Judge: James L. Crandall, Case: 19-1114386, Date: 2022-07-21 Tentative Ruling
Motion for Summary Judgment and/or Adjudication
Defendant Preston Lee’s Motion for Summary Judgment of Plaintiffs’ (Jennifer Macabasco and Edgardo Castro) Second Amended Complaint is DENIED. Defendant Preston Lee’s Motion for Summary Adjudication of Plaintiffs’ (Jennifer Macabasco and Edgardo Castro) Second Amended Complaint is also DENIED.
Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified 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 affirmative defense, a claim of damages, or an issue of duty.” Code of Civil Procedure section 437c, subdivision (q), states, in part, “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition to the motion.”
Aguilar v. Atlantic Richfield Co. (Aguilar) (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in original.) “Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law. For the defendant must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ (Code Civ. Proc., § 437c, subd. (b).) The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id., at pp. 854-855; Footnotes 23 and 24 omitted; Italics in Aguilar.)
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Id., at p. 839.)
The Notice of Motion and Separate Statement in support of the moving papers has failed to comply with CRC Rule 3.1350(b), which requires that “If summary adjudication is sought...the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and repeated verbatim in the separate statement of undisputed material facts.”
The Notice of Motion does not match the issues in the Separate Statement. Further, the Separate Statement incorporates facts underneath each issue. This is also improper.
These rules are not form over substance. They are enacted to clarify the motions, make them more intelligible to the court and the responding party, and provide for due process. The court has discretion to deny summary judgment on the basis of mere format errors. (See Truong v. Glasser (2010) 181 Cal.App.4th 102, 118.) Thus, the Court treats this Motion as a Motion for Summary Judgment and not Adjudication based on this technical error.
To obtain summary judgment, a defendant must negate all of the theories of liability tendered by the complaint. (See Aguilar, 25 Cal.4th at 850-851; Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1115.)
Plaintiffs’ First Cause of Action is for Violation of Matt’s Law.
Penal Code § 245.6, also known as “Matt’s Law” states:
(a) It shall be unlawful to engage in hazing, as defined in this section.
(b) “Hazing” means any method of initiation or preinitiation into a student organization or student body, whether or not the organization or body is officially recognized by an educational institution, which is likely to cause serious bodily injury to any former, current, or prospective student of any school, community college, college, university, or other educational institution in this state. The term “hazing” does not include customary athletic events or school-sanctioned events.
(c) A violation of this section that does not result in serious bodily injury is a misdemeanor, punishable by a fine of not less than one hundred dollars ($100), nor more than five thousand dollars ($5,000), or imprisonment in the county jail for not more than one year, or both.
(d) Any person who personally engages in hazing that results in death or serious bodily injury as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code, is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(e) The person against whom the hazing is directed may commence a civil action for injury or damages. The action may be brought against any participants in the hazing, or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing.
(f) Prosecution under this section shall not prohibit prosecution under any other provision of law.
(Emphasis supplied.)
“This bill makes every person who participates in hazing responsible. This bill moves hazing into the Penal Code, increases the penalty to a felony in case of injury or death, and broadens the ability of prosecutors to seek sentences against any persons - not just students - who participate in hazing.
Fraternity officials can also be held responsible.” (California Bill Analysis, S.B. 1454 Assem., 6/20/2006.)
Defendant contends: “Defendant Preston Lee has satisfied his burden by presenting the undisputed facts that support that he was NOT part of any hazing activities that allegedly caused of Bea Castro’s death and Plaintiffs’ injuries/damages.”(Motion, 12:21-23.) In support of this contention, the Declaration of Preston Lee states:
2. I was not present for the initiation activities associated with Chi Sigma Phi (the “SORORITY”) at the Hotel Fullerton on March 16, 2019.
3. I did not coordinate the events hosted at the Hotel Fullerton and at 13292 Ramona Place, Garden Grove, California 92844 (“RESIDENCE”) by members of the SORORITY on March 16, 2019 and morning of March 17, 2019 (the “FORMALS NIGHT EVENT”).
