Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Cruz
8/17/2021 2:38 PM
Norman L. Chong (SBN 1 1 143 6)
NChong@t021aw.com Alex Calvo, Clerk
Joseph D. O’Neil (SBN 226806) joneil@t021aw.com By: Sarah DeClue, Deputy
TARKINGTON, O’NEILL, BARRACK & CHONG
A Professional Corporation
201 Mission Street, Suite 710
San Francisco, CA 94105
Telephone: (415) 777-5501
Facsimile: (41 5) 546-4962
Attorneys for Defendants
NAJPREET SINGH KAHLON
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF ALAMEDA
DAPHNE BELETSIS, individually, and as Case No. 19CV03287
Administrator of the ESTATE OF
ALEXANDER BELETSIS, et a1.,
MEMORANDUM OF POINTS AND
Plaintiffs,
AUTHORITIES IN SUPPORT OF
NAJPREET SINGH KAHLON’S
V. MOTION FOR SUMMARY
ADJUDICATION AND/OR
THETA CHI FRATERNITY, lNC., a New SUMMARY JUDGMENT
York corporation, individually, as a member of
and t/a the Theta Iota Chapter, University of
C.C.P. § 473C
California, Santa Cruz, as a member of the
fraternal order known as Theta Chi Fraternity; Hearing Date: November 8, 2021
et al., Time: 8:30 am
Dept: 10
Defendants.
The Honorable John Gallagher,
presiding
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Table of Contents
i
3
Table of Contents i
I. INTRODUCTION AND SUMMARY OF ARGUMENT 3
4
II. FACTS ALLEGED IN FIRST AMENDED COMPLAINT 5
5
III. LEGAL AUTHORITY AND ARGUMENT 7
6 A. Standard on Summary Adjudication and Summary Judgment 7
7 B. No Duty 8
8
C. Agents Are not Automatically Personally Liable 10
D. Conclusions in a Report are Hearsay 11
9
ARGUMENT 12
10
CONCLUSION 14
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A BELETSIs V. THETA CHI FRATERNITY, INC, i CASE No. 19CV03287
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Table of Authorities
Cases
Central Mut. Inc. C0. v. Schmidt (1957) 152 Cal.App.2d 67 10
Doe v. Regents 0f University ofCalifornia (2018) 28 Ca1.App.5th 44 8
Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360 9
Lopez v. City ofLos Angeles (201 1) 196 Ca1.App.4‘h 675 6
Lowe v. California League ofProf. Baseball (1997) 56 Cal. App. 4th 112 6
Martinez v. Bank ofAmerica (2000) 82 Ca1.App.4th 883 9, 10
People v. Sanchez (2016) 63 Cal.4‘ 655 11, 12
Pescosolido v. Maddock (1985) 172 Ca1.App.3d 230 11
Reynolds v. Bement (2005) 36 Ca1.4‘h 1075 11
Roberts v. Permanente Corp (1961) 188 Cal.App.2d 526 11
Rowland v. Christian (1968) 69 Ca1.2d 108 9
Statutes
Cal. Code Regs title 5 § 41301 8
California Code of Civil Procedure Section 473C 7, 8
Rules
CACI 400 9
28
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TARIuNGTON,
O’NEILL, BARRACK
& CHONG
BELETSIS V. THETA C1-11 FRATERNITY, INC.
A meassinnal Corporation ii CASE No. 19CV03287
201 MISSION STREET,
SUITE 710 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KAHLON’S MOTION FOR SUMMARY
SAN FRANCISCO, CA 94105
Tnluphom 1‘15) 777-5501
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ADJUDICATION AND/ 0R SUMMARY JUDGMENT
I. INTRODUCTION AND SUMMARY OF ARGUMENT
Alex Beletsis (“Alex”) had a tragic accident on June 2, 201 8, but Defendant Najpreet
Singh Kahlon (“Naj”) was not responsible for “wrongil death” merely because he was the
treasurer of Theta Chi’s local UC Santa Cruz chapter. Despite what the operative First Amended
complaint falsely alleges, Alex was not being hazed at the time ofhis death; he was a full
member of Theta Chi and had been since the Fall of 2017. (Defendant Najpreet Singh Kahlon’s
Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment,
or in the Alternative, Summary Adjudication, [hereafter referred to as “UMF”] number 4.)
What actually occurred on June 2, 201 8, is very different from what the First Amended
Complaint alleges. There was a “crossing ceremony” at the property at 636 Market Street, Santa
Cruz (“Market Property”) to induct new members into Theta Chi. (UMF 2.) Naj did not live at
the Market Property. (UMF 1.) Naj did not purchase or provide alcohol or drugs to Alex at any
time, as Naj himself was also underage. (UMF 5.) In fact, Alex had a cocaine dealer and a fake
ID, which he had used to purchase alcohol despite being underage. (UMF 6.) Naj did participate
in the “crossing ceremony” at the Market Property on June 2, 201 8, but le with his friend
Jordan Takayama before its conclusion. (UMF 7.)
After the “crossing ceremony” Alex traveled with his friends Leon Burns and Miguel
Saldivar to another party at 511 Broadway, Santa Cruz (“Broadway Property”). UMF 3. Naj did
not arrive at the Broadway Property until after Alex’s accident. (UMF 8.) Alex purchased the
cocaine that he used on June 2, 201 8. (UMF 9.) Alex also voluntarily drank alcohol at both the
crossing ceremony at the Market Property, as well as at the Broadway Property. (UMF 10.)
Alex had a history of drinking and liked to drink. (Id)
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Law
TARKINGTON,
O’NEILL, BARRACK
& CHONG
BELETSIs v. THETA CH1 FRATERNrrY, INC.
A Profassional Corponlion 3 CASE No. 19CV03287
201 MISSION STREET,
SUnE 710 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KAHLON’s MOTION FOR SUMMARY
CA 94105
SAN FRANCISCO,
Telqalwn: [415) 777-5501
Flcsimilc (05) 546-4962
ADJUDICATION AND/ OR SUMMARY JUDGMENT
Theta Chi’s local chapter did not require or pressure underage members to drink or do
drugs, and in fact some members abstained Without consequences. (UMF 11.) Neither was Alex
particularly susceptible to peer pressure. (Id.) The fact is that Alex liked to drink and do cocaine
and had done both on several occasions prior to June 2, 201 8. (UMF 12.)
Naj was only the treasurer at Theta Chi’s local University of California, Santa Cruz
(“UCSC”) chapter and had very limited duties and responsibilities. (UMF 13.) Naj had no
authority or duty to enforce public safety at Theta Chi’s local UCSC chapter, nor was he required
to intervene to stop Alex’s drug use. (UMF l3.) After Alex’s accident, Naj fully cooperated
with UCSC’S investigation. (UMF 14.) There are no specic ndings by UCSC or any other
entity that determined Naj did anything wrong, either individually or as treasurer of Theta Chi
that led to Alex’s death. (UMF 15.)
At no point did Naj participate in any alleged ‘illegal hazing’ at Theta Chi’s local UCSC
chapter. (UMF 16.) Even though the First Amended Complaint states that Theta Chi
participated in something called “Three Deadly Nights”, no Witness in this case has testied that
this was a phrase used by Theta Chi’s local UCSC chapter, and in fact every Witness deposed
thus far that has been asked has known nothing about this. (UMF 17.)
