Lilly Teisher vs Steven R Andrade et al

Case Number

23CV04374

Case Type

Hearing Date / Time

Fri, 08/08/2025 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For all reasons discussed herein, Sigma Nu Fraternity, Inc.’s motion for summary judgment is granted.

Background: 

This action commenced on October 4, 2023, by the filing of the original complaint by plaintiff Lilly Teisher (“plaintiff”) against defendants Andrade Investments, LLC, Steven R. Andrade, Sigma Nu Fraternity (“Sigma Nu National”), Sigma Nu Kappa Eta Chapter (“Kappa Eta”), and Regents of the University of California (“Regents”).

Plaintiff filed her first amended complaint (“FAC”) on December 22, 2023, and UCSB demurred to the fifth cause of action for Negligent Undertaking and the sixth cause of action for Dangerous Condition of Public Property.

On April 26, 2024, the demurrer of UCSB to the fifth and sixth causes of action was sustained with leave to amend.

On May 6, 2024, plaintiff filed the operative second amended complaint (“SAC”), setting forth the same six causes of action. Those causes of action are: (1) Negligence - Premises Liability as to Andrade Investments; (2) Negligence - Premises Liability as to Steven Andrade; (3) Negligence - Premises Liability as to Kappa Eta and Sigma Nu National; (4) Negligent Undertaking as to Sigma Nu National; (5) Negligent Undertaking as to Regents; and (6) Dangerous Condition of Public Property as to Regents.

The basic facts of the SAC are similar to those alleged in the FAC, but plaintiff has added some additional allegations. As alleged:

Defendant Kappa Eta is a branch of defendant Sigma Nu National that operates a fraternity house located at 6587 Del Playa Drive in Goleta, California (the fraternity house), less than two miles from the campus of the University of California, Santa Barbara (“UCSB”). (SAC, ¶¶ 9, 30.) The fraternity house is owned by defendants Steven R. Andrade and Andrade Investments (collectively, the Andrade defendants). (Id. at ¶¶ 3, 6, 7, 30.)

“Every Spring since 2004, a beach party known as ‘Deltopia’ takes place in the streets of Isla Vista, involving massive crowds of college students and day-drinking events. Deltopia was originated by [UCSB} students and occurs at the start of UCSB’s spring quarter around Del Playa Drive. The event centers around Del Playa Drive. Each year, Deltopia attracts more attendees, sometimes as many as 25,000. Historically, the event has seen numerous arrests and injuries causing local authorities to allocate more resources in response. Defendant UC Regents was aware that Deltopia occurred every year. Defendant UC Regents was aware that the event posed a serious risk of underage drinking, injury, and death to UCSB students and other individuals attending the event. Despite its knowledge, Defendant UC Regents never took any steps to prevent the event, monitor the event, or make the event safer. To the contrary, Defendant UC Regents actively encouraged and benefited from Deltopia and allowed various Deltopia events to occur at UCSB facilities, both before and after Plaintiff was injured. In fact, UCSB has a historical and ongoing campus culture issue that promotes partying, overconsumption of alcohol, and drug use, that results in a dangerous condition to students and visitors. Rather than take measures to prevent this campus culture, UCSB promotes and encourages the culture to increase its admission applicants.” (SAC, ¶ 20.)

“UCSB provides restrictions on Deltopia events including ‘Any party or gathering that violates the county outdoor festival and social host ordinance, which prohibits paid entry, alcohol sales, attendance above 250 people and allowing people in rooftops or cliffs, among other things, will be shut down by law enforcement.’ During Deltopia, UCSB Campus Police coordinate efforts with local law enforcement to patrol, monitor, and enforce these regulations and safety at Deltopia events on and off campus in Isla Vista and Goleta neighborhoods.” (SAC, ¶ 22.)

