This case was last updated from Los Angeles County Superior Courts on 06/07/2019 at 04:14:31 (UTC).

EUN MI KANG ET AL VS JEONG HOON KIM ET AL

Case Summary

On 08/17/2017 EUN MI KANG filed a Labor - Wrongful Termination lawsuit against JEONG HOON KIM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2782

  • Filing Date:

    08/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TERESA A. BEAUDET

 

Party Details

Plaintiffs and Petitioners

MOON SUN

KANG PEN FANG

GUTIERREZ ROSA

KANG EUN MI

YU SEUNG MI

Defendants and Respondents

UNITED DENTAL FULLERTON CORP.

UNITED DENTAL WILSHIRE CORP.

KIM JEON HOON

UNITED DENTAL CORP.

UKJAE JUNG DDS INC.

GEORGE XENAKIS SUPPORT SERVICES LLC

GEORGE XENAKIS DDS P.C.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

DESJARDINS MICHAEL A. ESQ.

DESJARDINS MICHAEL AARON ESQ.

Defendant and Respondent Attorneys

MUSICK PEELER & GARRETT LLP

TRESSLER LLP

MCNAMARA EDWARD JAMES JR

YOON JEEHYUN

PULMANOVA BARBORA

PERDIGAO JENNIFER FLEMING

 

Court Documents

CASE MANAGEMENT CONFERENCE ORDER

7/23/2018: CASE MANAGEMENT CONFERENCE ORDER

Ex Parte Application

12/14/2018: Ex Parte Application

Minute Order

12/14/2018: Minute Order

Answer

12/14/2018: Answer

Minute Order

2/7/2019: Minute Order

Ex Parte Application

2/7/2019: Ex Parte Application

CASE MANAGEMENT CONFERENCE ORDER

2/20/2018: CASE MANAGEMENT CONFERENCE ORDER

PROOF OF SERVICE SUMMONS

3/12/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

3/12/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

3/12/2018: PROOF OF SERVICE SUMMONS

DEFENDANT UNITED DENTAL FULLERTON CORP.'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

3/23/2018: DEFENDANT UNITED DENTAL FULLERTON CORP.'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

PROOF OF SERVICE SUMMONS

1/17/2018: PROOF OF SERVICE SUMMONS

DECLARATION OF COUNSEL PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41

11/9/2017: DECLARATION OF COUNSEL PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 430.41

Unknown

12/1/2017: Unknown

Unknown

12/1/2017: Unknown

Minute Order

12/18/2017: Minute Order

PROOF OF SERVICE SUMMONS

10/13/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE OF SUMMONS

10/13/2017: PROOF OF SERVICE OF SUMMONS

42 More Documents Available

 

Docket Entries

  • 04/17/2019
  • at 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Trial - Not Held - Continued - Party's Motion

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  • 04/02/2019
  • Declaration (of Edward J. McNamara ISO); Filed by Ukjae Jung DDS,Inc. (Defendant)

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  • 04/02/2019
  • Declaration (of Ukjae Jung, DDS ISO); Filed by Ukjae Jung DDS,Inc. (Defendant)

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  • 04/02/2019
  • Motion for Determination of Good Faith Settlement (CCP 877.6); Filed by Ukjae Jung DDS,Inc. (Defendant)

    Read MoreRead Less
  • 03/15/2019
  • at 09:30 AM in Department 50, Teresa A. Beaudet, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

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  • 03/08/2019
  • at 4:00 PM in Department 50, Teresa A. Beaudet, Presiding; Non-Appearance Case Review - Not Held - Continued - Party's Motion

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  • 02/07/2019
  • at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Ex Parte Application (DEFENDANT UKJAE JUNG DDS INCS UNOPPOSED EX PARTE APPLICATION FOR AN ORDER CONTINUING THE TRIAL DATE ALONG WITH ALL TRIALRELATED DEADLINES TO A DATE NO EARLIER THAN NOVEMBER 15 2019 DECLARATION OF JEEHYUN YOON IN SUPPORT THEREOF) - Held

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  • 02/07/2019
  • Minute Order ( (Hearing on Ex Parte Application DEFENDANT UKJAE JUNG DDS INCS...)); Filed by Clerk