The bottom line to Defendant Naj’s Motion for Summary Judgment is this: Naj is not
liable for Alex’s death simply because he was treasurer of Theta Chi’s local UCSC chapter.
Although the First Amended Complaint makes mention of several UCSC ‘rules’ and ‘student
policies’ that were allegedly violated by Theta Chi, these do not provide Plaintiffs with a private
cause of action. The First Amended Complaint largely rests on principles of Negligence,
which requires both duty and causation, both of which are totally lacking with respect to
Defendant Naj. It appears that Defendant Naj has been named as a Defendant solely because he
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was an ofcer of Theta Chi, which amounts to a theory of collective guilt. This is much the
TARKINGTON,
O'NEILL, BARRACK
& CHONG
BELETSIS v. THETA CHI FRATERNITY, INC.
A Professional Corpomtion 4 CASE N0. 19CV03287
201 Missmn STREET,
Sum 7 l 0 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F DEFENDANT KAHLON’s MOTION FOR SUMMARY
SAN FRANCISCO, CA 94105
mama»: (41$) 717—ssm
Fmimile (415) swam
ADJUDICATION AND/ OR SUMMARY JUDGMENT
same issue as co-defendant Rafael Garcia’s recent Motion for Summary Judgment, except
the case against Naj is even weaker as Naj was not even at the Broadway Property during
Alex’s accident on June 2, 2018.
Plaintiffs’ theory of liability against Naj appears to be a theory of strict liability; that an
‘agent’ of Theta Chi is strictly liable for everything Theta Chi allegedly does. Another theory
appears to be that Naj had some ‘special relationship” to Alex, even though both men were under
21, and Naj’s principal duties as treasurer was to collect membership dues and balance the Theta
Chi budget. (UMF 13.) The evidence thus far has shown Alex never asked Naj for help (nor did
he ask anyone for help). The evidence actually indicates Alex liked to drink and do drugs, and
had at least one cocaine dealer, and that he obtained his cocaine from sources outside Theta Chi.
(UMF 12.)
Plaintiffs’ principal ‘evidence’ is a report from Jose Sanchez at UCSF, blaming Theta
Chi
for Alex’s death. However, this report is not accurate in several important ways, as Mr. Sanchez
was denitely not a neutral investigator. (UMF 18.) However, even Mr. Sanchez acknowledged
that Alex was not being hazed at the time of his death and had nothing to say about Naj. (Id.)
II. FACTS ALLEGED IN FIRST AMENDED COMPLAINT
In paragraph 35 of the First Amended Complaint (“FAC”) Defendant Naj is correctly
listed as the treasurer of Theta Chi’s local UCSC chapter, but that is about the only thing that is
accurate. Allegedly Naj “furnished alcohol to Alex at his residence of 511 Broadway, Santa
Cruz, knowing that Alex was under 21 years of age, which was a substantial factor in causing
Alex’s death.” Naj supposedly “authorized, requested, commanded, participated in, or ratied
the hazing and/or subsequent misconduct involving Alex’s incapacity and the failure to act
reasonably to prevent his death.” However, when Plaintiffs were served written discovery by
Naj they could cite no actual facts to support these contentions. (UMF 19.)
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TARKINGTON,
O’NEILL, BARRACK
& CHONG
BELETSIS v. THETA CHI FRATERNITY, INC.
A Profasioml Corporation 5 CASE N0. 19CV03287
201 MISSION STREET,
SUITE 710 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KAHLON’S MOTION FOR SUMMARY
SAN FRANCISCO, CA 94105
1319mm”) 777-5501
hum1e(415)s46.4962
ADIUDICATION AND/ OR SUMMARY JUDGMENT
In ruling on a motion for summary judgment or summary adjudication, “the rst step is
an analysis of the pleadings, i.e., the complaint and answer including any afrmative defenses
that may be contained therein.” Lowe v. California League ofProf Baseball (l 997) 56 Cal. App.
4th 112, 122. “The pleadings dene the issues t0 be considered...” (Id.)
There are no other allegations specic to Naj in the FAC.
Naj is a defendant in several causes of action in the FAC as both an “Ofcer Defendant”
and “House Resident Defendant” and “Individual Defendant”; (First Cause of Action) Survival
and Wrongil Death/Negligence, (Second Cause of Action) Survival and Wrongll
10 Death/Negligence; (Fourth Cause of Action) Survival and Wrongful Death/Breach of Assumed
11
Duties; (Fifth Cause of Action) Survival and Wrongful Death/Breach of Duty to Prevent Harm;
12 (Sixth Cause of Action) Survival and Wrongful Death/Social Host Liability for Provision of
13
Alcohol to Person Under 21 Years of Age. Obviously, all of these Causes of Action against
14 Naj are the same, just different theories of negligence involving wrongful death.
15 Clearly, these are all varieties of negligence involving wrongful death. The elements of a
16 cause of action for wrongful death are a tort, such as negligence, and resulting death. See Lopez
17 v. City ofLos Angeles (201 l) 196 Cal.App.4th 675, 685. The elements of a negligence cause of
18 action are duty to use due care and breach of duty, which proximately causes injury. (Id.)
19
20 The actual facts of the case do not match the pleadings.
21
22 did not live at the Market Street house.
First, Naj (UMF l.)
23
Second, Alex was not being hazed he was already a full member of Theta Chi on June 2,
24 2018. (UMF 4.)
25
Third, Naj did not ‘furnish’ alcohol (or cocaine) to Alex. (UMF 3.)
26
Fourth, Naj was at the “crossing ceremony” at the Market Street house but left with
27
Jordan Takayama before its conclusion. (UMF 5.)
28
hw Ofces Fifth, Naj did not arrive at the Broadway house until AFTER Alex’s accident. (UMF 8.)
TARKINGTON,
O’NEILL, BARRACK
& CHONG
BELETSIs V. THETA CHI FRATERNITY, INC.
A memsional Corpomlion 6 CASE N0. 19CV03287
201 MISSION STREET,
SUITE 710 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F DEFENDANT KAHLON’S MOTION FOR SUMMARY
SAN FRANCISCO. CA 94105
Telq;han=(415) 777-5501
Fucsimile (115)546-4962
ADJUDICATION AND/ 0R SUMMARY JUDGMENT
Sixth, Alex purchased the cocaine that led t0 his death from a source outside of Theta
Chi. (UMF 6, 9.)
Seventh, while alcohol was available at Theta Chi events nobody ‘forced’ or pressured
Alex to drink, and in fact there were ‘dry’ members of Theta Chi. (UMF 11.) Certainly, Naj
never lmished alcohol or drugs to Alex. (UMF 5.) Alex appears to have voluntarily used
alcohol and cocaine on the day of his death, and in fact had done both on several prior occasions.
(UMF 9, 10, 12.)
Eighth, Naj was merely the treasurer at Theta Chi and his duties were mostly related to
budgeting and collecting dues. (UMF 13.) There is no evidence Naj failed to fully cooperate
with the University of Santa Cruz’s investigation of Alex’s death, participated in any alleged
illegal hazing, or knew anything about the alleged “three deadly nights” referenced in the First
Amended Complaint. (UMF 14-17.)
