Preview
ELECTRONICALLY FILED
Elaine Kobylecki, Esq., State Bar No. 299311 Superior Court of California
FRIEDENTHAL, HEFFERNAN & BROWN, LLP County of Santa Cruz
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1520 W. Colorado Boulevard, Second Floor 7/17/2020 12:34 PM
Pasadena, California 91105 Alex Calvo, Clerk
Telephone: (626) 628-2800
Facsimile: (626) 628-2828
Attorneys for Specially Appearing Defendant,
THETA IOTA CHAPTER OF THETA CHI FRATERNITY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CRUZ
10
DAPHNE BELETSIS, individually, and CASE NO. 19CV03287
11 as Administrator of the ESTATE OF
ALEXANDER BELETSIS, and NOTICE OF MOTION AND MOTION TO
12 YVONNE RAINEY, surviving parent of QUASH SERVICE OF SUMMONS AND
ALEXANDER BELETSIS, deceased, COMPLAINT; MEMORANDUM OF
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POINTS AND AUTHORITIES;
Plaintiffs,
14 DECLARATION OF ELAINE
KOBYLECKI; DECLARATION OF
15 CHRISTOPHER GUEVARA [Filed as a
Separate Document]; DECLARATION
16 vs OF MICHAEL MAYER [Filed as a
Separate Document]
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THETA CHI FRATERNITY, INC., etal., Action Filed: October 31, 2019
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Defendants. First Amended Complaint
20 Filed: February 5, 2020
21 Date: August 31, 2020
Time: 8:30 a.m.
22 Dept.: “10”
| udge: Hon. | ohn Gallagher
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24 TO THE PARTIES AND TO THEIR ATTORNEYS OF RECORD:
25 PLEASE TAKE NOTICE that on August 31, 2020, at 8:30 a.m., in Department
26 “10” of the above-referenced court located at 701 Ocean Street, Santa Cruz,
27 California, defendant, Theta lota Chapter of Theta Chi Fraternity, an unincorporated
28 association, will specially appear to move the court for an order quashing the
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MOTION TO QUASH
purported service of the summons and complaint allegedly made on defendant by
substitute service onJ une 10, 2020.
The motion to quash service will be made pursuant to Code of Civil Procedure
section 418.10. The motion will be made on the grounds that court lacks jurisdiction
over defendant and that defendant was never validly served with a copy of the
summons and complaint. Defendant has no legal existence and/or plaintiffs have
failed to comply with the requirement that service be made on an individual authorized
to accept such service per Code of Civil Procedure section 416.40(b).
This motion is made and based upon this notice of motion, the memorandum of
10 points and authorities served and filed herewith, the declaration of Elaine Kobylecki
11 served and filed herewith, the declaration of Christopher Guevara served and filed as
12 a separate document, the declaration of Michael Mayer served and filed as a separate
13 document, and upon such other further evidence or oral argument as may be
14 presented at the time of the hearing of this matter.
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16 DATED: July 17, 2020 FRIEDENTHAL, HEFFERNAN & BROWN, LLP
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By Llane Kabylecki
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ELAINE KOBYLECKI, ESQ.
19 Attorneys for Specially Appearing Defendant,
THETA IOTA CHAPTER OF THETA CHI
20 FRATERNITY
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MOTION TO QUASH
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
This action arises out of fatal injuries sustained by Alexander Beletsis on J une
2, 2018, at a private residence occupied by college students in Santa Cruz. Plaintiffs
are the Estate of Alexander Beletsis, Daphne Beletsis and Yvonne Rainey, described
in the First Amended Complaint as the parents of Alexander Beletsis. Plaintiffs’
original action was filed on October 19, 2019. Plaintiffs’ amended complaint was filed
on February 5, 2020. Plaintiffs allege claims for negligence (survivor and wrongful
10 death) against, among others, this specially appearing defendant, Theta lota Chapter
11 of Theta Chi Fraternity, (hereinafter “the Chapter’).
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13 I. STATEMENT OF FACTS
14 Plaintiffs allege that Alexander Beletsis sustained injuries at an alleged
15 fraternity-related event on J une 2, 2018, from which he subsequently died. At the
16 time, Mr. Beletsis was a student at the University of California, Santa Cruz (“Santa
17 Cruz”). The Chapter was an undergraduate chapter located at Santa Cruz which had
18 previously been issued a charter by Theta Chi Fraternity, Inc., a national fraternal
19 organization headquartered in Indiana. (Declaration of Christopher Guevara 43.)
20 The Chapter was a registered fraternal organization by Santa Cruz. (Declaration of
21 Christopher Guevara 94.) The Chapter was an unincorporated association at the time
22 of the subject incident. It was at no time a general or a limited partnership (Declaration
23 of Christopher Guevara 45.)
24 Theta Chi Fraternity, Inc., revoked the charter of the Chapter on March 12,
25 2019. (Declaration of Michael Mayer 411.) On April 2, 2019, Theta Chi Fraternity
26 served notice on all Chapter members that the Chapter’s charter had been
27 revoked and advising that: “The revocation of the charter means that the chapter
28 may no longer operate as a collegiate chapter of Theta Chi Fraternity. The
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MOTION TO QUASH
chapter is now closed and is no longer recognized as an active chapter within
Theta Chi Fraternity.” (Declaration of Michael Mayer 411; Exhibit “C” to Mayer
Declaration.) Following the investigation into Mr. Beletsis’ death, Santa Cruz revoked
the Chapter’s recognition as a Registered Campus Organization in April of 2019.
(Declaration of Christopher Guevara 417.) Thereafter, the Chapter was unable to
conduct or participate in any fraternity events, recruit new members, or otherwise
operate as a fraternal organization or as a recognized student organization and
ceased all operations. (Declaration of Christopher Guevara 47.) There have been
no officers or members of the Chapter since its charter was revoked. (Declaration of|
10 Christopher Guevara 418.)
11 Plaintiffs claim that they served the Chapter by substitute service on the former|
12 president of the Chapter, Christopher Guevara, on J une 10, 2020 (Physical substitute
13 service on June 9, 2020; mail service on June 10, 2020). (Declaration of Elaine
14 Kobylecki 93; Exhibit “A” to Kobylecki Declaration.
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16 I. A DEFENDANT MAY MOVE TO QUASH SERVICE OF PROCESS WHEN
17 THE COURT LACKS J URISDICTION
18 Code of Civil Procedure section 418.10 states in part:
19 (a) 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
20 cause allow, may serve and file a notice of motion either or
both:
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22 (1) To quash service of summons on the ground of lack of
jurisdiction of the court over him or her.
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24 In Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568, the court]
25 stated: ‘When a motion to quash is properly brought, the burden of proof is placed
26 upon the plaintiff to establish the facts of jurisdiction by a preponderance of the
27 evidence.”
