Preview
ELECTRONICALLY FILED
Superior Court of California
1 Alan F. Hunter, Esq. (SBI 099805)
Elizabeth G. Landess, Esq. (SBI 138353) County of Santa Cruz
2 GAVIN CUNNINGHAM & HUNTER 6/14/2021 12:19 PM
5655 Silver Creek Valley Road, PMB 665 Alex Calvo, Clerk
3 San Jose, California 95138 By: Helena Hanson, Deputy
Email: hunter@gclitigation.com
4 Email: landess@gclitigation.com
Telephone: 408/294-8500
5
Attorneys for Defendant Rafael Garcia Jr.
6
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SANTA CRUZ – UNLIMITED JURISDICTION
11
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
DAPHNE BELETSIS, individually, and as ) Case No.: 19-CV03287
12
Administrator of the ESTATE OF )
13 ALEXANDER BELETSIS, and YVONNE )
www.gclitigation.com
RAINEY, surviving parent of ALEXANDER ) DEFENDANT R. GARCIA’S SEPARATE
14 BELETSIS, deceased, ) STATEMENT OF UNDISPUTED FACTS
) IN SUPPORT OF ALTERNATIVE
15
Plaintiffs, ) MOTIONS FOR SUMMARY
16 ) JUDGMENT/ADJUDICATION
vs. )
17 ) Date: 09-13-2021
18
THETA CHI FRATERNITY, et al., ) Time: 8:30AM
) Dept: 4
19 Defendants. ) Trial: TBD
20
SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
21
Pursuant to California Code of Civil Procedure section 473c, subdivision (b) and
22
California Rule of Court 3.1350, Defendant Rafael Garcia Jr. hereby respectfully submits this
23
24 Separate Statement of Undisputed Material Facts in support of his alternative motions for
25 summary judgment/adjudication against Plaintiffs Daphne Beletsis (individually and as the
26
Administrator of the Estate of Alexander Beletsis) and Yvonne Rainey.
27
//
28
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 1
1 Moving Party’s Undisputed Material Facts Opposing Party’s Response and Supporting
and Supporting Evidence: Evidence:
2
3 1 UF-1: The catastrophic injury that led to 1
Beletsis’ hospitalization, death, and
4 related economic loss happened on June
2, 2018.
5
6 Garcia-Declr, dated 05-28-21, at 5/1-5;
Hunter-Declr, dated 06-01-21, at 5/1-7;
7 Plaintiffs’ first amended complaint
(“FAC”) at ¶84-¶86.
8
2 UF-2: Garcia did not authorize, request, 2
9 command, participate in, or ratify any
hazing or other dangerous misconduct
10 that may have been directed at Beletsis.
11
Garcia-Declr at 4/10-21.
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 3 UF-3: Garcia did not collaborate with 3
anyone relative to any misconduct that
13 led to Beletsis’ June 2, 2018, fall and his
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14
subsequent death.
15 Garcia-Declr at 5/1-12.
4 UF-4: Garcia did not plan the June 2, 4
16
2018, fraternity-ceremony or the
17 subsequent fraternity-party.
18 Garcia-Declr at 5/13-16.
5 UF-5: Garcia attended the June 2, 2018, 5
19 fraternity-ceremony and subsequent
fraternity-party.
20
21 Garcia-Declr at 5/13-16.
6 UF-6: Garcia did not transport or 6
22 accompany Beletsis to the fraternity-
23
ceremony.
24 Garcia-Declr at 5/17.
7 UF-7: Garcia saw Beletsis at the 7
25
fraternity-ceremony but he did not form
26 a consequent impression that Beletsis
was intoxicated or otherwise impaired.
27
Garcia-Declr at 5/17-6/7.
28
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 2
1 8 UF-8: Garcia did not interact with 8
Beletsis at the fraternity-ceremony.
2
3 Garcia-Declr at 5/17-19.
9 UF-9: While those who attended the 9
4 fraternity-ceremony were offered a
5
single ceremonial toast (a shot of
alcohol), no one was required to
6 consume the toast (Garcia, as an
example, declined the toast without
7
consequence) – and if anyone required
8 Beletsis to consume the toast, it was
done without Garcia’s knowledge or
9 approval.
10
Garcia-Declr at 5/22-25.
11 10 UF-10: The fraternity-ceremony did not 10
involve any ritual hazing or forced
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 alcohol/drug use – and if anyone
engaged in hazing, forced alcohol/drug
13
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consumption, or any dangerous
14 ritual/act, it was carried out without
Garcia’s knowledge or approval.
15
Garcia-Declr at 5/21-6/1.
16
11 UF-11: With respect to the fraternity- 11
17 ceremony – and without reference to the
voluntary ceremonial toast – Garcia did
18 not approve, plan, direct, or in any way
19
effect or carry out hazing, forced
alcohol/drug use, or any dangerous
20 ritual/act.
21
Garcia-Declr at 6/1-4.
22 12 UF-12: Other than the ceremonial toast, 12
Garcia did not see Beletsis handle or
23 consume alcohol at the fraternity-
ceremony.
24
25 Garcia-Declr at 6/3-5.
13 UF-13: Drugs were not part of the 13
26 fraternity-ceremony, and Garcia did not
see anyone handle or consume drugs at
27
the fraternity-ceremony.
28
Garcia-Declr at 6/6-7.
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 3
1 14 UF-14: Garcia did not transport or 14
accompany Beletsis to the fraternity-
2
party.
3
Garcia-Declr at 6/6-8.
4 15 UF-15: Garcia saw Beletsis at the 15
5
fraternity-party but he did not form a
consequent impression that Beletsis was
6 intoxicated or otherwise impaired.
7
Garcia-Declr at 6/8-23.
8 16 UF-16: Garcia’s only interaction with 16
Beletsis at the fraternity-party happened
9 about 30-60 minutes before Beletsis fell,
and at that time Beletsis was not slurring
10
his words, was not incoherent, was not
11 mentally unstable, was not physically
unstable, was not panicky, was not
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 clearly intoxicated, was not
incapacitated, and was not otherwise in
13
www.gclitigation.com
a state that led Garcia to believe Beletsis
14 needed any form of help.
15 Garcia-Declr at 6/11-7/3.
16
17 UF-17: Garcia did not direct or 17
accompany Beletsis to any bathroom
17 during the course of the fraternity-party.
18 Garcia-Declr at 6/23-27.
19 18 UF-18: Garcia has no knowledge of the 18
circumstances that led Beletsis to enter
20 an upstairs bathroom during the course
of the fraternity-party.
21
22 Garcia-Declr at 6/27-28.
19 UF-19: At all times during the course of 19
23 the fraternity-party, Garcia was
downstairs.
