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ELECTRONICALLY FILED
Superior Court of California
Michael C. Osborne (Bar No. 95839) County of Santa Cruz
mosborne@cokinoslaw.com 3/22/2022 12:49 PM
Elaine Kobylecki (Bar No. 299311) Alex Calvo, Clerk
- Oe Daj fs, los ee Deputy
ekobylecki@cokinoslaw.com
COKINOS | YOUNG
611 Gateway Blvd., Ste. 233
South San Francisco, CA 94080
Telephone: (628) 229-9280
Attorneys for Defendant
THETA CHI FRATERNITY, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CRUZ
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11 DAPHNE BELETSIS, et al Case No. 19CV03287
12 Plaintiff, AMENDED NOTICE OF HEARING FOR
DEFENDANT THETA CHI FRATERNITY.
13 Vv. INC.’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE,
14 THETA CHI FRATERNITY, INC., et al. SUMMARY ADJUDICATION
15 Defendant. Date: May 20, 2022
Time: 8:30 AM
16 Department: 10
17 Action Filed: October 31, 2019
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD
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PLEASE TAKE NOTICE that Defendant Theta Chi Fraternity, Inc.’s MOTION FOR
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SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
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pursuant to an agreement between Defendant’s and Plaintiffs’ attorneys, has been set for hearing
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on May 20, 2020 at 8:30 a.m. in Department 10 of the above-entitled courthouse, located at 701
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Ocean St, Santa Cruz, CA 95060.
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As the parties have previously filed their moving papers, Defendant’s attach all such
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documents hereto for this Court’s ease of reference. Attached as Exhibit A are Defendant’s
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underlying MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE
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AMENDED NOTICE OF HEARING FOR DEFENDANT THETA CHI FRATERNITY, INC.’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
SUMMARY ADJUDICATION documents, filed and served on February 17, 2022
Dated: March 22, 2022 COKINOS | YOUNG
_WeehahC. Orbos _—|
Michael C. Osborne
Elaine Kobylecki
Attorneys for Defendant
THETA CHI FRATERNITY, INC.
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AMENDED NOTICE OF HEARING FOR DEFENDANT THETA CHI FRATERNITY, INC.’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
EXHIBIT A
Michael C. Osbome (Bar No. 95839)
mosbome@cokinoslaw.com
Elaine Kobylecki (Bar No. 299311)
ekobylecki@cokinoslaw.com
COKINOS | YOUNG
611 Gateway Blvd., Ste. 233
South San Francisco, CA 94080
Telephone: (628) 229-980
Attomeys for Defendant
THETA CHI FRATERNITY, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CRUZ
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11 DAPHNE BELETSIS, et al., Case No. 19CV03287
12 Plaintiff, DEFENDANT THETA CHI FRATERNITY,
INC.’S NOTICE OF MOTION AND
13 Vv.
MOTION FOR SUMMARY JUDGMENT
THETA CHI FRATERNITY, INC., et al. OR, IN THE ALTERNATIVE, SUMMARY
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ADJUDICATION
15 Defendant.
Date: May 6, 2022
16 Time: 8:30 AM
Department: 10
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18 Action Filed: October 31, 2019
Trial Date: June 20, 2022
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21 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on May 6, 2022 at 8:30 am. oras soon thereafter
as this
matter may be heard, in Department 10 of the above-entitled Court, Defendant THETA CHI
24 FRATERNITY, INC. (“Theta Chi”), will move this Court, and hereby does move this Court for
25 an Order entering summary judgment, orin the altemative, summary adjudication in favor of Theta
26 Chi on Plaintiffs DAPHNE BELETSIS and YVONNE RAINEY’S (“Plaintiffs”) First Amended
27 Complaint.
DEFENDANT THETA CHI FRATERNITY, INC.’S NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY ADJUDICATION
This motion is made pursuant to the following:
Theta Chi is entitled to summary judgment as to Plaintiffs’ First Amended Complaint
pursuant to Code of Civil Procedure section 437c(a) because there is no triable issue as to any
material fact, and Theta Chi is entitled to judgment as a matter of law.
Altematively, Theta Chi is entitled to summary adjudication as to each of the four causes
of action against
it in Plaintiffs’ First Amended Complaint (First, Second, Third, Fourth, and Fifth
Causes
of Action) pursuant to Code of Civil Procedure section 437c(f) because
there is no triable
issue as to any material fact for each cause of action, and Theta Chi is entitled
to summary judgment
as a matter of law on each cause of action because - 1) It did not owe a duty of care to Plaintiffs;
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2) It did not assume any duties through its own policies or the policies of University of Califomia
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at Santa Cruz; 3) It is not vicariously liable for the conduct of Defendant Theta Iota Chapter of
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Theta Chi Fratemity, Inc. and its members; and 4) It is not vicariously liable based on the alter ego
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doctrine.
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This motion will be based
on this Notice of Motion and on the papers in support served and
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filed concurrently (Defendant’s Memorandum of Points and Authorities, Declaration of Michael
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Mayer, Declaration of Michael C. Osbome, Defendant’s Separate Statement of Undisputed.
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Material Facts, and Defendant’ s Index of Exhibits and Evidence and accompanying exhibits); such.
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evidence as may be presented at the hearing of the motion; and all other papers and pleadings
on.
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file with the Court in this action.
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Dated: February 17, 2022 COKINOS | YOUNG
Wlechak C. Osborne
24 Michael C. Osbome
Elaine Kol lecki
25 Attomeys for Defendant
THETA CHI FRATERNITY, INC.
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DEFENDANT THETA CHI FRATERNITY, INC.’S NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN:
THE ALTERNATIVE, SUMMARY ADJUDICATION
Michael C. Osbome (Bar No. 95839)
mosbome@cokinoslaw.com
Elaine Kobylecki (Bar No. 299311)
ekobylecki@cokinoslaw.com
COKINOS | YOUNG
611 Gateway Blvd., Ste. 233
South San Francisco, CA 94080
Telephone: (628) 229-9180
Attomeys for Defendant
THETA CHI FRATERNITY, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CRUZ
10
11 DAPHNE BELETSIS, et al., Case No. 19CV03287
12 Plaintiff, DEFENDANT THETA CHI FRATERNITY,
INC.’S MEMORANDUM OF POINTS AND
13 Vv.
AUTHORITIES IN SUPPORT OF ITS
THETA CHI FRATERNITY, INC., et al. MOTION FOR SUMMARY JUDGMENT
14
OR, IN THE ALTERNATIVE, SUMMARY
15 Defendant. ADJUDICATION
16 Date: May 6, 2022
Time: 8:30 AM
17 Department: 10
18 Action Filed: October 31, 2019
Trial Date: June 20, 2022
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN.
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
TABLE OF CONTENTS
I INTRODUCTION
IL UNDISPUTED MATERIAL FACTS
A Beletsis’ Membership Status & June 2, 2018 Accident.
B. Theta Chi Fratemity, Inc. oo... tcessecsessecsssssesseessesssessesssesssesseessessuesseessessesseessesseesseesseessesse 2
Il. LEGAL ANALYSIS
A Legal Standard for Summary Judgment and Summary Adjudication.
B. Theta Chi Fratemity Is Not Liable Under Plaintiffs’ First, Second, Third, Fourth, and
Fifth Causes of Action
for Negligence Because It Did Not Owe a Duty of Care to Plaintiffs... 6
10
1 No Special Relationship Existed Between Theta Chi Fratemity and the UC Santa Cruz
11
Chapter, so No Duty of Care can be Imposed Against Theta Chi Fratemity. 12
12
2. No Special Relationship Existed Between Theta Chi Fratemity and Plaintiffs Daphne
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Beletsis and Yvonne Rainey, so No Duty of Care can be Imposed Against Theta Chi
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FAPCTIIRY. oo. escessessecssecssesscssesssesssessesssessecssssscssscssecssessuessessuessuessesssesseessesssesssesseesseesseaseess 14
15
C. Theta Chi Fratemity Is Not Liable Under Plaintiffs’ First, Second, Third, Fourth, and
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Fifth Causes of Action for Negligence Because It Did Not Assume a Duty Through Its Own
17 Policies or University’s POLICI@S. 00... eesesssessecssecssesssesseessessessesssesssessesssessesseesuesseesueesuesseeseesee 14
18
D Theta Chi Fratemity Is Not Liable Under Plaintiffs’ First, Second, Third, Fourth, and
19 Fifth Causes of Action for Negligence Because It is Not Vicariously Liable for the Conduct of
20 the UC Santa Cruz Chapter
or Its Members, ........cssesssssesesssssseeseeceesecsesseeseeneeneeneeseseeeeeseeneentene 17
21 E Theta Chi Fratemity Is Not Vicariously Liable Under Plaintiffs’ Alter Ego Theories
Alleged in the First, Second, Third, Fourth, and Fifth Causes of Action for Negligence. 18
23 IV. CONCLUSION. 20
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25
26
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1
DEFENDANT THETA CHI FRATERNITY, INC."S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
TABLE OF AUTHORITIES
Cases
ilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 855
Associated Vendors, Inc. v. Oakland Meat Co.
