;
17 FAC, Fifth Cause of Action for Negligent Breach of Duty to Prevent Harm, ¶ 159, lines 1-4).
18 Plaintiffs’ agency theories of vicarious liability are also alleged under the doctrine of
19 respondeat superior as follows: “Theta Chi National is liable for the Individual Defendants’, John
20 Doe Defendants 1-10’s, and Chapter’s negligent acts and omissions. . . pursuant to the doctrine of
21 respondeat superior because the Individual Defendants, John Doe Defendants 1-10, and Chapter
22 were acting as agents of Theta Chi National and within the scope of their agency at all relevant
23 times, and/or because the misconduct alleged is of the type to which respondeat superior liability
24 attaches even if the agent was acting outside the scope of the agency.” (FAC, Fourth Cause of
25 Action for Negligent Breach of Assumed Duties, ¶ 148, lines 4-9; FAC, Fifth Cause of Action for
26 Negligent Breach of Duty to Prevent Harm, ¶ 156, lines 1-6.)
27 The Court of Appeal in Barenborg addressed a national fraternity’s potential vicarious
28 liability for the conduct of its local undergraduate chapter. (Barenborg, supra, 33 Cal.App.5th at
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
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85.) Barenborg involved the Sigma Alpha Epsilon national fraternity, and its relationship with its
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local Cal. Gamma Chapter, located at the University of Southern California. (Id. at 73-75.) Based
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on evidence developed during discovery, Sigma Alpha Epsilon – “SAE” – was found to have the
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same type of fraternal relationship with its undergraduate Chapters as plaintiffs here allege exists
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between Theta Chi Fraternity and its undergraduate Chapter at Santa Cruz, the Theta Iota Chapter:
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SAE issued charters to its Chapters, and had risk-management policies which its Chapters were
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expected to follow. (Id. at 74.) SAE supported its Chapters via assorted resources, and Chapter
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Advisors visited Chapters and reported any concerns to SAE. (Id.) Though SAE’s laws required
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local Chapters to pay dues and be subject to inspection, the Chapters were supposed to make their
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own arrangements as to “Chapter-collegiate house or other living quarters; fix [their] own dues,
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assessments, and charges; elect [their] own officers; and have complete control over [their] own
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activities.” (Id.) Prior to the incident, Cal. Gamma and its members received various disciplinary
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violations, including for underage drinking. (Id. at 74-5.)
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The Barenborg plaintiff brought suit against SAE after sustaining injuries at a Cal. Gamma
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party, where she had been served alcohol, while intoxicated. (Id. at 75.) While attempting to dance
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on a raised platform, the Barenborg plaintiff was pushed, either inadvertently or intentionally, by
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another female, causing her to fall and sustain injuries. (Id.) Plaintiff Barenborg sued SAE for
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negligence, and SAE moved for summary judgment, arguing it owed no duty of care to plaintiff,
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and the trial court granted the motion. (Id.) Upholding the granting of summary judgment, the
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Court of Appeal rejected plaintiff’s arguments that the Fraternity should be held vicariously liable
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for the conduct of its undergraduate chapter and members. The Court of Appeal reasoned that, “for
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an agency relationship to exist, the asserted principal must have sufficient right to control the
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relevant aspect of the purported agent’s day-to-day operations.” (Id. At 86.) Citing to other
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jurisdictions, the Court explained that, even if a national fraternity has policies and disciplinary
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powers over its Chapters, it does not retain sufficient control to establish an agency relationship.
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(Id.)
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
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As pointed out by the Court of Appeal in Barenborg, other jurisdictions have consistently
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held that no principal-agent relationship exists between national fraternities and their local
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Chapters, which the Court in Barenborg relied upon in reaching its own opinions based on
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California law. For example, in Yost v. Wabash College, 3 N.E.3d 508 (Ind. 2014), the Indiana
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Supreme Court held that actions of a local Chapter and its members cannot, as a matter of law, be
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imputed to a national fraternity under a theory of vicarious liability. Similarly, the Illinois Supreme
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Court in Bogenberger v. Pi Kappa Alpha Fraternity, 104 N.E.3d 1110, 1121 (Ill. 2018), held that
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a national fraternity’s involvement in guiding the activities and conduct of its local Chapter, and in
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retaining the power to discipline local Chapters, were insufficient, as a matter of law, to create an
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agency relationship.
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Here, as in Barenborg, plaintiffs allege the Theta Iota Chapter is an agent of Theta Chi.
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Notwithstanding, the First Amended Complaint lacks any allegations supporting the theory that
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Theta Chi controls the day-to-day activities of the Theta Iota Chapter. Similar to Barenborg, Theta
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Chi has rules, policies, prohibitions, and standards of conduct governing the Chapter, and Theta
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Chi exercises the ability to revoke charters and dissolve a Chapter, but Barenborg prescribes that
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such facts are insufficient to impose an agency relationship. As in Barenborg, Theta Chi obligates
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Officers of the Theta Iota Chapter to abide by and enforce certain rules, policies, prohibitions, and
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conduct standards. As the First Amended Complaint’s factual allegations so considerably overlap
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with the facts in Barenborg, California law supports the conclusion that there is no agency
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relationship between Theta Chi and the Theta Iota Chapter, thereby defeating any vicarious liability
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theory against Theta Chi.
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Because a defendant may not assert a demurrer against only a portion of a cause of action
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(Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163), a Motion to Strike may be brought
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to seek the removal of allegations and claims that are not “drawn or filed in conformity with the
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laws of this state.” As the Court of Appeal has held: “We recognize that in some cases a portion
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of a cause of action will be substantively defective on the face of the complaint. Although a
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defendant may not demur to that portion, in such cases, the defendant should not have to suffer
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
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discovery and navigate the often dense thicket of proceedings in summary adjudication. We
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conclude that when a substantive defect is clear from the face of a complaint, such as a violation of
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the applicable statute of limitations or a purported claim of right which is legally invalid, a
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defendant may attack that portion of the cause of action by filing a motion to strike.” (PH II, Inc.
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v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.) This is one such case, where plaintiffs’
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purported claims of vicarious liability based on agency and respondeat superior theories are legally
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invalid under the authority of the Barenborg opinion, and therefore should be stricken from the
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First Amended Complaint.
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B. Plaintiffs’ Allegations that Alexander Beletsis Was Subjected to “Hazing” on June 2,
10 2018 are Premised Upon a Faulty and Invalid Definition of Hazing, and All
References to Such “Hazing” Should be Stricken from the First Amended Complaint
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12 Plaintiffs have made numerous assertions throughout their amended complaint that Mr.
13 Beletsis was subjected to “hazing” in connection with the students’ activities on the date of his fatal
14 injury, while simultaneously admitting that Mr. Beletsis was at that time (June 2018) already an
15 active, initiated member of Theta Chi Fraternity.2 For example, plaintiffs allege that after Mr.
16 Beletsis “obtained membership in the Fraternity, he was being groomed for an officer position in
17 spring of 2018. Again, [Mr. Beletsis] was required to participate in dangerous hazing, including
18 being forced to consume large amounts of alcohol . . .” (FAC, at ¶ 11.) Plaintiffs also allege that
19 in the Spring of his sophomore year, Mr. Beletsis “was being groomed for initiation as a
20 Brotherhood Officer and was again subjected to hazing and dangerous misconduct in order to obtain
21 such position and maintain and satisfy the requirements of his membership.” (FAC, at ¶ 83.)
22 Plaintiffs thereafter conclude that, “[a]s a result of the hazing and other misconduct at the Crossover
23 Ceremony and membership and officer-grooming rituals, [Mr. Beletsis] was visibly incoherent,
24 mentally unstable, and panicky.” (FAC, at ¶ 85.)
25 The applicable definitions of “hazing” all require that the actions and conduct be part of a
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Defendant moves to strike all such irrelevant, false, and improper allegations that Mr. Beletsis was subjected to
27 “hazing” after he became an initiated member of Theta Chi Fraternity, as identified and set forth in detail in
defendant’s Notice of Motion to Strike Portions of Plaintiffs’ First Amended Complaint.