“Deltopia is well-known to create unsafe situations. In April 2013, a student from Cal Poly traveled to Deltopia to participate in the event and was found dead on the beach after engaging in Deltopia activities. On April 6, 2013, four UCSB students were hospitalized when a balcony at 6643 Del Playa Drive collapsed. On April 2, 2022, the annual Deltopia event took place and following the pattern of students being injured in prior years, [plaintiff] was injured in connection with the event.” (SAC, ¶ 25.)

“A makeshift wooden ‘step’ and ‘handle’ are attached to the back of the [fraternity] house, allowing someone to dangerously climb out of the window to access the roof below. This step is visible from the back of the house; the wood used for this step contrasts with the light gray of the house’s paint color and protrudes out.” (SAC, ¶ 32; italics added.)

On April 2, 2022, plaintiff attended a Deltopia event at the fraternity house that was hosted by Kappa Eta. (SAC, ¶ 44.) At around 1:00 p.m., plaintiff attempted to use the makeshift step to gain access to the roof and fell over ten feet to the concrete ground, striking her head and sustaining serious injuries. (SAC, ¶ 45.)

Regents demurred to the fifth and sixth causes of action, which were the only causes of action against it. The demurrer was sustained without leave to amend. As a result, Regents was dismissed and judgment entered in its favor.

On May 17, 2024, plaintiff substituted in Michael S. Andrade as Doe 1.

Sigma Nu National now moves for summary judgment or, in the alternative, summary adjudication of 6 issues.

Plaintiff opposes the motion.

Analysis:

          Standard on Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“A defendant … has met his or her burden of showing that a cause of action has no merit if the 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 the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)

As noted above, the two causes of action against Sigma Nu National are the third cause of action for Negligence – premises liability, and the fourth cause of action for Negligent Undertaking.

            Separate Statement

“The Separate Statement in Opposition to Motion must be in the two-column format specified in (h).

“(1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party’s references to exhibits.

“(2) On the right side of the page, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.

“(3) If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(f).)

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).)

“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ ” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)

The court has read and considered all the undisputed material facts (“UMFs”) and has considered all the supporting evidence. The relevant UMF’s that are either undisputed or not reasonably disputed are:

Plaintiff alleges that she attended a University of California, Santa Barbara (“UCSB”) party on April 2, 2022. (UMF 1.) The party was part of a larger beach party in the area known as “Deltopia,” which is a UCSB tradition that involves large crowds and day-drinking. (UMF 2.)

Plaintiff alleges that while she was at the party, she exited an upper-level window at the residence and attempted to gain access to the roof by stepping onto a makeshift platform. (UMF 3.) As she did so, she lost her footing and fell to the ground, sustaining injuries. (UMF 4.)

The party where plaintiff was injured was at a private residence located off-campus at 6587 Del Playa Drive, Goleta. (UMF 5.) The premises was owned and managed by Andrade Investments, LLC, Michael S. Andrade, and Steven Andrade, and was rented to certain members of Kappa Eta, which is an undergraduate fraternity chapter. (UMF 6.)

The lease for the premises that was in effect on the date of the incident was signed by the Andrade defendants as the lessor and by the kappa Eta members in their individual capacities as the lessees. (UMF 7.) There is no mention of either Sigma Nu or Kappa Eta in the lease. (UMF 8.)

While the four tenants living at the premises were all Kappa Eta fraternity members, the premises was not the formal Kappa Eta chapter house. (UMF 9.) The formal Kappa Eta fraternity house, which was recognized by both UCSB and Sigma Nu as being associated with Kappa Eta, was located at 765 Embarcadero del Norte, Goleta. (UMF 10.)

Although some UCSB students referred to the premises as a Sigma Nu or Kappa Eta “satellite  house,” Sigma Nu did not recognize the premises as having any affiliation with Sigma Nu or Kappa Eta. (UMF 12; Not reasonably disputed as plaintiff’s response does not directly address whether Sigma Nu recognized the premises as having any affiliation with Sigma Nu or Kappa Eta, nor does the evidence support plaintiff’s response. The most that can be inferred from the newsletter, at PCOE 92, is that a Kapp Eta member claimed that the premises was a satellite house, not that Sigma Nu recognized it as such.)