(1962) 210 Cal.App.2d 825, 838-840 19
v. Sigma Alpha Epsilon Fraternity
(2019) 3 3 Cal.App.5th 70, 77-8
v. Pi Kappa Alpha Corporation, Inc.
(Ill. 2018) 104. N.E.3d 1110
Crouse v. Brobeck, Ph & Harrison
(1998) 67 Cal.App.4th 1509, 1524.
Dashew v. Dashew Business Machines, Inc.
(1963) 218 Cal.App.2d 711, 716. 20
Ky. Fried Chicken of Cal. v. Superior Court
(1997) 14 Cal.4th 521, 531
Ladd v. Cot of San Mateo
(1996) 12 Cal.4th 913, 917
10 Macpherson v. C.H. Eccleston
(1961) 190 Cal.App.2d 24, 28. 19
11 Mid-C Ins. Co. v. Gardner
(1992) 9 Cal.App.4th 1205, 1212-1213 19
12 Minifiev. Row
(1921) 187 Cal. 481, 487 19
13 Olson v. Children’s Home Soci
(1988) 204 Cal.App.3d 1362, 1366.
14 Pazv. State of California
(2000) 22 Cal.4th 550, 560 17
15 Peart v. Ferro
(2004) 119 Cal.App.4th 60, 69
16 Romero v. Superior Court
(2001) 89 Cal.App.4th 1068, 1078-9
17 Smith v. Delta Tau Delta, Inc.
(Ind. 2014) 9 N.E.3d 154 15, 16
18 Snith v. Freund
(2011) 192 Cal.App.4th 466, 473
19 Sonora Diamond Corp. v. Superior Court
(2000) 83 Cal.App.4th 523, 538 18
20 T v. Farmers Group. L
(2009) 171 Cal.App.4th 1305, 1341 18, 19
21 University of Southern California v. Superior Court of County of Los Angeles
(2018) 30 Cal.App.5th 429 9, 15, 16, 17
Walker v. Phi Beta Si Fratemity (Rho Chapter)
(La Ct. App. 1997) 706 So.2d 525. - 10, 12, 13, 14
Statutes
Califomia Code of Civil Procedure§ 437c(f)(1) ...
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Califomia Code of Civil Procedure § 437c(c); .. 58
25 Califomia Code of Civil Procedure § 437c(f)(2)
Califomia Code of Civil Procedure § 437c(p)(2) ...
26 Califomia Code of Civil Procedure§ 437c(a)(1)....
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DEFENDANT THETA CHI FRATERNITY, INC."S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
I INTRODUCTION
This action arises from the tragic death of Alexander Beletsis in June 2018 as a result of an
accidental fall he sustained
from a second-story window at a private residence in Santa Cruz. At
the time of the accident, Mr. Beletsis was a sophomore at UC Santa Cruz and a previously-initiated
member of a local undergraduate fratemity chapter (defendant
Theta Iota Chapter (“the UC Santa
Cruz Chapter”). Plaintiffs Daphne Beletsis and Yvonne Rainey, Mr. Beletsis’ surviving parents,
have alleged negligence
against the UC Santa Cruz Chapter and defendant
and moving party, Theta
Chi Fratemity, Inc. (“Theta Chi” or “Theta Chi Fratemity”), an intemational non-profit fratemal
organization headquartered in Indiana.
10 Plaintiffs’ negligence claims are barred by the lack of a duty, an essential clement.
11 Accordingly, Theta Chi Fratemity moves for summary judgment as to plaintiffs’ negligence claims.
12 In the altemative, Theta Chi Fratemity also moves for summary adjudication on four issues: (1)
13 that it owed no duty to plaintiffs
and, therefore, plaintiffs’ First, Second, Third, Fourth
and Fifth
14 Causes of Action for negligence lack proof of an essential element; (2) that it assumed
no duty
15 through its own policies or the University’ s policies; (3) that it cannot be held vicariously liable for
16 any negligence
or fault of the UC Santa Cruz Chapter
or its members; and (4) that it cannot
be held
17 vicariously liable based on the alter ego doctrine.
18 Il. UNDISPUTED MATERIAL FACTS
19 A. Beletsis’ Membership Status & J une 2, 2018 Accident
20 In Fall 2017, Alexander Beletsis pursued an opportunity to become a member of the UC
21 Santa Cruz Chapter, Theta Chi Fratemity’s local undergraduate chapter at the University of
Califomia
at Santa Cruz, and he successfully completed the pledge process and became an initiated
member. (UMF Nos. 1, 36, and 71.)
24 On June 2, 2018, Mr. Beletsis attended a “Crossover Ceremony” and he was already an
25 initiated member of the UC Santa Cruz Chapter, and contrary to what plaintiffs have alleged in the
26 First Amended Complaint, he was not being “hazed” that day. (UMF Nos. 2, 37, and 72.) The
27 “Crossover Ceremony” fornew Spring 2018 pledges as referenced
in the First Amended Complaint
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
occurred at the Market House on June 2, 2018. (UMF Nos. 3, 38, and 73.) After the “Crossover
Ceremony” ended, Mr. Beletsis traveled with his friend Leon Bums and Miguel Saldivar to 511
Broadway, Santa Cruz, Califomia (the “Broadway House”) to attend a party. (UMF Nos. 5, 40,
and 75.)
Mr. Beletsis liked to drink alcohol and do cocaine, and he had done both several times prior
toJune 2, 2018. (UMF Nos. 8, 43, and 78.) Mr. Beletsis voluntarily drank at both the “Crossover
Ceremony” at the Market House and at the party at the Broadway House. Mr. Beletsis liked to
drink alcohol and was not pressured into drinking or doing cocaine on June 2, 2018. (UMF Nos.
9, 44, and 79.) In fact, Mr. Beletsis had a cocaine dealer who was not a member of the UC Santa
10
Cruz Chapter
and Mr. Beletsis was known to have a fake ID that he used to purchase alcohol
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underage. (UMF Nos. 10, 45, and 80.) Mr. Beletsis purchased cocaine and ingested the cocaine
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on the evening of June 2, 2018. (UMF Nos. 11, 46, and 81.) Shortly afterwards, Mr. Beletsis
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appeared frustrated and his friend Leon Bums suggested that Mr. Beletsis go to the bathroom
and
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hedid. (Id.)
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Mr. Beletsis was alone inside the closed bathroom on the second floor of the Broadway
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House at the time he sustained his injury. (UMF Nos. 14, 49, and 84.) There were no findings
by
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the University or any other source that determined Theta Chi did anything wrong with respect to or
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contributed
to Mr. Beletsis’ injury. (UMF Nos. 15, 50, and 85.)
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The UC Santa Cruz Chapter did not require or pressure initiated members to drink alcohol
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or do drugs, and some members even abstained. (UMF Nos. 12, 47, and 82.) Norwas Mr. Beletsis
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susceptible
to peer pressure. (Id.) Despite
what plaintiffs allege in the First Amended Complaint,
the UC Santa Cruz Chapter did not require or force members to do anything to obtain
an officer
position within the UC Santa Cruz Chapter. (UMF Nos. 13, 48, and 83.) Nor was Mr. Beletsis
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required to drink alcohol or do drugs on June 2, 2018 to become brotherhood chair. (UMF Nos.
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13, 48, and 83.)
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B. Theta Chi Fraternity, Inc.
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Theta Chi Fratemity is a non-profit corporation, incorporated under the laws of New
Y ork,
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
with its headquarters
in Carmel, Indiana. (UMF Nos. 16, 51, and 86.) Theta Chi Fratemity operates
as a men’s college fratemal organization and is a membership organization. (UMF Nos. 17, 52,
and 87.) Theta Chi Fratemity was founded in 1856 and currently recognizes approximately 161
local undergraduate chapters at various colleges and universities in the United States and Canada.
(UMF Nos. 18, 53, and 88.) The mission of Theta Chi Fratemity is to develop college age-men
into successful students, good citizens, lifelong brothers, and resolute leaders. (UMF Nos. 19, 54,
and 89.)
Theta Chi Fratemity is govemed by the Grand Chapter, which is the administrative,
executive, and judicial head of Theta Chi Fratemity. (UMF Nos. 20, 55, and 90.) The Grand
10
Chapter, which meets several times a year, consists of eight voting members and the CEO as an ex-
11
officio member, and serves as Theta Chi’s Board of Directors, responsible for conducting the
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business and affairs of Theta Chi Fratemity, including but not limited to setting policy and
13
evaluating strategy. (UMF Nos. 21, 56, and 91.)