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
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method of “initiation or preinitation into a student organization.” California’s statutory definition
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of hazing applies only to “any method of initiation or preinitiation into a student organization.”
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(Cal. Penal Code § 245.6.) (See, e.g., Doe v. Napa Valley Unified School District (N.D. Cal. Apr.
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24, 2018) 2018 WL 4859978, at *3 (attached as Exhibit A) (granting defendants’ Motion to Dismiss
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hazing-related claims under California Penal Code Section 245.6 for the precise reason that plaintiff
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was already a member of the football team at the time the alleged hazing occurred and, as such,
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could not have been subject to “hazing” under the statute).)
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Plaintiffs’ amended complaint also references the definition utilized by the University of
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California at Santa Cruz, as set forth in the Standards for Student Conduct for the University of
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California System, Cal. Code Regs. Tit. 5, Section 41301 (2012). (FAC, at ¶ 78.) These standards
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similarly apply only to acts committed in the course of initiation or pre-initiation into a student
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organization.
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Plaintiffs allege that Mr. Beletsis became a fraternity member during the Fall 2017 term.
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(FAC, at ¶¶ 7, 11.) Therefore, any allegation that he was subjected to “hazing” (as defined by state
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statute and University standard) in June of 2018 is an irrelevant, false, and improper allegation that
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may be stricken by this Court under Code of Civil Procedure Section 436.
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18 C. Plaintiffs’ Claims for Punitive Damages Are Improper and Insufficiently Pled
Against Theta Chi Fraternity, Inc., and Should be Stricken From the First Amended
19 Complaint
20 In order to state a prima facie claim for punitive damages, a Complaint must clearly allege
21 facts, with specificity, to show that the defendant acted with the requisite oppression, fraud or
22 malice. (Civ. Code § 3294; see also Turman v. Turning Point of Central California (2011) 191
23 Cal.App.4th 53, 63; see also Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.)
24 Allegations supporting punitive damages must be specifically pled. (Blegen, supra, 125
25 Cal.App.3d at 963; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87.) Conclusory
26 allegations that the defendant’s conduct was “malicious” or with “reckless disregard” are only legal
27 conclusions, and the terms of Civil Code section 3294 referencing “malice, fraud and oppression”
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
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cannot, by themselves, support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73
2
Cal.App.3d 864, 872.) Merely alleging that defendant’s conduct was wrongful, willful, wanton,
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reckless or unlawful, does not support a claim for punitive damages. (G.D. Searle & Co. v. Superior
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Court (1975) 49 Cal.App.3d 22, 29.)
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California law imposes additional, and even more stringent pleading requirements where
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punitive damages are alleged against a corporate defendant, such as Theta Chi. California Civil
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Code section 3294(b) authorizes an award of punitive damages against a principal for an agent’s
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wrongful conduct in only three situations: (1) if the principal had prior knowledge of the agent’s
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unfitness yet employed him or her with a conscious disregard of the rights or safety of others; (2)
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the principal authorized or ratified the agent’s wrongful conduct; or (3) the principal was personally
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guilty of oppression, fraud, or malice.
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Here, plaintiffs’ amended complaint broadly alleges that Theta Chi, and its local Theta Iota
13
Chapter have “a long history of hazing and misconduct.” (FAC, at ¶¶ 123, 130, 152, 160.) To
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further support their claim for punitive damages against Theta Chi, plaintiffs thereafter allege Theta
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Chi and the Chapter engaged in conduct which was “not only reckless but also despicable conduct
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taken in willful and conscious disregard of the dangers posed to [Mr. Beletsis] and others, and
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constituted malicious and oppressive conduct against [Mr. Beletsis].” (Id.)
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There are no facts alleged to suggest that Theta Chi, or any of its employees, officers,
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directors, managing agents, or representatives had any knowledge or notice that Mr. Beletsis, an
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active member, would choose to consume alcohol, and drugs, in conjunction with the activities on
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June 2, 2018. Further, Theta Chi was neither the owner nor the property manager of the private
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residence at which Mr. Beletsis fell. As such, Theta Chi lacked the ability to control any condition
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present upon the property, and further lacked any awareness of what plaintiffs allege to be the
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dangerous second-story window from which Mr. Beletsis fell. (See FAC, at ¶ 174.)
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For the reasons set forth above, plaintiffs have failed to properly plead a viable claim for
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punitive damages against Theta Chi. As a result, all such allegations and requests for punitive
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
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damages from Theta Chi should be stricken from the First Amended Complaint, without leave to
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amend.
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V. CONCLUSION
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For the foregoing reasons, Defendant Theta Chi Fraternity, Inc., respectfully requests this
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Court to grant this Motion, and strike portions of Plaintiffs’ First Amended Complaint, as
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specifically identified and set forth in Defendant’s Notice of Motion.
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Dated: March 10, 2020 COKINOS | YOUNG
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10 Michael C. Osborne
Jaskiran K. Samra
11 Attorneys for Defendant
THETA CHI FRATERNITY, INC.
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT
EXHIBIT A
Doe v. Napa Valley Unified School District, Slip Copy (2018)
2018 WL 4859978
2018 WL 4859978 BACKGROUND
Only the Westlaw citation is currently available.
United States District Court, N.D. California. Plaintiff filed this action regarding an alleged hazing incident
in which Plaintiff contends that other students physically
B. DOE, Plaintiff, and sexually assaulted him. Plaintiff accuses the District
v. Defendants of failing to protect him. The Court accepts
NAPA VALLEY UNIFIED SCHOOL Plaintiff’s factual allegations as true for purposes of this
DISTRICT, et al., Defendants. motion.
Case No. 17-cv-03753-SK Plaintiff was on the Napa High School freshman football
| team until, shortly before the “Big Game” against a rival high
Signed 04/24/2018 school, “the coaches for Napa High School promoted Plaintiff
and several other freshman players to the junior varsity
Attorneys and Law Firms squad.” (Dkt. 33 (First Amended Complaint (“FAC”) ), ¶
19.) The incident occurred in the boys' locker room “as a
Jacob Daniel Flesher, Jason Wendall Schaff, Jeremy James
regular football practice concluded leading up to the Big
Schroeder, Flesher Schaff & Schroeder, Inc., Rocklin, CA,
Game[.]” (Id., ¶ 20.) These motion are brought only by the
William Charles Johnson, Bennett & Johnson, Oakland, CA,
District Defendants and do not contest all of Plaintiff’s claims
for Plaintiff.
against them.
Ethanluke M. Lowry, Eugene Burton Elliot, Nicole Lauren
Phillips, Patrick A. Tuck, Bertrand Fox Elliot Osman &
Wenzel, San Francisco, CA, Gerald Keith Carroll, Burnham ANALYSIS
Brown, APLC, John Dennis Hourihan, Hartsuyker Stratman
& Williams-Abrego, Mario Alberto Moya, Rebecca Mary A. District Defendants' Motion to Strike.
Hoberg, Law Office of Mario A. Moya, Oakland, CA, David Under Rule 12(f), a court may strike from a pleading
C. Jones, City Attorney's Office, Napa, CA, for Defendants. “any insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).
Immaterial matter “is that which has no essential or important
ORDER REGARDING MOTION TO relationship to the claim for relief or the defenses being
DISMISS AND MOTION TO STRIKE pleaded.” Fantasy Inc. v. Fogerty, 984 F.2d 1524, 1527
(9th Cir. 1993), rev'd on other grounds by Fogerty
Regarding Docket Nos. 42, 43 v. Fantasy, Inc., 510 U.S. 517 (1994) (internal citations
and quotations omitted). Impertinent material “consists of
SALLIE KIM, United States Magistrate Judge
statements that do not pertain, and are not necessary, to
*1 This matter comes before the Court upon consideration the issues in question.” Id. (internal citations and quotations
of the motions to dismiss and to strike filed by Defendants omitted). Motions to strike are regarded with disfavor because
Annie Petrie, Troy Mott, Gerald Harris, and Jesus Martinez they are often used as delaying tactics and because of
(“Individual District Defendants”) and Napa Valley Unified the limited importance of pleadings in federal practice.