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MOTION TO QUASH
I. PLAINTIFFS HAVE NOT VALIDLY SERVED THE CHAPTER
It is undisputed that, at the time of the incident giving rise to this litigation, the
Chapter was an unincorporated association. It is equally undisputed that the Chapter
ceased to be an unincorporated association following revocation of its charter by the
national fraternity on March 12, 2019. As stated in Theta Chi Fraternity’s notice letter]
to the undergraduate members, “Per The Constitution and Bylaws of Theta Chi
Fraternity, Inc., you are now considered an alumnus member.” (Declaration of
Michael Mayer 911, Exhibit “C” to Mayer Declaration.) Therefore, as of the revocation
of the charter on March 12, the Chapter no longer had any members. The Chapter’s
10 time to appeal the revocation, as provided by Theta Chi Fraternity’s Constitution
11 Bylaws, expired in April 2020, with the Chapter not filing any appeal with the
12 Fraternity. (Declaration of Michael Mayer 412.)
13 Code of Civil Procedure section 416.40 states in relevant part:
14 A summons may be served on an_ unincorporated
association (including a partnership) by delivering a copy of
15 the summons and of the complaint:
4K
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(b) If the association is not a general or limited partnership,
17 to the person designated as agent for service of process ina
statement filed with the Secretary of State or to the president
18 or other head of the association, a vice president, a
secretary or assistant secretary, a treasurer or assistant
19 treasurer, a general manager, or a person authorized by the
association to receive service of process.
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21 As set forth in the Declaration of Christopher Guevara, the Chapter's
22 recognition as a campus organization was revoked by Santa Cruz and the Chapter's
23 charter was revoked by Theta Chi Fraternity, Inc. An unincorporated association that
24 is subordinate to another organization is subject to dissolution by order of the superior|
25 organization. (Holt v. Santa Clara County Sheriffs Benefit Ass'n (1967) 250
26 Cal.App.2d 925, 930.) Following the revocation by the national fraternal organization
27 the Chapter ceased operating and has been without members and disbanded since
28 March 2019.
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MOTION TO QUASH
Code of Civil Procedure section 369.5 allows an unincorporated association to
sue or be sued. That unincorporated association, however, must be in existence at
the time of the purported service. In Oliver v. Swiss Club Tell (1963) 222 Cal.App.2d
528, 537-538, the court stated:
A civil action can be maintained only against a legal person,
i.e., a natural person or an artificial or quasi-artificial person,
a nonentity is incapable of suing or being sued. (Citations
omitted.) Where a suit is brought against an entity which
is legally nonexistent, the proceeding is void ab
initio and its invalidity can be called to the attention of
the court at any stage of the proceeding. (Citations
omitted.) The common-sense rationale of this rule is that
courts sit to settle disputes between existing parties and
10 when the defendant is not a legal person no lawful judgment
can be rendered against such a_nonentity. (Citations
11
omitted.) Accordingly, it is a corollary to this rule that the
12 objection that a plaintiff or defendant is nonexistent is not
subjectto waiver, as in the case of misnomer or lack of legal
13 capacity, because the defect is jurisdictional. (Emphasis
added.)
14
15 In Oliver, the appellate court reversed an order granting summary judgment
to
16 an unincorporated association simply on the grounds that the association had failed to
17 supply adequate declarations demonstrating that it no longer was in existence. In the
18 present matter, the declaration of Christopher Guevara, the former president of the
19 Chapter, who was president
at the time the Chapter was disbanded, is amply sufficient
20 to demonstrate that plaintiffs are attempting to serve and sue a nonentity.
21 The law specifically states that dissolved corporations may be sued.
22 (Corporations Code section 2010.) This does not apply to unincorporated
23 associations, which are governed by entirely different statutes (Corp. Code sections
24 18000, et seq.), none of which allow for suit against the dissolved unincorporated
25 associations.
26 The Chapter has disbanded and is legally nonexistent. It cannot, therefore, be
27 sued. Any judgment against it would be void. As such, it is proper to grant the motion
28 to quash service.
6
MOTION TO QUASH
Vv. PLAINTIFFS DID NOT COMPLY WITH STATUTORY REQUIREMENTS FOR
SERVICE ON THE CHAPTER
Even if the Chapter were, in the face of the law and evidence, deemed subject
to this court’s jurisdiction, plaintiffs have failed to properly serve the action on an
individual authorized to accept service. "[C Jompliance with the statutory procedures for|
service of process is essential to establish personal jurisdiction.” (American Express
Centurion v. Zara (2011) 199 Cal.App.4th at 383, 387.)
As set forth above, once a motion to quash is filed the burden is on the plaintiffs
to demonstrate that the purported service was proper. (Aquila, Inc., supra, 148
10 Cal.App.4th 556, 568.)
11 Code of Civil Procedure section 416.40(b), states that service must be made
12 where, as here, the unincorporated association is not a general or limited partnership,
13 “to the person designated as agent for service of process ina statement filed
14 with the Secretary of State or to the president or other head of the association, a vice
15 president, a secretary or assistant secretary, a treasurer or assistant treasurer, a
16 general manager, or a person authorized by the association to receive service of
nl
17 process.
18 Plaintiffs have not served an officer of the Chapter. Instead, plaintiffs assert
19 service on a former president of the disbanded Chapter, Christopher Guevara.
20 Service is, therefore, invalid, and should be quashed.
21
22 Vv CONCLUSION
23 Pursuant to the foregoing, defendant, Theta lota Chapter of Theta Chi
24 Fraternity, requests that the court grant the motion to quash service of the summons
25 and complaint.
26 //1
27
28 The section mentions a third option, subdivision (c), requiring judicial authorization for service on
another member of the association. There are no current members of the Chapter.
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MOTION TO QUASH
1 DATED: July 17, 2020 FRIEDENTHAL, HEFFERNAN & BROWN, LLP
sy Lbae Kabylecki
ELAINE KOBYLECKI, ESQ.
Attorneys for Specially Appearing Defendant,
THETA IOTA CHAPTER OF THETA CHI
FRATERNITY
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MOTION TO QUASH
DECLARATION OF ELAINE KOBYLECKI
|, Elaine Kobylecki declare:
| | am an attorney licensed to practice in California, and an associate in
the law firm of Friedenthal, Heffernan & Brown, LLP, counsel of record for specially
appearing defendant, Theta lota Chapter of Theta Chi Fraternity, Inc.
2 Plaintiffs’ original action was filed on October 19, 2019. Plaintiffs’
amended complaint was filed on February 5, 2020.
3 Plaintiffs claim that they served specially appearing defendant by
substitute service on its former president, Christopher Guevara, on J une 10, 2020.
10 (Physical substitute service on J une 9, 2020; mail service on J une 10, 2020.) A copy
11 of the proof of service is attached hereto as Exhibit “A.”
12 If called as a witness | could and would competently testify under oath to the
13 above facts which are personally known to me.
14 Executed on J uly 14, 2020, at San Francisco, California.
15 | declare under penalty of perjury of the laws of the State of California that the
16 foregoing is true and correct.
17 ge/——
=~ _\E Ne
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~~ ELAINE KOBYLECKI
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MOTION TO QUASH
EXHIBITA
June 10, 2020 ProLegal Reg#: 2017025418 fax
POS-010
‘ATTORNEY OF PARTY WITHOUT ATTORNEY (Name, State Bar number, and address) FOR COURT USE ONLY
Ivo Labar | SBN: 203492
SAWYER & LABAR LLP
201 Mission Street - 22nd Floor San Francisco, CA 94105
TELEPHONE NO. : (415) 262-3820 | FAX NO. | E-MAIL ADDRESS (Optional):
ATTORNEY FOR (Name): Plaintitis:
SUPERIOR COURT OF CALIFORNIA - COUNTY OF SANTA CRUZ
STREET ADDRESS: 701 Ocean Street
MAILING ADDRESS:
CITY AND ZIP Cope: Santa Cruz, CA 95060
BRANCH NAME:
‘CASE NUMBER:
PLAINTIFF: DAPHNE BELETSIS, et al
19CV03287
DEFENDANT: THETA CHI FRATERNITY, et al
Tal, No, oF Fie Nox
PROOF OF SERVICE OF SUMMONS 00068
(Separate proof of service is required for each party served.)