14
A local undergraduate
chapter is created by Theta Chi Fratemity
issuing a charter to the
15
chapter. (UMF Nos. 22, 57, and 92.) Each
of Theta Chi Fratemity’s
local undergraduate chapters,
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including the UC Santa Cruz Chapter is also govemed by Theta Chi Fratemity’s Constitution and.
17
Bylaws. (UMF Nos. 23, 58, and 93.) Pursuant to the charter issued by Theta Chi Fratemity, its
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local undergraduate chapters are permitted to use Theta Chi Fratemity’s
name and trademarks.
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(UMF Nos. 24, 59, and 94.) Theta Chi Fratemity provides educational and chapter operational
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resources to be utilized at the chapter's discretion. (UMF Nos. 24, 59, and 94.)
21
Although Theta Chi Fratemity provides its local undergraduate chapters with guidance and
support, each local chapter, including
the UC Santa
Cruz Chapter, is a separate
and distinct legal
entity from Theta Chi Fratemity. (UMF Nos. 25, 60, and 95.) Each chapter is a self-goveming,
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financially self-sufficient organization. (UMF Nos. 26, 61, and 96.) Each chapter is responsible
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for its own debts and obligations. (UMF Nos. 27, 62, and 97.) Each chapter selects and initiates
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its own members subject to Theta Chi Fratemity’s qualification requirements, elects its own
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officers, establishes its own bylaws, operates and determines its methods of operation, and
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
otherwise govems its own affairs, subject only to those bylaws and operations being consistent with
Theta Chi Fratemity’s Constitution and Bylaws, and policies. (UMF Nos. 28, 63, and 98.) Local
undergraduate members are obligated as part of their membership to pay dues and assessments.
(UMF Nos. 29, 64, and 99.) To do so, the undergraduate members pay their local chapter and the
chapter, in tum, remits such payments
to Theta Chi. (UMF Nos. 29, 64, and 99.)
Theta Chi Fratemity does not control and does not supervise
the day-to-day activities of any
undergraduate chapters, and it did not control nor supervise the day-to-day activities of the UC
Santa Cruz Chapter. (UMF Nos. 30, 65 and 100.) Because Theta Chi Fratemity
does not supervise
the day-to-day activities of its local undergraduate chapters, it cannot proactively regulate, control
10
or prevent the ultimate actions of its chapters or the individual chapter members. (UMF Nos. 31,
11
66, and 101.) Rather, Theta Chi Fratemity is only able to institute discipline for violations of its
12
Bylaws and policies by imposing sanctions against a chapter or individual members after leaming
13
of aviolation. (UMF Nos. 31, 66, and 101.) Theta Chi Fratemity believes that the autonomy of a
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local undergraduate chapter
in organizing, determining and conducting its own operations through.
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a democracy is part of an educational process that adds to collegiate life and to the development
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and refining of life and leadership skills. (UMF Nos. 32, 67, and 102.)
17
Theta Chi Fratemity’s Constitution, Bylaws, and Safety Standards policy all repeat that it
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prohibits hazing of pledges or of initiated members. (UMF Nos. 33, 68, and 103.) Its Safety
19
Standards, which was previously titled Risk Management policies until May 2019, prohibits
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purchasing, serving, or selling alcohol to anybody under the legal drinking age. (UMF Nos. 33,
21
68, and 103.) No representative of Theta Chi Fratemity participated in the planning or organization
of the events leading up to Mr. Beletsis’ accident, and no representative
of Theta Chi Fratemity
was present for the “Crossover Ceremony” or the party at the Broadway House on June 2, 2018.
24
(UMF Nos. 7, 42, and 77.)
25
Theta Chi Fratemity
did not own, lease, manage, or possess the student house in Santa Cruz
26
where the “Crossover Ceremony” occurred on June 2, 2018, nor at any other time. (UMF Nos. 4,
27
39, and 74.) Theta Chi Fratemity also did not own, lease, manage, or possess the student
house in
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
Santa Cruz where Mr. Beletsis was injured (“the Broadway House”) at the time of Mr. Beletsis’
injury on June 2, 2018, nor at any other time. (UMF Nos. 6, 41, and 76.) The Broadway House
was owned by defendant
Quinn McLaughlin. (UMF Nos. 6, 41, and 76.)
II. LEGAL ANALYSIS
A. Legal Standard for Summary J udgment and Summary Adjudication
Califomia Code of Civil Procedure sections 437c(a)(1) and 437c(f)(1) provide the legal
authority for summary disposition of matters within Califomia. Any party to an action may move
the court for summary judgment in its favor on a cause of action. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 855.) The party moving for summary judgment bears an initial burden of
10
production to make a prima facie showing of the nonexistence of any triable issue of material fact.
11
(Id. at 861-862.) “A defendant moving for summary judgment may meet the burden of showing
12
that a cause of action has no merit by establishing a complete defense to that cause of action.”
13
(Peartv. Ferro (2004) 119 Cal.App.4th 60, 69.) One example of a defendant meeting its burden is
14
that a cause of action has no menit if it has shown that one or more elements of the cause of action,
15
even if not separately pleaded, cannot be established. (C.C.P. § 437c(p)(2).)
16
If the moving party meets its burden of production, it causes
a shift, and the opposing party
17
is then subject to a burden of production
of his own to make
a prima facie showing
of the existence
18
of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at 861-862.) In opposing a motion
19
for summary judgment, the plaintiff cannot rely on the allegations of his or her pleadings or on
20
mere speculation
and conjecture; instead, he or she must produce admissible evidence creating a
21
triable issue of fact. (C.C.P. § 437c(p)(2); Crouse v. Brobeck, Phleger & Harrison (1998) 67
Cal.App.4th 1509, 1524.)
“There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier
24
of fact to find the underlying fact in favor of the party opposing the motion in accordance with the
25
applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at 850.) When the evidence shows that
26
there is no triable issue of material fact and the moving
party is entitled
to judgment as a matter
of
27
law, the trial court must grant summary judgment. (C.C.P. § 437c(c); Aguilar, supra, 25 Cal.4th at
5
DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
843.)
Altematively, a party may move for summary adjudication as to one or more affirmative
defense or one or more issues of duty. (C.C.P. § 437c(f)(1).) A motion for summary adjudication
shall be made by itself or as an altemative to a motion for summary judgment and shall proceed in
all procedural aspects as a motion for summary judgment. (C.C.P. § 437c(f)(2).)
B. Theta Chi Fraternity Is Not Liable Under Plaintiffs’ First, Second, Third, Fourth, and
Fifth Causes of Action for Negligence Because It Did Not Owe a Duty of Care to
Plaintiffs.
A defendant will be found liable fornegligence
if a plaintiff can show that: (1) the defendant
owed a legal duty to use due care; (2) the defendant breached such legal duty;
and (3) that the
10
breach was the proximate
or legal cause of the resulting injury to the plaintiff. (Laddv. County of
11
San Mateo (1996) 12 Cal.4th 913, 917.) “[TJhe existence
of duty
is a question
of law for the court.”
12
(Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 521, 531.)
13
Under Califomia law, “[a] person is not ordinarily liable for the actions of another and is
14
under no duty to protect another from harm, in the absence
of a special relationship of custody
or
15
contol.” (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1078-9.) Special relationships
16
typically involve the plaintiff's dependency or reliance on the defendant. (Olson v. Children’s
17
Hore Society (1988) 204 Cal.App.3d 1362, 1366.) A basic requisite of a duty based on a special
18
relationship
is the defendants ability to control the other person’
s conduct. (Smithv. Freund (2011)
19
192 Cal.App.4th 466, 473.) If the relationship “creates no inference of an ability to control, the
20
actual custodial ability must affirmatively
appear.” (Id.)
21
Generally, Califomia courts have recognized the following relationships to entail special
relationships for purposes of determining
the existence of a duty - “‘a parent
with dependent
children,’ ‘a custodian
with those in its custody,’ and ‘an employer with employees
when the
24
employment facilitates [an] employee’
s causing harm to third parties.’” (Barenborgv. Sigma Alpha
25
Epsilon Fraternity (2019) 33 Cal.App.5th 70, 77-78.)
26
Until recently, no Califomia decision had addressed the relationship between a national
27
fratemity
and a local chapter to determine if it constituted a special relationship
for purposes of
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DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
imposinga duty. (Barenborg, supra, 33 Cal.App.5th at 78.) In March 2019, the Califomia Court
of Appeal held in Barenborg that the relationship between a national fratemity
and a local chapter
is not a “special relationship,” confirming that this relationship is not an exception to the general
“no duty” rule. (Id. at 82.)