4. I did not plan the FORMALS NIGHT EVENT.
5. I did not invite BEA CASTRO to the FORMALS NIGHT EVENT.
6. I did not have any responsibility with respect to the FORMALS NIGHT EVENT.
7. I did not pay for the FORMALS NIGHT EVENT.
8. I did not drive BEA CASTRO to the FORMALS NIGHT EVENT.
9. I did not bring BEA CASTRO to the Hotel Fullerton on March 16, 2019.
10. I did not bring BEA CASTRO to the RESIDENCE on March 16, 2019.
11. I did not live at the RESIDENCE in March 2019.
12. I have never owned the RESIDENCE or had control over the RESIDENCE in March 2019.
13. I have never owned The Hotel Fullerton or had control over The Hotel Fullerton in March 2019.
14. I did not put BEA CASTRO in any bed at the RESIDENCE on March 16, 2019 or on March 17, 2019
15. I was not responsible for watching BEA CASTRO while she was in bed on March 16, 2019 or on March 17, 2019.
16. I was not present when BEA CASTRO was unconscious on March 16, 2019 or on March 17, 2019.
17. I was not present when others tried to get BEA CASTRO to a car on March 17, 2019.
18. I was not present when BEA CASTRO fell and hit her head on March 17, 2019.
19. I was not present when BEA CASTRO was taken back into the RESIDENCE after hitting her head on March 17, 2019.
20. I was not aware BEA CASTRO was injured on March 17, 2019.
21. I did not place a garbage bag around BEA CASTRO’s neck on March 16, 2019 or on March 17, 2019.
22. I did not observe BEA CASTRO vomit on March 16, 2019 or on March 17, 2019.
23. I was not at the RESIDENCE at 5:26 am the morning of March 17, 2019.
24. I was not at the RESIDENCE at 8:00 am on March 17, 2019.
25. I was not present when it was discovered that BEA CASTRO was not breathing on March 17, 2019.
26. I was not BEA CASTRO’s date at the FORMALS NIGHT EVENT.
27. I was not the individual chosen to care for BEA CASTRO at the FORMALS EVENT NIGHT.
28. I was not the individual chosen to drive BEA CASTRO to the RESIDENCE.
29. I was an invited guest at FORMALS NIGHT EVENT.
30. I was not a member of SORORITY on March 16, 2019 or March 17, 2019. I cannot be a member of a sorority as I am male.
31. I did not participate in any SORORITY initiation rituals.
32. I could not participate in any SORORITY initiation rituals on March 16, 2019, because I was not a member of SORORITY.
33. I did not contribute money to pay for the FORMALS NIGHT EVENT.
34. I did not contribute any money to purchase alcohol consumed by BEA CASTRO.
35. I was not with BEA CASTRO during the entire FORMALS NIGHT EVENT.
36. I was not aware of how much alcohol BEA CASTRO drank during the day of the FORMALS NIGHT EVENT.
37. I was not aware of how much alcohol BEA CASTRO drank during the night of the FORMALS NIGHT EVENT.
38. I was not aware of how much alcohol BEA CASTRO drank during 24 hours before the FORMALS NIGHT EVENT.
39. I was not aware of how much food BEA CASTRO ate during the day of the FORMALS NIGHT EVENT or the night of the FORMALS NIGHT EVENT such that I would have known how much food BEA CASTRO ate during 24 hours before the FORMALS NIGHT EVENT.
40. I was unaware how much sleep BEA CASTRO had within 24 hours before the FORMALS NIGHT EVENT.
41. I was unaware of any drugs or medication taken by BEA CASTRO within 24 hours of the FORMALS NIGHT EVENT.
42. I first learned of BEA CASTRO’s medical condition when she was at the hospital on March 17, 2019.
43. I arrived at the RESIDENCE at approximately 12:00 a.m. on March 17, 2019, and left the RESIDENCE at approximately 1:30 a.m. on March 17, 2019, and I was not called to come back for any reason.