School District (“NVUSD”) (collectively referred to as Colaprico v. Sun Microsystems Inc., 758 F. Supp. 1335,
the “District Defendants”). Having carefully considered the 1339 (N.D. Cal. 1991). A motion to strike should be resorted
parties' papers, relevant legal authority, the record in the case, to only when the matter to be stricken could have no possible
and having had the benefit of oral argument, the Court hereby
bearing on the issues in litigation. LeDuc v. Kentucky
GRANTS IN PART and DENIES IN PART the District
Central Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992).
Defendants' motion for the reasons set forth below.
Ultimately, the decision as to whether to strike allegations is
a matter within the Court’s discretion. Colaprico, 758 F.
Supp. at 1339.
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
Doe v. Napa Valley Unified School District, Slip Copy (2018)
2018 WL 4859978
Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v.
The District Defendants move to strike paragraphs 18(c)
Allain, 478 U.S. 265, 286 (1986) ). Rather, a plaintiff must
through (f) of Plaintiff’s First Amended Complaint (“FAC”)
instead allege “enough facts to state a claim to relief that is
on the grounds that Plaintiff appears to have deleted
its allegations regarding any mandatory duties from its plausible on its face.” Id. at 570.
negligence cause of action but then confusingly retained
his allegations regarding mandatory duties in its “common “The plausibility standard is not akin to a probability
allegations” section. To the extent Plaintiff intends to assert requirement, but it asks for more than a sheer possibility that
that the District Defendants violated mandatory duties under a defendant has acted unlawfully.... When a complaint pleads
California Government Code§ 815.6 as part of his negligence facts that are merely consistent with a defendant’s liability,
claim, the District Defendants argue that none of the statutes it stops short of the line between possibility and plausibility
or regulations to which Plaintiff cites contain a cognizable of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662,
mandatory duty. At oral argument, Plaintiff represented that
he was willing to strike his reference to any mandatory duties. 678 (2009) (quoting Twombly, 550 U.S. at 557) (internal
Accordingly, based on Plaintiff’s representation, the Court quotation marks omitted). If the allegations are insufficient
HEREBY STRIKES Plaintiff’s allegation in paragraph 18(e) to state a claim, a court should grant leave to amend, unless
of his FAC. amendment would be futile. See, e.g. Reddy v. Litton
Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook,
*2 Although paragraphs 18(c), (d) and (f) reference
Perkiss & Lieche, Inc. v. N. Cal. Collection Serv., Inc., 911
provisions in the California Constitution, Education Code
F.2d 242, 246-47 (9th Cir. 1990).
and Code of Regulations, these paragraphs do not reference
any mandatory duties. The District Defendants' moved
to strike only on the grounds that Plaintiff’s allegations C. District Defendants' Motion to Dismiss.
regarding “mandatory duties” were confusing, immaterial and The District Defendants move to dismiss part of Plaintiff’s
impertinent. In the absence of Plaintiff’s allegation regarding second claim for negligence against the District Defendants,
mandatory duties in paragraph 18(e), it is not clear whether
or not the District Defendant still contend that paragraphs his eighth claim for violation of California Penal Code §
18(c), (d) and (f) should be struck and on what grounds. 245.6 against NVUSD, and his ninth claim for violation of
The Court thus DENIES the rest of the District Defendant’s 42 U.S.C § 1983 against the Individual Defendants.
motion to strike, but this Order is without prejudice to the
District Defendants' filing another motion to strike if they
contend that paragraphs 18(c), (d) and (f) should be struck as 1. Plaintiff’s Second Claim for Negligence – Against
well. all District Defendants.
The District Defendants try to reframe Plaintiff’s negligence
claim as three separate claims, and then move to dismiss
B. Applicable Legal Standard on Motion to Dismiss. two of Plaintiff’s three theories of negligence. However,
A motion to dismiss is proper under Federal Rule of Civil the District Defendants have not pointed to any authority
Procedure 12(b)(6) where the pleadings fail to state a claim demonstrating that it may attack portions of a single claim
upon which relief can be granted. On a motion to dismiss on a motion to dismiss. See In re Netopia, Inc., Sec. Litig.,
under Rule 12(b)(6), the Court construes the allegations 2005 WL 3445631, at *3 (N.D. Cal. Dec. 15, 2005) (“By
in the complaint in the light most favorable to the non- its own terms, there does not appear to be any way to
moving party and takes as true all material allegations in the grant partial dismissal of a claim under Fed.R.Civ.P. 12(b)
complaint. Sanders v. Kennedy, 794 F.2d 478, 481 (9th (6).”) District Defendants cites Bautista v. Los Angeles
Cir. 1986). Even under the liberal pleading standard of Rule Cty., 216 F.3d 837, 840 (9th Cir. 2000), for the proposition
8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of that the Court should construe Plaintiff’s different theories
his ‘entitle[ment] to relief’ requires more than labels and of negligence as separate “claims.” However, Bautista is
conclusions, and a formulaic recitation of the elements of inapplicable. In Bautista, fifty-one different plaintiffs each
a cause of action will not do.” Bell Atlantic Corp. v. asserted that the defendant discriminated against them on the
basis their protected class. The Ninth Circuit held that because
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
Doe v. Napa Valley Unified School District, Slip Copy (2018)
2018 WL 4859978
each plaintiff’s claim was founded upon a separate transaction Plaintiff’s acceptance on the team was still in question or
or occurrence, they should be stated in separate counts under in any way uncertain. Instead, he merely argued that he
Federal Rule of Civil Procedure 10(b). Here, there is only one had not yet played in a game. According to Plaintiff’s own
Plaintiff. factual allegations, he was already on the team when the
incident occurred. Therefore, the Court GRANTS the District
*3 Under the heading of “Negligence,” the FAC groups
Defendants' motion as to Plaintiff’s claim under California
together multiple theories and operative facts which, if
Penal Code § 245.6.
independently found to be valid, could each “give rise to
a right enforceable in the courts.” ( Bautista, 216 F.3d at
840.) This requires Defendants to address each potential claim 3. Plaintiff’s Ninth Claim for Violation of 42 U.S.C.
separately. § 1983 – Against the Individual District Defendants.
Plaintiff alleges a claim under 42 U.S.C. § 1983 premised
Because Plaintiff has stated a cause of action for negligence,
on both Title IX and the Equal Protection Clause of the
the Court declines at this procedural stage to break Plaintiff’s
United States Constitution. However, Plaintiff represented
negligence claim apart and reframe it as separate claims.
Therefore, the Court DENIES the District Defendants' motion that his Section 1983 claim is premised solely on Title
as to Plaintiff’s negligence cause of action. Nevertheless, the IX. At oral argument, Plaintiff confirmed that he is not
Court cautions Plaintiff that at later procedural stages, such as
bringing a Section 1983 claim premised on the Equal
on a motion for summary judgment or at trial, Plaintiff will
Protection Clause. Therefore, the Court will only address
need to have sufficient evidence for each theory on which he
the Individual District Defendants' motion with respect
seeks to proceed.
to Plaintiff’s Section 1983 claim based on an alleged
violation of Title IX.
2. Plaintiff’s Eighth Claim for Violation of
California Penal Code § 245.6 – Against NVUSD *4 Plaintiff brings his Section 1983 claim against the
Only. Individual District Defendants only. The Individual District
Under California Penal Code § 245.6, Plaintiff may bring Defendants argue that, because Plaintiff cannot bring a Title
an action against any participant in the hazing or “any IX claim directly against them, he is precluded from bringing
organization to which the student is seeking membership.” a Section 1983 claim against them premised on Title
Cal. Pen. Code § 245.6(e) (emphasis added). The statute IX. Plaintiff counters that he may assert a Section 1983
also exempts “customary athletic events” and “school- claim premised on Title IX against the Individual District
sanctioned events” from the definition of “hazing.” Cal. Defendants. Both sides rely on the Supreme Court opinion in
Penal Code § 245.6(b). Plaintiff does not allege that any of Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009).
the District Defendants participated in the hazing incident.
Therefore, Plaintiff must allege facts to show that he was In Fitzgerald, the Supreme Court held that, in light of
1 the different substantive protections of the Equal Protection
“seeking membership” in an organization.