24
25 Garcia-Declr at 6/24-25.
20 UF-20: With respect to the events of 20
26 June 2, 2018, Beletsis acted independent
of Garcia.
27
28 Garcia-Declr at 7/6-9.
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 4
1 21 UF-21: With respect to the events of 21
June 2, 2018, Garcia did not participate
2
in any hazing or misconduct or
3 dangerous act directed at Beletsis (or
anyone else).
4
5
Garcia-Declr at 7/9-11.
22 UF-22: With respect to the events of 22
6 June 2, 2018, Garcia was not aware of
any hazing or misconduct or dangerous
7
act directed at Beletsis (or anyone else).
8
Garcia-Declr at 7/12-14.
9 23 UF-23: With respect to the events of 23
June 2, 2018, Garcia never saw anyone
10
give cocaine or any other drug to
11 Beletsis.
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 Garcia-Declr at 7/14-16.
24 UF-24: With respect to the events of 24
13
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June 2, 2018, Garcia never saw Beletsis
14 in an incapacitated state or in need of
help.
15
16
Garcia-Declr at 7/17-19.
25 UF-25: Garcia never provided Beletsis 25
17 with alcohol or drugs.
18
Garcia-Declr at 7/20.
19 26 UF-26: Garcia did not take part in any 26
“lies and obstruction… to uncover the
20 truth about illegal and dangerous
conduct taking place at… [Defendant-
21
Chapter].”
22
Garcia-Declr at 7/22-8/2.
23 27 UF-27: Garcia did not know of any 27
fraternity-sanctioned use or sale of
24
cocaine or any other drug.
25
Garcia-Declr at 8/2.
26 28 UF-28: Garcia did not observe anyone 28
27
force Beletsis to consume alcohol/drugs
at the June 2, 2018, fraternity events.
28
Garcia-Declr at 8/3-5.
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 5
1 29 UF-29: Garcia did not have knowledge 29
of anyone engaging in hazing or
2
alcohol/drug misconduct at the June 2,
3 2018, fraternity events.
4 Garcia-Declr at 8/6-7.
5
30 UF-30: The individuals named as 30
Defendants in this case were all college
6 students and 18-years old or older on
June 2, 2018.
7
8 Garcia-Declr at 8/8-17.
31 UF-31: Garcia did not hold legal 31
9 authority to restrain anyone (including
Beletsis and fraternity-defendants) who
10
attended the June 2, 2018, fraternity
11 events.
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 Garcia-Declr at 8/13-17.
32 UF-32: Beletsis was a college student 32
13
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and 18-years old or older on June 2,
14 2018.
15 Garcia-Declr at 8/11-14; Hunter-Declr
16
at 8/15-9/26.
33 UF-33: Beletsis was not a helpless 33
17 individual – he was a competent and
independent college student.
18
19 Garcia-Declr at 8/18-24; Hunter-Declr
at 6/25-7/7 (citing SPROG-122
20 response).
34 UF-34: Beletsis, like all of the 34
21
fraternity-members, was not required to
22 consume alcohol/drugs or to participate
in the fraternity-based aspects of the
23 June 2, 2018, events – and if anyone
required Beletsis to consume
24
alcohol/drugs or participate in the
25 fraternity-based aspects of the June 2,
2018, events, it was done without
26 Garcia’s knowledge or approval.
27
Garcia-Declr at 5/8-12.
28
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 6
1 35 UF-35: Garcia did not take charge of, or 35
exercise authority over, Beletsis or any
2
fraternity-defendants during the course
3 of the June 2, 2018, fraternity events.
4 Garcia-Declr at 8/19-22.
5
36 UF-36: Garcia was not a fraternity 36
officer on June 2, 2018.
6
Garcia-Declr at 8/22.
7
37 UF-37: Garcia held no fraternity 37
8 leadership position on June 2, 2018.
9 Garcia-Declr at 8/22-23.
38 UF-38: While Garcia was a fraternity 38
10
officer and held a fraternity leadership
11 position before June 2, 2018, his
officer/leader roles ended in December
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 2017.
13
www.gclitigation.com
Garcia-Declr at 2/1-3/19.
14 39 UF-39: Garcia graduated from UC Santa 39
Cruz on June 16, 2018.
15
16
Garcia-Declr at 2/2.
40 UF-40: Unlike Garcia, Beletsis held a 40
17 fraternity leadership position on June 2,
2018.
18
19 Garcia-Declr at 8/23-27.
41 UF-41: No one authorized Garcia to 41
20 represent them in any June 2, 2018,
dealings.
21
22 Garcia-Declr at 8/27-28.
42 UF-42: Garcia was not working for 42
23 anyone, nor was he under the control of
anyone, relative to the June 2, 2018,
24
events.
25
Garcia-Declr at 8/28-9/1.
26 // //
27
// //
// //
28 // //
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 7
1 43 UF-43: Garcia was not an employee, 43
manager, director, trustee, or officer, of
2
any person or entity relative to the June
3 2, 2018, events.
4 Garcia-Declr at 9/1-2.
5
44 UF-44: Garcia has never been an 44
6 officer, director, shareholder, or
controlling member of any corporate
7
party – and he has never used any
8 corporate structure to avoid liability or
to harm anyone’s interest.
9
Garcia-Declr at 9/2-5.
10
45 UF-45: Garcia engaged in no plan to 45
11 harm Plaintiffs/Beletsis – and he had no
knowledge of any such plan.
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12
Garcia-Declr at 9/5-6.
13
www.gclitigation.com
46 UF-46: Garcia engaged in no plan to 46
14 carry out hazing or dangerous
alcohol/drug misconduct relative to the
15 June 2, 2018, events – and he had no
16
knowledge of any such plan.
17 Garcia-Declr at 9/6-8.
47 UF-47: Garcia was not in a for profit 47
18
business relationship with any of the
19 parties in this case.
20 Garcia-Declr at 9/8-10.
48 UF-48: Garcia did not authorize anyone 48
21
to act as his agent relative to the events
22 of June 2, 2018.
23 Garcia-Declr at 9/9-11.
49 UF-49: Garcia did not approve or adopt 49
24
as his own any third-party act that
25 happened on June 2, 2018.
26 Garcia-Declr at 9/11.
// //
27
// //
28 // //
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 8
1 50 UF-50: Garcia did not expressly assume 50
liability for any alleged acts, omissions,
2
or harm.
3
Garcia-Declr at 9/11-13.
4 51 UF-51: Garcia did not engage in hazing 51
5
or forced alcohol/drug consumption
directed at Beletsis.
6
Garcia-Declr at 9/14-18.
7
52 UF-52: Garcia did not entrust anyone 52
8 with a means to haze or force Beletsis to
consume alcohol/drugs.
9
Garcia-Declr at 9/14-18.