At the time of service | was at least 18 years of age and not a party to this action.
| served copies of:
a. w Summons
b. [MY Complaint
c. ww Alternative Dispute Resolution (ADR) package
d. ~ Civil Case Cover Sheet (served in complex cases only)
e. Cross-complaint
f. wy other (specify documents): See attached Document List
a. Party served (specify name of party as shown on documents served):
THETA IOTA CHAPTER OF THETA CHI FRATERNITY, individually, and as an and agent and alter-ego of
Theta Chi Fraternity, Inc.
b. w Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person under
item 5b on whom substituted service was made) (specify name and relationship to the party named in item 3a):
CHRISTOPHER GUEVARA - LAST ACTING PRESIDENT OF THE THETA IOTA CHAPTER OF THETA CHI FRATERNITY
Address where the party was served: 7330 HILLSVIEW COURT
WEST HILLS, CA 91307
| served the party (check proper box)
a, by personal service. | personally delivered the documents listed in item 2 to the party or person authorized to
receive service of process for the party (1) on (date): (2) at (time):
b. wy by substituted service. On (date): 6/9/2020 at (time): 11:20 AM | left the documents listed in item 2 with or
in the presence of (name and title or relationship to person indicated in item 3b):
DIEGO GUEVARA - CO-OCCUPANT
(1) oO (business) a person at least 18 years of age apparently in charge at the office or usual place of business of the
person to be served. | informed him of her of the general nature of the papers.
(2) [1 (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of
abode of the party. | informed him or her of the general nature of the papers.
(3) (1) @hysical address unknown) a person at least 18 years of age apparently in charge at the usual mailing
address of the person to be served, other than a United States Postal Service post office box. | informed him of
her of the general nature of the papers.
(4) [W | thereafter mailed (by first-class, postage prepaid) copies of the documents to the person to be served at the
place where the copies were left (Code Civ. Proc., §415.20). | mailed the documents on
(date): from (city): or a declaration of mailing is attached.
(5) wy | attach a declaration of diligence stating actions taken first to attempt personal service.
Page 1 of2
Form A ed for Mandatory Use
Judi al Co nail of California
‘Code of Civil Procedure, § 417.10
POS-010 (Rev. January 1, 2007 PROOF OF SERVICE OF SUMMONS. POS010-1/2386345
” PETITIONER: DAPHNE BELETSIS, et al CASE NUMBER:
19CV03287
RESPONDENT: THETA CHI FRATERNITY, et al
by mail and acknowledgment of receipt of service. | mailed the documents listed in item 2 to the party, to the address
shown in item 4, by first-class mail, postage prepaid,
(1) on (date): (2) from (city):
30 with two copies of the Notice and Acknowledgment of Receipt and a postage-paid return envelope addressed tome.
(Attach completed Notice and Acknowledgement of Receipt.) (Code Civ. Proc., § 415.30.)
(4) oO to an address outside California with return receipt requested. (Code Civ. Proc., § 415.40.)
d.(] by other means (specify means of service and authorizing code section):
(1 Additional page describing service is attached.
The "Notice to the Person Served" (on the summons) was completed as follows:
a. as an individual defendant.
b. as the person sued under the fictitious name of (specify):
©, as occupant.
4.[ On behalf of (specify): THETA IOTA CHAPTER OF THETA CHI FRATERNITY, in dually, and as an
and agent and alter-ego of Theta Chi Fraternity, Inc.
under the following Code of Civil Procedure section:
416.10 (corporation) O 415.95 (business organization, form unknown)
416.20 (defunct corporation) O 416.60 (minor)
416.30 (joint stock company/association)
416.40 (association or partnership)
416.50 (public entity)
ofO 416.70 (ward or conservatee)
416.90 (authorized person)
415.46 (occupant)
O other:
Person who served papers
Name: Roland Henkel - ProLegal Reg#: 2017025418
Address: P.O. Box 54846 Los Angeles, CA 90054
Telephone number: (888) 722-6878
The fee for service was: $ 190.00
fam:
(1) OO nota registered California process server.
(2)
(3) im exempt from registration under Business and Professions Code section 22350(b).
registered California progess server:
(i) owner employee Oo
independent contractor.
(ii) Registration No.: 3843
(ii) County: Los Angeles
8. mo I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
or
9.[-] Lam a California sheriff or marshal and | certify that the foregoing is true and correct.
Date: 6/10/2020
ProLegal Reg#: 2017025418
Previigns P.O. Box 54846
—— Los Angeles, CA 90054
(888) 722-687!
http://www.prolegalnetwork.com
Roland Henkel
(NAME OF PERSON WHO SERVED PAPERS/SHERIFF OR MARSHAL)
» Cy
POS-010 [Rev January 1, 2007] PROOF OF SERVICE OF SUMMONS Page
2 of 2
POS-010/2386345
e
"ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address) FOR COURT USE ONLY
’ Ivo Labar | SBN: 203492
SAWYER & LABAR LLP
201 Mission Street - 22nd Floor San Francisco, CA 94105
‘TELEPHONE NO. (415) 262-3820 | FAX NO. | E-MAIL ADDRESS (Optionat):
ATTORNEY FOR (Name): Plaintifs:
SUPERIOR COURT OF CALIFORNIA - COUNTY OF SANTA CRUZ
STREET ADDRESS: 701 Ocean Street
MAILING ADDRESS:
CITY AND zip coe: Santa Cruz, CA 95060
BRANCH NAME:
PLAINTIFF/PETITIONER: DAPHNE BELETSIS, et al CASE NUMBER:
DEFENDANT/RESPONDENT: THETA CHI FRATERNITY, et al 19CV03287
Ref. No. or File No..
DECI ARATION OF DI IGFNCF 00068
|, Roland Henkel , declare: | am a Registered Process Server and was retained to serve process in the above-referenced matter
on the following person or entity: THETA IOTA CHAPTER OF THETA CHI FRATERNITY, individually, and as an and agent and
alter-ego of Theta Chi Fraternity, Inc. as follows:
Documents:
See Documents on Attached List
| attempted personal service on the following dates and times with the following results:
Date Time Location Results
6/3/2020 6:15 PM Home | attempted service at the residence. | spoke to the subject's mother
who confirmed the subject lives at the address, but was not home. He
would not be back until 7:30 p.m. Unable to serve, | will continue
attempts. - Roland Henkel
7330 HILLSVIEW COURT, WEST HILLS, CA 91307
6/4/2020 12:45 PM Home | attempted service at the residence. | rang the intercom and knocked
on the front door several times, but received no response. There were
no sounds heard or movement observed. Unable to serve, | will
continue attempts. - Roland Henkel
7330 HILLSVIEW COURT, WEST HILLS, CA 91307
8/2020 7:00 AM Home | attempted service at the residence. There was no answer at the front
door. No lights on inside. | waited 15 minutes and observed no
movements. There were no cars in the driveway. Unable to serve. -
Roland Henkel
7330 HILLSVIEW COURT, WEST HILLS, CA 91307
6/9/2020 11:20 AM Home Substituted service on: THETA IOTA CHAPTER OF THETA CHI
FRATERNITY, individually, and as an and agent and alter-ego of
Theta Chi Fraternity, Inc.; 7330 HILLSVIEW COURT, WEST HILLS,
CA 91307; by serving: DIEGO GUEVARA - CO-OCCUPANT.