Clause and Title IX, “Title IX was not meant to be an
Plaintiff alleges that the hazing occurred as a “regular football exclusive mechanism for addressing gender discrimination
practice concluded” and after he was already promoted to the in schools, or a substitute for § 1983 suits as a means of
junior varsity football team. (Dkt. 33, ¶¶ 19, 20.) In light of
these allegations, the Court finds that Plaintiff was already enforcing constitutional rights.” Fitzgerald, 555 U.S. at
promoted to the junior varsity football team and was not 258. Accordingly, “the Court held that § 1983 suits based
seeking membership when the alleged hazing occurred. At on the Equal Protection Clause remain available to plaintiffs
the hearing, Plaintiff tried to argue that he had not actually alleging unconstitutional gender discrimination in schools.”
been fully promoted, because he had not yet played in a Id. The Fitzgerald Court only explicitly addressed the
game with the junior varsity football team. Notably, Plaintiff
propriety of bringing constitutional claims under Section
did not allege or argue that, at the time of the incident,
1983, not statutory claims based on violations of Title IX.
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3
Doe v. Napa Valley Unified School District, Slip Copy (2018)
2018 WL 4859978
However, without any explanation, the Supreme Court also
reversed the dismissal of the Section 1983 statutory claim
No person in the United States shall,
brought against both the institutional defendant and a school
on the basis of sex, be excluded from
official. Id. Nevertheless, the Court finds that Fitzgerald does
participation in, be denied the benefits
not provide support for Plaintiff to bring a Section 1983 of, or be subjected to discrimination
claim against the Individual District Defendants based on under any education program or
alleged violations of Title IX. activity receiving Federal financial
assistance.
Another district court thoughtfully analyzed this issue after
Fitzgerald and concluded that, based on Congressional intent,
a plaintiff cannot bring a Section 1983 claim against *5 20 U.S.C. § 1681(a) (emphasis added). As the
individuals based on Title IX. See Doe v. Town of Stoughton, Supreme Court noted in Fitzgerald, Title IX “has consistently
917 F. Supp. 2d 160, 163-66 (D. Mass. 2013) (“The been interpreted as not authorizing suit against school
touchstone in this inquiry is congressional intent.”) (citing
officials, teachers, and other individuals.” Fitzgerald, 555
Gonzaga Univ. v. Doe, 536 U.S. 273, 291 (2002) (Breyer, U.S. at 257. Plaintiff may only bring his Title IX claim
J., concurring) ). Because a plaintiff can only bring a Title IX
against the NVUSD, and allowing him to bring a Section
claim against institutions and programs that receive federal
1983 claim against the Individual District Defendants would
funds, and Section 1983 claims can be brought against “would permit an end run around Title IX’s explicit language
individuals, “providing a § 1983 claim against individuals limiting liability to funding recipients.” Doe v. School Bd.
for Title IX liability ‘would permit an end run around Title of Broward County, Fla., 604 F.3d 1248, 1266 n. 12 (11th
IX’s explicit language limiting liability to funding recipients.’ Cir. 2010) Accordingly, the Court GRANTS the Individual
” Doe v. Town of Stoughton, 917 F. Supp. 2d at 66 (quoting
District Defendants' motion as to Plaintiff’s Section 1983
Doe v. School Bd. of Broward County, Fla., 604 F.3d 1248, claim.
1266 n. 12 (11th Cir. 2010) ); see also Wilkerson v. Univ. of
N. Texas, 223 F. Supp. 3d 592, 608 (E.D. Tex. 2016) (finding
that the plaintiff could not state a claim under § 1983 based CONCLUSION
on an underlying violation of Title IX because Title IX does
For the foregoing reasons, the Court GRANTS IN PART and
not allow suit against individuals); but see Cartwright v.
DENIES IN PART the District Defendants' motion to strike
Regents of the Univ. of Cal., 2009 WL 2190072, at *7 (E.D.
and GRANTS IN PART and DENIES IN PART their motion
Cal. July 21, 2009) (finding that “the clear import of” the
to dismiss. The Court DENIES the motion to dismiss as to
Fitzgerald Court’s reversing the dismissal of both statutory
Plaintiff’s negligence claim and GRANTS the motion as to
and constitutional § 1983 claims “is that plaintiffs may use
Plaintiff’s claim under California Penal Code § 245.6 and
§ 1983 as a vehicle for litigating both constitutional and
his Section 1983 claim.
statutory claims.”).
IT IS SO ORDERED.
The Court finds the reasoning of Doe v. Town of Stoughton
persuasive. Title IX provides:
All Citations
Slip Copy, 2018 WL 4859978
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4
Doe v. Napa Valley Unified School District, Slip Copy (2018)
2018 WL 4859978
Footnotes
1 It is not clear whether the practice and the events immediately following practice in the locker room would be
considered a “school-sanctioned event” under the statute. However, the Court need not reach this issue.
End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5
Preview
ELECTRONICALLY FILED 1 Michael C. Osborne (Bar No. 95839) Superior Court of California mosborne@cokinoslaw.com County of Santa Cruz 2 Jaskiran K. Samra (Bar No. 296149) 3/12/2020 8:36 AM jsamra@cokinoslaw.com Alex Calvo, Clerk 3 COKINOS | YOUNG By: Dajah de los Santos, Deputy One Embarcadero Center, Suite 390 4 San Francisco, CA 94111 Telephone: 415-228-0208 5 Attorneys for Defendant 6 THETA CHI FRATERNITY, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA CRUZ 10 11 DAPHNE BELETSIS, et al., Case No. 19CV03287 12 Plaintiff, 13 v. DEFENDANT THETA CHI FRATERNITY INC.’S MEMORANDUM OF POINTS AND 14 THETA CHI FRATERNITY, INC., et al. AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF 15 Defendant. PLAINTIFFS’ FIRST AMENDED COMPLAINT 16 17 Action Filed: October 31, 2019 18 First Amended Complaint Filed: February 5, 2020 19 Date: June 1, 2020 20 Time: 8:30 a.m. Department: 10 21 Judge: Hon. John Gallagher 22 23 24 25 26 27 28 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This action arises from the tragic death of Alexander Beletsis in June 2018, at the time a 4 sophomore at the University of California at Santa Cruz and a previously-initiated member of 5 defendant Theta Chi Fraternity (an international fraternal organization headquartered in 6 Indianapolis). (First Amended Complaint (“FAC”), at ¶¶ 1, 11, 83-85.) Mr. Beletsis sought 7 membership in Theta Chi during the Fall of his sophomore year at UCSC, and became an initiated 8 member of Theta Chi during the Fall 2017 academic term. (See FAC, at ¶¶ 81-83.) On June 2, 9 2018, defendant Theta Iota Chapter of Theta Chi Fraternity – the local undergraduate chapter 10 located at the University – held a “Crossover Ceremony” to mark the end of pledging, and to bond 11 with the new brothers. (FAC, at ¶ 84.) Part of this Crossover Ceremony was held at 511 Broadway 12 in Santa Cruz, a property used as student hosing owned by defendant Quinn McLaughlin as Trustee 13 of the Quinn M. McLaughlin Living Trust. (FAC, ¶¶ 14, 43.) In conjunction with the activities 14 that evening, Mr. Beletsis consumed both alcohol and drugs, and thereafter entered the second- 15 story bathroom at the house. (FAC, ¶¶ 14-15.) After the door closed, Mr. Beletsis fell out of the 16 bathroom window, landing on the concrete below, and died eighteen days later. (FAC, ¶¶ 15-16.) 17 Plaintiffs rely on these allegations in their First Amended Complaint to support five 18 negligence-based causes of action against Theta Chi, which they claim is both directly liable for 19 negligence and vicariously liable for negligence. 20 II. DEFENDANT’S MOTION TO STRIKE 21 Over the past 15 to 20 years, plaintiffs’ attorneys (both the Fierberg National Law Group 22 located in Michigan and Ivo Labar in San Francisco) have litigated a number of cases against 23 Fraternities in California. They have the distinction of being the attorneys who assisted Debbie 24 Smith and the California Legislature in enacting California’s anti-hazing statute (“Matt’s Law,” 25 named after Ms. Smith’s son Matthew Carrington who passed away in 2005 from the forced 26 consumption of fatal quantities of water while he was a student at Chico State). 