10
53 UF-53: Garcia did approve, participate 53
11 in, or have knowledge of hazing or
forced alcohol/drug consumption
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 directed at Beletsis.
13
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Garcia-Declr at 9/14-18.
14
ISSUE NO. 1: The First Cause of Action for Negligence lacks merit because one or more
15 essential elements of the cause of action cannot be established or there is a complete defense.
16
(UF-1 thru UF-53)
17 Moving Party’s Undisputed Material Facts Opposing Party’s Response and Supporting
and Supporting Evidence: Evidence:
18
1 UF-1: The catastrophic injury that led to 1
19
Beletsis’ hospitalization, death, and
20 related economic loss happened on June
2, 2018.
21
Garcia-Declr, dated 05-28-21, at 5/1-5;
22
Hunter-Declr, dated 06-01-21, at 5/1-7;
23 Plaintiffs’ first amended complaint
(“FAC”) at ¶84-¶86.
24 2 UF-2: Garcia did not authorize, request, 2
25
command, participate in, or ratify any
hazing or other dangerous misconduct
26 that may have been directed at Beletsis.
27
Garcia-Declr at 4/10-21.
28
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 9
1 3 UF-3: Garcia did not collaborate with 3
anyone relative to any misconduct that
2
led to Beletsis’ June 2, 2018, fall and his
3 subsequent death.
4 Garcia-Declr at 5/1-12.
5
4 UF-4: Garcia did not plan the June 2, 4
2018, fraternity-ceremony or the
6 subsequent fraternity-party.
7 Garcia-Declr at 5/13-16.
5 UF-5: Garcia attended the June 2, 2018, 5
8
fraternity-ceremony and subsequent
9 fraternity-party.
10 Garcia-Declr at 5/13-16.
11
6 UF-6: Garcia did not transport or 6
accompany Beletsis to the fraternity-
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 ceremony.
13 Garcia-Declr at 5/17.
www.gclitigation.com
14
7 UF-7: Garcia saw Beletsis at the 7
fraternity-ceremony but he did not form
15 a consequent impression that Beletsis
was intoxicated or otherwise impaired.
16
17 Garcia-Declr at 5/17-6/7.
18 8 UF-8: Garcia did not interact with 8
Beletsis at the fraternity-ceremony.
19
20 Garcia-Declr at 5/17-19.
9 UF-9: While those who attended the 9
21 fraternity-ceremony were offered a
single ceremonial toast (a shot of
22
alcohol), no one was required to
23 consume the toast (Garcia, as an
example, declined the toast without
24 consequence) – and if anyone required
25
Beletsis to consume the toast, it was
done without Garcia’s knowledge or
26 approval.
27 Garcia-Declr at 5/22-25.
28
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 10
1 10 UF-10: The fraternity-ceremony did not 10
involve any ritual hazing or forced
2
alcohol/drug use – and if anyone
3 engaged in hazing, forced alcohol/drug
consumption, or any dangerous
4 ritual/act, it was carried out without
5
Garcia’s knowledge or approval.
6 Garcia-Declr at 5/21-6/1.
11 UF-11: With respect to the fraternity- 11
7
ceremony – and without reference to the
8 voluntary ceremonial toast – Garcia did
not approve, plan, direct, or in any way
9 effect or carry out hazing, forced
alcohol/drug use, or any dangerous
10
ritual/act.
11
Garcia-Declr at 6/1-4.
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 12 UF-12: Other than the ceremonial toast, 12
Garcia did not see Beletsis handle or
13
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consume alcohol at the fraternity-
14 ceremony.
15 Garcia-Declr at 6/3-5.
16
13 UF-13: Drugs were not part of the 13
fraternity-ceremony, and Garcia did not
17 see anyone handle or consume drugs at
the fraternity-ceremony.
18
19
Garcia-Declr at 6/6-7.
14 UF-14: Garcia did not transport or 14
20 accompany Beletsis to the fraternity-
party.
21
22 Garcia-Declr at 6/6-8.
15 UF-15: Garcia saw Beletsis at the 15
23 fraternity-party but he did not form a
consequent impression that Beletsis was
24
intoxicated or otherwise impaired.
25
Garcia-Declr at 6/8-23.
26
27
28
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 11
1 16 UF-16: Garcia’s only interaction with 16
Beletsis at the fraternity-party happened
2
about 30-60 minutes before Beletsis fell,
3 and at that time Beletsis was not slurring
his words, was not incoherent, was not
4 mentally unstable, was not physically
5
unstable, was not panicky, was not
clearly intoxicated, was not
6 incapacitated, and was not otherwise in
a state that led Garcia to believe Beletsis
7 needed any form of help.
8
Garcia-Declr at 6/11-7/3.
9 17 UF-17: Garcia did not direct or 17
accompany Beletsis to any bathroom
10
during the course of the fraternity-party.
11
Garcia-Declr at 6/23-27.
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 18 UF-18: Garcia has no knowledge of the 18
circumstances that led Beletsis to enter
13
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an upstairs bathroom during the course
14 of the fraternity-party.
15 Garcia-Declr at 6/27-28.
16
19 UF-19: At all times during the course of 19
the fraternity-party, Garcia was
17 downstairs.
18 Garcia-Declr at 6/24-25.
19 20 UF-20: With respect to the events of 20
June 2, 2018, Beletsis acted independent
20 of Garcia.
21
Garcia-Declr at 7/6-9.
22
21 UF-21: With respect to the events of 21
23 June 2, 2018, Garcia did not participate
in any hazing or misconduct or
24
dangerous act directed at Beletsis (or
25 anyone else).
26 Garcia-Declr at 7/9-11.
27
28
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 12
1 22 UF-22: With respect to the events of 22
June 2, 2018, Garcia was not aware of
2
any hazing or misconduct or dangerous
3 act directed at Beletsis (or anyone else).
4 Garcia-Declr at 7/12-14.
5
23 UF-23: With respect to the events of 23
June 2, 2018, Garcia never saw anyone
6 give cocaine or any other drug to
Beletsis.
7
8 Garcia-Declr at 7/14-16.
24 UF-24: With respect to the events of 24
9 June 2, 2018, Garcia never saw Beletsis
in an incapacitated state or in need of
10
help.
11
Garcia-Declr at 7/17-19.
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 25 UF-25: Garcia never provided Beletsis 25
with alcohol or drugs.
13
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14 Garcia-Declr at 7/20.
26 UF-26: Garcia did not take part in any 26
15 “lies and obstruction… to uncover the
16
truth about illegal and dangerous
conduct taking place at… [Defendant-
17 Chapter].”
18
Garcia-Declr at 7/22-8/2.
19 27 UF-27: Garcia did not know of any 27
fraternity-sanctioned use or sale of
20 cocaine or any other drug.