Plaintiffs provided completely specious and evasive answers to Naj’s written discovery,
stating only contentions in the First Amended Complaint With no facts specic to Naj. (UMF
19.)
III. LEGAL AUTHORITY AND ARGUMENT
A. Standard on Summary Adjudication and Summary Judgment
In order to succeed on a motion for summary adjudication under California Code of Civil
Procedure Section 473 c, that moving party must show:
..
.[O]ne or more causes of action within an action, one or more afrmative
defenses, one or more claims for damages, or one or more issues of duty. ..
has no merit, that there is no afrmative defense to the cause of action, that
there is no merit to an afrmative defense as to any cause of action, that
there is no merit to a claim for damages, as specied in Section 3294 of the
Civil Code, or that one or more defendants either owed or did not owe a
duty to the plaintiff or plaintiffs. A motion for summary adjudication shall
be granted only if it completely disposes of a cause of action, an afrmative
defense, a claim for damages, 0r an issue of duty.
Cal Code Civ Proc § 437c.(f)(1)
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TARKINGTON,
O’NEILL, BARRACK Further, under Cal Code Civ Proc § 437C (f)(2):
& CHONG
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Carpomion BELETSIS V. THETA CHI FRATERNITY, INC. 7 CASE No. 19CV03287
201 MissInN STREE'I,
SUITE 7 10 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KAHLON’ s MOTION FOR SUMMARY
SAN FRANCISCO, CA 94105
Telephunc(415)777.5501
l-‘mimi1=(4|5)546-4962
ADJUDICATION AND/ 0R SUMMARY JUDGMENT
A motion for summary adjudication may be made by itself 0r as an
alternative to a motion for summary judgment and shall proceed in all
procedural respects as a motion for summary judgment.
Code Civ Proc § 437c.(c) provides:
The motion for summary judgment shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.
B. No Duty
The FAC discusses the “Bylaws of the Theta Chi Fraternity” in paragraph 47 and 77. It
also discusses the Standards for Student Conduct at the University of California System
allegedly Cal. Code Regs title 5 § 41301 (2012) abbreviated as the “Standards for Student
Conduct”) in paragraph 78. Neither are attached to the FAC.
However, neither of these things provide Plaintiffs a private cause ofactz'on against Naj.
A University’s ‘code of conduct’ can subj ect a student t0 disciplinary action, but in cases
where due process is violated a student has the right to appeal. See Doe v. Regents of University
ofCalifornia (2018) 28 Cal.App.5th 44, 46, overturning a UCSB hearing to suspend a student for
violating the university’s code of conduct (alleged sexual misconduct). The decision was
reversed as the defendant was denied access to critical evidence; denied the opportunity to
critically cross—examine witnesses and denied the opportunity to present evidence in his defense.
(Id.)1 In Doe, UCSB was found to have violated its own student conduct codes in not affording
due process to the accused:
It is ironic that an institution of higher learning, where American history and
government are taught, should stray so far from the principles that underlie our
democracy. This case turned on the Committee’s determination of the credibility
of a witness. Credibility cannot be properly decided until the accused is given the
opportunity t0 adequately respond to the accusation. The lack of due process in
the hearing precluded a fair evaluation of the witnesses’ credibility. (Id at 61 .)
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Of course, Naj was not found to have violated UCSC’s code of conduct.
& CHONG
BELETSIS v. THETA CHI FRATERNITY, INC.
A memsional Corporation 8 CASE N0. 19CV03287
20l MISSION STREET,
SUITE 710 MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT OF DEFENDANT KAHLON’S MOTION FOR SUMMARY
SAN FRANCISCU, CA 94105
Telephone (415) 77775501
r-uzmne(4ls)m.m:
ADJUDICATION AND/ 0R SUMMARY JUDGMENT
The regulation cited in the FAC is California Code of Regulations Title 5 “Education”,
Division 5 “Board of Trustees of the California State University”, Chapter 1 “California State
University”, Subchapter 4 “Student Affairs”, Article 2 “Student Conduct” § 41301 “Standards
for Student Conduct”. However, the FAC ignores the remedies provided for violations of §
41301 which is 41302 “Disposition of Fees: Campus Emergency; Interim Suspension” which
states that the “President of the campus may place on probation, suspension, or expel a student
for one or more of the causes enumerated in Section 41301 .”
For a private cause of action to arise from a statute there must be some enabling
legislation that permits a private cause of action. See Julian v. Mission Community Hospital
(2017) 11 Ca1.App.5th 360:
A violation of a state statute does not necessarily give rise to a private cause of
action. Instead, Whether a party has a right to sue depends on whether the
Legislature has ‘manifested an intent to create such private causes of action’
under the statute. Such legislative intent, if any, is revealed through the language
of the statute and its legislative history. (Lu v. Hawaiian Gardens Casino, Inc.
(2010) 50 Cal.5‘h 592, 596; See Noe, supra, 237 Cal.App.4th at p336). (Id at 378-
379.)
Thus, it’s unequivocally clear that all of the alleged ‘violations’ of UCSC’s student
code of conduct are totally irrelevant as they do not create a private cause of action for
plaintiffs.
Thus, the issue of ‘duty’ for Naj rests on the general duty to avoid doing harm as
described in CACI 400 and Rowland v. Christian (1968) 69 Cal.2d 108, and not some
convoluted deep dive into UCSC’s student code of conduct, Theta Chi’s bylaws, or any other
random nonsense stated in the FA C.
In Martinez v. Bank ofAmerica (2000) 82 Cal.App.4‘h 883, a bank which owned a
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TARKINGTON,
O‘NEILL, BARRACK
& CHONG
particular piece of property and was in the process of evicting the former owners was sued for
BELETSIs V. TI-IETA CHI FRATERNIrY, INC.
A Professional Coxpnmlion 9 CASE No. 19CV03287
ZlMISSION STREET,
SUITE 710 MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F DEFENDANT KAHLON’ s MOTION FOR SUMMARY
SAN FRANCISCO, CA 94105
Talzphmc (415) 777-55!"
mam; (4135464952 ADJUDICATION AND/ OR SUMMARY JUDGMENT
wrongful death when a child entered the property and was killed by the former owner’s dog. Id at
886. The court found the bank was entitled to summary judgment as there was no triable issue of
fact regarding whether the bank had actual knowledge of the dangerous condition of the
property. Id at 887. The court further found that the former owners’ possession meant the bank
did not have the authority, ability, or power to repair defects on the property. Id. Because of this
lack of knowledge and power and based on the factors in Rowland v. Christian (1968) 69 Ca1.2d
108, the court found the bank owed no duty to plaintiffs. (Id.)
A defendant moving for summary judgment may disprove at least one essential element
of the plaintiffs cause of action or show that plaintiff cannot establish an element of the cause of
action. Once the moving party has met that burden, the opposing party bears the burden of
presenting evidence that there is a triable issue of fact as to any essential element of a cause of
action. (Id at 887-888.)