27 Last March, in a case of first impression, the California Court of Appeal issued California’s 28 2 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 first appellate decision on the issues of the liability of national fraternal organizations for the torts 2 and crimes committed by undergraduate members located at collegiate chapters on campuses 3 around the country. (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, rev. 4 denied July 17, 2019.) Following cases from the Supreme Courts of Pennsylvania, Nevada, Indiana 5 and Illinois, and from the intermediate appellate courts of Oregon, Louisiana, Michigan, and 6 Kentucky, the Barenborg Court, in affirming the granting of summary judgment in favor of a 7 national fraternal organization, ruled as a matter of law that the Fraternity did not owe a duty to the 8 local chapter nor to third persons and that it was not vicariously liable for the torts of individual 9 undergraduate members nor for those of the local undergraduate chapters. 10 In an effort to avoid application of the clear rulings set forth in Barenborg, plaintiffs in this 11 lawsuit have alleged in their First Amended Complaint that defendant Theta Chi Fraternity is 12 vicariously liable under theories of alter ego, agency, and respondeat superior. Defendant does not 13 seek to strike the alter ego theories of liability as they may have been sufficiently alleged to 14 withstand a motion to strike and a demurrer; however, by way of this motion, defendant moves to 15 strike certain allegations asserting vicarious liability based on a principal/agent relationship that 16 was rejected as a matter of law by the Court in Barenborg, as well as allegations of “hazing” and 17 of punitive damages.1 18 III. LEGAL AUTHORITY PERTAINING TO MOTIONS TO STRIKE 19 Under California Code of Civil Procedure section 436, upon ruling on a motion to strike, 20 the Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” and 21 may “[s]trike out all or any part of a pleading not drawn or filed in conformity with the laws of this 22 state.” “The grounds for a motion to strike shall appear on the face of the challenged pleading or 23 from any matter of which the court is required to take judicial notice.” (C.C.P. § 437(a).) 24 // 25 // 26 27 1 Defendant also brings a Demurrer, filed concurrently with this Motion to Strike, as to plaintiffs’ Third and Fourth Causes of Action for Negligent Undertaking and Negligent Breach of Assumed Duties, based on the rulings and 28 authority of the Barenborg opinion. 3 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 IV. LEGAL ARGUMENT 2 A. Plaintiffs’ Allegations that Defendant Theta Chi is Vicariously Liable as the Principal 3 for the Conduct and Torts of its Supposed Agents are not Drawn in Conformity with the Laws of this State, and Therefore Should be Stricken from the First Amended 4 Complaint 5 6 Plaintiffs’ First Amended Complaint includes the following repeated allegations that 7 defendant Theta Chi Fraternity is vicariously liable based on a principal/agency relationship with 8 the co-defendant Theta Iota Chapter: “Theta Chi National additionally is vicariously liable for 9 negligence as principal for its agent, the Chapter, which acted and failed to act in breach of these 10 duties with Theta Chi National’s authority and subject to its control, to which arrangement the 11 Chapter consented” (FAC, First Cause of Action for Negligence, ¶ 118, lines 4-7) and a variation 12 of that allegation, “Theta Chi National is vicariously liable as principal for its agent, the Chapter, 13 which acted negligently in performing and failing to perform actions with Theta Chi National’s 14 authority and subject to its control, to which arrangement the Chapter consented” (FAC, First Cause 15 of Action for Negligence, ¶ 122, lines 16-19; FAC, Second Cause of Action for Negligence, ¶ 129, 16 lines 6-9; FAC, Fourth Cause of Action for Negligent Breach of Assumed Duties, ¶ 151, lines 3-6; 17 FAC, Fifth Cause of Action for Negligent Breach of Duty to Prevent Harm, ¶ 159, lines 1-4). 18 Plaintiffs’ agency theories of vicarious liability are also alleged under the doctrine of 19 respondeat superior as follows: “Theta Chi National is liable for the Individual Defendants’, John 20 Doe Defendants 1-10’s, and Chapter’s negligent acts and omissions. . . pursuant to the doctrine of 21 respondeat superior because the Individual Defendants, John Doe Defendants 1-10, and Chapter 22 were acting as agents of Theta Chi National and within the scope of their agency at all relevant 23 times, and/or because the misconduct alleged is of the type to which respondeat superior liability 24 attaches even if the agent was acting outside the scope of the agency.” (FAC, Fourth Cause of 25 Action for Negligent Breach of Assumed Duties, ¶ 148, lines 4-9; FAC, Fifth Cause of Action for 26 Negligent Breach of Duty to Prevent Harm, ¶ 156, lines 1-6.) 27 The Court of Appeal in Barenborg addressed a national fraternity’s potential vicarious 28 liability for the conduct of its local undergraduate chapter. (Barenborg, supra, 33 Cal.App.5th at 4 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 85.) Barenborg involved the Sigma Alpha Epsilon national fraternity, and its relationship with its 2 local Cal. Gamma Chapter, located at the University of Southern California. (Id. at 73-75.) Based 3 on evidence developed during discovery, Sigma Alpha Epsilon – “SAE” – was found to have the 4 same type of fraternal relationship with its undergraduate Chapters as plaintiffs here allege exists 5 between Theta Chi Fraternity and its undergraduate Chapter at Santa Cruz, the Theta Iota Chapter: 6 SAE issued charters to its Chapters, and had risk-management policies which its Chapters were 7 expected to follow. (Id. at 74.) SAE supported its Chapters via assorted resources, and Chapter 8 Advisors visited Chapters and reported any concerns to SAE. (Id.) Though SAE’s laws required 9 local Chapters to pay dues and be subject to inspection, the Chapters were supposed to make their 10 own arrangements as to “Chapter-collegiate house or other living quarters; fix [their] own dues, 11 assessments, and charges; elect [their] own officers; and have complete control over [their] own 12 activities.” (Id.) Prior to the incident, Cal. Gamma and its members received various disciplinary 13 violations, including for underage drinking. (Id. at 74-5.) 14 The Barenborg plaintiff brought suit against SAE after sustaining injuries at a Cal. Gamma 15 party, where she had been served alcohol, while intoxicated. (Id. at 75.) While attempting to dance 16 on a raised platform, the Barenborg plaintiff was pushed, either inadvertently or intentionally, by 17 another female, causing her to fall and sustain injuries. (Id.) Plaintiff Barenborg sued SAE for 18 negligence, and SAE moved for summary judgment, arguing it owed no duty of care to plaintiff, 19 and the trial court granted the motion. (Id.) Upholding the granting of summary judgment, the 20 Court of Appeal rejected plaintiff’s arguments that the Fraternity should be held vicariously liable 21 for the conduct of its undergraduate chapter and members. The Court of Appeal reasoned that, “for 22 an agency relationship to exist, the asserted principal must have sufficient right to control the 23 relevant aspect of the purported agent’s day-to-day operations.” (Id. At 86.) Citing to other 24 jurisdictions, the Court explained that, even if a national fraternity has policies and disciplinary 25 powers over its Chapters, it does not retain sufficient control to establish an agency relationship. 26 (Id.) 27 28 5 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 As pointed out by the Court of Appeal in Barenborg, other jurisdictions have consistently 2 held that no principal-agent relationship exists between national fraternities and their local 3 Chapters, which the Court in Barenborg relied upon in reaching its own opinions based on 4 California law. For example, in Yost v. Wabash College, 3 N.E.3d 508 (Ind. 2014), the Indiana 5 Supreme Court held that actions of a local Chapter and its members cannot, as a matter of law, be 6 imputed to a national fraternity under a theory of vicarious liability. Similarly, the Illinois Supreme 7 Court in Bogenberger v. Pi Kappa Alpha Fraternity, 104 N.E.3d 1110, 1121 (Ill. 2018), held that 8 a national fraternity’s involvement in guiding the activities and conduct of its local Chapter, and in 9 retaining the power to discipline local Chapters, were insufficient, as a matter of law, to create an 10 agency relationship. 