21
Garcia-Declr at 8/2.
22 28 UF-28: Garcia did not observe anyone 28
force Beletsis to consume alcohol/drugs
23 at the June 2, 2018, fraternity events.
24
Garcia-Declr at 8/3-5.
25 29 UF-29: Garcia did not have knowledge 29
of anyone engaging in hazing or
26 alcohol/drug misconduct at the June 2,
27
2018, fraternity events.
28 Garcia-Declr at 8/6-7.
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 13
1 30 UF-30: The individuals named as 30
Defendants in this case were all college
2
students and 18-years old or older on
3 June 2, 2018.
4 Garcia-Declr at 8/8-17.
5
31 UF-31: Garcia did not hold legal 31
authority to restrain anyone (including
6 Beletsis and fraternity-defendants) who
attended the June 2, 2018, fraternity
7
events.
8
Garcia-Declr at 8/13-17.
9 32 UF-32: Beletsis was a college student 32
and 18-years old or older on June 2,
10
2018.
11
Garcia-Declr at 8/11-14; Hunter-Declr
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 at 8/15-9/26.
33 UF-33: Beletsis was not a helpless 33
13
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individual – he was a competent and
14 independent college student.
15 Garcia-Declr at 8/18-24; Hunter-Declr
16
at 6/25-7/7 (citing SPROG-122
response).
17 34 UF-34: Beletsis, like all of the 34
fraternity-members, was not required to
18
consume alcohol/drugs or to participate
19 in the fraternity-based aspects of the
June 2, 2018, events – and if anyone
20 required Beletsis to consume
alcohol/drugs or participate in the
21
fraternity-based aspects of the June 2,
22 2018, events, it was done without
Garcia’s knowledge or approval.
23
Garcia-Declr at 5/8-12.
24
35 UF-35: Garcia did not take charge of, or 35
25 exercise authority over, Beletsis or any
fraternity-defendants during the course
26 of the June 2, 2018, fraternity events.
27
Garcia-Declr at 8/19-22.
28
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 14
1 36 UF-36: Garcia was not a fraternity 36
officer on June 2, 2018.
2
3 Garcia-Declr at 8/22.
37 UF-37: Garcia held no fraternity 37
4 leadership position on June 2, 2018.
5
Garcia-Declr at 8/22-23.
6 38 UF-38: While Garcia was a fraternity 38
officer and held a fraternity leadership
7
position before June 2, 2018, his
8 officer/leader roles ended in December
2017.
9
Garcia-Declr at 2/1-3/19.
10
39 UF-39: Garcia graduated from UC Santa 39
11 Cruz on June 16, 2018.
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12 Garcia-Declr at 2/2.
13
40 UF-40: Unlike Garcia, Beletsis held a 40
www.gclitigation.com
fraternity leadership position on June 2,
14 2018.
15 Garcia-Declr at 8/23-27.
16
41 UF-41: No one authorized Garcia to 41
represent them in any June 2, 2018,
17 dealings.
18
Garcia-Declr at 8/27-28.
19 42 UF-42: Garcia was not working for 42
anyone, nor was he under the control of
20 anyone, relative to the June 2, 2018,
events.
21
22 Garcia-Declr at 8/28-9/1.
43 UF-43: Garcia was not an employee, 43
23 manager, director, trustee, or officer, of
any person or entity relative to the June
24
2, 2018, events.
25
Garcia-Declr at 9/1-2.
26
27
28
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 15
1 44 UF-44: Garcia has never been an 44
officer, director, shareholder, or
2
controlling member of any corporate
3 party – and he has never used any
corporate structure to avoid liability or
4 to harm anyone’s interest.
5
Garcia-Declr at 9/2-5.
6 45 UF-45: Garcia engaged in no plan to 45
harm Plaintiffs/Beletsis – and he had no
7
knowledge of any such plan.
8
Garcia-Declr at 9/5-6.
9 46 UF-46: Garcia engaged in no plan to 46
carry out hazing or dangerous
10
alcohol/drug misconduct relative to the
11 June 2, 2018, events – and he had no
knowledge of any such plan.
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12
Garcia-Declr at 9/6-8.
13
www.gclitigation.com
47 UF-47: Garcia was not in a for profit 47
14 business relationship with any of the
parties in this case.
15
16
Garcia-Declr at 9/8-10.
48 UF-48: Garcia did not authorize anyone 48
17 to act as his agent relative to the events
of June 2, 2018.
18
19 Garcia-Declr at 9/9-11.
49 UF-49: Garcia did not approve or adopt 49
20 as his own any third-party act that
happened on June 2, 2018.
21
22 Garcia-Declr at 9/11.
50 UF-50: Garcia did not expressly assume 50
23 liability for any alleged acts, omissions,
or harm.
24
25 Garcia-Declr at 9/11-13.
51 UF-51: Garcia did not engage in hazing 51
26 or forced alcohol/drug consumption
27
directed at Beletsis.
28 Garcia-Declr at 9/14-18.
MSJ/MSA STATEMENT OF UNDISPUTED FACTS 16
1 52 UF-52: Garcia did not entrust anyone 52
with a means to haze or force Beletsis to
2
consume alcohol/drugs.
3
Garcia-Declr at 9/14-18.
4 53 UF-53: Garcia did approve, participate 53
5
in, or have knowledge of hazing or
forced alcohol/drug consumption
6 directed at Beletsis.
7
Garcia-Declr at 9/14-18.
8
ISSUE NO. 2: The Second Cause of Action for Negligence lacks merit because one or more
9 essential elements of the cause of action cannot be established or there is a complete defense.
(UF-1 thru UF-53)
10
11 Moving Party’s Undisputed Material Facts Opposing Party’s Response and Supporting
and Supporting Evidence: Evidence:
Attorneys at Law – San Jose ∆ California
GAVIN CUNNINGHAM & HUNTER
12
1 UF-1: The catastrophic injury that led to 1
13 Beletsis’ hospitalization, death, and
www.gclitigation.com
14
related economic loss happened on June
2, 2018.
15
Garcia-Declr, dated 05-28-21, at 5/1-5;
16
Hunter-Declr, dated 06-01-21, at 5/1-7;
17 Plaintiffs’ first amended complaint
(“FAC”) at ¶84-¶86.