Sigma Nu did not regulate who resided at the premises, how the premises was kept or maintained, or what activities occurred there. (UMF 14.)

The only connection between Sigma Nu and the premises is that a few of its local Kappa Eta members lived there on the date of the incident. (UMF 15; Not reasonably disputed.)

Sigma Nu is a non-profit organization operating as a national fraternal organization, that is headquartered in Lexington, Virginia, and was founded in 1869 at the Virginia Military Institute. (UMF 17.) Sigma Nu has over 160 active undergraduate fraternity chapters and colonies on college campuses throughout the United States and has initiated over 235,000 members since its founding. (UMF 18.)

Sigma Nu’s Mission Statement is: (1) To develop ethical leaders inspired by the principals of Love, Honor, and Truth; (2) To foster the personal growth of each man’s mind, heart, and character; and (3) To perpetuate lifelong friendships and commitment to the fraternity. (UMF 19.)

Sigma Nu is governed by the “High Council,” which is the administrative, executive, and judicial head of the fraternity. (UMF 20.) The High Council acts as Sigma Nu’s Board of Directors and consists of seven voting members who are alumni of various Sigma Nu chapters. (UMF 21.) The High Council meets several time each year to discuss Sigma Nu’s business and affairs. (UMF 22.) The meetings include setting Sigma Nu’s policy and evaluating overall strategy. (UMF 23.)

The local undergraduate chapters associated with Sigma Nu are created by Sigma Nu issuing a charter to the chapter. (UMF 24.) Thereafter, the operations of each chapter, including Kappa Eta, should be in harmony with Sigma Nu’s Constitution and Bylaws. (UMF 25.) Pursuant to the charter issued by Sigma Nu, local chapters are permitted to use Sigma Nu’s name and trademarks. (UMF 26.) Sigma Nu also provides each chapter with educational and operational resources to be utilized at the chapter’s discretion. (UMF 27.)

Although Sigma Nu provides its local chapters with guidance and support, each local chapter, including Kappa Eta, is a separate and distinct legal entity from Sigma Nu. (UMF 28.) Each chapter is a self-governing, and financially self-sufficient, organization. (UMF 30.) Each chapter handles its own finances and is solely responsible for its debts and obligations. (UMF 31.)

Sigma Nu does not select or have any ability to select who becomes a member of any chapter, including Kappa Eta. (UMF 33; Not reasonably disputed.) Sigma Nu has no right or ability to deselect a person that has been selected for membership by any local chapter. (UMF 34.) Sigma Nu does not view any chapter or chapter member as its agent, and Sigma Nu does not permit any chapter or chapter member to bind Sigma Nu to any agreement or obligation of any nature. (UMF 35.) No board member of the High Council is also a member of Kappa Eta. (UMF 36.)

Sigma Nu does not employ any member of Kappa Eta in any capacity, does not commingle any of its funds or assets with Kappa Eta or Kappa Eta’s members, and Sigma Nu and Kappa Eta maintained separate and distinct minutes and organizational records from each other. (UMF 37; Not reasonably disputed.)

Sigma Nu does not have any ownership or possessory interest in Kappa Eta’s former chapter house, which was located at 765 Embarcadero del Norte, Goleta. (UMF 38.) Sigma Nu has never used, occupied, or maintained this residence as its office or business location, and Kappa Eta has never used, occupied, or maintained Sigma Nu’s headquarters as its office or business location. (UMF 39.)

At the time of the incident, Sigma Nu had no knowledge that the premises contained a makeshift wooden step and handle, which allowed individuals to climb out of the window to access the roof as alleged by plaintiff. (UMF 40; Not reasonably disputed. Plaintiff response and referenced evidence does not negate the stated fact that Sigma Nu lacked knowledge of the condition.)