Fee for Service: $ 190.00
County: Los Angeles
Qwrrg
=a Registration No.: 384: | declare under penalty of perjury that the foregoing is true
ProLegal Reg#: 2017025418 and correct and that this declaration was executed on June
P.O. Box 54846 10, 2020.
Los Angeles, CA 90054
(888) 722-6878
Signature:
Roland Henkel
AFFIDAVIT OF REASONABLE DILIGENCE
Order#: 2386345
ProLegal Reg#: 2017025418
P.O. Box 54846
Los Angeles, CA 90054
Phone: (888) 722-6878 Fax:
Continued from Proof of Service
CLIENT: SAWYER & LABAR LLP
CLIENT FILE #: 00068 DATE: June 10,2020
SUBJECT: THETA IOTA CHAPTER OF THETA CHI FRATERNITY, individually, and as an and
agent and alter-ego of Theta Chi Fraternity, Inc.
SERVED DIEGO GUEVARA - CO-OCCUPANT
Summons; Complaint; Alternative Dispute (ADR) package; Civil Case
Cover Sheet (served in complex cases only); First Amended Complaint;
Case Management Information and Setting; Confidentiality Stipulation
and Protective Order; Consent to Electronic Service and Notice of
Electronic Service Address for Douglas Fierberg; Consent to
Electronic Service and Notice of Electronic Service Address for Ivo
Labar; Consent to Electronic Service and Notice of Electronic
Service Address for Jonathon Fazzola; Consent to Electronic Service
and Notice of Electronic Service Address for Lisa N. Cloutier;
OLEDEAL!
=: wee spot = tas
ProLegal Reg#: 2017025418 | P.O. Box 54846 | Los Angeles, CA 90054 | (888) 722-6878
2386345
’
Attomey or Party without Attorney: FOR COURT USE ONLY
Ivo Labar, SBN: 203492
SAWYER & LABAR LLP
201 Mission Street - 22nd Floor
San Francisco, CA 94105 E-MAIL ADDRESS (Optional):
TELEPHONE No.: (415) 262-3820 FAX No, (Optional):
‘Atorey for; Plaintiffs
Ret No. or File No.
00068
Insert name of Court, and Judicial District and Branch Coun
SUPERIOR COURT OF CALIFORNIA - COUNTY OF SANTA CRUZ
Piantit: DAPHNE BELETSIS, et al
Defendant: THETA CHI FRATERNITY, et al
HEARING DATE: TIME: DEPT.’ ‘CASE NUMBER:
PROOF OF SERVICE 19CV03287
1. | am over the age of 18 and not a party to this action. | am employed in the county where the mailing occurred.
2. | served copies of the Summons; Complaint; Alternative Dispute (ADR) package; Civil Case Cover Sheet (served in
complex cases only); First Amended Complaint; Case Management Information and Setting; Confidentiality Stipulation and
Protective Order; Consent to Electronic Service and Notice of Electronic Service Address for Douglas Fierberg; Consent to
Electronic Service and Notice of Electronic Service Address for lvo Labar; Consent to Electronic Service and Notice of
Electronic Service Address for Jonathon Fazzola; Consent to Electronic Service and Notice of Electronic Service Address
for Lisa N. Cloutier;
By placing a true copy thereof enclosed in a sealed envelope, with First Class postage thereon fully prepaid, in the United
States Mail at LOS ANGELES, California, addressed as follows:
a. Date of Mailing: June 10, 2020
b. Place of Mailing: LOS ANGELES, CA
c. Addressed as follows: THETA IOTA CHAPTER OF THETA CHI FRATERNITY, individually, and as an and
agent and alter-ego of Theta Chi Fraternity, Inc.
ATTENTION: CHRISTOPHER GUEVARA - LAST ACTING PRESIDENT OF THE
THETA IOTA CHAPTER OF THETA CHI FRATERNITY
7330 HILLSVIEW COURT
WEST HILLS, CA 91307
| am readily familiar with the firm's practice for collection and processing of documents for mailing. Under that practice, it
would be deposited within the United States Postal Service, on that same day, with postage thereon fully prepaid at LOS
ANGELES, California in the ordinary course of business.
Fee for Service: $ 190.00 | declare under penalty of perjury under the laws of
County: the The State of California that the foregoing
Prova Registration: information contained in the return of service and
~—=—=. ProLegal Reg#: 2017025418 statement of service fees is true and correct and that
P.O. Box 54846 this declaration was executed on June 10, 2020.
Los Angeles, CA 90054
(888) 722-6878
Ref: 00068
Signature:
SS
Sandra Felix
PROOF OF SERVICE BY MAIL
Order#: 2386345/mailproof
PROOF OF SERVICE
Beletsis, et al. v. Theta Chi Fraternity, Inc., et al.
Case No.: 19CV03287
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
lam employed in the County of Los Angeles, State of California. | am over the
age of 18 and not a party to the within action; my business address is: 1520 W.
Colorado Boulevard, Second Floor, Pasadena, California 91105.
OnJuly 17, 2020, | served the foregoing documentas NOTICE OF MOTION
AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ELAINE
KOBYLECKI on the parties in this action by placing a true copy thereof enclosed ina
sealed envelope addressed as follows:
10
* PLEASE SEE ATTACHED SERVICE LIST *
11
L] MAIL SERVICE: As follows: | am "readily familiar" with the firm's practice of
12 collection and processing correspondence for mailing. Under that practice it would
be deposited with U.S. postal service on that same day with postage thereon fully
13
prepaid at Pasadena, California, in the ordinary course of business. | am aware that
14 on motion of the party served, service is presumed invalid if postal cancellation date
or postage meter date is more than one day after date of deposit for mailing in
15 affidavit.
16 (| FEDERAL EXPRESS SERVICE: | caused such envelopes to be delivered by
Federal Express to the offices of the addressee listed on the attached Service List. |
17 further designed such envelopes to be delivered to all addressees on the attached
Service List utilizing Fed-Ex's “Overnight Next-Day Delivery Service.”
18
[Xx] ELECTRONIC MEANS (EMAIL): | caused such document(s) to be electronically
19 served through email for the above-entitled matter. This service complies with
20 Emergency Rule 12 of the California Rules of Court. The file transmission was
reported as complete and a copy of the “Sent” page noting the date and time of such
21 transmission will be maintained with the file copy of the document(s) in our office.
22 [| PERSONAL SERVICE: | caused such document to be hand-delivered to the
addressees indicated below, via First Legal.
23
(_] FACSIMILE SERVICE: | caused such document
to be faxed to the addressee.
24
| declare under penalty of perjury under the laws of the State of California that
25 the above is true and correct. Executed onJ uly 17, 2020, at Pasadena, California.
26
bh Arts
Z;
27 atasha
28
PROOF OF SERVICE
SERVICE LIST
Beletsis, et al. v. Theta Chi Fraternity, Inc., et al.
Case No.: 19CV03287
Attorneys for Plaintiffs, DAPHNE BELETSIS and YVONNE RAINEY
Douglas E. Fierberg, Esq. Ivo Labar, Esq.