Preview
ELECTRONICALLY FILED Superior Court of California 1 Alan F. Hunter, Esq. (SBI 099805) Elizabeth G. Landess, Esq. (SBI 138353) County of Santa Cruz 2 GAVIN CUNNINGHAM & HUNTER 6/14/2021 12:19 PM 5655 Silver Creek Valley Road, PMB 665 Alex Calvo, Clerk 3 San Jose, California 95138 By: Helena Hanson, Deputy Email: hunter@gclitigation.com 4 Email: landess@gclitigation.com Telephone: 408/294-8500 5 Attorneys for Defendant Rafael Garcia Jr. 6 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SANTA CRUZ – UNLIMITED JURISDICTION 11 Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER DAPHNE BELETSIS, individually, and as ) Case No.: 19-CV03287 12 Administrator of the ESTATE OF ) 13 ALEXANDER BELETSIS, and YVONNE ) www.gclitigation.com RAINEY, surviving parent of ALEXANDER ) DEFENDANT R. GARCIA’S SEPARATE 14 BELETSIS, deceased, ) STATEMENT OF UNDISPUTED FACTS ) IN SUPPORT OF ALTERNATIVE 15 Plaintiffs, ) MOTIONS FOR SUMMARY 16 ) JUDGMENT/ADJUDICATION vs. ) 17 ) Date: 09-13-2021 18 THETA CHI FRATERNITY, et al., ) Time: 8:30AM ) Dept: 4 19 Defendants. ) Trial: TBD 20 SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS 21 Pursuant to California Code of Civil Procedure section 473c, subdivision (b) and 22 California Rule of Court 3.1350, Defendant Rafael Garcia Jr. hereby respectfully submits this 23 24 Separate Statement of Undisputed Material Facts in support of his alternative motions for 25 summary judgment/adjudication against Plaintiffs Daphne Beletsis (individually and as the 26 Administrator of the Estate of Alexander Beletsis) and Yvonne Rainey. 27 // 28 MSJ/MSA STATEMENT OF UNDISPUTED FACTS 1 1 Moving Party’s Undisputed Material Facts Opposing Party’s Response and Supporting and Supporting Evidence: Evidence: 2 3 1 UF-1: The catastrophic injury that led to 1 Beletsis’ hospitalization, death, and 4 related economic loss happened on June 2, 2018. 5 6 Garcia-Declr, dated 05-28-21, at 5/1-5; Hunter-Declr, dated 06-01-21, at 5/1-7; 7 Plaintiffs’ first amended complaint (“FAC”) at ¶84-¶86. 8 2 UF-2: Garcia did not authorize, request, 2 9 command, participate in, or ratify any hazing or other dangerous misconduct 10 that may have been directed at Beletsis. 11 Garcia-Declr at 4/10-21. Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 3 UF-3: Garcia did not collaborate with 3 anyone relative to any misconduct that 13 led to Beletsis’ June 2, 2018, fall and his www.gclitigation.com 14 subsequent death. 15 Garcia-Declr at 5/1-12. 4 UF-4: Garcia did not plan the June 2, 4 16 2018, fraternity-ceremony or the 17 subsequent fraternity-party. 18 Garcia-Declr at 5/13-16. 5 UF-5: Garcia attended the June 2, 2018, 5 19 fraternity-ceremony and subsequent fraternity-party. 20 21 Garcia-Declr at 5/13-16. 6 UF-6: Garcia did not transport or 6 22 accompany Beletsis to the fraternity- 23 ceremony. 24 Garcia-Declr at 5/17. 7 UF-7: Garcia saw Beletsis at the 7 25 fraternity-ceremony but he did not form 26 a consequent impression that Beletsis was intoxicated or otherwise impaired. 27 Garcia-Declr at 5/17-6/7. 28 MSJ/MSA STATEMENT OF UNDISPUTED FACTS 2 1 8 UF-8: Garcia did not interact with 8 Beletsis at the fraternity-ceremony. 2 3 Garcia-Declr at 5/17-19. 9 UF-9: While those who attended the 9 4 fraternity-ceremony were offered a 5 single ceremonial toast (a shot of alcohol), no one was required to 6 consume the toast (Garcia, as an example, declined the toast without 7 consequence) – and if anyone required 8 Beletsis to consume the toast, it was done without Garcia’s knowledge or 9 approval. 10 Garcia-Declr at 5/22-25. 11 10 UF-10: The fraternity-ceremony did not 10 involve any ritual hazing or forced Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 alcohol/drug use – and if anyone engaged in hazing, forced alcohol/drug 13 www.gclitigation.com consumption, or any dangerous 14 ritual/act, it was carried out without Garcia’s knowledge or approval. 15 Garcia-Declr at 5/21-6/1. 16 11 UF-11: With respect to the fraternity- 11 17 ceremony – and without reference to the voluntary ceremonial toast – Garcia did 18 not approve, plan, direct, or in any way 19 effect or carry out hazing, forced alcohol/drug use, or any dangerous 20 ritual/act. 21 Garcia-Declr at 6/1-4. 22 12 UF-12: Other than the ceremonial toast, 12 Garcia did not see Beletsis handle or 23 consume alcohol at the fraternity- ceremony. 24 25 Garcia-Declr at 6/3-5. 13 UF-13: Drugs were not part of the 13 26 fraternity-ceremony, and Garcia did not see anyone handle or consume drugs at 27 the fraternity-ceremony. 28 Garcia-Declr at 6/6-7. MSJ/MSA STATEMENT OF UNDISPUTED FACTS 3 1 14 UF-14: Garcia did not transport or 14 accompany Beletsis to the fraternity- 2 party. 3 Garcia-Declr at 6/6-8. 4 15 UF-15: Garcia saw Beletsis at the 15 5 fraternity-party but he did not form a consequent impression that Beletsis was 6 intoxicated or otherwise impaired. 7 Garcia-Declr at 6/8-23. 8 16 UF-16: Garcia’s only interaction with 16 Beletsis at the fraternity-party happened 9 about 30-60 minutes before Beletsis fell, and at that time Beletsis was not slurring 10 his words, was not incoherent, was not 11 mentally unstable, was not physically unstable, was not panicky, was not Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 clearly intoxicated, was not incapacitated, and was not otherwise in 13 www.gclitigation.com a state that led Garcia to believe Beletsis 14 needed any form of help. 15 Garcia-Declr at 6/11-7/3. 16 17 UF-17: Garcia did not direct or 17 accompany Beletsis to any bathroom 17 during the course of the fraternity-party. 18 Garcia-Declr at 6/23-27. 19 18 UF-18: Garcia has no knowledge of the 18 circumstances that led Beletsis to enter 20 an upstairs bathroom during the course of the fraternity-party. 21 22 Garcia-Declr at 6/27-28. 19 UF-19: At all times during the course of 19 23 the fraternity-party, Garcia was downstairs. 