Neither Sigma Nu, nor any Sigma Nu employee, had any knowledge or notice that any social function was occurring at the premises on April 2, 2022, nor that anyone associated with Kappa Eta would be present for such social function. (UMF 42.)

Neither Sigma Nu, nor any Sigma Nu employee, played any part in planning, organizing, or financing the social function. (UMF 43.)

Neither Sigma Nu, nor any Sigma Nu employee, was present for the April 2, 2022, social function that occurred at the premises. (UMF 44.) Sigma Nu first learned of the April 2, 2022, social function after it was contacted by Kappa Eta and was advised that plaintiff had been injured while there. (UMF 45.)

Concurrently with her response to Sigma Nu’s separate statement of UMFs, plaintiff provides 34 additional facts (“PUMFs”) which she contends are material and undisputed. Most of the PUMFs are irrelevant, or not supported by the referenced evidence, and have no bearing on the analysis of the present motion. Any relevant PUMF will be discussed in the below analysis when appropriate.

            Barenborg v. Sigma Alpha Epsilon Fraternity

Although citing several cases in support of its arguments, Sigma Nu National primarily relies on the case of Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70 (Barenborg).

Barenborg is on point. The facts in Barenborg are:

Carson Barenborg was injured at a party that was hosted by a local chapter of Sigma Alpha Epsilon Fraternity, a national fraternity. Barenborg was 19 years old and was attending a party in the backyard of the local chapter’s house. By the time she arrived at the party, Barenborg had already consumed five to seven alcoholic beverages as well as some cocaine. A fraternity member was serving alcohol without checking identification. Fraternity members had set up a makeshift dance platform, approximately six or seven feet high, using wooden tables, which Barenborg climbed on top of to dance. When Barenborg reached the top of the platform, another person, either inadvertently or intentionally, knocked her off the platform, causing her to fall to the ground and sustain serious injuries.

Barenborg sued several parties including the national fraternity. Barenborg’s causes of action against the national fraternity were based on negligence, and she contended that the national fraternity owed her a duty of care based on: (1) a special relationship between the national fraternity and the local chapter; (2) a special relationship between Barenborg and the national fraternity; and (3) a voluntary assumption of duty under the negligent undertaking doctrine.

As is the case in the present matter, in Barenborg, the national fraternity was a nonprofit organization operating as a national fraternal organization. With very few exceptions, the national fraternity in Barenborg and Sigma Nu national are organized and operate the same with respect to their local chapters and members.

Despite plaintiff’s arguments to the contrary, the only relevant difference between the facts of Barenborg and the present case is that in Barenborg the injuries occurred at the local chapters’ fraternity house. Here, as set forth above, the entire incident occurred on private property that was not an official fraternity house. Rather, it was simply rented by Kappa Eta fraternity members in their individual capacities.

The Barenborg court held that “[the national fraternity] owed no duty to protect [Barenborg] from the actions of the local chapter and is not vicariously liable for them.” (Barenborg, supra, 33 Cal.App.5th at p. 73.) The court’s holding was based on a finding of no duty under a negligence theory of liability. The same is relevant to the current action.

            Negligence – Premises Liability

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . ..” (Civ. Code, § 1714, subd. (a).)

“The elements of a premises liability claim such as the one at issue in these proceedings are: a legal duty of care; breach of that duty; and proximate cause resulting in injury.” (Moses v. Roger-McKeever (2023) 91 Cal.App.5th 172, 177-178.)

            Negligent Undertaking

“To establish a duty of care to a third person based on the negligent undertaking doctrine, a plaintiff must show: (1) the defendant undertook to render services to another; (2) the services were of the kind the defendant should have recognized as necessary for the protection of third persons; and (3) either (a) the defendant’s failure to exercise reasonable care increased the risk of harm beyond what existed without the undertaking, (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) a harm was suffered because the other or third persons relied on the undertaking. [Citations.]” (Barenborg, supra, 33 Cal.App.5th at pp. 83-84.)