11 Here, as in Barenborg, plaintiffs allege the Theta Iota Chapter is an agent of Theta Chi. 12 Notwithstanding, the First Amended Complaint lacks any allegations supporting the theory that 13 Theta Chi controls the day-to-day activities of the Theta Iota Chapter. Similar to Barenborg, Theta 14 Chi has rules, policies, prohibitions, and standards of conduct governing the Chapter, and Theta 15 Chi exercises the ability to revoke charters and dissolve a Chapter, but Barenborg prescribes that 16 such facts are insufficient to impose an agency relationship. As in Barenborg, Theta Chi obligates 17 Officers of the Theta Iota Chapter to abide by and enforce certain rules, policies, prohibitions, and 18 conduct standards. As the First Amended Complaint’s factual allegations so considerably overlap 19 with the facts in Barenborg, California law supports the conclusion that there is no agency 20 relationship between Theta Chi and the Theta Iota Chapter, thereby defeating any vicarious liability 21 theory against Theta Chi. 22 Because a defendant may not assert a demurrer against only a portion of a cause of action 23 (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163), a Motion to Strike may be brought 24 to seek the removal of allegations and claims that are not “drawn or filed in conformity with the 25 laws of this state.” As the Court of Appeal has held: “We recognize that in some cases a portion 26 of a cause of action will be substantively defective on the face of the complaint. Although a 27 defendant may not demur to that portion, in such cases, the defendant should not have to suffer 28 6 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 discovery and navigate the often dense thicket of proceedings in summary adjudication. We 2 conclude that when a substantive defect is clear from the face of a complaint, such as a violation of 3 the applicable statute of limitations or a purported claim of right which is legally invalid, a 4 defendant may attack that portion of the cause of action by filing a motion to strike.” (PH II, Inc. 5 v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.) This is one such case, where plaintiffs’ 6 purported claims of vicarious liability based on agency and respondeat superior theories are legally 7 invalid under the authority of the Barenborg opinion, and therefore should be stricken from the 8 First Amended Complaint. 9 B. Plaintiffs’ Allegations that Alexander Beletsis Was Subjected to “Hazing” on June 2, 10 2018 are Premised Upon a Faulty and Invalid Definition of Hazing, and All References to Such “Hazing” Should be Stricken from the First Amended Complaint 11 12 Plaintiffs have made numerous assertions throughout their amended complaint that Mr. 13 Beletsis was subjected to “hazing” in connection with the students’ activities on the date of his fatal 14 injury, while simultaneously admitting that Mr. Beletsis was at that time (June 2018) already an 15 active, initiated member of Theta Chi Fraternity.2 For example, plaintiffs allege that after Mr. 16 Beletsis “obtained membership in the Fraternity, he was being groomed for an officer position in 17 spring of 2018. Again, [Mr. Beletsis] was required to participate in dangerous hazing, including 18 being forced to consume large amounts of alcohol . . .” (FAC, at ¶ 11.) Plaintiffs also allege that 19 in the Spring of his sophomore year, Mr. Beletsis “was being groomed for initiation as a 20 Brotherhood Officer and was again subjected to hazing and dangerous misconduct in order to obtain 21 such position and maintain and satisfy the requirements of his membership.” (FAC, at ¶ 83.) 22 Plaintiffs thereafter conclude that, “[a]s a result of the hazing and other misconduct at the Crossover 23 Ceremony and membership and officer-grooming rituals, [Mr. Beletsis] was visibly incoherent, 24 mentally unstable, and panicky.” (FAC, at ¶ 85.) 25 The applicable definitions of “hazing” all require that the actions and conduct be part of a 26 2 Defendant moves to strike all such irrelevant, false, and improper allegations that Mr. Beletsis was subjected to 27 “hazing” after he became an initiated member of Theta Chi Fraternity, as identified and set forth in detail in defendant’s Notice of Motion to Strike Portions of Plaintiffs’ First Amended Complaint. 28 7 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 method of “initiation or preinitation into a student organization.” California’s statutory definition 2 of hazing applies only to “any method of initiation or preinitiation into a student organization.” 3 (Cal. Penal Code § 245.6.) (See, e.g., Doe v. Napa Valley Unified School District (N.D. Cal. Apr. 4 24, 2018) 2018 WL 4859978, at *3 (attached as Exhibit A) (granting defendants’ Motion to Dismiss 5 hazing-related claims under California Penal Code Section 245.6 for the precise reason that plaintiff 6 was already a member of the football team at the time the alleged hazing occurred and, as such, 7 could not have been subject to “hazing” under the statute).) 8 Plaintiffs’ amended complaint also references the definition utilized by the University of 9 California at Santa Cruz, as set forth in the Standards for Student Conduct for the University of 10 California System, Cal. Code Regs. Tit. 5, Section 41301 (2012). (FAC, at ¶ 78.) These standards 11 similarly apply only to acts committed in the course of initiation or pre-initiation into a student 12 organization. 13 Plaintiffs allege that Mr. Beletsis became a fraternity member during the Fall 2017 term. 14 (FAC, at ¶¶ 7, 11.) Therefore, any allegation that he was subjected to “hazing” (as defined by state 15 statute and University standard) in June of 2018 is an irrelevant, false, and improper allegation that 16 may be stricken by this Court under Code of Civil Procedure Section 436. 17 18 C. Plaintiffs’ Claims for Punitive Damages Are Improper and Insufficiently Pled Against Theta Chi Fraternity, Inc., and Should be Stricken From the First Amended 19 Complaint 20 In order to state a prima facie claim for punitive damages, a Complaint must clearly allege 21 facts, with specificity, to show that the defendant acted with the requisite oppression, fraud or 22 malice. (Civ. Code § 3294; see also Turman v. Turning Point of Central California (2011) 191 23 Cal.App.4th 53, 63; see also Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) 24 Allegations supporting punitive damages must be specifically pled. (Blegen, supra, 125 25 Cal.App.3d at 963; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87.) Conclusory 26 allegations that the defendant’s conduct was “malicious” or with “reckless disregard” are only legal 27 conclusions, and the terms of Civil Code section 3294 referencing “malice, fraud and oppression” 28 8 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 cannot, by themselves, support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 2 Cal.App.3d 864, 872.) Merely alleging that defendant’s conduct was wrongful, willful, wanton, 3 reckless or unlawful, does not support a claim for punitive damages. (G.D. Searle & Co. v. Superior 4 Court (1975) 49 Cal.App.3d 22, 29.) 5 California law imposes additional, and even more stringent pleading requirements where 6 punitive damages are alleged against a corporate defendant, such as Theta Chi. California Civil 7 Code section 3294(b) authorizes an award of punitive damages against a principal for an agent’s 8 wrongful conduct in only three situations: (1) if the principal had prior knowledge of the agent’s 9 unfitness yet employed him or her with a conscious disregard of the rights or safety of others; (2) 10 the principal authorized or ratified the agent’s wrongful conduct; or (3) the principal was personally 11 guilty of oppression, fraud, or malice. 12 Here, plaintiffs’ amended complaint broadly alleges that Theta Chi, and its local Theta Iota 13 Chapter have “a long history of hazing and misconduct.” (FAC, at ¶¶ 123, 130, 152, 160.) To 14 further support their claim for punitive damages against Theta Chi, plaintiffs thereafter allege Theta 15 Chi and the Chapter engaged in conduct which was “not only reckless but also despicable conduct 16 taken in willful and conscious disregard of the dangers posed to [Mr. Beletsis] and others, and 17 constituted malicious and oppressive conduct against [Mr. Beletsis].” (Id.) 18 There are no facts alleged to suggest that Theta Chi, or any of its employees, officers, 19 directors, managing agents, or representatives had any knowledge or notice that Mr. Beletsis, an 20 active member, would choose to consume alcohol, and drugs, in conjunction with the activities on 21 June 2, 2018. Further, Theta Chi was neither the owner nor the property manager of the private 22 residence at which Mr. Beletsis fell. As such, Theta Chi lacked the ability to control any condition 23 present upon the property, and further lacked any awareness of what plaintiffs allege to be the 24 dangerous second-story window from which Mr. Beletsis fell. (See FAC, at ¶ 174.) 25 For the reasons set forth above, plaintiffs have failed to properly plead a viable claim for 26 punitive damages against Theta Chi. As a result, all such allegations and requests for punitive 27 28 9 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT 1 damages from Theta Chi should be stricken from the First Amended Complaint, without leave to 2 amend. 