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  • 02/07/2019
  • Ex Parte Application (DEFENDANT UKJAE JUNG DDS INCS UNOPPOSED EX PARTE APPLICATION FOR AN ORDER CONTINUING THE TRIAL DATE ALONG WITH ALL TRIALRELATED DEADLINES TO A DATE NO EARLIER THAN NOVEMBER 15 2019 DECLARATION OF JEEHYUN YOON IN SUPPORT THEREOF); Filed by Ukjae Jung DDS,Inc. (Defendant)

    Read MoreRead Less
  • 02/07/2019
  • Order ([PROPOSED] ORDER ON DEFENDANT UKJAE JUNG DDS INCS UNOPPOSED EX PARTE APPLICATION FOR AN ORDER CONTINUING THE TRIAL DATE ALONG WITH ALL TRIALRELATED DEADLINES TO A DATE NO EARLIER THAN NOVEMBER 15 2019); Filed by Ukjae Jung DDS,Inc. (Defendant)

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98 More Docket Entries
  • 10/13/2017
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 10/13/2017
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 10/13/2017
  • PROOF OF SERVICE SUMMONS

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  • 10/13/2017
  • Proof of Service (not Summons and Complaint); Filed by Eun Mi Kang (Plaintiff); Pen Fang Kang (Plaintiff); Sun Moon (Plaintiff) et al.

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  • 10/13/2017
  • Proof of Service (not Summons and Complaint); Filed by Eun Mi Kang (Plaintiff); Pen Fang Kang (Plaintiff); Sun Moon (Plaintiff) et al.

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  • 08/23/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 08/23/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 08/17/2017
  • EUN ML KANG, PEN-FANG KANG, SUN MOON, SEUNG MI YU AND ROSA GUTIERREZ'S COMPLAINT FOR DAMAGES FOR: 1. FAILURE TO PAY OVERTIME

    Read MoreRead Less
  • 08/17/2017
  • SUMMONS

    Read MoreRead Less
  • 08/17/2017
  • Complaint; Filed by Eun Mi Kang (Plaintiff); Pen Fang Kang (Plaintiff); Sun Moon (Plaintiff) et al.

    Read MoreRead Less

Tentative Rulings

Case Number: BC672782    Hearing Date: December 02, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

EUN MI KANG, et al.,

Plaintiffs,

vs.

JEONG HOON KIM, et al.

Defendants.

Case No.:

BC 672782

Hearing Date:

December 2, 2020

Hearing Time:

2:00 p.m.

[TENTATIVE] ORDER RE:

MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Background

On August 17, 2017, Plaintiffs Eun Mi Kang, Pen Fang Kang, Sun Moon, Seung Mi Yu, and Rosa Gutierrez (collectively, “Plaintiffs”) filed this employment action against various defendants. The operative First Amended Complaint (“FAC”) was filed on November 22, 2017, and asserts causes of action for various Labor Code violations (failure to pay overtime, failure to provide meal and rest breaks, failure to pay wages, failure to reimburse expenses), for FEHA violations (discrimination, failure to prevent discrimination, and harassment), breach of contract, fraud, wrongful termination in violation of public policy, and unfair business practices.

Defendant George Xenakis DDS, P.C. (“Xenakis P.C.”) now moves for summary judgment or, in the alternative, summary adjudication of each of the causes of action. Plaintiffs oppose.[1]

Evidence

On July 10, 2020, the Court issued its rulings concerning the evidentiary objections raised by Xenakis P.C.

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., section 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., section 437c, subd. (p)(2).)

Discussion

Xenakis P.C. contends that it is entitled to summary judgment because all of Plaintiffs’ causes of action[2] depend on the existence of an employment relationship, and Xenakis P.C. did not ever employ Plaintiffs. In support, Xenakis P.C. submits the following evidence:

Xenakis P.C. contends that all of Plaintiffs’ claims against it must arise from an employer-employee relationship. As argued by Xenakis P.C., the claims for failure to pay overtime, failure to provide meal and rest breaks, failure to pay wages timely, and wrongful termination are by their nature claims that must be brought against an employer because each of them asserts a breach of a statutory duty owed by an employer to an employee. The claim for failure to reimburse expenses is based on Labor Code section 2802, which places an obligation on an “employer [to] indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” The claim for breach of contract is based on the allegation that Plaintiffs entered into “oral employment contracts.” (FAC, ¶ 32.) And the claim for unfair business practices under Business and Professions Code section 17200 is based on Plaintiffs’ allegations that the employment practices described in the preceding causes of action constitute unfair or unlawful business acts or practices. (FAC, ¶ 45.)