Barenborg involved another national fratemity, Sigma Alpha Epsilon (“SAE”), and its
relationship with one of its local chapters at the University of Southem Califomia (“USC”) - Cal.
Gamma. (Barenborg, supra, 33 Cal.App.5th at 73-75.) The facts sumounding the relationship
between SAE and its USC Chapter upon which the Court of Appeal relied, are essentially identical
to the facts surrounding the relationship here between Theta Chi Fratemity
and the UC Santa Cruz
10
Chapter. That is:
11
SAE, an Illinois-based non-profit corporation, had over 200 chapters throughout the
12
country. (Id. at 73.) SAE’s bylaws were binding on Cal. Gamma
and govemed its operations. (Id.)
13
SAE’s Supreme Council was responsible for determining whether to grant charters to
14
undergraduate chapters. (Id. at 74.) SAE allowed local chapters to use its name and insignia, and.
15
supported local chapters through educational and other resources. (Id.) Though SAE required Cal.
16
Gamma to pay dues to the national fratemity
and submit reports, SAE made it clear that each local
17
chapter shall “fix its own dues, assessments, and charges; elect its own officers; and have complete
18
control of its own activities.” (Id.) Nevertheless, SAE still had the authority to discipline chapters
19
and their members, including removal or suspension of a member or suspension or revocation of a
20
charter (Id.) SAE’s by-laws set forth eligibility requirements for an individual to become amember
21
of alocal chapter
but the local chapter was solely responsible for extending invitations to potential
new members. (Barenborg, supra, 33 Cal.App.5th
at 74.)
SAE had risk-management policies, which the chapters were expected
to follow. (Id.) Such.
24
policies related to “use of alcohol ..., hazing, ... and event planning.” (Id.) They also prohibited
25
sexvice
of alcohol to anyone who is underage. (Id.) SAE’s by-laws also required each local chapter
26
to have a chapter advisor, who was required to make bimonthly visits to the chapter and submit
27
reports to SAE regarding any “conditions requiring special attentior (Id)
7
DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
The Barenborg plaintiff brought a lawsuit against SAE after she sustained
injuries at a Cal.
Gamma party while intoxicated. (Barenborg, supra, 33 Cal.App.5th at 75.) Specifically, the
Plaintiff
in Barenborg, who was under the age of 21 at the time of her injury, attended
a party on
Cal. Gamma’s premises, where a “Cal. Gamma member was serving alcohol without checking
IDs.” (Id.) Attempting
to dance on a raised platform, the Barenborg plaintiff was pushed, either
inadvertently or intentionally, by another female, causing the plaintiff to fall and sustain injuries.
(id)
The Barenborg plaintiff sued SAE for negligence, and SAE moved for summary judgment,
arguing it owed no duty to plaintiff and was not vicariously liable for Cal. Gamma’ s conduct, which
10
was granted
by the trial court. (Barenborg, supra, 33 Cal.App.5th
at 75.) The Barenborg plaintiff
11
appealed, and the Court of Appeal upheld
the trial court’s decision. (Id. at 86.)
12
In reviewing
the trial court’s decision, the Court of Appeal explained that generally, there
13
is no duty to protect someone from third parties unless there is a special relationship between the
14
defendant and plaintiff, or defendant and third party. (Barenborg, supra, 33 Cal.App.5th at 76.)
15
The Court
of Appeal found Cal. Gamma, an unincorporated association, to bea separate entity from
16
SAE, and deemed it a “third-party” for purposes of the special relationship analysis’. (Id. at 77.)
17
As no previous Califomia appellate decision addressed the relationship between a national
18
fratemity and its local chapter, the Court of Appeal sought guidance from other jurisdictions,
19
interpreting the same common law as is applicable in Califomia (Barenborg, supra, 33
20
Cal.App.5th at 79.) The Court of Appeal agreed with otherjurisdictions that “existence of general
21
policies goveming the operation of local chapters and the authority to discipline
them for violations
does not justify imposition of a duty on national fratemities,” and that since “national fratemities
cannot monitor the day-to-day activities of local chapters contemporaneously, and ... absent an
24
25 1 The Barenborg Court considered Cal. Gamma a “third party” because plaintiff did not argue the
alter-ego theory. (Barenborg v. Sigma Alpha Epsilon Fraternity, supra, 33 Cal.App.5th at 77.)
26
Here, plaintiffs have alleged the alter-ego theory in an attempt to defeat the application of
27 Barenborg to the overwhelmingly similar facts of this case, but as explained in Section (III)(E) of
this Memorandum, plaintiffs’ alter-ego theory also fails as amatter of law. Therefore, the UC Santa
Cruz Chapter is a “third party” for purposes of this duty analysis.
8
DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
ability to do so, there can be no duty to control.” (Id.) Relying on these principles, the Court
disagreed with plaintiff-appellant that by making its laws and risk-management policies binding on
its chapters, SAE was exercising control over the chapter's daily affairs. (Id. at 80.) The Court
found there was no special relationship between SAE and Cal. Gamma. (Id. at 82.) In fact, the
Court clearly stated “... regardless of its policies and disciplinary powers, [SAE] was unable to
monitor and control Cal. Gamma’s day-to-day operations, and it thus owed no duty to protect
[plaintiff-appellant] from Cal. Gamma’s conduct.” (Id. at 80.)
The Court
of Appeal proceeded to determine that there was also no special relationship
between SAE and plaintiff-appellant. (Barenborg, supra, 33 Cal.App.5th
at 82.) Plaintiff-appellant
10
argued that as an invitee on premises subject to SAE’s control, she had a special relationship with
11
SAE. (Id.) SAE didnot ownorpossess Cal. Gamma’ s house and the Court disagreed
with plaintiff-
12
appellant’s argument that by issuing laws related to social events, risk management, and alcohol
13
use, SAE controlled Cal. Gamma’s house. (Id. at 83.) In support
of its ruling, the Court
of Appeal
14
cited to another recent decision, also arising from the Barenborg injury, University of Southem
15
California v. Superior Court of County of Los Angeles (2018) 30 Cal.App.5th 429, which held that
16
auniversity’s alcohol and social events policies do not equate to exercise of control overa property.
17
(Id)
18
With no special relationships between SAE and plaintiff-appellant nor between SAE and
19
Cal. Gamma, the Court
of Appeal found there to be no duty of care imposed against SAE to protect
20
plaintiff-appellant from harm. (Id.)
21
Plaintiffs are likely
to argue that their case against Theta Chi Fratemity, unlike Barenborg,
involves alleged hazing. However, as detailed in Section (II)(A) above, undisputed facts exhibit
that Mr. Beletsis was not being hazed whatsoever on June 2, 2018, as he was already an initiated.
24
member by that point and moreover, no hazing was required for active members to become officers
25
of the UC Santa Cruz Chapter.
26
It is also crucial to note that Barenborg relied on hazing cases from other jurisdictions to
27
determine
that the national fratemity owed no duty to protect its local chapter's pledges (emphasis
9
DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN,
SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION
added) - Walker v. Phi Beta Signa Fraternity (Rho Chapter) (La. Ct. App. 1997) 706 So.2d 525
and Bogenberger v. Pi Kappa Alpha Corporation, Inc. (Il. 2018) 104 N.E.3d 1110. (Barenborg,
supra, 33 Cal.App.5th at 79.) While plaintiffs have attempted to conflate the events of June 2,
2018, including the “Crossover Ceremony” for the new Spring 2018 pledges, with the alleged
hazing
of Mr. Beletsis, the undisputed facts show that Mr. Beletsis previously
pledged in Fall 2017
and was already an initiated member by June 2, 2018, and the UC Santa Cruz Chapter neither hazed.
him nor forced him to consume alcohol or to ingest drugs that evening. Mr. Beletsis’ consumption.
of alcohol and drugs on June 2, 2018 was voluntarily done so by Mr. Beletsis.
In Welker, a plaintiff-student and his parents alleged that he was hazed and beaten by Phi
10
Beta Sigma Fratemity’s local chapterat Southem University. (Walker, supra, 706 So.2d at 526.)
11
Plaintiffs
argued that the national fratemity had a duty to prevent hazing and was aware of this duty
12
as it was detailed in its membership initiation rituals and training, as well as the fact that the national
13
fratemity forbade hazing activities, showing a “clear knowledge and former approval of these
14
activities.” (Id. at 528.)
15
Yet, the evidence showed that the national fratemity clearly prohibited hazing as it
16
“fmplemented a New Membership Intake and Development Process for the purpose of a haze-free
17
membership process.” (Id. at 529.) All chapters were to implement this program. (Id.) These
18
materials also encouraged anybody who witnessed any hazing to report it to the national fratemity.
19
(Id.) The national fratemity had no knowledge of any hazing activity at the chapter. (Id.) No
20
national representative was ever present at any of the alleged incidents. (Id.) The national fratemity
21
is located in Washington D.C. while the local chapter was in Baton Rouge, Louisiana. (Id. at 530.)