J onathon N. Fazzola, Esq. SAWYER & LABAR, LLP
THE FIERBERG NATIONAL LAW 201 Mission St. Suite 2240
GROUP, PLLC San Francisco, CA 94105
161E. FrontSt, Suite 200 Tel. No.: (415) 262-3820
Traverse City, MI 49684 Fax No.:(
Tel. No.: (202) 351-0510 labar@ sawyerlabar.com
Fax No.: (231) 252-8100 guzman@ sawyerlabar.com
dfierberg@ tfnigroup.com tpicard@ ftnigroup.com
jfazzola@ tfnigroup.com
Icloutier@ tfnigroup.com
10
Attorneys for Defendant, THETA CHI FRATERNITY, INC.
11 Michael C. Osborne, Esq.
Stevie B. Newton, Esq.
12 COKINOS | YOUNG
One Embarcadero Center, Suite 390
13
San Francisco, CA 94111
14 Tel. No.: (415) 228-0208
Fax No.:(
15 mosborne@ cokinoslaw.com
newton@ cokinoslaw.com
16
Attorneys for Defendant, CHRISTOPHER GUEVARA
17 Matthew C. J aime, Esq.
18 Robert W. Sweetin, Esq.
MATHENY SEARS LINKERT &J AIME, LLP
19 3638 American River Dr.
Sacramento, CA 95864
20 Tel. No.: (916) 978-3434
Fax No.: (916) 978-3430
21 mjaime@ mathenysears.com
22 sweetin@ mathenysears.com
23 Attorneys for Defendant, BRAD VISACKI
Derek H. Lim, Esq.
24 Shannon Mallory, Esq.
DEMLER, ARMSTRONG & ROWLAND, LLP
25 1350 Treat Blvd., Suite 400
Walnut Creek, CA 94597-7960
26
Tel. No.: (415) 949-1900
27 Fax No.:(
lim@ darlaw.com
28 mal@ darlaw.com
2
PROOF OF SERVICE
Attorneys for Defendant, QUINN McLAUGHLIN
Andrew M. Lauderdale, Esq.
STRATMAN, PEDERSEN & LAUDERDALE
1 Almaden Blvd., Suite 400
San Jose, CA 95113-2246
Tel. No.: (408) 271-5325
Fax No.:(
Andrew.lauderdale@ farmers.com
Attorneys for Defendant, ] ORDAN KEIICHI TAKAYAMA
Julie M. Azevedo, Esq.
Shawn Toliver, Esq.
LEWIS BIRSBOIS BISGAARD & SMITH, LLP
2185 N. California Blvd., Suite 300
Walnut Creek, CA 94596-3577
10 Tel. No.: (925) 357-3441
11 Fax No.: (925) 478-3260
ulie.azevedo@ lewisbrisbois.com
12 Shawn.toliver@ lewisbrisbois.com
Kristen.garcia@ lewisbrisbois.com
13
Attorneys for Defendant, STEFAN MATIAS LEON
14 Ryne W. Osborne, Esq.
15 RobertT. Mackey, Esq.
Veatch Carlson, LLP
16 1055 Wilshire Blvd., 11" Floor
Los Angeles, CA 90017
17 Tel. No.: (213) 404-1108
Fax No.: (213) 383-6370
18 ‘osborne@ veatchfirm.com
19 mackey@ veatchfirm.com
porter@ veatchfirm.com
20
Attorneys for Defendant, MOISES FRANCISCO TENORIO GARCIA
21 Patrick R. Ball, Esq.
Idin Kashefipour, Esq.
22
MESSNER REEVES, LLP
23 610 Newport Center Dr., Suite 420
Newport Beach, CA 92660-6450
24 Tel. No.: (949) 612-9128
Fax No.: (310) 889-0896
25 pball@ messner.com
ikashefipour@ messner.com
26
27
28
3
PROOF OF SERVICE
Attorneys for Defendant, RAFAEL GARCIA, JR
Alan F. Hunter, Esq.
Elizabeth G. Landess, Esq.
Jack T. Bussell, Esq.
GAVIN, CUNNINGHAM & HUNTER
1530 The Alameda, Suite 210
San Jose, CA 95126
Te
Preview
ELECTRONICALLY FILED Elaine Kobylecki, Esq., State Bar No. 299311 Superior Court of California FRIEDENTHAL, HEFFERNAN & BROWN, LLP County of Santa Cruz yi bgpoen 1520 W. Colorado Boulevard, Second Floor 7/17/2020 12:34 PM Pasadena, California 91105 Alex Calvo, Clerk Telephone: (626) 628-2800 Facsimile: (626) 628-2828 Attorneys for Specially Appearing Defendant, THETA IOTA CHAPTER OF THETA CHI FRATERNITY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CRUZ 10 DAPHNE BELETSIS, individually, and CASE NO. 19CV03287 11 as Administrator of the ESTATE OF ALEXANDER BELETSIS, and NOTICE OF MOTION AND MOTION TO 12 YVONNE RAINEY, surviving parent of QUASH SERVICE OF SUMMONS AND ALEXANDER BELETSIS, deceased, COMPLAINT; MEMORANDUM OF 13 POINTS AND AUTHORITIES; Plaintiffs, 14 DECLARATION OF ELAINE KOBYLECKI; DECLARATION OF 15 CHRISTOPHER GUEVARA [Filed as a Separate Document]; DECLARATION 16 vs OF MICHAEL MAYER [Filed as a Separate Document] 17 18 THETA CHI FRATERNITY, INC., etal., Action Filed: October 31, 2019 19 Defendants. First Amended Complaint 20 Filed: February 5, 2020 21 Date: August 31, 2020 Time: 8:30 a.m. 22 Dept.: “10” | udge: Hon. | ohn Gallagher 23 24 TO THE PARTIES AND TO THEIR ATTORNEYS OF RECORD: 25 PLEASE TAKE NOTICE that on August 31, 2020, at 8:30 a.m., in Department 26 “10” of the above-referenced court located at 701 Ocean Street, Santa Cruz, 27 California, defendant, Theta lota Chapter of Theta Chi Fraternity, an unincorporated 28 association, will specially appear to move the court for an order quashing the 1 MOTION TO QUASH purported service of the summons and complaint allegedly made on defendant by substitute service onJ une 10, 2020. The motion to quash service will be made pursuant to Code of Civil Procedure section 418.10. The motion will be made on the grounds that court lacks jurisdiction over defendant and that defendant was never validly served with a copy of the summons and complaint. Defendant has no legal existence and/or plaintiffs have failed to comply with the requirement that service be made on an individual authorized to accept such service per Code of Civil Procedure section 416.40(b). This motion is made and based upon this notice of motion, the memorandum of 10 points and authorities served and filed herewith, the declaration of Elaine Kobylecki 11 served and filed herewith, the declaration of Christopher Guevara served and filed as 12 a separate document, the declaration of Michael Mayer served and filed as a separate 13 document, and upon such other further evidence or oral argument as may be 14 presented at the time of the hearing of this matter. 15 16 DATED: July 17, 2020 FRIEDENTHAL, HEFFERNAN & BROWN, LLP 17 By Llane Kabylecki 18 ELAINE KOBYLECKI, ESQ. 19 Attorneys for Specially Appearing Defendant, THETA IOTA CHAPTER OF THETA CHI 20 FRATERNITY 21 22 23 24 25 26 27 28 2 MOTION TO QUASH MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION This action arises out of fatal injuries sustained by Alexander Beletsis on J une 2, 2018, at a private residence occupied by college students in Santa Cruz. Plaintiffs are the Estate of Alexander Beletsis, Daphne Beletsis and Yvonne Rainey, described in the First Amended Complaint as the parents of Alexander Beletsis. Plaintiffs’ original action was filed on October 19, 2019. Plaintiffs’ amended complaint was filed on February 5, 2020. Plaintiffs allege claims for negligence (survivor and wrongful 10 death) against, among others, this specially appearing defendant, Theta lota Chapter 11 of Theta Chi Fraternity, (hereinafter “the Chapter’). 12 13 I. STATEMENT OF FACTS 14 Plaintiffs allege that Alexander Beletsis sustained injuries at an alleged 15 fraternity-related event on J une 2, 2018, from which he subsequently died. At the 16 time, Mr. Beletsis was a student at the University of California, Santa Cruz (“Santa 17 Cruz”). The Chapter was an undergraduate chapter located at Santa Cruz which had 18 previously been issued a charter by Theta Chi Fraternity, Inc., a national fraternal 19 organization headquartered in Indiana. (Declaration of Christopher Guevara 43.) 