The Court finds that Xenakis P.C. has met its initial burden of showing that Plaintiffs’ causes of action against Xenakis P.C. are without merit because an essential element of the claims cannot be established – that Xenakis P.C. was Plaintiffs’ employer.

In opposition, Plaintiffs argue that Xenakis P.C. is liable for the acts of Support Services (and the other entity defendants) under the theories of “integrated enterprise” or “joint employer.”

There are at least two tests for determining whether multiple entities can be considered, as a matter of law, a single employer for the purposes of imposing employer liability. The “integrated enterprise” test has four factors: “interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control.” (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 248.) “Common ownership or control alone is never enough to establish single employer liability, and courts ‘often deem centralized control of labor relations the most important’ factor.” (Ibid. .) “The critical question is, ‘[w]hat entity made the final decisions regarding employment matters related to the person claiming [unlawful conduct]?’” (Mathews v. Happy Valley Conference Center, Inc., supra, at page 248.)

Focusing on the most important factor, the operative question is whether Xenakis P.C. made any decisions regarding employment matters related to Support Services’ employees. The Court again notes Xenakis P.C.’s evidence (as set forth above) that all Plaintiffs were hired and paid by Support Services, not Xenakis P.C. and that all Plaintiffs were terminated by Support Services, not Xenakis P.C. In opposition, Plaintiffs offer evidence that Plaintiff Eun Mi Kang and Jung Yu Choi “did all employee management for both entities.” (Opp’n, p. 17:1-2.) Specifically, Plaintiff Eun Mi Kang managed both Xenakis P.C. and Support Services employees, including processing payroll for both. (Kang Decl., ¶¶ 4, 8.) Jung Yun Choi also managed all employees without being instructed on a difference between Xenakis P.C. employees and Support Services’ employees. (Choi Decl., ¶ 2.) Jung Yun Choi hired dentists and clinical staff. (Choi Decl., ¶ 3.)

Plaintiffs rely primarily on Kang v. U. Lim America, Inc. (9th Cir. 2002) 296 F.3d 810 in support of its integrated enterprise argument. There, in deciding that the “most critical” factor of “centralized control of labor relations” militated in favor of finding a single integrated enterprise, the Ninth Circuit Court of Appeal noted the following evidence: “U. Lim America had the authority to hire and fire U. Lim de Mexico employees. The Mexican supervisors reported to U. Lim America management. U. Lim America had essentially complete control over U. Lim de Mexico’s labor relations.” (Id. at p. 815.) In the instant case, Plaintiffs’ evidence is less to do with Xenakis P.C. having authority over labor decisions affecting Support Services employees and more to do with centralized control over those decisions. Indeed, Plaintiffs do not offer any evidence that Xenakis P.C. had the authority to hire and fire Support Services’ employees. But there is evidence that Jung Yun Choi, as a manager, hired dentists and clinical staff (assuming that “clinical staff” refers to administrative staff). Control was “centralized” in that Jeong Hoon Kim directed the managers’ duties as well as the dentists. (Choi Decl., ¶ 3.) Moreover, Plaintiff Eun Mi Kang was a Support Services supervisor, and she attests to the fact that she managed all the employees at all of the clinics, and that her “boss” directing her duties was Mr. Kim. (Kang Decl., ¶¶ 8-9.) Plaintiff Eun Mi Kang also states that “[n]o separation ever existed between so called ‘clinical’ employees and ‘support services’ employees.” (Kang Decl., ¶ 9.)

Even if this evidence were insufficient to show centralized control of labor relations, the same evidence supports a finding of a triable issue of fact on the question of whether joint employment existed. “Joint employment is also recognized under California law.” (Morales v. 22nd Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 543.) “Joint employment occurs when two or more persons engage the services of an employee in an enterprise in which the employee is subject to the control of both.” (Ibid. .) “[J]oint employment will generally be considered to exist when 1) the employers are not ‘completely disassociated’ with respect to the employment of the individuals and 2) where one employer is controlled by another or the employers are under common control.” (Chao v. A-One Medical Services, Inc. (9th Cir. 2003) 346 F.3d 908, 918.) The evidence presented by Plaintiffs suggests that employees of both Xenakis P.C. and Support Services operated under the common control of Mr. Kim and that Xenakis P.C. and Support Services were not completely disassociated with respect to the individual employees.

