Judge: Robert B. Broadbelt, Case: 24STCV30862, Date: 2025-04-02 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 24STCV30862    Hearing Date: April 2, 2025    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:              Defendants Dana Benabou and Erez Benabou                      

RESPONDING PARTY:       Plaintiff Prime/Park Labrea Titleholder, LLC

Motion to Quash Service of Summons

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.[1]

DISCUSSION

Defendants Dana Benabou (“D. Benabou”) and Erez Benabou (“E. Benabou”) (collectively, “Defendants”) move the court for an order quashing service of the summons and complaint in this action, filed by plaintiff Prime/Park Labrea Titleholder, LLC (“Plaintiff”).

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, 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.”  (Code Civ. Proc., §¿418.10, subd. (a)(1).)  “[A] motion to quash under section 418.10, subdivision (a)(1) is a limited procedural tool to contest personal jurisdiction over the defendant where the statutory requirements for service of process are not fulfilled.”  (Stancil v. Superior Court (2021) 11 Cal.5th 381, 390.)  

Defendants argue that service of the summons and complaint was invalid on the ground that they were not personally served therewith because a copy of the summons was left in the doorway of Defendants’ home.  Defendants have also argued that the process server did not exercise reasonable diligence in attempting to personally serve them so as to permit substitute service of the summons and complaint.  The court disagrees.

Plaintiff filed two separate proofs of service as to Defendants on December 4, 2024.  As to defendant E. Benabou, the proof of service—which was completed by a registered process server and therefore has a “presumption, affecting the burden of producing evidence, of the facts stated in the return”—(1) states that the process server left the summons, complaint, and other case management documents with co-occupant “Jane Doe,” a competent member of the household at least 18 years in age at the dwelling house or usual place of abode of E. Benabou and who was informed of the general nature of the papers, on December 1, 2024, and (2) attaches a declaration of diligence.  (Dec. 4, 2024 POS-010 as to E. Benabou, ¶¶ 2-3, 5, subd. (b)(2), 7, and pp. 3-4 [declaration of diligence]; Evid. Code, § 647.)  The proof of service also attaches a proof of service of the summons, complaint, and case management documents by mail.  (Id. at p. 6 [proof of service by mail].)  

As to defendant D. Benabou, the proof of service—also completed by a registered process server, such that there is a presumption of the facts stated therein—(1) states that the process server left the summons, complaint, and other case management documents with co-occupant “Jane Doe,” a competent member of the household at least 18 years in age at the dwelling house or usual place of abode of D. Benabou and who was informed of the general nature of the papers, on December 1, 2024, and (2) attaches a declaration of reasonable diligence.  (Dec. 4, 2024 POS-010 as to D. Benabou, ¶¶ 2-3, 5, subd. (b)(2), 7, and pp. 3-4 [declaration of diligence]; Evid. Code, § 647.)  The proof of service also attaches a proof of service of the subject documents by mail on December 3, 2024.  (Id. at p. 6.)

First, the court finds that, even though Defendants were not personally served with the summons and complaint, such a showing does not establish that Plaintiff did not properly serve them by substitute service as stated in the proofs of service filed with the court on December 4, 2024.  (Mot., pp. 3:11-12, 5:12-14; Code Civ. Proc., § 415.20, subd. (b) [if the summons cannot with reasonable diligence be personally delivered to the person to be served, “a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house . . . in the presence of a competent member of the household . . . at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left”].)

Second, the court finds that Defendants did not submit evidence sufficient to rebut the presumption of the facts stated in the proofs of substitute service on Defendants.  (Evid. Code, § 647; American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 393 [“Because of the statutory presumption [under Evidence Code section 647], defendant was thus required to produce evidence that he was not served”].)  Defendants have submitted only the declaration of D. Benabou, in which they state that Defendants are informed and believe that “someone left a summons on [their] doorstep on December 1, 2024, but did not personally serve either of [Defendants] [with] the summons[,]” which does not sufficiently rebut the facts stated in the proofs of service.  (D. Benabou Decl., ¶ 3.)    

Third, the court finds that the proofs of service establish that the process server made a good faith effort at personal service, and therefore exercised reasonable diligence in attempting to personally serve Defendants, because the proofs of service set forth the process server’s attempts to personally serve Defendants on four separate dates.  (POS-010 as to defendant E. Benabou, p. 3, Declaration of Diligence [describing attempts to personally serve E. Benabou on November 25, 2024, November 29, 2024, November 30, 2024, and December 1, 2024]; POS-010 as to defendant D. Benabou, p. 3, Declaration of Diligence [describing attempts to personally serve D. Benabou on November 25, 2024, November 29, 2024, November 30, 2024, and December 1, 2024]; American Express Centurion Bank, supra, 199 Cal.App.4th at p. 390 [“an individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint ‘cannot with reasonable diligence be personally delivered’ to the individual defendant.  [Citations.]  “Two or three attempts to personally serve a defendant at a proper place ordinarily qualifies as ‘ “reasonable diligence” ’”] [internal citations omitted].)

Thus, for the reasons set forth above, the court denies Defendants’ motion to quash service of summons.  (Code Civ. Proc., § 418.10, subd. (a)(1).)

ORDER

            The court denies defendants Dana Benabou and Erez Benabou’s motion to quash service of summons.

            The court orders defendants Dana Benabou and Erez Benabou to file an answer to plaintiff Prime/Park Labrea Titleholder, LLC’s Complaint within 5 days of the date of service of this order.  (Code Civ. Proc., § 1167.4, subd. (b).)

            The court orders plaintiff Prime/Park Labrea Titleholder, LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 2, 2025

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court