C. Agents Are not Automatically Personally Liable
Although it is not directly stated in the FAC, plaintiffs’ theory of liability against Naj and
and other “Officer Defendants” is that every ofcer of Theta Chi is responsible for every tort
committed by Theta Chi. This is essentially a “collective guilt” theory of liability, that an agent
is automatically personally liable for everything his organization does. This is not the law.
From Central Mut. Inc. Co. v. Schmidt (1957) 152 Cal.App.2d 671, 675:
While it is true, of course, that directors and ofcers of a corporation are equally
liable with the corporation for its torts in which they participate, it is equally true
that if they do not participate therein, and if they are guilty of no culpable
negligence in allowing the commission of the wronng acts, they are not liable.
Of course, an agent is personally liable for his own tortious acts committed in course and
scope of his agency or even at the direction of his principal. Pescosolido v. Maddock (1985) 172
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TARKINGTON,
Cal.App.3d 230, 233 citing Civil Code § 2343(3). Directors and ofcers of corporations do not
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BELETSIS v. THETA CH1 FRATERNITY, INC.
A memsional Curpomlion 10 CASE No. 19CVO3287
20] MISSION STREET,
Sl UTE 7 1 I] MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F DEFENDANT KAHLON’S MOTION FOR SUMMARY
CA
SAN FRANCISCO,
94105
Tclqmommsnn-ssm
Fmimjla (4 15) 5464962
ADJUDICATION AND/ 0R SUMMARY JUDGMENT
incur personal liability for torts of the corporation merely by reason of their ofcial position.
Reynolds v. Bement (2005) 36 Cal.4th 1075, 1087. In Reynolds, the California Supreme Court
stated an ofcer of a corporation who merely “exercises control” over an employee’s wages,
hours, or working conditions could not be held personally liable for recovery of the unpaid
balance of the full amount of minimum wages. (Id.)
Accordingly, in order for personal liability for “wrongful death” to attach to Naj,
Plaintiffs must do more than simply state he was an ‘ofcer’ of Theta Chi’s local chapter. They
have to demonstrate Naj ’s had some kind of duty to Alex to stop him from drinking and doing
cocaine, and then allege that Naj ’s negligence was a substantial factor in causing Alex’s death.
D. Conclusions in a Report are Hearsay
From Roberts v. Permanente Corp (1961) 188 Cal.App.2d 526, 532, a report containing
conclusions and opinions from the Santa Clara County Health Department was deemed
inadmissible hearsay. The report contained conclusions about quarry dust vs cement dust. The
report was found to not be a public record because a public record must be made by an ofcial
pursuant to government duty. (Id.) As it was not the duty of the county health department to
investigate air pollution or report its ndings pursuant to its investigation, it was not a public
record. (Id.)
Further, the ‘report’ from Jose Sanchez is based on interviews with members of Theta
Chi, and is clearly not personal knowledge, and accordingly is inadmissible under People v.
Sanchez (2016) 63 Cal.4‘h 655, see People v. McVey (2018) 24 Cal.App.5th 505, 536 p8, where a
police report was inadmissible hearsay under Sanchez. People v. Sanchez is of course a case
where the California Supreme Court sets the standard for the admissibility of expert opinion.
While an expert is not restricted like a lay witness to matters of personal opinion, an expert may
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not simply repeat so called “case specic facts” which the expert has no independent knowledge.
(Id. at 676.)
Case-specic facts are those relating to the particular events and participants
alleged to have been involved in the case being tried. Generally, parties try to
establish the facts on which the theory of the case depends by calling witnesses
with personal knowledge of those case-specic facts. An expert may then testify
about more generalized information to help jurors understand the signicance of
those case-specic facts. An expert is also allowed to give an opinion about What
those facts may mean. The expert is generally not permitted, however, to supply
case-specic facts about which he has no personal knowledge.” (Id)
Accordingly, the report from Jose Sanchez cannot be used to create a triable issue of fact
10
by ‘contradicting’ the testimony of actual witnesses with personal knowledge. Such a use of the
11
12 report is not permitted under Sanchez.
13
14
There is no dispute Alex was severely impaired with both alcohol and cocaine on the day
15
16
of his accident on June 2, 201 8. Unfortunately, as stated above, Alex had a long-troubled past
17 with drugs and alcohol even before joining Theta Chi, including incidents at Santa Rosa High
18 School. (UMF 10, 12.)
19
Alex’s drug use continued at UCSC. At his student apartment (Parkman House) he
20
continued to get in trouble for drug use. (UMF 20.) On May 6, 201 8, less than a month before
21
his death he was caught smoking and drinking. (Id) There was a disciplinary proceeding set for
22
23 June 15, 2018, but of course Alex’s accident occurred prior to that. (1d.) There was apparently
24 another incident on May 5, 201 8, involving alcohol and drugs at Parkman as well, with a
25
disciplinary hearing on June 6, 201 8. (1d,) Parkman House is of course a UC Santa Cruz dorm
26
that is totally outside the authority of Theta Chi. (Id.) There were prior incidents as well that are
27
all detailed in (Id.)
28
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A meqsimal Corpomiun BELETSIs v. TI-IETA CHI FRATERNITY, INC. 12 CASE No. 19CV03287
201 MISSION STREET,
SUITE 710 MEMORANDUM 0F POINTS AND AUTHORIrIEs IN SUPPORT 0F DEFENDANT KAHLON’s MOTION FOR SUMMARY
SAN FRANCISCO, CA 94105
Telqmone(415)777.ssol
hmmIcuIsnw—wnz
ADJUDICATION AND/ OR SUMMARY JUDGMENT
not simply repeat s0 called “case specic facts” which the expert has no independent knowledge.
(Id. at 676.)
Case—specic facts are those relating to the particular events and participants
alleged to have been involved in the case being tiied. Generally, parties try to
establish the facts on which the theory of the case depends by calling witnesses
with personal knowledge of those case-specic facts. An expert may then testify
about more generalized information to help jurors understand the of
signicance
those case-specic facts. An expert is also allowed to give an opinion about what
those facts may mean. The expert is generally not permitted, however, to supply
case-specic facts about which he has no personal knowledge.” (Id.)
Accordingly, the report from Jose Sanchez cannot be used to create a triable issue of fact
10
by ‘contradicting’ the testimony of actual Witnesses with personal knowledge. Such a use of the
11
W
12 report is not permitted under Sanchez.