Conclusion

For the foregoing reasons, Xenakis P.C.’s motion for summary judgment/adjudication is denied in its entirety.

Plaintiffs are ordered to provide notice of this ruling.

DATED: December 2, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] On October 5, 2020, the Court issued an order directing Plaintiffs to file an amended opposition and amended separate statement that properly cites to evidence and conforms to California Rules of Court, rule 3.1350. Although Xenakis P.C. contends that the amended separate statement is still defective, the Court finds that the revisions made by Plaintiffs are adequate.

[2] The only causes of action asserted against Xenakis P.C. are failure to pay overtime (1st cause of action); failure to provide meal and rest breaks (2nd cause of action); failure to pay wages in a timely manner (3rd cause of action); breach of contract (7th cause of action); wrongful termination in violation of public policy (9th cause of action); failure to reimburse expenses (10th cause of action); and unfair business practices (11th cause of action).

Case Number: BC672782    Hearing Date: October 22, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

OMICRON CHAPTER OF KAPPA ALPHA THETA SORORITY, et al.,

Plaintiffs,

vs.

university of southern california,

Defendant.

Case No.:

BC 672782

Hearing Date:

October 22, 2020

Hearing Time:

2:00 p.m.

[TENTATIVE] ORDER RE:

USC’S MOTION FOR SUMMARY JUDGMENT

Background

On June 22, 2018, Plaintiffs Omicron Chapter of Kappa Alpha Theta Sorority; Alpha Upsilon Chapter, Sigma Chi Fraternity; Gamma Tau Chapter of the Beta Theta Pi Fraternity; Alpha Nu Chapter of the Theta Xi Fraternity; and Beta Sigma Chapter of the Tau Kappa Epsilon Fraternity (collectively, “Plaintiffs”) filed this action against Defendant University of Southern California (“USC”).

On November 5, 2018, USC’s demurrer to Plaintiffs’ Complaint was sustained without leave to amend. Plaintiffs thereafter appealed, and the Court of Appeal reversed and remanded the matter consistent with its opinion. The remittitur was filed on July 30, 2019.

On September 4, 2019, Plaintiffs filed the operative First Amended Complaint (“FAC”), asserting one cause of action for violation of the Leonard Law (Education Code section 94367).

USC now moves for summary judgment. Plaintiffs oppose.

Evidence

The Court rules on Plaintiffs’ objections to the evidence submitted in support of USC’s motion for summary judgment as follows:

Objection 1: overruled

Objection 2: overruled

Objection 3: overruled

Objection 4: overruled

Objection 5: overruled

Objection 6: overruled

Objection 7: overruled

Objection 8: overruled

Objection 9: sustained

Objection 10: overruled

Objection 11: overruled

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c, subd. (p)(2).)

Discussion

Plaintiffs are four fraternities and one sorority at USC. Effective beginning of the fall 2018 semester, USC implemented a new policy that prohibits all students from joining sororities or fraternities until they have completed a minimum of 12 academic units and a minimum USC grade point average of 2.5. (FAC, ¶ 37.) Effectively, this means that incoming first-year students are barred from joining fraternities or sororities in their first semester in college. (USC’s Undisputed Material Fact (“UMF”) 2.) USC’s stated reason for this “deferred recruitment” policy is to allow “new students one semester to acclimate to USC academics and social life.” (FAC, ¶ 37.) Plaintiffs allege that “there is no factual basis for this position” because students in sororities and fraternities perform just as well academically as the student body population in general. (FAC, ¶ 38.) Therefore, Plaintiffs allege that the “deferred recruitment” policy violates the Leonard Law by impinging on their First Amendment right to associate freely with those they choose and by blatantly discriminating against Plaintiffs as no other on-campus group is subject to the one-semester waiting period. (FAC, ¶¶ 58-59.)