24 25 Garcia-Declr at 6/24-25. 20 UF-20: With respect to the events of 20 26 June 2, 2018, Beletsis acted independent of Garcia. 27 28 Garcia-Declr at 7/6-9. MSJ/MSA STATEMENT OF UNDISPUTED FACTS 4 1 21 UF-21: With respect to the events of 21 June 2, 2018, Garcia did not participate 2 in any hazing or misconduct or 3 dangerous act directed at Beletsis (or anyone else). 4 5 Garcia-Declr at 7/9-11. 22 UF-22: With respect to the events of 22 6 June 2, 2018, Garcia was not aware of any hazing or misconduct or dangerous 7 act directed at Beletsis (or anyone else). 8 Garcia-Declr at 7/12-14. 9 23 UF-23: With respect to the events of 23 June 2, 2018, Garcia never saw anyone 10 give cocaine or any other drug to 11 Beletsis. Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 Garcia-Declr at 7/14-16. 24 UF-24: With respect to the events of 24 13 www.gclitigation.com June 2, 2018, Garcia never saw Beletsis 14 in an incapacitated state or in need of help. 15 16 Garcia-Declr at 7/17-19. 25 UF-25: Garcia never provided Beletsis 25 17 with alcohol or drugs. 18 Garcia-Declr at 7/20. 19 26 UF-26: Garcia did not take part in any 26 “lies and obstruction… to uncover the 20 truth about illegal and dangerous conduct taking place at… [Defendant- 21 Chapter].” 22 Garcia-Declr at 7/22-8/2. 23 27 UF-27: Garcia did not know of any 27 fraternity-sanctioned use or sale of 24 cocaine or any other drug. 25 Garcia-Declr at 8/2. 26 28 UF-28: Garcia did not observe anyone 28 27 force Beletsis to consume alcohol/drugs at the June 2, 2018, fraternity events. 28 Garcia-Declr at 8/3-5. MSJ/MSA STATEMENT OF UNDISPUTED FACTS 5 1 29 UF-29: Garcia did not have knowledge 29 of anyone engaging in hazing or 2 alcohol/drug misconduct at the June 2, 3 2018, fraternity events. 4 Garcia-Declr at 8/6-7. 5 30 UF-30: The individuals named as 30 Defendants in this case were all college 6 students and 18-years old or older on June 2, 2018. 7 8 Garcia-Declr at 8/8-17. 31 UF-31: Garcia did not hold legal 31 9 authority to restrain anyone (including Beletsis and fraternity-defendants) who 10 attended the June 2, 2018, fraternity 11 events. Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 Garcia-Declr at 8/13-17. 32 UF-32: Beletsis was a college student 32 13 www.gclitigation.com and 18-years old or older on June 2, 14 2018. 15 Garcia-Declr at 8/11-14; Hunter-Declr 16 at 8/15-9/26. 33 UF-33: Beletsis was not a helpless 33 17 individual – he was a competent and independent college student. 18 19 Garcia-Declr at 8/18-24; Hunter-Declr at 6/25-7/7 (citing SPROG-122 20 response). 34 UF-34: Beletsis, like all of the 34 21 fraternity-members, was not required to 22 consume alcohol/drugs or to participate in the fraternity-based aspects of the 23 June 2, 2018, events – and if anyone required Beletsis to consume 24 alcohol/drugs or participate in the 25 fraternity-based aspects of the June 2, 2018, events, it was done without 26 Garcia’s knowledge or approval. 27 Garcia-Declr at 5/8-12. 28 MSJ/MSA STATEMENT OF UNDISPUTED FACTS 6 1 35 UF-35: Garcia did not take charge of, or 35 exercise authority over, Beletsis or any 2 fraternity-defendants during the course 3 of the June 2, 2018, fraternity events. 4 Garcia-Declr at 8/19-22. 5 36 UF-36: Garcia was not a fraternity 36 officer on June 2, 2018. 6 Garcia-Declr at 8/22. 7 37 UF-37: Garcia held no fraternity 37 8 leadership position on June 2, 2018. 9 Garcia-Declr at 8/22-23. 38 UF-38: While Garcia was a fraternity 38 10 officer and held a fraternity leadership 11 position before June 2, 2018, his officer/leader roles ended in December Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 2017. 13 www.gclitigation.com Garcia-Declr at 2/1-3/19. 14 39 UF-39: Garcia graduated from UC Santa 39 Cruz on June 16, 2018. 15 16 Garcia-Declr at 2/2. 40 UF-40: Unlike Garcia, Beletsis held a 40 17 fraternity leadership position on June 2, 2018. 18 19 Garcia-Declr at 8/23-27. 41 UF-41: No one authorized Garcia to 41 20 represent them in any June 2, 2018, dealings. 21 22 Garcia-Declr at 8/27-28. 42 UF-42: Garcia was not working for 42 23 anyone, nor was he under the control of anyone, relative to the June 2, 2018, 24 events. 25 Garcia-Declr at 8/28-9/1. 26 // // 27 // // // // 28 // // MSJ/MSA STATEMENT OF UNDISPUTED FACTS 7 1 43 UF-43: Garcia was not an employee, 43 manager, director, trustee, or officer, of 2 any person or entity relative to the June 3 2, 2018, events. 4 Garcia-Declr at 9/1-2. 5 44 UF-44: Garcia has never been an 44 6 officer, director, shareholder, or controlling member of any corporate 7 party – and he has never used any 8 corporate structure to avoid liability or to harm anyone’s interest. 9 Garcia-Declr at 9/2-5. 10 45 UF-45: Garcia engaged in no plan to 45 11 harm Plaintiffs/Beletsis – and he had no knowledge of any such plan. Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 Garcia-Declr at 9/5-6. 13 www.gclitigation.com 46 UF-46: Garcia engaged in no plan to 46 14 carry out hazing or dangerous alcohol/drug misconduct relative to the 15 June 2, 2018, events – and he had no 16 knowledge of any such plan. 17 Garcia-Declr at 9/6-8. 47 UF-47: Garcia was not in a for profit 47 18 business relationship with any of the 19 parties in this case. 20 Garcia-Declr at 9/8-10. 48 UF-48: Garcia did not authorize anyone 48 21 to act as his agent relative to the events 22 of June 2, 2018. 23 Garcia-Declr at 9/9-11. 49 UF-49: Garcia did not approve or adopt 49 24 as his own any third-party act that 25 happened on June 2, 2018. 26 Garcia-Declr at 9/11. // // 27 // // 28 // // MSJ/MSA STATEMENT OF UNDISPUTED FACTS 8 1 50 UF-50: Garcia did not expressly assume 50 liability for any alleged acts, omissions, 2 or harm. 3 Garcia-Declr at 9/11-13. 4 51 UF-51: Garcia did not engage in hazing 51 5 or forced alcohol/drug consumption directed at Beletsis. 6 Garcia-Declr at 9/14-18. 