13
14
There is no dispute Alex was severely impaired with both alcohol and cocaine on the day
15
16
of his accident on June 2, 201 8. Unfortunately, as stated above, Alex had a long-troubled past
17 with drugs and alcohol even before joining Theta Chi, including incidents at Santa Rosa
High
18 School. (UMF 10, 12.)
19
Alex’s drug use continued at UCSC. At his student apartment (Parkman House) he
20
continued to get in trouble for drug use. (UMF 20.) On May 6, 201 8, less than a month before
21
his death he was caught smoking and drinking. (Id) There was a disciplinary proceeding set for
22
23 June 15, 201 8, but of course Alex’s accident occurred prior to that. (Id.)
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Cruz 8/17/2021 2:38 PM Norman L. Chong (SBN 1 1 143 6) NChong@t021aw.com Alex Calvo, Clerk Joseph D. O’Neil (SBN 226806) joneil@t021aw.com By: Sarah DeClue, Deputy TARKINGTON, O’NEILL, BARRACK & CHONG A Professional Corporation 201 Mission Street, Suite 710 San Francisco, CA 94105 Telephone: (415) 777-5501 Facsimile: (41 5) 546-4962 Attorneys for Defendants NAJPREET SINGH KAHLON SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA DAPHNE BELETSIS, individually, and as Case No. 19CV03287 Administrator of the ESTATE OF ALEXANDER BELETSIS, et a1., MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF NAJPREET SINGH KAHLON’S V. MOTION FOR SUMMARY ADJUDICATION AND/OR THETA CHI FRATERNITY, lNC., a New SUMMARY JUDGMENT York corporation, individually, as a member of and t/a the Theta Iota Chapter, University of C.C.P. § 473C California, Santa Cruz, as a member of the fraternal order known as Theta Chi Fraternity; Hearing Date: November 8, 2021 et al., Time: 8:30 am Dept: 10 Defendants. The Honorable John Gallagher, presiding lmv U'wcs TARKJNGTON, O’NEILL, BARRACK & CHONG A mesional Corpomu'nn BELETSIS v. THETA CH1 FRATERNITY, INC. CASE NO. 19CV03287 201 MBSXON S‘mEET, Sums 710 MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F DEFENDANT KAHLON” s MOTION FOR SUMMARY CA SAN FRANCISCO, 94105 Tglepmmusnnssm rmimuewsnw-waz ADIUDICATION AND/0R SUMMARY JUDGMENT Table of Contents i 3 Table of Contents i I. INTRODUCTION AND SUMMARY OF ARGUMENT 3 4 II. FACTS ALLEGED IN FIRST AMENDED COMPLAINT 5 5 III. LEGAL AUTHORITY AND ARGUMENT 7 6 A. Standard on Summary Adjudication and Summary Judgment 7 7 B. No Duty 8 8 C. Agents Are not Automatically Personally Liable 10 D. Conclusions in a Report are Hearsay 11 9 ARGUMENT 12 10 CONCLUSION 14 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A BELETSIs V. THETA CHI FRATERNITY, INC, i CASE No. 19CV03287 wafgggm MEMORANDUM 0F POINTS AND AUTHORITIES IN SUEPORT 0F DEFENDANT KAHLON’ s MOTION FOR SUMMARY Smmggggg 94105 Emsgg ADJUDICATION AND/ OR SUMMARY JUDGMENT Table of Authorities Cases Central Mut. Inc. C0. v. Schmidt (1957) 152 Cal.App.2d 67 10 Doe v. Regents 0f University ofCalifornia (2018) 28 Ca1.App.5th 44 8 Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360 9 Lopez v. City ofLos Angeles (201 1) 196 Ca1.App.4‘h 675 6 Lowe v. California League ofProf. Baseball (1997) 56 Cal. App. 4th 112 6 Martinez v. Bank ofAmerica (2000) 82 Ca1.App.4th 883 9, 10 People v. Sanchez (2016) 63 Cal.4‘ 655 11, 12 Pescosolido v. Maddock (1985) 172 Ca1.App.3d 230 11 Reynolds v. Bement (2005) 36 Ca1.4‘h 1075 11 Roberts v. Permanente Corp (1961) 188 Cal.App.2d 526 11 Rowland v. Christian (1968) 69 Ca1.2d 108 9 Statutes Cal. Code Regs title 5 § 41301 8 California Code of Civil Procedure Section 473C 7, 8 Rules CACI 400 9 28 [Aw Omen TARIuNGTON, O’NEILL, BARRACK & CHONG BELETSIS V. THETA C1-11 FRATERNITY, INC. A meassinnal Corporation ii CASE No. 19CV03287 201 MISSION STREET, SUITE 710 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KAHLON’S MOTION FOR SUMMARY SAN FRANCISCO, CA 94105 Tnluphom 1‘15) 777-5501 r.cnm|=(4|5)m-49sz ADJUDICATION AND/ 0R SUMMARY JUDGMENT I. INTRODUCTION AND SUMMARY OF ARGUMENT Alex Beletsis (“Alex”) had a tragic accident on June 2, 201 8, but Defendant Najpreet Singh Kahlon (“Naj”) was not responsible for “wrongil death” merely because he was the treasurer of Theta Chi’s local UC Santa Cruz chapter. Despite what the operative First Amended complaint falsely alleges, Alex was not being hazed at the time ofhis death; he was a full member of Theta Chi and had been since the Fall of 2017. (Defendant Najpreet Singh Kahlon’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the Alternative, Summary Adjudication, [hereafter referred to as “UMF”] number 4.) What actually occurred on June 2, 201 8, is very different from what the First Amended Complaint alleges. There was a “crossing ceremony” at the property at 636 Market Street, Santa Cruz (“Market Property”) to induct new members into Theta Chi. (UMF 2.) Naj did not live at the Market Property. (UMF 1.) Naj did not purchase or provide alcohol or drugs to Alex at any time, as Naj himself was also underage. (UMF 5.) In fact, Alex had a cocaine dealer and a fake ID, which he had used to purchase alcohol despite being underage. (UMF 6.) Naj did participate in the “crossing ceremony” at the Market Property on June 2, 201 8, but le with his friend Jordan Takayama before its conclusion. (UMF 7.) After the “crossing ceremony” Alex traveled with his friends Leon Burns and Miguel Saldivar to another party at 511 Broadway, Santa Cruz (“Broadway Property”). UMF 3. Naj did not arrive at the Broadway Property until after Alex’s accident. (UMF 8.) Alex purchased the cocaine that he used on June 2, 201 8. (UMF 9.) Alex also voluntarily drank alcohol at both the crossing ceremony at the Market Property, as well as at the Broadway Property. (UMF 10.) Alex had a history of drinking and liked to drink. (Id) umm Law TARKINGTON, O’NEILL, BARRACK & CHONG BELETSIs v. THETA CH1 FRATERNrrY, INC. A Profassional Corponlion 3 CASE No. 19CV03287 201 MISSION STREET, SUnE 710 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KAHLON’s MOTION FOR SUMMARY CA 94105 SAN FRANCISCO, Telqalwn: [415) 777-5501 Flcsimilc (05) 546-4962 ADJUDICATION AND/ OR SUMMARY JUDGMENT Theta Chi’s local chapter did not require or pressure underage members to drink or do drugs, and in fact some members abstained Without consequences. (UMF 11.) Neither was Alex particularly susceptible to peer pressure. (Id.) The fact is that Alex liked to drink and do cocaine and had done both on several occasions prior to June 2, 201 8. (UMF 12.) Naj was only the treasurer at Theta Chi’s local University of California, Santa Cruz (“UCSC”) chapter and had very limited duties and responsibilities. (UMF 13.) Naj had no authority or duty to enforce public safety at Theta Chi’s local UCSC chapter, nor was he required to intervene to stop Alex’s drug use. (UMF l3.) After Alex’s accident, Naj fully cooperated with UCSC’S investigation. (UMF 14.) There are no specic ndings by UCSC or any other entity that determined Naj did anything wrong, either individually or as treasurer of Theta Chi that led to Alex’s death. (UMF 15.) At no point did Naj participate in any alleged ‘illegal hazing’ at Theta Chi’s local UCSC chapter. (UMF 16.) Even though the First Amended Complaint states that Theta Chi participated in something