Education Code section 94367, enacted as part of what is commonly known as the Leonard Law, provides: “No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.” Thus, Education Code section 94367 “creates statutory free speech rights for students of private postsecondary educational institutions.” (Yu v. University of La Verne (2011) 196 Cal.App.4th 779, 790 [emphasis in original].) As set forth by the Court of Appeal in its opinion reversing the judgment of dismissal in the instant case, the operative question is whether Plaintiffs can demonstrate that the deferred recruitment policy was adopted “not for any bona fide academic reason, but simply because USC administrators disapprove of the viewpoint [P]laintiffs espouse.” (Omicron Chapter of Kappa Alpha Theta Sorority v. University of Southern California (May 1, 2019, B292907) at p. 17 [nonpub. opn.] (Omicron).) USC contends that Plaintiffs cannot make this showing because USC had a “genuine academic basis” for adopting the deferred recruitment policy.

As an initial matter, the Court notes that per the Court of Appeal, the use of the term “academic” “should be understood to include the broad range of student educational experiences and outcomes with which a university may be legitimately concerned, not simply a narrow grade point average statistical analysis.” (Omicron, supra, at p. 17, fn. 6.) To the extent that Plaintiffs disagree that the term “academic” should include more than just grade point averages, pursuant to the law of the case doctrine, “the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” ((Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301.) Thus, in order to meet its initial burden on summary judgment, USC may offer evidence that demonstrates that the deferred recruitment policy was based on a legitimate and genuine consideration of student educational experiences and outcomes not limited solely to student grades.

In support of its motion, USC presents evidence that the deferred recruitment policy was adopted following the passage on September 23, 2015 of a resolution in support of deferred recruitment by the Academic Senate, which is the representative body of the faculty at large for university-wide issues. (UMF 4.) On September 29, 2017, in a letter to the USC community, USC’s Vice President for Student Affairs Dr. Ainsley Carry announced the deferred recruitment policy, which would be effective fall 2018. (UMF 1.) In the letter, Dr. Carry stated that “the University has concluded that the benefit of allowing new students one semester to acclimate to USC academics and social life far outweigh the benefits of not making this policy change.” (Allard Decl., ¶ 3, Ex. 1.) In addition to the Academic Senate resolution, the decision to adopt the deferred recruitment policy was also based on the following observations and reports from 2015-2018:

USC presents evidence that the Academic Senate’s adoption of the resolution in support of deferred recruitment was based on concerns regarding the academic and social effects of first-semester involvement in Greek rush. (Allard Decl., ¶ 4, Ex. 3 [noting that first-semester recruitment can have a “detrimental impact on students’ earliest experiences on campus,” that students may experience “a high level of stress” during the rush process, that rushing “takes time away from the development of effective habits” and students end up “missing class or coming to class exhausted,” that students who participate in rush “on average have a lower GPA in their freshman year than those who do not,” and that students “may be limiting their exposure to other outlets by committing too early to Greek organizations”].) Dr. Ginger Clark, the president of the Academic Senate at the time the resolution was passed, testified at deposition that “the faculty felt very strongly that this was the right way to go.” (Minoofar Decl., ¶ 3, Ex. A (Clark Depo.), p. 61:12-13.) According to Dr. Clark, “faculty were frustrated that [they] had not done anything about the problems that [they] see each year with regard to [their] youngest students during fall rush. (Minoofar Decl., ¶ 3, Ex. A (Clark Depo.), p. 21:18-23.) Faculty members shared stories of attendance rates going down during rush, students coming to class late, falling asleep in class, and coming to class still intoxicated from the night before. (Minoofar Decl., ¶ 3, Ex. A (Clark Depo.) pp. 21:24-22:7.) When faculty asked students what was going on, they would say they were involved in the rush process. (Minoofar Decl., ¶ 3, Ex. A (Clark Depo.) p. 22:8-12.) Faculty also shared stories of students, and in particular, female students, being devastated after being rejected by the sororities or fraternities. (Minoofar Decl., ¶ 3, Ex. A (Clark Depo.) pp. 22:13-16, 23-25, 72:13-73:13.) Dr. Clark testified that the faculty’s view was that freshman needed time during their first semester to learn how to manage their life on campus, which did not accord with the significant time commitment required to participate in Greek life. (Minoofar Decl., ¶ 3, Ex. A (Clark Depo.) pp. 36:13-37:1.)