3 V. CONCLUSION 4 For the foregoing reasons, Defendant Theta Chi Fraternity, Inc., respectfully requests this 5 Court to grant this Motion, and strike portions of Plaintiffs’ First Amended Complaint, as 6 specifically identified and set forth in Defendant’s Notice of Motion. 7 Dated: March 10, 2020 COKINOS | YOUNG 8 9 10 Michael C. Osborne Jaskiran K. Samra 11 Attorneys for Defendant THETA CHI FRATERNITY, INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT EXHIBIT A Doe v. Napa Valley Unified School District, Slip Copy (2018) 2018 WL 4859978 2018 WL 4859978 BACKGROUND Only the Westlaw citation is currently available. United States District Court, N.D. California. Plaintiff filed this action regarding an alleged hazing incident in which Plaintiff contends that other students physically B. DOE, Plaintiff, and sexually assaulted him. Plaintiff accuses the District v. Defendants of failing to protect him. The Court accepts NAPA VALLEY UNIFIED SCHOOL Plaintiff’s factual allegations as true for purposes of this DISTRICT, et al., Defendants. motion. Case No. 17-cv-03753-SK Plaintiff was on the Napa High School freshman football | team until, shortly before the “Big Game” against a rival high Signed 04/24/2018 school, “the coaches for Napa High School promoted Plaintiff and several other freshman players to the junior varsity Attorneys and Law Firms squad.” (Dkt. 33 (First Amended Complaint (“FAC”) ), ¶ 19.) The incident occurred in the boys' locker room “as a Jacob Daniel Flesher, Jason Wendall Schaff, Jeremy James regular football practice concluded leading up to the Big Schroeder, Flesher Schaff & Schroeder, Inc., Rocklin, CA, Game[.]” (Id., ¶ 20.) These motion are brought only by the William Charles Johnson, Bennett & Johnson, Oakland, CA, District Defendants and do not contest all of Plaintiff’s claims for Plaintiff. against them. Ethanluke M. Lowry, Eugene Burton Elliot, Nicole Lauren Phillips, Patrick A. Tuck, Bertrand Fox Elliot Osman & Wenzel, San Francisco, CA, Gerald Keith Carroll, Burnham ANALYSIS Brown, APLC, John Dennis Hourihan, Hartsuyker Stratman & Williams-Abrego, Mario Alberto Moya, Rebecca Mary A. District Defendants' Motion to Strike. Hoberg, Law Office of Mario A. Moya, Oakland, CA, David Under Rule 12(f), a court may strike from a pleading C. Jones, City Attorney's Office, Napa, CA, for Defendants. “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Immaterial matter “is that which has no essential or important ORDER REGARDING MOTION TO relationship to the claim for relief or the defenses being DISMISS AND MOTION TO STRIKE pleaded.” Fantasy Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by Fogerty Regarding Docket Nos. 42, 43 v. Fantasy, Inc., 510 U.S. 517 (1994) (internal citations and quotations omitted). Impertinent material “consists of SALLIE KIM, United States Magistrate Judge statements that do not pertain, and are not necessary, to *1 This matter comes before the Court upon consideration the issues in question.” Id. (internal citations and quotations of the motions to dismiss and to strike filed by Defendants omitted). Motions to strike are regarded with disfavor because Annie Petrie, Troy Mott, Gerald Harris, and Jesus Martinez they are often used as delaying tactics and because of (“Individual District Defendants”) and Napa Valley Unified the limited importance of pleadings in federal practice. School District (“NVUSD”) (collectively referred to as Colaprico v. Sun Microsystems Inc., 758 F. Supp. 1335, the “District Defendants”). Having carefully considered the 1339 (N.D. Cal. 1991). A motion to strike should be resorted parties' papers, relevant legal authority, the record in the case, to only when the matter to be stricken could have no possible and having had the benefit of oral argument, the Court hereby bearing on the issues in litigation. LeDuc v. Kentucky GRANTS IN PART and DENIES IN PART the District Central Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Defendants' motion for the reasons set forth below. Ultimately, the decision as to whether to strike allegations is a matter within the Court’s discretion. Colaprico, 758 F. Supp. at 1339. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Doe v. Napa Valley Unified School District, Slip Copy (2018) 2018 WL 4859978 Twombly, 550 U.S. 544, 555 (2007) (citing Papasan v. The District Defendants move to strike paragraphs 18(c) Allain, 478 U.S. 265, 286 (1986) ). Rather, a plaintiff must through (f) of Plaintiff’s First Amended Complaint (“FAC”) instead allege “enough facts to state a claim to relief that is on the grounds that Plaintiff appears to have deleted its allegations regarding any mandatory duties from its plausible on its face.” Id. at 570. negligence cause of action but then confusingly retained his allegations regarding mandatory duties in its “common “The plausibility standard is not akin to a probability allegations” section. To the extent Plaintiff intends to assert requirement, but it asks for more than a sheer possibility that that the District Defendants violated mandatory duties under a defendant has acted unlawfully.... When a complaint pleads California Government Code§ 815.6 as part of his negligence facts that are merely consistent with a defendant’s liability, claim, the District Defendants argue that none of the statutes it stops short of the line between possibility and plausibility or regulations to which Plaintiff cites contain a cognizable of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, mandatory duty. At oral argument, Plaintiff represented that he was willing to strike his reference to any mandatory duties. 678 (2009) (quoting Twombly, 550 U.S. at 557) (internal Accordingly, based on Plaintiff’s representation, the Court quotation marks omitted). If the allegations are insufficient HEREBY STRIKES Plaintiff’s allegation in paragraph 18(e) to state a claim, a court should grant leave to amend, unless of his FAC. amendment would be futile. See, e.g. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990); Cook, *2 Although paragraphs 18(c), (d) and (f) reference Perkiss & Lieche, Inc. v. N. Cal. Collection Serv., Inc., 911 provisions in the California Constitution, Education Code F.2d 242, 246-47 (9th Cir. 1990). and Code of Regulations, these paragraphs do not reference any mandatory duties. The District Defendants' moved to strike only on the grounds that Plaintiff’s allegations C. District Defendants' Motion to Dismiss. regarding “mandatory duties” were confusing, immaterial and The District Defendants move to dismiss part of Plaintiff’s impertinent. In the absence of Plaintiff’s allegation regarding second claim for negligence against the District Defendants, mandatory duties in paragraph 18(e), it is not clear whether or not the District Defendant still contend that paragraphs his eighth claim for violation of California Penal Code § 18(c), (d) and (f) should be struck and on what grounds. 245.6 against NVUSD, and his ninth claim for violation of The Court thus DENIES the rest of the District Defendant’s 42 U.S.C § 1983 against the Individual Defendants. motion to strike, but this Order is without prejudice to the District Defendants' filing another motion to strike if they contend that paragraphs 18(c), (d) and (f) should be struck as 1. Plaintiff’s Second Claim for Negligence – Against well. all District Defendants. The District Defendants try to reframe Plaintiff’s negligence claim as three separate claims, and then move to dismiss B. Applicable Legal Standard on Motion to Dismiss. two of Plaintiff’s three theories of negligence. However, A motion to dismiss is proper under Federal Rule of Civil the District Defendants have not pointed to any authority Procedure 12(b)(6) where the pleadings fail to state a claim demonstrating that it may attack portions of a single claim upon which relief can be granted. On a motion to dismiss on a motion to dismiss. See In re Netopia, Inc., Sec. Litig., under Rule 12(b)(6), the Court construes the allegations 2005 WL 3445631, at *3 (N.D. Cal. Dec. 15, 2005) (“By in the complaint in the light most favorable to the non- its own terms, there does not appear to be any way to moving party and takes as true all material allegations in the grant partial dismissal of a claim under Fed.R.Civ.P. 12(b) complaint. Sanders v. Kennedy, 794 F.2d 478, 481 (9th (6).”) District Defendants cites Bautista v. Los Angeles Cir. 1986). Even under the liberal pleading standard of Rule Cty., 216 F.3d 837, 840 (9th Cir. 2000), for the proposition 8(a)(2), “a plaintiff’s obligation to provide the ‘grounds’ of that the Court should construe Plaintiff’s different theories his ‘entitle[ment] to relief’ requires more than labels and of negligence as separate “claims.” However, Bautista is conclusions, and a formulaic recitation of the elements of