called “Three Deadly Nights”, no Witness in this case has testied that this was a phrase used by Theta Chi’s local UCSC chapter, and in fact every Witness deposed thus far that has been asked has known nothing about this. (UMF 17.) The bottom line to Defendant Naj’s Motion for Summary Judgment is this: Naj is not liable for Alex’s death simply because he was treasurer of Theta Chi’s local UCSC chapter. Although the First Amended Complaint makes mention of several UCSC ‘rules’ and ‘student policies’ that were allegedly violated by Theta Chi, these do not provide Plaintiffs with a private cause of action. The First Amended Complaint largely rests on principles of Negligence, which requires both duty and causation, both of which are totally lacking with respect to Defendant Naj. It appears that Defendant Naj has been named as a Defendant solely because he [Aw ()st was an ofcer of Theta Chi, which amounts to a theory of collective guilt. This is much the TARKINGTON, O'NEILL, BARRACK & CHONG BELETSIS v. THETA CHI FRATERNITY, INC. A Professional Corpomtion 4 CASE N0. 19CV03287 201 Missmn STREET, Sum 7 l 0 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F DEFENDANT KAHLON’s MOTION FOR SUMMARY SAN FRANCISCO, CA 94105 mama»: (41$) 717—ssm Fmimile (415) swam ADJUDICATION AND/ OR SUMMARY JUDGMENT same issue as co-defendant Rafael Garcia’s recent Motion for Summary Judgment, except the case against Naj is even weaker as Naj was not even at the Broadway Property during Alex’s accident on June 2, 2018. Plaintiffs’ theory of liability against Naj appears to be a theory of strict liability; that an ‘agent’ of Theta Chi is strictly liable for everything Theta Chi allegedly does. Another theory appears to be that Naj had some ‘special relationship” to Alex, even though both men were under 21, and Naj’s principal duties as treasurer was to collect membership dues and balance the Theta Chi budget. (UMF 13.) The evidence thus far has shown Alex never asked Naj for help (nor did he ask anyone for help). The evidence actually indicates Alex liked to drink and do drugs, and had at least one cocaine dealer, and that he obtained his cocaine from sources outside Theta Chi. (UMF 12.) Plaintiffs’ principal ‘evidence’ is a report from Jose Sanchez at UCSF, blaming Theta Chi for Alex’s death. However, this report is not accurate in several important ways, as Mr. Sanchez was denitely not a neutral investigator. (UMF 18.) However, even Mr. Sanchez acknowledged that Alex was not being hazed at the time of his death and had nothing to say about Naj. (Id.) II. FACTS ALLEGED IN FIRST AMENDED COMPLAINT In paragraph 35 of the First Amended Complaint (“FAC”) Defendant Naj is correctly listed as the treasurer of Theta Chi’s local UCSC chapter, but that is about the only thing that is accurate. Allegedly Naj “furnished alcohol to Alex at his residence of 511 Broadway, Santa Cruz, knowing that Alex was under 21 years of age, which was a substantial factor in causing Alex’s death.” Naj supposedly “authorized, requested, commanded, participated in, or ratied the hazing and/or subsequent misconduct involving Alex’s incapacity and the failure to act reasonably to prevent his death.” However, when Plaintiffs were served written discovery by Naj they could cite no actual facts to support these contentions. (UMF 19.) law Omaes TARKINGTON, O’NEILL, BARRACK & CHONG BELETSIS v. THETA CHI FRATERNITY, INC. A Profasioml Corporation 5 CASE N0. 19CV03287 201 MISSION STREET, SUITE 710 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KAHLON’S MOTION FOR SUMMARY SAN FRANCISCO, CA 94105 1319mm”) 777-5501 hum1e(415)s46.4962 ADIUDICATION AND/ OR SUMMARY JUDGMENT In ruling on a motion for summary judgment or summary adjudication, “the rst step is an analysis of the pleadings, i.e., the complaint and answer including any afrmative defenses that may be contained therein.” Lowe v. California League ofProf Baseball (l 997) 56 Cal. App. 4th 112, 122. “The pleadings dene the issues t0 be considered...” (Id.) There are no other allegations specic to Naj in the FAC. Naj is a defendant in several causes of action in the FAC as both an “Ofcer Defendant” and “House Resident Defendant” and “Individual Defendant”; (First Cause of Action) Survival and Wrongil Death/Negligence, (Second Cause of Action) Survival and Wrongll 10 Death/Negligence; (Fourth Cause of Action) Survival and Wrongful Death/Breach of Assumed 11 Duties; (Fifth Cause of Action) Survival and Wrongful Death/Breach of Duty to Prevent Harm; 12 (Sixth Cause of Action) Survival and Wrongful Death/Social Host Liability for Provision of 13 Alcohol to Person Under 21 Years of Age. Obviously, all of these Causes of Action against 14 Naj are the same, just different theories of negligence involving wrongful death. 15 Clearly, these are all varieties of negligence involving wrongful death. The elements of a 16 cause of action for wrongful death are a tort, such as negligence, and resulting death. See Lopez 17 v. City ofLos Angeles (201 l) 196 Cal.App.4th 675, 685. The elements of a negligence cause of 18 action are duty to use due care and breach of duty, which proximately causes injury. (Id.) 19 20 The actual facts of the case do not match the pleadings. 21 22 did not live at the Market Street house. First, Naj (UMF l.) 23 Second, Alex was not being hazed he was already a full member of Theta Chi on June 2, 24 2018. (UMF 4.) 25 Third, Naj did not ‘furnish’ alcohol (or cocaine) to Alex. (UMF 3.) 26 Fourth, Naj was at the “crossing ceremony” at the Market Street house but left with 27 Jordan Takayama before its conclusion. (UMF 5.) 28 hw Ofces Fifth, Naj did not arrive at the Broadway house until AFTER Alex’s accident. (UMF 8.) TARKINGTON, O’NEILL, BARRACK & CHONG BELETSIs V. THETA CHI FRATERNITY, INC. A memsional Corpomlion 6 CASE N0. 19CV03287 201 MISSION STREET, SUITE 710 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F DEFENDANT KAHLON’S MOTION FOR SUMMARY SAN FRANCISCO. CA 94105 Telq;han=(415) 777-5501 Fucsimile (115)546-4962 ADJUDICATION AND/ 0R SUMMARY JUDGMENT Sixth, Alex purchased the cocaine that led t0 his death from a source outside of Theta Chi. (UMF 6, 9.) Seventh, while alcohol was available at Theta Chi events nobody ‘forced’ or pressured Alex to drink, and in fact there were ‘dry’ members of Theta Chi. (UMF 11.) Certainly, Naj never lmished alcohol or drugs to Alex. (UMF 5.) Alex appears to have voluntarily used alcohol and cocaine on the day of his death, and in fact had done both on several prior occasions. (UMF 9, 10, 12.) Eighth, Naj was merely the treasurer at Theta Chi and his duties were mostly related to budgeting and collecting dues. (UMF 13.) There is no evidence Naj failed to fully cooperate with the University of Santa Cruz’s investigation of Alex’s death, participated in any alleged illegal hazing, or knew anything about the alleged “three deadly nights” referenced in the First Amended Complaint. (UMF 14-17.) Plaintiffs provided completely specious and evasive answers to Naj’s written discovery, stating only contentions in the First Amended Complaint With no facts specic to Naj. (UMF 19.) III. LEGAL AUTHORITY AND ARGUMENT A. Standard on Summary Adjudication and Summary Judgment In order to succeed on a motion for summary adjudication under California Code of Civil Procedure Section 473 c, that moving party must show: .. .