Plaintiffs dispute the legitimacy of USC’s cited rationale behind the deferred recruitment policy. First, Plaintiffs contend that USC relies on after-the-fact studies and reports that it did not consider before deciding to implement the policy in May or June 2017. (Pilmer Decl., ¶ 5, Ex. C (Lanski Depo.) p. 41:2-9.) But this argument does not dispose of the evidence of considerations made prior to May 2017 and as early as 2015.

Next, Plaintiffs contend that Greeks have higher GPAs than the general student population. Jenell Bukky Lanski, the director of fraternity and sorority leadership development at USC during the relevant time period, testified at deposition that “over [her] five years . . . most semesters the Greek community, which is all five councils, are usually at or above the undergraduate GPA.” (Pilmer Decl., ¶ 5, Ex. C (Lanski Depo.) pp. 92:7-93:2.) Specifically, in the fall of 2017, the average GPA for all women who are members of sororities is 3.45, in contrast to USC’s general student body average GPA of 3.37. (Pilmer Decl., ¶ 35, Ex. GG.) Plaintiffs also discount USC’s evidence that first-year Greeks have lower GPAs than the overall student body by arguing that the study was conducted after the deferred recruitment policy was announced and that the evidence relates only to men. But the Court notes that Dr. Carry presented a deferred recruitment proposal in 2015 to USC’s provost that cited studies showing that “the recruitment and pledge semesters have a negative effect on academic performance.” (Minoofar Decl., ¶ 4, Ex. 14, p. 41.) In any event, the operative question is whether USC’s decision was based on a genuine academic judgment. Here, Plaintiffs do not argue that the statistic relating to lower GPAs during rush is false or not otherwise factual. In other words, that Plaintiffs have evidence of the positive effect Greek life has on a student’s academic performance does not necessarily negate the fact that there is a negative correlation between rushing and grade point average.

As for the Academic Senate resolution, Plaintiffs contend that the Academic Senate collected no data relating to students feeling stress or distraught as a result of participation in Greek life. (Pilmer Decl., ¶ 3, Ex. A (Clark Depo.) pp. 39:22-40:3, 73:22-76:5.) Plaintiffs further point out that the Academic Senate did not collect data relating to the GPAs of students who were going through rush. (Pilmer Decl., ¶ 3, Ex. A (Clark Depo.), p. 89:2-8.) Plaintiffs argue that the Academic Senate relied only on anecdotal reports from faculty but that these reports are not reliable because there is no indication of when or how many times these issues came up. But again, while Plaintiffs may find fault with the robustness of this evidence, Plaintiffs do not dispute that faculty members did have these specific concerns regarding first semester rush.

Plaintiffs argue that USC has not cited any evidence that deferring rush would improve students’ abilities to acclimate to life at USC. Plaintiffs also argue that the evidence of alcohol consumption or criminal activity taking place at fraternities and sororities is not specifically attributable to fall semester rush. But the Court does not find that these considerations in and of themselves raise a triable issue of fact as to the genuineness of USC’s academic judgment with regard to the implementation of the deferred recruitment policy. As noted by the Court of Appeal, “a university’s exercise of genuine academic judgment is of First Amendment dimension and deserving of deference from the courts.” (Omicron, supra, at p. 14.) What Plaintiffs seem to be arguing in their opposition is that all of the data and information on which USC relied to make the decision to adopt deferred recruitment was not good enough. But Plaintiffs’ claim in this case is based on the allegation that USC relied on no data in coming to its decision, that there was “no factual basis” for the enactment of the policy. Nevertheless, the Court finds that USC has met its burden of showing that there was a factual basis for its decision to implement the deferred recruitment policy. Moreover, the Court finds that Plaintiffs have failed to meet their burden of showing that a triable issue of material fact exists as to that issue.

Alternatively, Plaintiffs argue that the deferred recruitment policy cannot pass the limited public forum test. (See, e.g., Christian Legal Soc. Chapter of the University of Cal., Hastings College of Law v. Martinez (2010) 561 U.S. 661, 679, 685 (Christian Legal) [restrictions on speech activity in a limited public forum must be reasonable in light of the purpose served by the forum and may not discriminate against speech on the basis of viewpoint].) As discussed by the Court of Appeal, Plaintiffs’ allegations “do not suffice, on this record, to establish the requisite unreasonableness element of a limited public forum analysis.” (Omicron, supra, at p. 19.) However, the Court of Appeal noted that Plaintiffs adequately alleged that the deferred recruitment policy constitutes discrimination on the basis of viewpoint. “To determine whether a restriction in a limited public forum is viewpoint neutral [courts] look to the rationale behind the restriction” and “inquire whether ‘the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.’” (Omicron, supra, at p. 19, quoting Kunde v. Seiler (2011) 197 Cal.App.4th 518, 537.) As argued by USC, a limited public forum analysis thus also turns on the question of whether USC had a genuine academic basis for adopting the deferred recruitment policy.