Chapters were responsible for functioning at the local level, planning chapter functions and rmning
chapter operations. (Id. at 529, fn. 5.) The national fratemity was a separate corporation which
24
“generally oversees the chapters at different universities across the country.” (Id.) Therefore, the
25
Louisiana Court ruled that the national fratemity was not in a position to control its chapters’ daily
26
Preview
ELECTRONICALLY FILED Superior Court of California Michael C. Osborne (Bar No. 95839) County of Santa Cruz mosborne@cokinoslaw.com 3/22/2022 12:49 PM Elaine Kobylecki (Bar No. 299311) Alex Calvo, Clerk - Oe Daj fs, los ee Deputy ekobylecki@cokinoslaw.com COKINOS | YOUNG 611 Gateway Blvd., Ste. 233 South San Francisco, CA 94080 Telephone: (628) 229-9280 Attorneys for Defendant THETA CHI FRATERNITY, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CRUZ 10 11 DAPHNE BELETSIS, et al Case No. 19CV03287 12 Plaintiff, AMENDED NOTICE OF HEARING FOR DEFENDANT THETA CHI FRATERNITY. 13 Vv. INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, 14 THETA CHI FRATERNITY, INC., et al. SUMMARY ADJUDICATION 15 Defendant. Date: May 20, 2022 Time: 8:30 AM 16 Department: 10 17 Action Filed: October 31, 2019 18 19 TO ALL PARTIES AND THEIR COUNSEL OF RECORD 20 PLEASE TAKE NOTICE that Defendant Theta Chi Fraternity, Inc.’s MOTION FOR 21 SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 22 pursuant to an agreement between Defendant’s and Plaintiffs’ attorneys, has been set for hearing 23 on May 20, 2020 at 8:30 a.m. in Department 10 of the above-entitled courthouse, located at 701 24 Ocean St, Santa Cruz, CA 95060. 25 As the parties have previously filed their moving papers, Defendant’s attach all such 26 documents hereto for this Court’s ease of reference. Attached as Exhibit A are Defendant’s 27 underlying MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE 28 AMENDED NOTICE OF HEARING FOR DEFENDANT THETA CHI FRATERNITY, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION SUMMARY ADJUDICATION documents, filed and served on February 17, 2022 Dated: March 22, 2022 COKINOS | YOUNG _WeehahC. Orbos _—| Michael C. Osborne Elaine Kobylecki Attorneys for Defendant THETA CHI FRATERNITY, INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 AMENDED NOTICE OF HEARING FOR DEFENDANT THETA CHI FRATERNITY, INC.’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION EXHIBIT A Michael C. Osbome (Bar No. 95839) mosbome@cokinoslaw.com Elaine Kobylecki (Bar No. 299311) ekobylecki@cokinoslaw.com COKINOS | YOUNG 611 Gateway Blvd., Ste. 233 South San Francisco, CA 94080 Telephone: (628) 229-980 Attomeys for Defendant THETA CHI FRATERNITY, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CRUZ 10 11 DAPHNE BELETSIS, et al., Case No. 19CV03287 12 Plaintiff, DEFENDANT THETA CHI FRATERNITY, INC.’S NOTICE OF MOTION AND 13 Vv. MOTION FOR SUMMARY JUDGMENT THETA CHI FRATERNITY, INC., et al. OR, IN THE ALTERNATIVE, SUMMARY 14 ADJUDICATION 15 Defendant. Date: May 6, 2022 16 Time: 8:30 AM Department: 10 17 18 Action Filed: October 31, 2019 Trial Date: June 20, 2022 19 20 21 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 6, 2022 at 8:30 am. oras soon thereafter as this matter may be heard, in Department 10 of the above-entitled Court, Defendant THETA CHI 24 FRATERNITY, INC. (“Theta Chi”), will move this Court, and hereby does move this Court for 25 an Order entering summary judgment, orin the altemative, summary adjudication in favor of Theta 26 Chi on Plaintiffs DAPHNE BELETSIS and YVONNE RAINEY’S (“Plaintiffs”) First Amended 27 Complaint. DEFENDANT THETA CHI FRATERNITY, INC.’S NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION This motion is made pursuant to the following: Theta Chi is entitled to summary judgment as to Plaintiffs’ First Amended Complaint pursuant to Code of Civil Procedure section 437c(a) because there is no triable issue as to any material fact, and Theta Chi is entitled to judgment as a matter of law. Altematively, Theta Chi is entitled to summary adjudication as to each of the four causes of action against it in Plaintiffs’ First Amended Complaint (First, Second, Third, Fourth, and Fifth Causes of Action) pursuant to Code of Civil Procedure section 437c(f) because there is no triable issue as to any material fact for each cause of action, and Theta Chi is entitled to summary judgment as a matter of law on each cause of action because - 1) It did not owe a duty of care to Plaintiffs; 10 2) It did not assume any duties through its own policies or the policies of University of Califomia 11 at Santa Cruz; 3) It is not vicariously liable for the conduct of Defendant Theta Iota Chapter of 12 Theta Chi Fratemity, Inc. and its members; and 4) It is not vicariously liable based on the alter ego 13 doctrine. 14 This motion will be based on this Notice of Motion and on the papers in support served and 15 filed concurrently (Defendant’s Memorandum of Points and Authorities, Declaration of Michael 16 Mayer, Declaration of Michael C. Osbome, Defendant’s Separate Statement of Undisputed. 17 Material Facts, and Defendant’ s Index of Exhibits and Evidence and accompanying exhibits); such. 18 evidence as may be presented at the hearing of the motion; and all other papers and pleadings on. 19 file with the Court in this action. 20 2 Dated: February 17, 2022 COKINOS | YOUNG Wlechak C. Osborne 24 Michael C. Osbome Elaine Kol lecki 25 Attomeys for Defendant THETA CHI FRATERNITY, INC. 26 27 2 DEFENDANT THETA CHI FRATERNITY, INC.’S NOTICE OF MOTION FOR SUMMARY JUDGMENT OR, IN: THE ALTERNATIVE, SUMMARY ADJUDICATION Michael C. Osbome (Bar No. 95839) mosbome@cokinoslaw.com Elaine Kobylecki (Bar No. 299311) ekobylecki@cokinoslaw.com COKINOS | YOUNG 611 Gateway Blvd., Ste. 233 South San Francisco, CA 94080 Telephone: (628) 229-9180 Attomeys for Defendant THETA CHI FRATERNITY, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CRUZ 10 11 DAPHNE BELETSIS, et al., Case No. 19CV03287 12 Plaintiff, DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND 13 Vv. AUTHORITIES IN SUPPORT OF ITS THETA CHI FRATERNITY, INC., et al. MOTION FOR SUMMARY JUDGMENT 14 OR, IN THE ALTERNATIVE, SUMMARY 15 Defendant. ADJUDICATION 16 Date: May 6, 2022 Time: 8:30 AM 17 Department: 10 18 Action Filed: October 31, 2019 Trial Date: June 20, 2022 19 20 21 24 25 26 27 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN. SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF CONTENTS I INTRODUCTION IL UNDISPUTED MATERIAL FACTS A Beletsis’ Membership Status & June 2, 2018 Accident. B. Theta Chi Fratemity, Inc. oo... tcessecsessecsssssesseessesssessesssesssesseessessuesseessessesseessesseesseesseessesse 2 Il. LEGAL ANALYSIS A Legal Standard for Summary Judgment and Summary Adjudication. B. Theta Chi Fratemity Is Not Liable Under Plaintiffs’ First, Second, Third, Fourth, and Fifth Causes of Action for Negligence Because It Did Not Owe a Duty of Care to Plaintiffs... 6 10 1 No Special Relationship Existed Between Theta Chi Fratemity and the UC Santa Cruz 11 Chapter, so No Duty of Care can be Imposed Against Theta Chi Fratemity. 12 12 2. No Special Relationship Existed Between Theta Chi Fratemity and Plaintiffs Daphne 13 Beletsis and Yvonne Rainey, so No Duty of Care can be Imposed Against Theta Chi 14 FAPCTIIRY. oo. escessessecssecssesscssesssesssessesssessecssssscssscssecssessuessessuessuessesssesseessesssesssesseesseesseaseess 14 15 C. Theta Chi Fratemity Is Not Liable Under Plaintiffs’ First, Second, Third, Fourth, and 16 Fifth Causes of Action for Negligence Because It Did Not Assume a Duty Through Its Own 17 Policies or University’s POLICI@S. 00... eesesssessecssecssesssesseessessessesssesssessesssessesseesuesseesueesuesseeseesee 14 18 D Theta Chi Fratemity Is Not Liable Under Plaintiffs’ First, Second, Third, Fourth, and 19 Fifth Causes of Action for Negligence Because It is Not Vicariously Liable for the Conduct of 20 the UC Santa Cruz Chapter or Its Members, ........cssesssssesesssssseeseeceesecsesseeseeneeneeneeseseeeeeseeneentene 17 21 E Theta Chi Fratemity Is Not Vicariously Liable Under Plaintiffs’ Alter Ego Theories Alleged in the First, Second, Third, Fourth, and Fifth Causes of Action for Negligence. 18 23 IV. CONCLUSION. 20 24 25 26 27 1 DEFENDANT THETA CHI FRATERNITY, INC."S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION TABLE OF AUTHORITIES Cases ilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 838-840 19 v. Sigma Alpha Epsilon Fraternity (2019) 3 3 Cal.App.5th 70, 77-8 v. Pi Kappa Alpha Corporation, Inc. (Ill. 2018) 104. N.E.3d 1110 Crouse v. Brobeck, Ph & Harrison (1998) 67 Cal.App.4th 1509, 1524. Dashew v. Dashew Business Machines, Inc. (1963) 218 Cal.App.2d 711, 716. 