[O]ne or more causes of action within an action, one or more afrmative defenses, one or more claims for damages, or one or more issues of duty. .. has no merit, that there is no afrmative defense to the cause of action, that there is no merit to an afrmative defense as to any cause of action, that there is no merit to a claim for damages, as specied in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an afrmative defense, a claim for damages, 0r an issue of duty. Cal Code Civ Proc § 437c.(f)(1) hwOfces TARKINGTON, O’NEILL, BARRACK Further, under Cal Code Civ Proc § 437C (f)(2): & CHONG A mesional Carpomion BELETSIS V. THETA CHI FRATERNITY, INC. 7 CASE No. 19CV03287 201 MissInN STREE'I, SUITE 7 10 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT KAHLON’ s MOTION FOR SUMMARY SAN FRANCISCO, CA 94105 Telephunc(415)777.5501 l-‘mimi1=(4|5)546-4962 ADJUDICATION AND/ 0R SUMMARY JUDGMENT A motion for summary adjudication may be made by itself 0r as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. Code Civ Proc § 437c.(c) provides: The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. B. No Duty The FAC discusses the “Bylaws of the Theta Chi Fraternity” in paragraph 47 and 77. It also discusses the Standards for Student Conduct at the University of California System allegedly Cal. Code Regs title 5 § 41301 (2012) abbreviated as the “Standards for Student Conduct”) in paragraph 78. Neither are attached to the FAC. However, neither of these things provide Plaintiffs a private cause ofactz'on against Naj. A University’s ‘code of conduct’ can subj ect a student t0 disciplinary action, but in cases where due process is violated a student has the right to appeal. See Doe v. Regents of University ofCalifornia (2018) 28 Cal.App.5th 44, 46, overturning a UCSB hearing to suspend a student for violating the university’s code of conduct (alleged sexual misconduct). The decision was reversed as the defendant was denied access to critical evidence; denied the opportunity to critically cross—examine witnesses and denied the opportunity to present evidence in his defense. (Id.)1 In Doe, UCSB was found to have violated its own student conduct codes in not affording due process to the accused: It is ironic that an institution of higher learning, where American history and government are taught, should stray so far from the principles that underlie our democracy. This case turned on the Committee’s determination of the credibility of a witness. Credibility cannot be properly decided until the accused is given the opportunity t0 adequately respond to the accusation. The lack of due process in the hearing precluded a fair evaluation of the witnesses’ credibility. (Id at 61 .) Law amass TARKINGTON, O’NEILL, BARRACK 1 Of course, Naj was not found to have violated UCSC’s code of conduct. & CHONG BELETSIS v. THETA CHI FRATERNITY, INC. A memsional Corporation 8 CASE N0. 19CV03287 20l MISSION STREET, SUITE 710 MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT OF DEFENDANT KAHLON’S MOTION FOR SUMMARY SAN FRANCISCU, CA 94105 Telephone (415) 77775501 r-uzmne(4ls)m.m: ADJUDICATION AND/ 0R SUMMARY JUDGMENT The regulation cited in the FAC is California Code of Regulations Title 5 “Education”, Division 5 “Board of Trustees of the California State University”, Chapter 1 “California State University”, Subchapter 4 “Student Affairs”, Article 2 “Student Conduct” § 41301 “Standards for Student Conduct”. However, the FAC ignores the remedies provided for violations of § 41301 which is 41302 “Disposition of Fees: Campus Emergency; Interim Suspension” which states that the “President of the campus may place on probation, suspension, or expel a student for one or more of the causes enumerated in Section 41301 .” For a private cause of action to arise from a statute there must be some enabling legislation that permits a private cause of action. See Julian v. Mission Community Hospital (2017) 11 Ca1.App.5th 360: A violation of a state statute does not necessarily give rise to a private cause of action. Instead, Whether a party has a right to sue depends on whether the Legislature has ‘manifested an intent to create such private causes of action’ under the statute. Such legislative intent, if any, is revealed through the language of the statute and its legislative history. (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.5‘h 592, 596; See Noe, supra, 237 Cal.App.4th at p336). (Id at 378- 379.) Thus, it’s unequivocally clear that all of the alleged ‘violations’ of UCSC’s student code of conduct are totally irrelevant as they do not create a private cause of action for plaintiffs. Thus, the issue of ‘duty’ for Naj rests on the general duty to avoid doing harm as described in CACI 400 and Rowland v. Christian (1968) 69 Cal.2d 108, and not some convoluted deep dive into UCSC’s student code of conduct, Theta Chi’s bylaws, or any other random nonsense stated in the FA C. In Martinez v. Bank ofAmerica (2000) 82 Cal.App.4‘h 883, a bank which owned a luv Uincs TARKINGTON, O‘NEILL, BARRACK & CHONG particular piece of property and was in the process of evicting the former owners was sued for BELETSIs V. TI-IETA CHI FRATERNIrY, INC. A Professional Coxpnmlion 9 CASE No. 19CV03287 ZlMISSION STREET, SUITE 710 MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F DEFENDANT KAHLON’ s MOTION FOR SUMMARY SAN FRANCISCO, CA 94105 Talzphmc (415) 777-55!" mam; (4135464952 ADJUDICATION AND/ OR SUMMARY JUDGMENT wrongful death when a child entered the property and was killed by the former owner’s dog. Id at 886. The court found the bank was entitled to summary judgment as there was no triable issue of fact regarding whether the bank had actual knowledge of the dangerous condition of the property. Id at 887. The court further found that the former owners’ possession meant the bank did not have the authority, ability, or power to repair defects on the property. Id. Because of this lack of knowledge and power and based on the factors in Rowland v. Christian (1968) 69 Ca1.2d 108, the court found the bank owed no duty to plaintiffs. (Id.) A defendant moving for summary judgment may disprove at least one essential element of the plaintiffs cause of action or show that plaintiff cannot establish an element of the cause of action. Once the moving party has met that burden, the opposing party bears the burden of presenting evidence that there is a triable issue of fact as to any essential element of a cause of action. (Id at 887-888.) C. Agents Are not Automatically Personally Liable Although it is not directly stated in the FAC, plaintiffs’ theory of liability against Naj and and other “Officer Defendants” is that every ofcer of Theta Chi is responsible for every tort committed by Theta Chi. This is essentially a “collective guilt” theory of liability, that an agent is automatically personally liable for everything his organization does. This is not the law. From Central Mut. Inc. Co. v. Schmidt (1957) 152 Cal.App.2d 671, 675: While it is true, of course, that directors and ofcers of a corporation are equally liable with the corporation for its torts in which they participate, it is equally true that if they do not participate therein, and if they are guilty of no culpable negligence in allowing the commission of the wronng acts, they are not liable. Of course, an agent is personally liable for his own tortious acts committed in course and scope of his agency or even at the direction of his principal. Pescosolido v. Maddock (1985) 172 Law ofces TARKINGTON, Cal.App.3d 230, 233 citing Civil Code § 2343(3). Directors and ofcers of corporations do not O’NEILL, BARRACK & CHONG BELETSIS v. THETA CH1 FRATERNITY, INC. A memsional Curpomlion 10 CASE No. 19CVO3287 20] MISSION STREET, Sl UTE 7 1 I] MEMORANDUM 0F POINTS AND AUTHORITIES 1N SUPPORT 0F DEFENDANT KAHLON’S MOTION FOR SUMMARY CA SAN FRANCISCO, 94105 Tclqmommsnn-ssm Fmimjla (4 15) 5464962 ADJUDICATION AND/ 0R SUMMARY JUDGMENT incur personal liability for torts of the corporation merely by reason of their ofcial position. Reynolds v. Bement (2005) 36 Cal.4th 1075, 1087. In Reynolds, the California Supreme Court stated an ofcer of a corporation who merely “exercises control” over an employee’s wages, hours, or working conditions could not be held personally liable for recovery of the unpaid balance of the full amount of minimum wages. (Id.) Accordingly, in order for personal liability for “wrongful death” to attach to Naj, Plaintiffs must do more than simply state he was an ‘ofcer’ of Theta Chi’s local chapter. They have to demonstrate Naj ’s had some kind of duty to Alex to stop him from drinking and doing cocaine, and then allege that Naj ’s negligence was a substantial factor in causing Alex’s death. D. Conclusions in a Report are Hearsay From Roberts v. Permanente Corp (1961) 188 Cal.App.2d 526, 532, a report containing conclusions and opinions from the Santa Clara County Health Department was deemed inadmissible hearsay. The report contained conclusions about quarry dust vs cement dust. The report was found to not be a public record because a public record must be made by an ofcial pursuant to government duty. (Id.) As it was not the duty of the county health department to investigate air pollution or report its ndings pursuant to its investigation, it was not a public record. (Id.) Further, the ‘report’ from Jose Sanchez is based on interviews with members of Theta Chi, and is clearly not personal knowledge, and accordingly is inadmissible under People v. Sanchez (2016) 63 Cal.4‘h 655, see People v. McVey (2018) 24 Cal.App.5th 505, 536 p8, where a police report was inadmissible hearsay under Sanchez. People v. Sanchez is of course a case where the California Supreme Court sets the standard for the admissibility of expert opinion. While an expert is not restricted like a lay witness to matters of personal opinion, an expert may Luv Ofces TARKINGTON, O’NEILL, BARRACK & CHONG BELETSIS v. THETA CH1 FRATERNITY, INC. A Professional Curpomlion 11 CASE No. 19CVO3287 201 MISSION STREET. SUITE 71 MEMORANDUM 0F POINTS AND AUTHORITIES IN SUPPORT 0F DEFENDANT KAHLON’s MOTION FOR SUMMARY SAN FRANCISCO, CA 94105 Telephommsnnssol Fusinmqmnqwaz ADJUDICATION AND/ OR SUMMARY JUDGMENT not simply repeat so called “case specic facts” which the expert has no independent knowledge. (Id. at 676.) Case-specic facts are those relating to the particular events and participants alleged to have been involved in the case being tried. Generally, parties try to establish the facts on which the theory of the case depends by calling witnesses with personal knowledge of those case-specic facts. An expert may then testify about more generalized information to help jurors understand the signicance of those case-specic facts. An expert is also allowed to give an opinion about What those facts may mean. The expert is generally not permitted, however, to supply case-specic facts about which he has no personal knowledge.” (Id) Accordingly, the report from Jose Sanchez cannot be used to create a triable issue of fact 10 by ‘contradicting’ the testimony of actual witnesses with personal knowledge. Such a use of the 11 12 report is not permitted under Sanchez. 13 14 There is no dispute Alex was severely impaired with both alcohol and cocaine on the day 15 16 of his accident on June 2, 201 8. Unfortunately, as stated above, Alex had a long-troubled past 17 with drugs and alcohol even before joining Theta Chi, including incidents at Santa Rosa High 18 School. (UMF 10, 12.) 19 Alex’s drug use continued at UCSC. At his student apartment (Parkman House) he 20 continued to get in trouble for drug use. (UMF 20.) On May 6, 201 8, less than a month before 21 his death he was caught smoking and drinking. (Id) There was a disciplinary proceeding set for 22 23 June 15, 2018, but of course Alex’s accident occurred prior to that. (1d.) There was apparently 24 another incident on May 5, 201 8, involving alcohol and drugs at Parkman as well, with a 25 disciplinary hearing on June 6, 201 8. (1d,) Parkman House is of course a UC Santa Cruz dorm 26 that is totally outside the authority of Theta Chi. (Id.) There were prior incidents as well that are 27 all detailed in (Id.) 28 0mm Law TARKINGTON, O’NEILL, BARRACK & CHONG A meqsimal Corpomiun BELETSIs v. TI-IETA CHI FRATERNITY, INC. 12 CASE No. 19CV03287 201 MISSION STREET, SUITE 710 MEMORANDUM 0F POINTS AND AUTHORIrIEs IN SUPPORT 0F DEFENDANT KAHLON’s MOTION FOR SUMMARY SAN FRANCISCO, CA 94105 Telqmone(415)777.ssol hmmIcuIsnw—wnz ADJUDICATION AND/ OR SUMMARY JUDGMENT not simply repeat s0 called “case specic facts” which the expert has no independent knowledge. (Id. at 676.) Case—specic facts are those relating to the particular events and participants alleged to have been involved in the case being tiied. Generally, parties try to establish the facts on which the theory of the case depends by calling witnesses with personal knowledge of those case-specic facts. An expert may then testify about more generalized information to help jurors understand the of signicance those case-specic facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specic facts about which he has no personal knowledge.” (Id.) Accordingly, the report from Jose Sanchez cannot be used to create a triable issue of fact 10 by ‘contradicting’ the testimony of actual Witnesses with personal knowledge. Such a use of the 11 W 12 report is not permitted under Sanchez. 13 14 There is no dispute Alex was severely impaired with both alcohol and cocaine on the day 15 16 of his accident on June 2, 201 8. Unfortunately, as stated above, Alex had a long-troubled past 17 with drugs and alcohol even before joining Theta Chi, including incidents at Santa Rosa High 18 School. (UMF 10, 12.) 19 Alex’s drug use continued at UCSC. At his student apartment (Parkman House) he 20 continued to get in trouble for drug use. (UMF 20.) On May 6, 201 8, less than a month before 21 his death he was caught smoking and drinking. (Id) There was a disciplinary proceeding set for 22 23 June 15, 201 8, but of course Alex’s accident occurred prior to that. (Id.)