At the outset, the Court notes, as did the Court of Appeal, that “the fact that [a restriction] cover[s] people with a particular viewpoint does not itself render the [restriction] content or viewpoint based.” (Christian Legal, supra, 561 U.S. at pp. 695-696.) USC contends that the fact that USC’s fraternities and sororities were “singled out” by the deferred recruitment policy does not establish that USC adopted the deferred recruitment policy to suppress Plaintiffs’ viewpoints. USC argues that there is no evidence that USC is hostile to any of Plaintiffs’ espoused viewpoints (such as “mutual assistance,” “intellectual growth,” “integrity,” and “personal excellence”) and that instead, USC has always acknowledged the virtues of fraternities and sororities. (See Allard Decl., ¶ 3, Ex. 1.) Plaintiffs counter that USC’s (and incidentally, the Court of Appeal’s) reliance on and quotation of Christian Legal is inapt because in Christian Legal, the issue was whether a “nominally neutral” “all-comers policy” could still be found to be viewpoint based because of its “differential impact on groups wishing to enforce exclusionary membership policies.” (Christian Legal, supra, 561 U.S. at pp. 695-696.) Plaintiffs point out that the Supreme Court in Christian Legal distinguished an all-comers policy with policies that did affect only certain groups. (Id. at p. 694 [“In contrast to Healy, Widmar, and Rosenberger, in which universities singled out organizations for disfavored treatment because of their points of view, Hastings’ all-comers requirement draws no distinction between groups based on their message or perspective.”].) But Plaintiffs overlook a key phrase: “because of their points of view.” Singling out an organization is not the same as singling out an organization because of its point of view. Here, Plaintiffs offer no evidence that raises a triable issue of fact that USC singled out its fraternities and sororities because of their point of view. And as argued persuasively by USC, to the extent that Plaintiffs contend that the fraternities and sororities were singled out because USC viewed the Greeks as a threat to the success of the university’s Residential Colleges, that is not a viewpoint, a motivating ideology, an opinion, or a perspective.

Conclusion

For the foregoing reasons, USC’s motion for summary judgment is granted. The Court orders USC to file and serve a proposed judgment within 10 days of the date of this order.

USC is ordered to provide notice of this ruling.

DATED: October 22, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC672782    Hearing Date: October 06, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

EUN MI KANG, et al.,

Plaintiffs,

vs.

JEONG HOON KIM, et al.

Defendants.

Case No.:

BC 672782

Hearing Date:

October 6, 2020

Hearing Time:

10:00 a.m.

ORDER RE:

MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Defendant George Xenakis DDS, P.C. (“Xenakis P.C.”) moves for summary judgment or, in the alternative, summary adjudication of each of the causes of action asserted against it in the First Amended Complaint (“FAC”) of Plaintiffs Eun Mi Kang, Pen Fang Kang, Sun Moon, Seung Mi Yu, and Rosa Gutierrez (collectively, “Plaintiffs”).

For the reasons set forth below, the Court continues the hearing on Xenakis P.C.’s motion.