20 Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 521, 531 Ladd v. Cot of San Mateo (1996) 12 Cal.4th 913, 917 10 Macpherson v. C.H. Eccleston (1961) 190 Cal.App.2d 24, 28. 19 11 Mid-C Ins. Co. v. Gardner (1992) 9 Cal.App.4th 1205, 1212-1213 19 12 Minifiev. Row (1921) 187 Cal. 481, 487 19 13 Olson v. Children’s Home Soci (1988) 204 Cal.App.3d 1362, 1366. 14 Pazv. State of California (2000) 22 Cal.4th 550, 560 17 15 Peart v. Ferro (2004) 119 Cal.App.4th 60, 69 16 Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1078-9 17 Smith v. Delta Tau Delta, Inc. (Ind. 2014) 9 N.E.3d 154 15, 16 18 Snith v. Freund (2011) 192 Cal.App.4th 466, 473 19 Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538 18 20 T v. Farmers Group. L (2009) 171 Cal.App.4th 1305, 1341 18, 19 21 University of Southern California v. Superior Court of County of Los Angeles (2018) 30 Cal.App.5th 429 9, 15, 16, 17 Walker v. Phi Beta Si Fratemity (Rho Chapter) (La Ct. App. 1997) 706 So.2d 525. - 10, 12, 13, 14 Statutes Califomia Code of Civil Procedure§ 437c(f)(1) ... 24 Califomia Code of Civil Procedure § 437c(c); .. 58 25 Califomia Code of Civil Procedure § 437c(f)(2) Califomia Code of Civil Procedure § 437c(p)(2) ... 26 Califomia Code of Civil Procedure§ 437c(a)(1).... 27 DEFENDANT THETA CHI FRATERNITY, INC."S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION I INTRODUCTION This action arises from the tragic death of Alexander Beletsis in June 2018 as a result of an accidental fall he sustained from a second-story window at a private residence in Santa Cruz. At the time of the accident, Mr. Beletsis was a sophomore at UC Santa Cruz and a previously-initiated member of a local undergraduate fratemity chapter (defendant Theta Iota Chapter (“the UC Santa Cruz Chapter”). Plaintiffs Daphne Beletsis and Yvonne Rainey, Mr. Beletsis’ surviving parents, have alleged negligence against the UC Santa Cruz Chapter and defendant and moving party, Theta Chi Fratemity, Inc. (“Theta Chi” or “Theta Chi Fratemity”), an intemational non-profit fratemal organization headquartered in Indiana. 10 Plaintiffs’ negligence claims are barred by the lack of a duty, an essential clement. 11 Accordingly, Theta Chi Fratemity moves for summary judgment as to plaintiffs’ negligence claims. 12 In the altemative, Theta Chi Fratemity also moves for summary adjudication on four issues: (1) 13 that it owed no duty to plaintiffs and, therefore, plaintiffs’ First, Second, Third, Fourth and Fifth 14 Causes of Action for negligence lack proof of an essential element; (2) that it assumed no duty 15 through its own policies or the University’ s policies; (3) that it cannot be held vicariously liable for 16 any negligence or fault of the UC Santa Cruz Chapter or its members; and (4) that it cannot be held 17 vicariously liable based on the alter ego doctrine. 18 Il. UNDISPUTED MATERIAL FACTS 19 A. Beletsis’ Membership Status & J une 2, 2018 Accident 20 In Fall 2017, Alexander Beletsis pursued an opportunity to become a member of the UC 21 Santa Cruz Chapter, Theta Chi Fratemity’s local undergraduate chapter at the University of Califomia at Santa Cruz, and he successfully completed the pledge process and became an initiated member. (UMF Nos. 1, 36, and 71.) 24 On June 2, 2018, Mr. Beletsis attended a “Crossover Ceremony” and he was already an 25 initiated member of the UC Santa Cruz Chapter, and contrary to what plaintiffs have alleged in the 26 First Amended Complaint, he was not being “hazed” that day. (UMF Nos. 2, 37, and 72.) The 27 “Crossover Ceremony” fornew Spring 2018 pledges as referenced in the First Amended Complaint 1 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION occurred at the Market House on June 2, 2018. (UMF Nos. 3, 38, and 73.) After the “Crossover Ceremony” ended, Mr. Beletsis traveled with his friend Leon Bums and Miguel Saldivar to 511 Broadway, Santa Cruz, Califomia (the “Broadway House”) to attend a party. (UMF Nos. 5, 40, and 75.) Mr. Beletsis liked to drink alcohol and do cocaine, and he had done both several times prior toJune 2, 2018. (UMF Nos. 8, 43, and 78.) Mr. Beletsis voluntarily drank at both the “Crossover Ceremony” at the Market House and at the party at the Broadway House. Mr. Beletsis liked to drink alcohol and was not pressured into drinking or doing cocaine on June 2, 2018. (UMF Nos. 9, 44, and 79.) In fact, Mr. Beletsis had a cocaine dealer who was not a member of the UC Santa 10 Cruz Chapter and Mr. Beletsis was known to have a fake ID that he used to purchase alcohol 11 underage. (UMF Nos. 10, 45, and 80.) Mr. Beletsis purchased cocaine and ingested the cocaine 12 on the evening of June 2, 2018. (UMF Nos. 11, 46, and 81.) Shortly afterwards, Mr. Beletsis 13 appeared frustrated and his friend Leon Bums suggested that Mr. Beletsis go to the bathroom and 14 hedid. (Id.) 15 Mr. Beletsis was alone inside the closed bathroom on the second floor of the Broadway 16 House at the time he sustained his injury. (UMF Nos. 14, 49, and 84.) There were no findings by 17 the University or any other source that determined Theta Chi did anything wrong with respect to or 18 contributed to Mr. Beletsis’ injury. (UMF Nos. 15, 50, and 85.) 19 The UC Santa Cruz Chapter did not require or pressure initiated members to drink alcohol 20 or do drugs, and some members even abstained. (UMF Nos. 12, 47, and 82.) Norwas Mr. Beletsis 21 susceptible to peer pressure. (Id.) Despite what plaintiffs allege in the First Amended Complaint, the UC Santa Cruz Chapter did not require or force members to do anything to obtain an officer position within the UC Santa Cruz Chapter. (UMF Nos. 13, 48, and 83.) Nor was Mr. Beletsis 24 required to drink alcohol or do drugs on June 2, 2018 to become brotherhood chair. (UMF Nos. 25 13, 48, and 83.) 26 B. Theta Chi Fraternity, Inc. 27 Theta Chi Fratemity is a non-profit corporation, incorporated under the laws of New Y ork, 2 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION with its headquarters in Carmel, Indiana. (UMF Nos. 16, 51, and 86.) Theta Chi Fratemity operates as a men’s college fratemal organization and is a membership organization. (UMF Nos. 17, 52, and 87.) Theta Chi Fratemity was founded in 1856 and currently recognizes approximately 161 local undergraduate chapters at various colleges and universities in the United States and Canada. (UMF Nos. 18, 53, and 88.) The mission of Theta Chi Fratemity is to develop college age-men into successful students, good citizens, lifelong brothers, and resolute leaders. (UMF Nos. 19, 54, and 89.) Theta Chi Fratemity is govemed by the Grand Chapter, which is the administrative, executive, and judicial head of Theta Chi Fratemity. (UMF Nos. 20, 55, and 90.) The Grand 10 Chapter, which meets several times a year, consists of eight voting members and the CEO as an ex- 11 officio member, and serves as Theta Chi’s Board of Directors, responsible for conducting the 12 business and affairs of Theta Chi Fratemity, including but not limited to setting policy and 13 evaluating strategy. (UMF Nos. 21, 56, and 91.) 14 A local undergraduate chapter is created by Theta Chi Fratemity issuing a charter to the 15 chapter. (UMF Nos. 22, 57, and 92.) Each of Theta Chi Fratemity’s local undergraduate chapters, 16 including the UC Santa Cruz Chapter is also govemed by Theta Chi Fratemity’s Constitution and. 17 Bylaws. (UMF Nos. 23, 58, and 93.) Pursuant to the charter issued by Theta Chi Fratemity, its 18 local undergraduate chapters are permitted to use Theta Chi Fratemity’s name and trademarks. 19 (UMF Nos. 24, 59, and 94.) Theta Chi Fratemity provides educational and chapter operational 20 resources to be utilized at the chapter's discretion. (UMF Nos. 24, 59, and 94.) 