inapplicable. In Bautista, fifty-one different plaintiffs each a cause of action will not do.” Bell Atlantic Corp. v. asserted that the defendant discriminated against them on the basis their protected class. The Ninth Circuit held that because © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Doe v. Napa Valley Unified School District, Slip Copy (2018) 2018 WL 4859978 each plaintiff’s claim was founded upon a separate transaction Plaintiff’s acceptance on the team was still in question or or occurrence, they should be stated in separate counts under in any way uncertain. Instead, he merely argued that he Federal Rule of Civil Procedure 10(b). Here, there is only one had not yet played in a game. According to Plaintiff’s own Plaintiff. factual allegations, he was already on the team when the incident occurred. Therefore, the Court GRANTS the District *3 Under the heading of “Negligence,” the FAC groups Defendants' motion as to Plaintiff’s claim under California together multiple theories and operative facts which, if Penal Code § 245.6. independently found to be valid, could each “give rise to a right enforceable in the courts.” ( Bautista, 216 F.3d at 840.) This requires Defendants to address each potential claim 3. Plaintiff’s Ninth Claim for Violation of 42 U.S.C. separately. § 1983 – Against the Individual District Defendants. Plaintiff alleges a claim under 42 U.S.C. § 1983 premised Because Plaintiff has stated a cause of action for negligence, on both Title IX and the Equal Protection Clause of the the Court declines at this procedural stage to break Plaintiff’s United States Constitution. However, Plaintiff represented negligence claim apart and reframe it as separate claims. Therefore, the Court DENIES the District Defendants' motion that his Section 1983 claim is premised solely on Title as to Plaintiff’s negligence cause of action. Nevertheless, the IX. At oral argument, Plaintiff confirmed that he is not Court cautions Plaintiff that at later procedural stages, such as bringing a Section 1983 claim premised on the Equal on a motion for summary judgment or at trial, Plaintiff will Protection Clause. Therefore, the Court will only address need to have sufficient evidence for each theory on which he the Individual District Defendants' motion with respect seeks to proceed. to Plaintiff’s Section 1983 claim based on an alleged violation of Title IX. 2. Plaintiff’s Eighth Claim for Violation of California Penal Code § 245.6 – Against NVUSD *4 Plaintiff brings his Section 1983 claim against the Only. Individual District Defendants only. The Individual District Under California Penal Code § 245.6, Plaintiff may bring Defendants argue that, because Plaintiff cannot bring a Title an action against any participant in the hazing or “any IX claim directly against them, he is precluded from bringing organization to which the student is seeking membership.” a Section 1983 claim against them premised on Title Cal. Pen. Code § 245.6(e) (emphasis added). The statute IX. Plaintiff counters that he may assert a Section 1983 also exempts “customary athletic events” and “school- claim premised on Title IX against the Individual District sanctioned events” from the definition of “hazing.” Cal. Defendants. Both sides rely on the Supreme Court opinion in Penal Code § 245.6(b). Plaintiff does not allege that any of Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009). the District Defendants participated in the hazing incident. Therefore, Plaintiff must allege facts to show that he was In Fitzgerald, the Supreme Court held that, in light of 1 the different substantive protections of the Equal Protection “seeking membership” in an organization. Clause and Title IX, “Title IX was not meant to be an Plaintiff alleges that the hazing occurred as a “regular football exclusive mechanism for addressing gender discrimination practice concluded” and after he was already promoted to the in schools, or a substitute for § 1983 suits as a means of junior varsity football team. (Dkt. 33, ¶¶ 19, 20.) In light of these allegations, the Court finds that Plaintiff was already enforcing constitutional rights.” Fitzgerald, 555 U.S. at promoted to the junior varsity football team and was not 258. Accordingly, “the Court held that § 1983 suits based seeking membership when the alleged hazing occurred. At on the Equal Protection Clause remain available to plaintiffs the hearing, Plaintiff tried to argue that he had not actually alleging unconstitutional gender discrimination in schools.” been fully promoted, because he had not yet played in a Id. The Fitzgerald Court only explicitly addressed the game with the junior varsity football team. Notably, Plaintiff propriety of bringing constitutional claims under Section did not allege or argue that, at the time of the incident, 1983, not statutory claims based on violations of Title IX. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Doe v. Napa Valley Unified School District, Slip Copy (2018) 2018 WL 4859978 However, without any explanation, the Supreme Court also reversed the dismissal of the Section 1983 statutory claim No person in the United States shall, brought against both the institutional defendant and a school on the basis of sex, be excluded from official. Id. Nevertheless, the Court finds that Fitzgerald does participation in, be denied the benefits not provide support for Plaintiff to bring a Section 1983 of, or be subjected to discrimination claim against the Individual District Defendants based on under any education program or alleged violations of Title IX. activity receiving Federal financial assistance. Another district court thoughtfully analyzed this issue after Fitzgerald and concluded that, based on Congressional intent, a plaintiff cannot bring a Section 1983 claim against *5 20 U.S.C. § 1681(a) (emphasis added). As the individuals based on Title IX. See Doe v. Town of Stoughton, Supreme Court noted in Fitzgerald, Title IX “has consistently 917 F. Supp. 2d 160, 163-66 (D. Mass. 2013) (“The been interpreted as not authorizing suit against school touchstone in this inquiry is congressional intent.”) (citing officials, teachers, and other individuals.” Fitzgerald, 555 Gonzaga Univ. v. Doe, 536 U.S. 273, 291 (2002) (Breyer, U.S. at 257. Plaintiff may only bring his Title IX claim J., concurring) ). Because a plaintiff can only bring a Title IX against the NVUSD, and allowing him to bring a Section claim against institutions and programs that receive federal 1983 claim against the Individual District Defendants would funds, and Section 1983 claims can be brought against “would permit an end run around Title IX’s explicit language individuals, “providing a § 1983 claim against individuals limiting liability to funding recipients.” Doe v. School Bd. for Title IX liability ‘would permit an end run around Title of Broward County, Fla., 604 F.3d 1248, 1266 n. 12 (11th IX’s explicit language limiting liability to funding recipients.’ Cir. 2010) Accordingly, the Court GRANTS the Individual ” Doe v. Town of Stoughton, 917 F. Supp. 2d at 66 (quoting District Defendants' motion as to Plaintiff’s Section 1983 Doe v. School Bd. of Broward County, Fla., 604 F.3d 1248, claim. 1266 n. 12 (11th Cir. 2010) ); see also Wilkerson v. Univ. of N. Texas, 223 F. Supp. 3d 592, 608 (E.D. Tex. 2016) (finding that the plaintiff could not state a claim under § 1983 based CONCLUSION on an underlying violation of Title IX because Title IX does For the foregoing reasons, the Court GRANTS IN PART and not allow suit against individuals); but see Cartwright v. DENIES IN PART the District Defendants' motion to strike Regents of the Univ. of Cal., 2009 WL 2190072, at *7 (E.D. and GRANTS IN PART and DENIES IN PART their motion Cal. July 21, 2009) (finding that “the clear import of” the to dismiss. The Court DENIES the motion to dismiss as to Fitzgerald Court’s reversing the dismissal of both statutory Plaintiff’s negligence claim and GRANTS the motion as to and constitutional § 1983 claims “is that plaintiffs may use Plaintiff’s claim under California Penal Code § 245.6 and § 1983 as a vehicle for litigating both constitutional and his Section 1983 claim. statutory claims.”). IT IS SO ORDERED. The Court finds the reasoning of Doe v. Town of Stoughton persuasive. Title IX provides: All Citations Slip Copy, 2018 WL 4859978 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Doe v. Napa Valley Unified School District, Slip Copy (2018) 2018 WL 4859978 Footnotes 1 It is not clear whether the practice and the events immediately following practice in the locker room would be considered a “school-sanctioned event” under the statute. However, the Court need not reach this issue. End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5