20 The Chapter was a registered fraternal organization by Santa Cruz. (Declaration of 21 Christopher Guevara 94.) The Chapter was an unincorporated association at the time 22 of the subject incident. It was at no time a general or a limited partnership (Declaration 23 of Christopher Guevara 45.) 24 Theta Chi Fraternity, Inc., revoked the charter of the Chapter on March 12, 25 2019. (Declaration of Michael Mayer 411.) On April 2, 2019, Theta Chi Fraternity 26 served notice on all Chapter members that the Chapter’s charter had been 27 revoked and advising that: “The revocation of the charter means that the chapter 28 may no longer operate as a collegiate chapter of Theta Chi Fraternity. The 3 MOTION TO QUASH chapter is now closed and is no longer recognized as an active chapter within Theta Chi Fraternity.” (Declaration of Michael Mayer 411; Exhibit “C” to Mayer Declaration.) Following the investigation into Mr. Beletsis’ death, Santa Cruz revoked the Chapter’s recognition as a Registered Campus Organization in April of 2019. (Declaration of Christopher Guevara 417.) Thereafter, the Chapter was unable to conduct or participate in any fraternity events, recruit new members, or otherwise operate as a fraternal organization or as a recognized student organization and ceased all operations. (Declaration of Christopher Guevara 47.) There have been no officers or members of the Chapter since its charter was revoked. (Declaration of| 10 Christopher Guevara 418.) 11 Plaintiffs claim that they served the Chapter by substitute service on the former| 12 president of the Chapter, Christopher Guevara, on J une 10, 2020 (Physical substitute 13 service on June 9, 2020; mail service on June 10, 2020). (Declaration of Elaine 14 Kobylecki 93; Exhibit “A” to Kobylecki Declaration. 15 16 I. A DEFENDANT MAY MOVE TO QUASH SERVICE OF PROCESS WHEN 17 THE COURT LACKS J URISDICTION 18 Code of Civil Procedure section 418.10 states in part: 19 (a) 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 20 cause allow, may serve and file a notice of motion either or both: 21 22 (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. 23 24 In Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568, the court] 25 stated: ‘When a motion to quash is properly brought, the burden of proof is placed 26 upon the plaintiff to establish the facts of jurisdiction by a preponderance of the 27 evidence.” 28 //1 4 MOTION TO QUASH I. PLAINTIFFS HAVE NOT VALIDLY SERVED THE CHAPTER It is undisputed that, at the time of the incident giving rise to this litigation, the Chapter was an unincorporated association. It is equally undisputed that the Chapter ceased to be an unincorporated association following revocation of its charter by the national fraternity on March 12, 2019. As stated in Theta Chi Fraternity’s notice letter] to the undergraduate members, “Per The Constitution and Bylaws of Theta Chi Fraternity, Inc., you are now considered an alumnus member.” (Declaration of Michael Mayer 911, Exhibit “C” to Mayer Declaration.) Therefore, as of the revocation of the charter on March 12, the Chapter no longer had any members. The Chapter’s 10 time to appeal the revocation, as provided by Theta Chi Fraternity’s Constitution 11 Bylaws, expired in April 2020, with the Chapter not filing any appeal with the 12 Fraternity. (Declaration of Michael Mayer 412.) 13 Code of Civil Procedure section 416.40 states in relevant part: 14 A summons may be served on an_ unincorporated association (including a partnership) by delivering a copy of 15 the summons and of the complaint: 4K 16 (b) If the association is not a general or limited partnership, 17 to the person designated as agent for service of process ina statement filed with the Secretary of State or to the president 18 or other head of the association, a vice president, a secretary or assistant secretary, a treasurer or assistant 19 treasurer, a general manager, or a person authorized by the association to receive service of process. 20 21 As set forth in the Declaration of Christopher Guevara, the Chapter's 22 recognition as a campus organization was revoked by Santa Cruz and the Chapter's 23 charter was revoked by Theta Chi Fraternity, Inc. An unincorporated association that 24 is subordinate to another organization is subject to dissolution by order of the superior| 25 organization. (Holt v. Santa Clara County Sheriffs Benefit Ass'n (1967) 250 26 Cal.App.2d 925, 930.) Following the revocation by the national fraternal organization 27 the Chapter ceased operating and has been without members and disbanded since 28 March 2019. 5 MOTION TO QUASH Code of Civil Procedure section 369.5 allows an unincorporated association to sue or be sued. That unincorporated association, however, must be in existence at the time of the purported service. In Oliver v. Swiss Club Tell (1963) 222 Cal.App.2d 528, 537-538, the court stated: A civil action can be maintained only against a legal person, i.e., a natural person or an artificial or quasi-artificial person, a nonentity is incapable of suing or being sued. (Citations omitted.) Where a suit is brought against an entity which is legally nonexistent, the proceeding is void ab initio and its invalidity can be called to the attention of the court at any stage of the proceeding. (Citations omitted.) The common-sense rationale of this rule is that courts sit to settle disputes between existing parties and 10 when the defendant is not a legal person no lawful judgment can be rendered against such a_nonentity. (Citations 11 omitted.) Accordingly, it is a corollary to this rule that the 12 objection that a plaintiff or defendant is nonexistent is not subjectto waiver, as in the case of misnomer or lack of legal 13 capacity, because the defect is jurisdictional. (Emphasis added.) 14 15 In Oliver, the appellate court reversed an order granting summary judgment to 16 an unincorporated association simply on the grounds that the association had failed to 17 supply adequate declarations demonstrating that it no longer was in existence. In the 18 present matter, the declaration of Christopher Guevara, the former president of the 19 Chapter, who was president at the time the Chapter was disbanded, is amply sufficient 20 to demonstrate that plaintiffs are attempting to serve and sue a nonentity. 21 The law specifically states that dissolved corporations may be sued. 22 (Corporations Code section 2010.) This does not apply to unincorporated 23 associations, which are governed by entirely different statutes (Corp. Code sections 24 18000, et seq.), none of which allow for suit against the dissolved unincorporated 25 associations. 26 The Chapter has disbanded and is legally nonexistent. It cannot, therefore, be 27 sued. Any judgment against it would be void. As such, it is proper to grant the motion 28 to quash service. 