44. I never forced BEA CASTRO to drink any alcoholic beverages on March 16, 2019 or on March 17, 2019.
45. I was not aware that BEA CASTRO was unconscious while I was at the RESIDENCE on March 16, 2019 or on March 17, 2019.
46. I was not aware BEA CASTRO required any medical assistance while I was at the RESIDENCE.
The foregoing is sufficient to satisfy Defendant’s initial burden that he did not participate in the “hazing.”
Plaintiff raises a triable issue of material fact. Amy Nguyen, who was a member of the same pledge class as decedent declared:
21. “Formals Night,” was the night of celebration held for pledges having completed the pledging process, at which time the pledges received official letters of the sorority.
22. Formals Night had two components: a banquet at the Hotel Fullerton and the after-party at a private residence.
24. My pledge class’s Formals Nights was March 16, 2019.
25. Our pledge class arrived at the Hotel Fullerton around 5:00 p.m.
26. First, we had a private dinner with the active members, our pledge class, and our dates.
27. At approximately 8:00 p.m. or 9:00 p.m., the doors opened to the public, and members of different fraternities and sororities came to the Formals Night to congratulate us. Everyone stood in line to congratulate me and my pledge class, to give us gifts, and to give “shout-outs” to each pledge.
28. When the doors opened, approximately 50 people came in, including Preston Lee, who was Bea’s Big Brother.
29. My pledge sisters and I also performed a dance for everyone after we had been congratulated and given gifts and “shout-outs.”
30. All members of the Chapter’s Executive Board—including Kerri Mach, Jennifer Do, and Josephine Chhay—were present at the banquet. Chapter members Jamie Linh Le and Samantha Omiya were also present.
31. Everyone was drinking throughout the banquet. Active members and pledges drank alcohol in the parking lot of the hotel. I do not know where the alcohol came from, but I recall drinking Hennessy. The bottles of alcohol were being passed from car to car and active members were encouraging me and my pledge sisters to drink.
32. I became drunk from the alcohol I drank at the banquet.
33. All of my pledge sisters and I were the same level of drunk and we were worried that we did not perform our dance routine well because we had too much to drink, but everyone told us afterward that we did well.
34. I saw Bea at the banquet and she was really drunk, which I could tell because she was slurring her words and acting drunk.
35. A common phrase used in the Sorority was to drink until you “die,” which meant drinking until you “blackout.”
36. We were told that the purpose of Formals Night was for pledges to “die and be reborn a Chi,” which meant drinking until we blacked out and then when we woke up we would be “reborn” as a member of the Sorority.
37. It was expected that my pledge sisters and I would die and be reborn Chis.
38. The purpose of the pledges having dates at Formal Night was for our dates to take care of us when we blacked out from alcohol or “died.”
Declaration of Alyssa Pimental, provides:
33. I saw Bea and her pledge sisters do their dance performance [at Hotel Fullerton] and then I waited to greet Bea, say “hi,” and give her a hug.
34. When I saw Bea, she was extremely intoxicated. She was so drunk she could barely wrap her arms around me when I gave her a hug.
35. Based on my observations, on a scale of 1 to 10, Bea was at a 7 or 8 in terms of her intoxication. Based on her behavior when she interacted with me, I believe that Bea was blacked out at that point in the evening.
The Declaration of Anthony Truong provides that at one point, Defendant Lee even took a photograph with Bea and her Big Sister, Vivian Ly. (Declaration of Anthony Truong, ¶ 84 & Ex. C , which is Ex. 10 to Plaintiffs’ Index of Evidence.) Further, the Declaration of Jennifer Macabasco Castro, ¶¶ 6–7 & Ex. C, Ex. 11 to Plaintiffs’ Index of Evidence, attaches a picture of Defendant Lee and Bea at the banquet.
The Declaration of Amy Nguyen further states:
39. The banquet ended at approximately 11:00 p.m. and we were supposed to be at an after-party hosted at the house of some of the Chapter members as soon as possible afterward.
40. My date drove me to the after-party and we arrived around midnight. I was the first pledge sister to arrive at the after-party.
Declaration of Vivian Ly states:
33. When Bea arrived [at the after party], she seemed very intoxicated and out of it, but also very happy to be able to celebrate with her friends that were waiting for her.