21 Although Theta Chi Fratemity provides its local undergraduate chapters with guidance and support, each local chapter, including the UC Santa Cruz Chapter, is a separate and distinct legal entity from Theta Chi Fratemity. (UMF Nos. 25, 60, and 95.) Each chapter is a self-goveming, 24 financially self-sufficient organization. (UMF Nos. 26, 61, and 96.) Each chapter is responsible 25 for its own debts and obligations. (UMF Nos. 27, 62, and 97.) Each chapter selects and initiates 26 its own members subject to Theta Chi Fratemity’s qualification requirements, elects its own 27 officers, establishes its own bylaws, operates and determines its methods of operation, and 3 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION otherwise govems its own affairs, subject only to those bylaws and operations being consistent with Theta Chi Fratemity’s Constitution and Bylaws, and policies. (UMF Nos. 28, 63, and 98.) Local undergraduate members are obligated as part of their membership to pay dues and assessments. (UMF Nos. 29, 64, and 99.) To do so, the undergraduate members pay their local chapter and the chapter, in tum, remits such payments to Theta Chi. (UMF Nos. 29, 64, and 99.) Theta Chi Fratemity does not control and does not supervise the day-to-day activities of any undergraduate chapters, and it did not control nor supervise the day-to-day activities of the UC Santa Cruz Chapter. (UMF Nos. 30, 65 and 100.) Because Theta Chi Fratemity does not supervise the day-to-day activities of its local undergraduate chapters, it cannot proactively regulate, control 10 or prevent the ultimate actions of its chapters or the individual chapter members. (UMF Nos. 31, 11 66, and 101.) Rather, Theta Chi Fratemity is only able to institute discipline for violations of its 12 Bylaws and policies by imposing sanctions against a chapter or individual members after leaming 13 of aviolation. (UMF Nos. 31, 66, and 101.) Theta Chi Fratemity believes that the autonomy of a 14 local undergraduate chapter in organizing, determining and conducting its own operations through. 15 a democracy is part of an educational process that adds to collegiate life and to the development 16 and refining of life and leadership skills. (UMF Nos. 32, 67, and 102.) 17 Theta Chi Fratemity’s Constitution, Bylaws, and Safety Standards policy all repeat that it 18 prohibits hazing of pledges or of initiated members. (UMF Nos. 33, 68, and 103.) Its Safety 19 Standards, which was previously titled Risk Management policies until May 2019, prohibits 20 purchasing, serving, or selling alcohol to anybody under the legal drinking age. (UMF Nos. 33, 21 68, and 103.) No representative of Theta Chi Fratemity participated in the planning or organization of the events leading up to Mr. Beletsis’ accident, and no representative of Theta Chi Fratemity was present for the “Crossover Ceremony” or the party at the Broadway House on June 2, 2018. 24 (UMF Nos. 7, 42, and 77.) 25 Theta Chi Fratemity did not own, lease, manage, or possess the student house in Santa Cruz 26 where the “Crossover Ceremony” occurred on June 2, 2018, nor at any other time. (UMF Nos. 4, 27 39, and 74.) Theta Chi Fratemity also did not own, lease, manage, or possess the student house in 4 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Santa Cruz where Mr. Beletsis was injured (“the Broadway House”) at the time of Mr. Beletsis’ injury on June 2, 2018, nor at any other time. (UMF Nos. 6, 41, and 76.) The Broadway House was owned by defendant Quinn McLaughlin. (UMF Nos. 6, 41, and 76.) II. LEGAL ANALYSIS A. Legal Standard for Summary J udgment and Summary Adjudication Califomia Code of Civil Procedure sections 437c(a)(1) and 437c(f)(1) provide the legal authority for summary disposition of matters within Califomia. Any party to an action may move the court for summary judgment in its favor on a cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) The party moving for summary judgment bears an initial burden of 10 production to make a prima facie showing of the nonexistence of any triable issue of material fact. 11 (Id. at 861-862.) “A defendant moving for summary judgment may meet the burden of showing 12 that a cause of action has no merit by establishing a complete defense to that cause of action.” 13 (Peartv. Ferro (2004) 119 Cal.App.4th 60, 69.) One example of a defendant meeting its burden is 14 that a cause of action has no menit if it has shown that one or more elements of the cause of action, 15 even if not separately pleaded, cannot be established. (C.C.P. § 437c(p)(2).) 16 If the moving party meets its burden of production, it causes a shift, and the opposing party 17 is then subject to a burden of production of his own to make a prima facie showing of the existence 18 of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at 861-862.) In opposing a motion 19 for summary judgment, the plaintiff cannot rely on the allegations of his or her pleadings or on 20 mere speculation and conjecture; instead, he or she must produce admissible evidence creating a 21 triable issue of fact. (C.C.P. § 437c(p)(2); Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524.) “There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier 24 of fact to find the underlying fact in favor of the party opposing the motion in accordance with the 25 applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at 850.) When the evidence shows that 26 there is no triable issue of material fact and the moving party is entitled to judgment as a matter of 27 law, the trial court must grant summary judgment. (C.C.P. § 437c(c); Aguilar, supra, 25 Cal.4th at 5 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 843.) Altematively, a party may move for summary adjudication as to one or more affirmative defense or one or more issues of duty. (C.C.P. § 437c(f)(1).) A motion for summary adjudication shall be made by itself or as an altemative to a motion for summary judgment and shall proceed in all procedural aspects as a motion for summary judgment. (C.C.P. § 437c(f)(2).) B. Theta Chi Fraternity Is Not Liable Under Plaintiffs’ First, Second, Third, Fourth, and Fifth Causes of Action for Negligence Because It Did Not Owe a Duty of Care to Plaintiffs. A defendant will be found liable fornegligence if a plaintiff can show that: (1) the defendant owed a legal duty to use due care; (2) the defendant breached such legal duty; and (3) that the 10 breach was the proximate or legal cause of the resulting injury to the plaintiff. (Laddv. County of 11 San Mateo (1996) 12 Cal.4th 913, 917.) “[TJhe existence of duty is a question of law for the court.” 12 (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 521, 531.) 13 Under Califomia law, “[a] person is not ordinarily liable for the actions of another and is 14 under no duty to protect another from harm, in the absence of a special relationship of custody or 15 contol.” (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1078-9.) Special relationships 16 typically involve the plaintiff's dependency or reliance on the defendant. (Olson v. Children’s 17 Hore Society (1988) 204 Cal.App.3d 1362, 1366.) A basic requisite of a duty based on a special 18 relationship is the defendants ability to control the other person’ s conduct. (Smithv. Freund (2011) 19 192 Cal.App.4th 466, 473.) If the relationship “creates no inference of an ability to control, the 20 actual custodial ability must affirmatively appear.” (Id.) 21 Generally, Califomia courts have recognized the following relationships to entail special relationships for purposes of determining the existence of a duty - “‘a parent with dependent children,’ ‘a custodian with those in its custody,’ and ‘an employer with employees when the 24 employment facilitates [an] employee’ s causing harm to third parties.’” (Barenborgv. Sigma Alpha 25 Epsilon Fraternity (2019) 33 Cal.App.5th 70, 77-78.) 26 Until recently, no Califomia decision had addressed the relationship between a national 27 fratemity and a local chapter to determine if it constituted a special relationship for purposes of 6 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION imposinga duty. (Barenborg, supra, 33 Cal.App.5th at 78.) In March 2019, the Califomia Court of Appeal held in Barenborg that the relationship between a national fratemity and a local chapter is not a “special relationship,” confirming that this relationship is not an exception to the general “no duty” rule. (Id. at 82.) Barenborg involved another national fratemity, Sigma Alpha Epsilon (“SAE”), and its relationship with one of its local chapters at the University of Southem Califomia (“USC”) - Cal. Gamma. (Barenborg, supra, 33 Cal.App.5th at 73-75.) The facts sumounding the relationship between SAE and its USC Chapter upon which the Court of Appeal relied, are essentially identical to the facts surrounding the relationship here between Theta Chi Fratemity and the UC Santa Cruz 10 Chapter. That is: 11 SAE, an Illinois-based non-profit corporation, had over 200 chapters throughout the 12 country. (Id. at 73.) SAE’s bylaws were binding on Cal. Gamma and govemed its operations. (Id.) 13 SAE’s Supreme Council was responsible for determining whether to grant charters to 14 undergraduate chapters. (Id. at 74.) SAE allowed local chapters to use its name and insignia, and. 15 supported local chapters through educational and other resources. (Id.) Though SAE required Cal. 16 Gamma to pay dues to the national fratemity and submit reports, SAE made it clear that each local 17 chapter shall “fix its own dues, assessments, and charges; elect