In Plaintiffs’’ opposition, Plaintiffs make various fact-based arguments but fail to cite to any evidence in support of the asserted facts. (See, e.g., Opp’n, pp. 13:27-15:18.) There is not a single citation to evidence in the entirety of the opposition, and there is similarly no citation to the separate statement. Without citations to evidence, it is nearly impossible for the Court to determine the merits of Plaintiffs’ argument. Compounding the difficulty is the fact that Plaintiffs’ responsive separate statement does not comply with California Rules of Court, rule 3.1350. “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.” (Cal. Rules of Court, rule 3.1350(f)(2).) For each of Xenakis P.C.’s facts that Plaintiffs dispute, there is no explanation of the nature of the dispute, and the same evidence is cited for every disputed fact. Moreover, Plaintiffs cite to the entirety of every declaration submitted in support of the opposition as well as large chunks of deposition testimony that adds up to more than 50 pages.[1] This is improper. Moreover, “[i]f 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. . . . . 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)(3).) Many of Plaintiffs’ additional material facts cite to the entirety of every declaration submitted in support of the opposition, which places the burden on the Court to review the entirety of every declaration to find the portions that support the asserted fact. Nevertheless, the Court will exercise its discretion to give Plaintiffs an opportunity to cure their defects. ((See Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1211 [finding that “the proper response” when a party opposing summary judgment fails to comply with applicable rules is “to give the opposing party an opportunity to file a proper separate statement rather than entering judgment against that party based on its procedural error”].)

Consequently, the Court orders that the motion for summary judgment or, in the alternative, summary adjudication by Xenakis P.C. is continued to December 2, 2020, at 2:00 p.m., in Dept. 50.

The Court further orders Plaintiffs to file and serve an amended opposition and amended separate statement (with a copy served via email to Defendant) that properly cites to evidence and conforms to California Rules of Court, rule 3.1350 no later than October 23, 2020. Plaintiffs shall not otherwise make any substantive changes to the opposition or separate statement. By November 20, 2020, Defendant may file and serve a new reply (with a copy served via email to Plaintiff) in response to the amended opposition and amended statement.

Plaintiffs are ordered to provide notice of this ruling.

DATED: October 5, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] For example, in disputing Undisputed Material Fact (“UMF”) 3, which states that Plaintiff Eun Mi Kang began working for Support Services in February 2016 as a nonclinical employee, Plaintiffs cite not only to Eun Mi Kang’s entire declaration, but also to the entire declarations of the other four plaintiffs, the declaration of Helen Choi, and to 30-odd pages of George Xenakis’s deposition, and to 20-odd pages of Ukjae Jung’s deposition.

Case Number: BC672782    Hearing Date: February 25, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

eun mi kang, et al.,

Plaintiffs,

vs.

jeong hoon kim, et al.

Defendants.

Case No.:

BC 672782

Hearing Date:

February 25, 2020

Hearing Time:

8:30 a.m.

ORDER RE:

MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION

Defendant George Xenakis DDS, P.C. (“Defendant”) moves for summary judgment or, in the alternative, summary adjudication.

The Court did not timely receive the required binder/spiral compilations with courtesy copies of all moving, opposing, and reply papers and all supporting or related documents from Defendant. Additionally, the Court notes that Defendant has interposed 157 evidentiary objections. Accordingly, the hearing on this motion will be continued to a date that will be set at the Hearing on Objections discussed below.

The Court orders the parties to meet and confer by telephone or in person in a serious and good faith effort to resolve and eliminate the objections. The only objections that should remain are those that pertain to material evidence regarding material issues. Keeping the rules of evidence in mind, the parties should be able to reduce the objections to just a few. If any material objections remain unresolved, the parties are to set them forth in a joint statement with the text, the objection, and the argument of each side in favor of their respective positions regarding the remaining material objections.

The joint statement must be filed and a separate ruling sheet must be lodged directly in Department 50 by noon on _______________. The Court will review any remaining objections with the parties at a hearing on _______________ at 1:30 p.m. (the “Hearing on Objections”). The Court continues the hearing on the MSJ/MSA to ________________, 8:30 a.m., in Dept. 50.

If necessary, based upon the resolutions reached during the meet and confer process and/or at the Hearing on Objections, the parties may respectively file and serve revised briefing and evidence. The revised evidence may eliminate objectionable material; however, no new evidence or new argument is to be submitted unless it is as a result of compromises reached during the meet and confer process. In the event that revised briefing and evidence is necessary, the Court will discuss with the parties a briefing schedule for the revised briefing at the Hearing on Objections.

The Court orders Defendant to lodge directly in Department 50, at least 5 court days before the new MSJ/MSA hearing date, the fully indexed and tabbed binders or preferably spiral bound compilations of all of the moving, opposing, reply and supporting papers (e.g., declarations, requests for judicial notice, etc., but not proposed orders or proofs of service).

Defendant is ordered to give notice of this Order.

DATED: February 25, 2020

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

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