Declaration of Corina Pham states:
16. When I saw them [Bea and Anthony Truong], Bea appeared very drunk and was unable to walk by herself and Truong had to hold her up and help her walk.
Declaration of Anthony Truong, states:
43. Bea and I did not bring any alcohol to the after-party.
44. When we arrived at the after-party, it was obvious from the way she was acting that Bea was already drunk.
45. Preston Lee came up to her when we arrived, handed Bea a bottle, and said: “drink little sis.” He was the first person I saw make Bea drink alcohol at the after-party.
46. Other active members of the Sorority, including her Big Sister, were encouraging, telling, or chanting for Bea to drink alcohol.
47. During the after-party, 1 saw Sorority members aggressively shoving bottles of alcohol in Bea’s face and telling her to drink. 1 specifically remember Bea drinking Amsterdam and Jameson.
48. At least one time, I saw Sorority members holding a bottle of liquor while Bea drank from it with their encouragement.
49. The house where the after-party was held had 2 or 3 bedrooms. Most of the people at the after-party were in the living room.
50. By about 1:00 a.m., Bea couldn’t stand by herself and was slurring her words really badly.
51. At that point, several Sorority members and I helped Bea to a bedroom, where we laid her down on the bed and put her on her side. Bea went to sleep in the bed. I was not with Bea the entire time we were at the after-party before she passed out.
52. For the rest of the night, I hung out in the bedroom and watched over Bea. There were 5-8 Sorority members in the room with me, but the only one I knew by name was Vivian Ly.
53. I also remember Corina Pham, Bonnie Liang, and one of my friends helping me care for Bea.
54. I asked Bonnie Liang and other Sorority members what to do because I was worried about Bea; Bonnie told me that Bea would be fine.
55. Preston Lee also checked on Bea at least once and asked if she was okay.
56. Two of the girls who lived at the house also checked on Bea. I did not know their names, but one of them had blonde hair and glasses.
Further, in the days leading up to Formals Night, Sorority members and guests, including Defendant Lee, posted comments on a Facebook invitation for the event. (See Declaration of Jennifer Macabasco Castro, ¶¶ 2–3 & Ex. A (Ex. 11 to Plaintiffs’ Index of Evidence; Excerpts from Garden Grove Police Department Report (Ex. 12 to Plaintiffs’ Index of Evidence.)
In those comments, former Defendant Vivian Ly, Bea’s Big Sister, wrote: “Not going because this shoutout wack.” Bea responded: “Vivian Ly does that mean im not dying.” (Id.) In response, Ms. Ly wrote “Preston Lee kill her for me,” “tagging” Defendant Lee in the post by linking it to his name. (Id.) Defendant Lee responded to the comment, indicating that he had seen it. (Id.)
The evidence indicates that the final step in the many-months-long pledging process necessary to be initiated into the Chi Sigma Phi sorority occurred on Formals Night when pledges were expected to “die and be reborn a Chi” by drinking to the point of blacking out and then waking up “reborn” as a full member of the Sorority.
The reasonable inference is that the hazing ritual for pledges to “die and be reborn a Chi” was continuing at the after-party, facilitated by the alcohol purchased and provided by the Sorority. This is further supported by the inference that the pledge would not become a Chi until they were no longer “blacked out.” Further, Bea’s “Big Sister” Vivian Ly asked Defendant Preston Lee to “kill” Bea for her and Preston Lee provided Bea alcohol and told her “drink little sis.”
There is a triable issue of material fact regarding whether Defendant Preston Lee participated in the hazing activity.
Based on the foregoing, the Court DENIES Defendant Preston Lee’s Motion for Summary Judgment of Plaintiffs’ (Jennifer Macabasco and Edgardo Castro) Second Amended Complaint is DENIED.
Defendant Preston Lee’s Motion for Summary Adjudication of the First, Second, and Fifth Causes of Action Plaintiffs’ (Jennifer Macabasco and Edgardo Castro) Second Amended Complaint is DENIED.
Plaintiff to give notice.
Future hearing dates
7/22/22 – MSC
9/19/22 – Jury Trial