The negligent undertaking doctrine is an exception to the rule that, in general, there is no duty to act to protect others from the conduct of third parties. “[L]iability [for negligent undertaking] depends on whether: (a) defendants’ failure to exercise reasonable care increased the risk of physical harm to the third person; or (b) defendants undertook to perform a duty the other owed to the third person; or (c) the harm was suffered because the other or the third person relied on defendants’ undertaking.” (Paz v. State of California (2000) 22 Cal.4th 550, 560.)

            Duty

Duty is the first consideration when analyzing any negligence cause of action, because without the existence of a duty, none of the other elements are relevant.

“[T]he existence of a duty is a question of law for the court. [Citations.]” (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.)

Plaintiff’s arguments, in opposition to the motion, regarding Sigma Nu National’s duty, consist of: (1) Sigma Nu National negligently undertook its duties as a national fraternity in failing to suspend the local chapter’s charter, and (2) A reasonable trier of fact could find Sigma Nu National vicariously liable under the agency theories of liability.

By way of her opposition, plaintiff appears to acknowledge that the premises liability cause of action is mislabeled and should really just be a vicarious liability negligence claim. In this regard, plaintiff states:

“Plaintiff sued Sigma Nu for negligence and negligent undertaking. Sigma Nu’s motion suggests that all of Plaintiff’s claims are direct premises-liability claims, which are non-cognizable because Sigma Nu does not own the premises. In reality, Plaintiff’s negligence premises liability and negligent undertaking causes of action are based on Sigma Nu’s vicarious liability. [Citations.] The fact that Sigma Nu does not own the property or exercise day-to-day control is irrelevant to those claims.” (Opp., p. 12, l. 25 – p. 13, l. 6.)

Plaintiff’s primary argument regarding the negligence liability of Sigma Nu relates to Sigma Nu failing to suspend Kappa Eta’s charter following a May 2021, incident, that occurred during a chapter retreat, where a chapter member died after falling down the stairs of a house in Running Springs, California, as the result of rough housing.

The same essential argument was made, and rejected, in Barenborg, where there was a history of “multiple disciplinary violations, such as excessive and underage drinking, various public disturbances, and sexual misconduct.” (Barenborg, supra, 33 Cal.App.5th at pp. 74-75.) Barenborg argued that the national fraternity had disciplinary tools available that could have prevented the injuries, including revocation or suspension of the local fraternity’s charter. (Id. at p. 80.) The court noted that Barenborg’s “contention that prior disciplinary action would have prevented her injury is speculation. It is questionable whether prior discipline for unrelated violations would have deterred [the local fraternity] from erecting a makeshift dance platform.” (Ibid.) The court held that the national chapter’s promulgations of “rules on social events, risk management, and alcohol use” do not “establish the [national fraternity’s] control over the party’s premises.” (Id. at p. 83.) “Accordingly, because [the national fraternity] did not control the premises on which [Barenborg] was injured, there was no special relationship between them.” (Ibid.)

For the same reasons set forth in Barenborg, here there is no duty of Sigma Nu owed to plaintiff related to her injuries. This would be true even if the party where plaintiff got injured were at the official Kappa Eta fraternity house. However, Sigma Nu’s position is even stronger. Plaintiff’s injuries occurred at a private residence that Sigma Nu had no interest in or ability to control. The issuance of an “Action Plan” following the May 2021 incident does not have any impact on this ruling. The only inferences that can be reached in this case is that Sigma Nu had absolutely no control over anything that transpired at the private residence where the incident occurred and owed no duty to plaintiff. Further, applying the applicable legal standards, neither Kappa Eta, nor its individual members, are Sigma Nu’s ostensible agents and Sigma Nu did not ratify any conduct that caused or contributed to plaintiffs’ injuries.

There are no triable issues of material fact as to Sigma Nu. Sigma Nu owed no duty to protect plaintiff from any alleged negligent actions of the Kappa Eta fraternity members that resided at the private residence where the incident occurred.