6 MOTION TO QUASH Vv. PLAINTIFFS DID NOT COMPLY WITH STATUTORY REQUIREMENTS FOR SERVICE ON THE CHAPTER Even if the Chapter were, in the face of the law and evidence, deemed subject to this court’s jurisdiction, plaintiffs have failed to properly serve the action on an individual authorized to accept service. "[C Jompliance with the statutory procedures for| service of process is essential to establish personal jurisdiction.” (American Express Centurion v. Zara (2011) 199 Cal.App.4th at 383, 387.) As set forth above, once a motion to quash is filed the burden is on the plaintiffs to demonstrate that the purported service was proper. (Aquila, Inc., supra, 148 10 Cal.App.4th 556, 568.) 11 Code of Civil Procedure section 416.40(b), states that service must be made 12 where, as here, the unincorporated association is not a general or limited partnership, 13 “to the person designated as agent for service of process ina statement filed 14 with the Secretary of State or to the president or other head of the association, a vice 15 president, a secretary or assistant secretary, a treasurer or assistant treasurer, a 16 general manager, or a person authorized by the association to receive service of nl 17 process. 18 Plaintiffs have not served an officer of the Chapter. Instead, plaintiffs assert 19 service on a former president of the disbanded Chapter, Christopher Guevara. 20 Service is, therefore, invalid, and should be quashed. 21 22 Vv CONCLUSION 23 Pursuant to the foregoing, defendant, Theta lota Chapter of Theta Chi 24 Fraternity, requests that the court grant the motion to quash service of the summons 25 and complaint. 26 //1 27 28 The section mentions a third option, subdivision (c), requiring judicial authorization for service on another member of the association. There are no current members of the Chapter. 7 MOTION TO QUASH 1 DATED: July 17, 2020 FRIEDENTHAL, HEFFERNAN & BROWN, LLP sy Lbae Kabylecki ELAINE KOBYLECKI, ESQ. Attorneys for Specially Appearing Defendant, THETA IOTA CHAPTER OF THETA CHI FRATERNITY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 MOTION TO QUASH DECLARATION OF ELAINE KOBYLECKI |, Elaine Kobylecki declare: | | am an attorney licensed to practice in California, and an associate in the law firm of Friedenthal, Heffernan & Brown, LLP, counsel of record for specially appearing defendant, Theta lota Chapter of Theta Chi Fraternity, Inc. 2 Plaintiffs’ original action was filed on October 19, 2019. Plaintiffs’ amended complaint was filed on February 5, 2020. 3 Plaintiffs claim that they served specially appearing defendant by substitute service on its former president, Christopher Guevara, on J une 10, 2020. 10 (Physical substitute service on J une 9, 2020; mail service on J une 10, 2020.) A copy 11 of the proof of service is attached hereto as Exhibit “A.” 12 If called as a witness | could and would competently testify under oath to the 13 above facts which are personally known to me. 14 Executed on J uly 14, 2020, at San Francisco, California. 15 | declare under penalty of perjury of the laws of the State of California that the 16 foregoing is true and correct. 17 ge/—— =~ _\E Ne 18 ~~ ELAINE KOBYLECKI 19 20 21 22 23 24 25 26 27 28 9 MOTION TO QUASH EXHIBITA June 10, 2020 ProLegal Reg#: 2017025418 fax POS-010 ‘ATTORNEY OF PARTY WITHOUT ATTORNEY (Name, State Bar number, and address) FOR COURT USE ONLY Ivo Labar | SBN: 203492 SAWYER & LABAR LLP 201 Mission Street - 22nd Floor San Francisco, CA 94105 TELEPHONE NO. : (415) 262-3820 | FAX NO. | E-MAIL ADDRESS (Optional): ATTORNEY FOR (Name): Plaintitis: SUPERIOR COURT OF CALIFORNIA - COUNTY OF SANTA CRUZ STREET ADDRESS: 701 Ocean Street MAILING ADDRESS: CITY AND ZIP Cope: Santa Cruz, CA 95060 BRANCH NAME: ‘CASE NUMBER: PLAINTIFF: DAPHNE BELETSIS, et al 19CV03287 DEFENDANT: THETA CHI FRATERNITY, et al Tal, No, oF Fie Nox PROOF OF SERVICE OF SUMMONS 00068 (Separate proof of service is required for each party served.) At the time of service | was at least 18 years of age and not a party to this action. | served copies of: a. w Summons b. [MY Complaint c. ww Alternative Dispute Resolution (ADR) package d. ~ Civil Case Cover Sheet (served in complex cases only) e. Cross-complaint f. wy other (specify documents): See attached Document List a. Party served (specify name of party as shown on documents served): THETA IOTA CHAPTER OF THETA CHI FRATERNITY, individually, and as an and agent and alter-ego of Theta Chi Fraternity, Inc. b. w Person (other than the party in item 3a) served on behalf of an entity or as an authorized agent (and not a person under item 5b on whom substituted service was made) (specify name and relationship to the party named in item 3a): CHRISTOPHER GUEVARA - LAST ACTING PRESIDENT OF THE THETA IOTA CHAPTER OF THETA CHI FRATERNITY Address where the party was served: 7330 HILLSVIEW COURT WEST HILLS, CA 91307 | served the party (check proper box) a, by personal service. | personally delivered the documents listed in item 2 to the party or person authorized to receive service of process for the party (1) on (date): (2) at (time): b. wy by substituted service. On (date): 6/9/2020 at (time): 11:20 AM | left the documents listed in item 2 with or in the presence of (name and title or relationship to person indicated in item 3b): DIEGO GUEVARA - CO-OCCUPANT (1) oO (business) a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served. | informed him of her of the general nature of the papers. (2) [1 (home) a competent member of the household (at least 18 years of age) at the dwelling house or usual place of abode of the party. | informed him or her of the general nature of the papers. (3) (1) @hysical address unknown) a person at least 18 years of age apparently in charge at the usual mailing address of the person to be served, other than a United States Postal Service post office box. | informed him of her of the general nature of the papers. (4) [W | thereafter mailed (by first-class, postage prepaid) copies of the documents to the person to be served at the place where the copies were left (Code Civ. Proc., §415.20). | mailed the documents on (date): from (city): or a declaration of mailing is attached. (5) wy | attach a declaration of diligence stating actions taken first to attempt personal service. Page 1 of2 Form A ed for Mandatory Use Judi al Co nail of California ‘Code of Civil Procedure, § 417.10 POS-010 (Rev. January 1, 2007 PROOF OF SERVICE OF SUMMONS. POS010-1/2386345 ” PETITIONER: DAPHNE BELETSIS, et al CASE NUMBER: 19CV03287 RESPONDENT: THETA CHI FRATERNITY, et al by mail and acknowledgment of receipt of service. | mailed the documents listed in item 2 to the party, to the address shown in item 4, by first-class mail, postage prepaid, (1) on (date): (2) from (city): 30 with two copies of the Notice and Acknowledgment of Receipt and a postage-paid return envelope addressed tome. (Attach completed Notice and Acknowledgement of Receipt.) (Code Civ. Proc., § 415.30.) (4) oO to an address outside California with return receipt requested. (Code Civ. Proc., § 415.40.) d.