SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

Plaintiffs, Jose Luis Castellanos (“Castellanos”), Juan Manuel Magdaleno Estrada, and Luis Alberto Castellanos (collectively, “Plaintiffs”) filed this action against Defendants, Tamir Benyun (“Benyun”), Oz Pilo, and 911 Attic Remodeling, Inc. for damages arising from a motor vehicle accident.   

On August 18, 2023, Plaintiffs filed proof of service of the summons and complaint showing substitute service on Benyun alleging the documents were left with a co-occupant “Jane Doe”, at 5274 Campo Rd., Woodland Hills, CA 91364 (“Campo Address”) on August 15, 2023.   

At this time, Benyun moves to quash service of the summons and complaint on him. Plaintiff Castellanos oppose the motion, and Benyun filed a reply.  

 

II. Motion to Quash Service of Summons  

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .”  (CCP § 418.10(a).)   

 

“ ‘On a motion to quash service of summons, the plaintiff bears the burden of proving by a preponderance of the evidence that all jurisdictional criteria are met. [Citations.] The burden must be met by competent evidence in affidavits and authenticated documents; an unverified complaint may not be considered as supplying the necessary facts.’ [Citation.]”  (Brown v. Garcia (2017) 17 Cal.App.5th 1198, 1203; see also Sheard v. Superior Court (1974) 40 Cal.App.3d 207, 211 [“[W]here a defendant properly moves to quash service of summons the burden is on the plaintiff to prove facts requisite to the effective service.”].)   

“A defendant is under no duty to respond in any way to a defectively served summons. It makes no difference that defendant had actual knowledge of the action. Such knowledge does not dispense with statutory requirements for service of summons.”  (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2015) ¶4:414, p. 4-67 citing Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466 (Kappel) and Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808 (Ruttenberg)) “[N]otice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.”  (Ruttenberg, supra, 53 Cal.App.4th at p. 808.)  “[I]n California, ‘…the original service of process, which confers jurisdiction, must conform to statutory requirements or all that follows is void.”'  (Id. at p. 809.) 

Here, Benyun’s counsel contends substitute service on August 15, 2023 was defective because Benyun did not reside there at the time. Benyun’s counsel hired investigator Alex Ramos (“Ramos”) from HUB Enterprises LLC to locate and confirm Benyun’s contact information. Ramos avers that on May 6, 2023, he travelled to the Campo Address and spoke with the man in charge of managing the property, whom he is informed and believes was Benyun’s previous landlord. Ramos was told that Benyun previously rented the downstairs apartment at the Campo Address, but that Benyun had moved back to Israel prior to Ramos’ visit to the property. Benyun’s counsel further submits the declaration of Lee Peryanti (“Peryanti”), who declares he is the landlord of the Campo address, and that Benyun lived at the Campo Address for approximately a year and a half before moving back to Israel in 2020 due to Covid-19 and to take care of his ailing mother.  

The Court notes that Peryanti’s declaration is not signed under penalty of perjury. (Cal. Code Civ. Proc. § 2015.5.) Therefore, the Court is unable to consider the landlord’s unsworn affidavit. Although Benyun’s counsel does not establish personal knowledge, Ramos’ declaration is sufficient as the person who personally went to the Campos Address to investigate Benyun’s whereabouts. Ramos’ declaration is sufficient to rebut the presumption that service was proper.  

Thus, the burden is on the plaintiff to establish that service of the summons and complaint was proper.  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)  Plaintiff Castellanos argues that he conducted a skip trace, which located the Campo Address as current as of July 31, 2023, and that Benyun’s Facebook page confirmed the address. However, just as Plaintiff’s counsel objected to Benyun’s counsel’s declaration as inadmissible hearsay because she lacks personal knowledge, then following the same argued logic, Plaintiff’s declaration that he ran a public search and social media search identifying the Campos Address as current as of July 31, 2023 should also not be considered. Further, even if the Court were to consider Plaintiff’s declaration, Benyun was served by substitute service on August 15, 2023, a month after Plaintiff’s counsel purportedly ran a search. Plaintiff does not provide any evidence of when Benyun resided at the property such to show that substituted service on Benyun at that address was effective to meet Plaintiffs’ burden that service was proper.   

 

Based on the foregoing, the motion to quash is GRANTED.  

 

Moving party is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

Dated this 11th day of December 2023