its own officers; and have complete 18 control of its own activities.” (Id.) Nevertheless, SAE still had the authority to discipline chapters 19 and their members, including removal or suspension of a member or suspension or revocation of a 20 charter (Id.) SAE’s by-laws set forth eligibility requirements for an individual to become amember 21 of alocal chapter but the local chapter was solely responsible for extending invitations to potential new members. (Barenborg, supra, 33 Cal.App.5th at 74.) SAE had risk-management policies, which the chapters were expected to follow. (Id.) Such. 24 policies related to “use of alcohol ..., hazing, ... and event planning.” (Id.) They also prohibited 25 sexvice of alcohol to anyone who is underage. (Id.) SAE’s by-laws also required each local chapter 26 to have a chapter advisor, who was required to make bimonthly visits to the chapter and submit 27 reports to SAE regarding any “conditions requiring special attentior (Id) 7 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION The Barenborg plaintiff brought a lawsuit against SAE after she sustained injuries at a Cal. Gamma party while intoxicated. (Barenborg, supra, 33 Cal.App.5th at 75.) Specifically, the Plaintiff in Barenborg, who was under the age of 21 at the time of her injury, attended a party on Cal. Gamma’s premises, where a “Cal. Gamma member was serving alcohol without checking IDs.” (Id.) Attempting to dance on a raised platform, the Barenborg plaintiff was pushed, either inadvertently or intentionally, by another female, causing the plaintiff to fall and sustain injuries. (id) The Barenborg plaintiff sued SAE for negligence, and SAE moved for summary judgment, arguing it owed no duty to plaintiff and was not vicariously liable for Cal. Gamma’ s conduct, which 10 was granted by the trial court. (Barenborg, supra, 33 Cal.App.5th at 75.) The Barenborg plaintiff 11 appealed, and the Court of Appeal upheld the trial court’s decision. (Id. at 86.) 12 In reviewing the trial court’s decision, the Court of Appeal explained that generally, there 13 is no duty to protect someone from third parties unless there is a special relationship between the 14 defendant and plaintiff, or defendant and third party. (Barenborg, supra, 33 Cal.App.5th at 76.) 15 The Court of Appeal found Cal. Gamma, an unincorporated association, to bea separate entity from 16 SAE, and deemed it a “third-party” for purposes of the special relationship analysis’. (Id. at 77.) 17 As no previous Califomia appellate decision addressed the relationship between a national 18 fratemity and its local chapter, the Court of Appeal sought guidance from other jurisdictions, 19 interpreting the same common law as is applicable in Califomia (Barenborg, supra, 33 20 Cal.App.5th at 79.) The Court of Appeal agreed with otherjurisdictions that “existence of general 21 policies goveming the operation of local chapters and the authority to discipline them for violations does not justify imposition of a duty on national fratemities,” and that since “national fratemities cannot monitor the day-to-day activities of local chapters contemporaneously, and ... absent an 24 25 1 The Barenborg Court considered Cal. Gamma a “third party” because plaintiff did not argue the alter-ego theory. (Barenborg v. Sigma Alpha Epsilon Fraternity, supra, 33 Cal.App.5th at 77.) 26 Here, plaintiffs have alleged the alter-ego theory in an attempt to defeat the application of 27 Barenborg to the overwhelmingly similar facts of this case, but as explained in Section (III)(E) of this Memorandum, plaintiffs’ alter-ego theory also fails as amatter of law. Therefore, the UC Santa Cruz Chapter is a “third party” for purposes of this duty analysis. 8 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ability to do so, there can be no duty to control.” (Id.) Relying on these principles, the Court disagreed with plaintiff-appellant that by making its laws and risk-management policies binding on its chapters, SAE was exercising control over the chapter's daily affairs. (Id. at 80.) The Court found there was no special relationship between SAE and Cal. Gamma. (Id. at 82.) In fact, the Court clearly stated “... regardless of its policies and disciplinary powers, [SAE] was unable to monitor and control Cal. Gamma’s day-to-day operations, and it thus owed no duty to protect [plaintiff-appellant] from Cal. Gamma’s conduct.” (Id. at 80.) The Court of Appeal proceeded to determine that there was also no special relationship between SAE and plaintiff-appellant. (Barenborg, supra, 33 Cal.App.5th at 82.) Plaintiff-appellant 10 argued that as an invitee on premises subject to SAE’s control, she had a special relationship with 11 SAE. (Id.) SAE didnot ownorpossess Cal. Gamma’ s house and the Court disagreed with plaintiff- 12 appellant’s argument that by issuing laws related to social events, risk management, and alcohol 13 use, SAE controlled Cal. Gamma’s house. (Id. at 83.) In support of its ruling, the Court of Appeal 14 cited to another recent decision, also arising from the Barenborg injury, University of Southem 15 California v. Superior Court of County of Los Angeles (2018) 30 Cal.App.5th 429, which held that 16 auniversity’s alcohol and social events policies do not equate to exercise of control overa property. 17 (Id) 18 With no special relationships between SAE and plaintiff-appellant nor between SAE and 19 Cal. Gamma, the Court of Appeal found there to be no duty of care imposed against SAE to protect 20 plaintiff-appellant from harm. (Id.) 21 Plaintiffs are likely to argue that their case against Theta Chi Fratemity, unlike Barenborg, involves alleged hazing. However, as detailed in Section (II)(A) above, undisputed facts exhibit that Mr. Beletsis was not being hazed whatsoever on June 2, 2018, as he was already an initiated. 24 member by that point and moreover, no hazing was required for active members to become officers 25 of the UC Santa Cruz Chapter. 26 It is also crucial to note that Barenborg relied on hazing cases from other jurisdictions to 27 determine that the national fratemity owed no duty to protect its local chapter's pledges (emphasis 9 DEFENDANT THETA CHI FRATERNITY, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN, SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION added) - Walker v. Phi Beta Signa Fraternity (Rho Chapter) (La. Ct. App. 1997) 706 So.2d 525 and Bogenberger v. Pi Kappa Alpha Corporation, Inc. (Il. 2018) 104 N.E.3d 1110. (Barenborg, supra, 33 Cal.App.5th at 79.) While plaintiffs have attempted to conflate the events of June 2, 2018, including the “Crossover Ceremony” for the new Spring 2018 pledges, with the alleged hazing of Mr. Beletsis, the undisputed facts show that Mr. Beletsis previously pledged in Fall 2017 and was already an initiated member by June 2, 2018, and the UC Santa Cruz Chapter neither hazed. him nor forced him to consume alcohol or to ingest drugs that evening. Mr. Beletsis’ consumption. of alcohol and drugs on June 2, 2018 was voluntarily done so by Mr. Beletsis. In Welker, a plaintiff-student and his parents alleged that he was hazed and beaten by Phi 10 Beta Sigma Fratemity’s local chapterat Southem University. (Walker, supra, 706 So.2d at 526.) 11 Plaintiffs argued that the national fratemity had a duty to prevent hazing and was aware of this duty 12 as it was detailed in its membership initiation rituals and training, as well as the fact that the national 13 fratemity forbade hazing activities, showing a “clear knowledge and former approval of these 14 activities.” (Id. at 528.) 15 Yet, the evidence showed that the national fratemity clearly prohibited hazing as it 16 “fmplemented a New Membership Intake and Development Process for the purpose of a haze-free 17 membership process.” (Id. at 529.) All chapters were to implement this program. (Id.) These 18 materials also encouraged anybody who witnessed any hazing to report it to the national fratemity. 19 (Id.) The national fratemity had no knowledge of any hazing activity at the chapter. (Id.) No 20 national representative was ever present at any of the alleged incidents. (Id.) The national fratemity 21 is located in Washington D.C. while the local chapter was in Baton Rouge, Louisiana. (Id. at 530.) Chapters were responsible for functioning at the local level, planning chapter functions and rmning chapter operations. (Id. at 529, fn. 5.) The national fratemity was a separate corporation which 24 “generally oversees the chapters at different universities across the country.” (Id.) Therefore, the 25 Louisiana Court ruled that the national fratemity was not in a position to control its chapters’ daily 26