7 52 UF-52: Garcia did not entrust anyone 52 8 with a means to haze or force Beletsis to consume alcohol/drugs. 9 Garcia-Declr at 9/14-18. 10 53 UF-53: Garcia did approve, participate 53 11 in, or have knowledge of hazing or forced alcohol/drug consumption Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 directed at Beletsis. 13 www.gclitigation.com Garcia-Declr at 9/14-18. 14 ISSUE NO. 1: The First Cause of Action for Negligence lacks merit because one or more 15 essential elements of the cause of action cannot be established or there is a complete defense. 16 (UF-1 thru UF-53) 17 Moving Party’s Undisputed Material Facts Opposing Party’s Response and Supporting and Supporting Evidence: Evidence: 18 1 UF-1: The catastrophic injury that led to 1 19 Beletsis’ hospitalization, death, and 20 related economic loss happened on June 2, 2018. 21 Garcia-Declr, dated 05-28-21, at 5/1-5; 22 Hunter-Declr, dated 06-01-21, at 5/1-7; 23 Plaintiffs’ first amended complaint (“FAC”) at ¶84-¶86. 24 2 UF-2: Garcia did not authorize, request, 2 25 command, participate in, or ratify any hazing or other dangerous misconduct 26 that may have been directed at Beletsis. 27 Garcia-Declr at 4/10-21. 28 MSJ/MSA STATEMENT OF UNDISPUTED FACTS 9 1 3 UF-3: Garcia did not collaborate with 3 anyone relative to any misconduct that 2 led to Beletsis’ June 2, 2018, fall and his 3 subsequent death. 4 Garcia-Declr at 5/1-12. 5 4 UF-4: Garcia did not plan the June 2, 4 2018, fraternity-ceremony or the 6 subsequent fraternity-party. 7 Garcia-Declr at 5/13-16. 5 UF-5: Garcia attended the June 2, 2018, 5 8 fraternity-ceremony and subsequent 9 fraternity-party. 10 Garcia-Declr at 5/13-16. 11 6 UF-6: Garcia did not transport or 6 accompany Beletsis to the fraternity- Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 ceremony. 13 Garcia-Declr at 5/17. www.gclitigation.com 14 7 UF-7: Garcia saw Beletsis at the 7 fraternity-ceremony but he did not form 15 a consequent impression that Beletsis was intoxicated or otherwise impaired. 16 17 Garcia-Declr at 5/17-6/7. 18 8 UF-8: Garcia did not interact with 8 Beletsis at the fraternity-ceremony. 19 20 Garcia-Declr at 5/17-19. 9 UF-9: While those who attended the 9 21 fraternity-ceremony were offered a single ceremonial toast (a shot of 22 alcohol), no one was required to 23 consume the toast (Garcia, as an example, declined the toast without 24 consequence) – and if anyone required 25 Beletsis to consume the toast, it was done without Garcia’s knowledge or 26 approval. 27 Garcia-Declr at 5/22-25. 28 MSJ/MSA STATEMENT OF UNDISPUTED FACTS 10 1 10 UF-10: The fraternity-ceremony did not 10 involve any ritual hazing or forced 2 alcohol/drug use – and if anyone 3 engaged in hazing, forced alcohol/drug consumption, or any dangerous 4 ritual/act, it was carried out without 5 Garcia’s knowledge or approval. 6 Garcia-Declr at 5/21-6/1. 11 UF-11: With respect to the fraternity- 11 7 ceremony – and without reference to the 8 voluntary ceremonial toast – Garcia did not approve, plan, direct, or in any way 9 effect or carry out hazing, forced alcohol/drug use, or any dangerous 10 ritual/act. 11 Garcia-Declr at 6/1-4. Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 12 UF-12: Other than the ceremonial toast, 12 Garcia did not see Beletsis handle or 13 www.gclitigation.com consume alcohol at the fraternity- 14 ceremony. 15 Garcia-Declr at 6/3-5. 16 13 UF-13: Drugs were not part of the 13 fraternity-ceremony, and Garcia did not 17 see anyone handle or consume drugs at the fraternity-ceremony. 18 19 Garcia-Declr at 6/6-7. 14 UF-14: Garcia did not transport or 14 20 accompany Beletsis to the fraternity- party. 21 22 Garcia-Declr at 6/6-8. 15 UF-15: Garcia saw Beletsis at the 15 23 fraternity-party but he did not form a consequent impression that Beletsis was 24 intoxicated or otherwise impaired. 25 Garcia-Declr at 6/8-23. 26 27 28 MSJ/MSA STATEMENT OF UNDISPUTED FACTS 11 1 16 UF-16: Garcia’s only interaction with 16 Beletsis at the fraternity-party happened 2 about 30-60 minutes before Beletsis fell, 3 and at that time Beletsis was not slurring his words, was not incoherent, was not 4 mentally unstable, was not physically 5 unstable, was not panicky, was not clearly intoxicated, was not 6 incapacitated, and was not otherwise in a state that led Garcia to believe Beletsis 7 needed any form of help. 8 Garcia-Declr at 6/11-7/3. 9 17 UF-17: Garcia did not direct or 17 accompany Beletsis to any bathroom 10 during the course of the fraternity-party. 11 Garcia-Declr at 6/23-27. Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 18 UF-18: Garcia has no knowledge of the 18 circumstances that led Beletsis to enter 13 www.gclitigation.com an upstairs bathroom during the course 14 of the fraternity-party. 15 Garcia-Declr at 6/27-28. 16 19 UF-19: At all times during the course of 19 the fraternity-party, Garcia was 17 downstairs. 18 Garcia-Declr at 6/24-25. 19 20 UF-20: With respect to the events of 20 June 2, 2018, Beletsis acted independent 20 of Garcia. 21 Garcia-Declr at 7/6-9. 22 21 UF-21: With respect to the events of 21 23 June 2, 2018, Garcia did not participate in any hazing or misconduct or 24 dangerous act directed at Beletsis (or 25 anyone else). 26 Garcia-Declr at 7/9-11. 27 28 MSJ/MSA STATEMENT OF UNDISPUTED FACTS 12 1 22 UF-22: With respect to the events of 22 June 2, 2018, Garcia was not aware of 2 any hazing or misconduct or dangerous 3 act directed at Beletsis (or anyone else). 4 Garcia-Declr at 7/12-14. 5 23 UF-23: With respect to the events of 23 June 2, 2018, Garcia never saw anyone 6 give cocaine or any other drug to Beletsis. 7 8 Garcia-Declr at 7/14-16. 24 UF-24: With respect to the events of 24 9 June 2, 2018, Garcia never saw Beletsis in an incapacitated state or in need of 10 help. 11 Garcia-Declr at 7/17-19. Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 25 UF-25: Garcia never provided Beletsis 25 with alcohol or drugs. 13 www.gclitigation.com 14 Garcia-Declr at 7/20. 26 UF-26: Garcia did not take part in any 26 15 “lies and obstruction… to uncover the 16 truth about illegal and dangerous conduct taking place at… [Defendant- 17 Chapter].” 18 Garcia-Declr at 7/22-8/2. 19 27 UF-27: Garcia did not know of any 27 fraternity-sanctioned use or sale of 20 cocaine or any other drug. 21 Garcia-Declr at 8/2. 22 28 UF-28: Garcia did not observe anyone 28 force Beletsis to consume alcohol/drugs 23 at the June 2, 2018, fraternity events. 24 Garcia-Declr at 8/3-5. 25 29 UF-29: Garcia did not have knowledge 29 of anyone engaging in hazing or 26 alcohol/drug misconduct at the June 2, 27 2018, fraternity events. 28 Garcia-Declr at 8/6-7. MSJ/MSA STATEMENT OF UNDISPUTED FACTS 13 1 30 UF-30: The individuals named as 30 Defendants in this case were all college 2 students and 18-years old or older on 3 June 2, 2018. 4 Garcia-Declr at 8/8-17. 5 31 UF-31: Garcia did not hold legal 31 authority to restrain anyone (including 6 Beletsis and fraternity-defendants) who attended the June 2, 2018, fraternity 7 events. 8 Garcia-Declr at 8/13-17. 9 32 UF-32: Beletsis was a college student 32 and 18-years old or older on June 2, 10 2018. 11 Garcia-Declr at 8/11-14; Hunter-Declr Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 at 8/15-9/26. 33 UF-33: Beletsis was not a helpless 33 13 www.gclitigation.com individual – he was a competent and 14 independent college student. 15 Garcia-Declr at 8/18-24; Hunter-Declr 16 at 6/25-7/7 (citing SPROG-122 response). 17 34 UF-34: Beletsis, like all of the 34 fraternity-members, was not required to 18 consume alcohol/drugs or to participate 19 in the fraternity-based aspects of the June 2, 2018, events – and if anyone 20 required Beletsis to consume alcohol/drugs or participate in the 21 fraternity-based aspects of the June 2, 22 2018, events, it was done without Garcia’s knowledge or approval. 23 Garcia-Declr at 5/8-12. 24 35 UF-35: Garcia did not take charge of, or 35 25 exercise authority over, Beletsis or any fraternity-defendants during the course 26 of the June 2, 2018, fraternity events. 27 Garcia-Declr at 8/19-22. 28 MSJ/MSA STATEMENT OF UNDISPUTED FACTS 14 1 36 UF-36: Garcia was not a fraternity 36 officer on June 2, 2018. 2 3 Garcia-Declr at 8/22. 37 UF-37: Garcia held no fraternity 37 4 leadership position on June 2, 2018. 5 Garcia-Declr at 8/22-23. 6 38 UF-38: While Garcia was a fraternity 38 officer and held a fraternity leadership 7 position before June 2, 2018, his 8 officer/leader roles ended in December 2017. 9 Garcia-Declr at 2/1-3/19. 10 39 UF-39: Garcia graduated from UC Santa 39 11 Cruz on June 16, 2018. Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 Garcia-Declr at 2/2. 13 40 UF-40: Unlike Garcia, Beletsis held a 40 www.gclitigation.com fraternity leadership position on June 2, 14 2018. 15 Garcia-Declr at 8/23-27. 16 41 UF-41: No one authorized Garcia to 41 represent them in any June 2, 2018, 17 dealings. 18 Garcia-Declr at 8/27-28. 19 42 UF-42: Garcia was not working for 42 anyone, nor was he under the control of 20 anyone, relative to the June 2, 2018, events. 21 22 Garcia-Declr at 8/28-9/1. 43 UF-43: Garcia was not an employee, 43 23 manager, director, trustee, or officer, of any person or entity relative to the June 24 2, 2018, events. 25 Garcia-Declr at 9/1-2. 26 27 28 MSJ/MSA STATEMENT OF UNDISPUTED FACTS 15 1 44 UF-44: Garcia has never been an 44 officer, director, shareholder, or 2 controlling member of any corporate 3 party – and he has never used any corporate structure to avoid liability or 4 to harm anyone’s interest. 5 Garcia-Declr at 9/2-5. 6 45 UF-45: Garcia engaged in no plan to 45 harm Plaintiffs/Beletsis – and he had no 7 knowledge of any such plan. 8 Garcia-Declr at 9/5-6. 9 46 UF-46: Garcia engaged in no plan to 46 carry out hazing or dangerous 10 alcohol/drug misconduct relative to the 11 June 2, 2018, events – and he had no knowledge of any such plan. Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 Garcia-Declr at 9/6-8. 13 www.gclitigation.com 47 UF-47: Garcia was not in a for profit 47 14 business relationship with any of the parties in this case. 15 16 Garcia-Declr at 9/8-10. 48 UF-48: Garcia did not authorize anyone 48 17 to act as his agent relative to the events of June 2, 2018. 18 19 Garcia-Declr at 9/9-11. 49 UF-49: Garcia did not approve or adopt 49 20 as his own any third-party act that happened on June 2, 2018. 21 22 Garcia-Declr at 9/11. 50 UF-50: Garcia did not expressly assume 50 23 liability for any alleged acts, omissions, or harm. 24 25 Garcia-Declr at 9/11-13. 51 UF-51: Garcia did not engage in hazing 51 26 or forced alcohol/drug consumption 27 directed at Beletsis. 28 Garcia-Declr at 9/14-18. MSJ/MSA STATEMENT OF UNDISPUTED FACTS 16 1 52 UF-52: Garcia did not entrust anyone 52 with a means to haze or force Beletsis to 2 consume alcohol/drugs. 3 Garcia-Declr at 9/14-18. 4 53 UF-53: Garcia did approve, participate 53 5 in, or have knowledge of hazing or forced alcohol/drug consumption 6 directed at Beletsis. 7 Garcia-Declr at 9/14-18. 8 ISSUE NO. 2: The Second Cause of Action for Negligence lacks merit because one or more 9 essential elements of the cause of action cannot be established or there is a complete defense. (UF-1 thru UF-53) 10 11 Moving Party’s Undisputed Material Facts Opposing Party’s Response and Supporting and Supporting Evidence: Evidence: Attorneys at Law – San Jose ∆ California GAVIN CUNNINGHAM & HUNTER 12 1 UF-1: The catastrophic injury that led to 1 13 Beletsis’ hospitalization, death, and www.gclitigation.com 14 related economic loss happened on June 2, 2018. 15 Garcia-Declr, dated 05-28-21, at 5/1-5; 16 Hunter-Declr, dated 06-01-21, at 5/1-7; 17 Plaintiffs’ first amended complaint (“FAC”) at ¶84-¶86.