(] by other means (specify means of service and authorizing code section): (1 Additional page describing service is attached. The "Notice to the Person Served" (on the summons) was completed as follows: a. as an individual defendant. b. as the person sued under the fictitious name of (specify): ©, as occupant. 4.[ On behalf of (specify): THETA IOTA CHAPTER OF THETA CHI FRATERNITY, in dually, and as an and agent and alter-ego of Theta Chi Fraternity, Inc. under the following Code of Civil Procedure section: 416.10 (corporation) O 415.95 (business organization, form unknown) 416.20 (defunct corporation) O 416.60 (minor) 416.30 (joint stock company/association) 416.40 (association or partnership) 416.50 (public entity) ofO 416.70 (ward or conservatee) 416.90 (authorized person) 415.46 (occupant) O other: Person who served papers Name: Roland Henkel - ProLegal Reg#: 2017025418 Address: P.O. Box 54846 Los Angeles, CA 90054 Telephone number: (888) 722-6878 The fee for service was: $ 190.00 fam: (1) OO nota registered California process server. (2) (3) im exempt from registration under Business and Professions Code section 22350(b). registered California progess server: (i) owner employee Oo independent contractor. (ii) Registration No.: 3843 (ii) County: Los Angeles 8. mo I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. or 9.[-] Lam a California sheriff or marshal and | certify that the foregoing is true and correct. Date: 6/10/2020 ProLegal Reg#: 2017025418 Previigns P.O. Box 54846 —— Los Angeles, CA 90054 (888) 722-687! http://www.prolegalnetwork.com Roland Henkel (NAME OF PERSON WHO SERVED PAPERS/SHERIFF OR MARSHAL) » Cy POS-010 [Rev January 1, 2007] PROOF OF SERVICE OF SUMMONS Page 2 of 2 POS-010/2386345 e "ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address) FOR COURT USE ONLY ’ Ivo Labar | SBN: 203492 SAWYER & LABAR LLP 201 Mission Street - 22nd Floor San Francisco, CA 94105 ‘TELEPHONE NO. (415) 262-3820 | FAX NO. | E-MAIL ADDRESS (Optionat): ATTORNEY FOR (Name): Plaintifs: SUPERIOR COURT OF CALIFORNIA - COUNTY OF SANTA CRUZ STREET ADDRESS: 701 Ocean Street MAILING ADDRESS: CITY AND zip coe: Santa Cruz, CA 95060 BRANCH NAME: PLAINTIFF/PETITIONER: DAPHNE BELETSIS, et al CASE NUMBER: DEFENDANT/RESPONDENT: THETA CHI FRATERNITY, et al 19CV03287 Ref. No. or File No.. DECI ARATION OF DI IGFNCF 00068 |, Roland Henkel , declare: | am a Registered Process Server and was retained to serve process in the above-referenced matter on the following person or entity: THETA IOTA CHAPTER OF THETA CHI FRATERNITY, individually, and as an and agent and alter-ego of Theta Chi Fraternity, Inc. as follows: Documents: See Documents on Attached List | attempted personal service on the following dates and times with the following results: Date Time Location Results 6/3/2020 6:15 PM Home | attempted service at the residence. | spoke to the subject's mother who confirmed the subject lives at the address, but was not home. He would not be back until 7:30 p.m. Unable to serve, | will continue attempts. - Roland Henkel 7330 HILLSVIEW COURT, WEST HILLS, CA 91307 6/4/2020 12:45 PM Home | attempted service at the residence. | rang the intercom and knocked on the front door several times, but received no response. There were no sounds heard or movement observed. Unable to serve, | will continue attempts. - Roland Henkel 7330 HILLSVIEW COURT, WEST HILLS, CA 91307 8/2020 7:00 AM Home | attempted service at the residence. There was no answer at the front door. No lights on inside. | waited 15 minutes and observed no movements. There were no cars in the driveway. Unable to serve. - Roland Henkel 7330 HILLSVIEW COURT, WEST HILLS, CA 91307 6/9/2020 11:20 AM Home Substituted service on: THETA IOTA CHAPTER OF THETA CHI FRATERNITY, individually, and as an and agent and alter-ego of Theta Chi Fraternity, Inc.; 7330 HILLSVIEW COURT, WEST HILLS, CA 91307; by serving: DIEGO GUEVARA - CO-OCCUPANT. Fee for Service: $ 190.00 County: Los Angeles Qwrrg =a Registration No.: 384: | declare under penalty of perjury that the foregoing is true ProLegal Reg#: 2017025418 and correct and that this declaration was executed on June P.O. Box 54846 10, 2020. Los Angeles, CA 90054 (888) 722-6878 Signature: Roland Henkel AFFIDAVIT OF REASONABLE DILIGENCE Order#: 2386345 ProLegal Reg#: 2017025418 P.O. Box 54846 Los Angeles, CA 90054 Phone: (888) 722-6878 Fax: Continued from Proof of Service CLIENT: SAWYER & LABAR LLP CLIENT FILE #: 00068 DATE: June 10,2020 SUBJECT: THETA IOTA CHAPTER OF THETA CHI FRATERNITY, individually, and as an and agent and alter-ego of Theta Chi Fraternity, Inc. SERVED DIEGO GUEVARA - CO-OCCUPANT Summons; Complaint; Alternative Dispute (ADR) package; Civil Case Cover Sheet (served in complex cases only); First Amended Complaint; Case Management Information and Setting; Confidentiality Stipulation and Protective Order; Consent to Electronic Service and Notice of Electronic Service Address for Douglas Fierberg; Consent to Electronic Service and Notice of Electronic Service Address for Ivo Labar; Consent to Electronic Service and Notice of Electronic Service Address for Jonathon Fazzola; Consent to Electronic Service and Notice of Electronic Service Address for Lisa N. Cloutier; OLEDEAL! =: wee spot = tas ProLegal Reg#: 2017025418 | P.O. Box 54846 | Los Angeles, CA 90054 | (888) 722-6878 2386345 ’ Attomey or Party without Attorney: FOR COURT USE ONLY Ivo Labar, SBN: 203492 SAWYER & LABAR LLP 201 Mission Street - 22nd Floor San Francisco, CA 94105 E-MAIL ADDRESS (Optional): TELEPHONE No.: (415) 262-3820 FAX No, (Optional): ‘Atorey for; Plaintiffs Ret No. or File No. 00068 Insert name of Court, and Judicial District and Branch Coun SUPERIOR COURT OF CALIFORNIA - COUNTY OF SANTA CRUZ Piantit: DAPHNE BELETSIS, et al Defendant: THETA CHI FRATERNITY, et al HEARING DATE: TIME: DEPT.’ ‘CASE NUMBER: PROOF OF SERVICE 19CV03287 1. | am over the age of 18 and not a party to this action. | am employed in the county where the mailing occurred. 2. | served copies of the Summons; Complaint; Alternative Dispute (ADR) package; Civil Case Cover Sheet (served in complex cases only); First Amended Complaint; Case Management Information and Setting; Confidentiality Stipulation and Protective Order; Consent to Electronic Service and Notice of Electronic Service Address for Douglas Fierberg; Consent to Electronic Service and Notice of Electronic Service Address for lvo Labar; Consent to Electronic Service and Notice of Electronic Service Address for Jonathon Fazzola; Consent to Electronic Service and Notice of Electronic Service Address for Lisa N. Cloutier; By placing a true copy thereof enclosed in a sealed envelope, with First Class postage thereon fully prepaid, in the United States Mail at LOS ANGELES, California, addressed as follows: a. Date of Mailing: June 10, 2020 b. Place of Mailing: LOS ANGELES, CA c. Addressed as follows: THETA IOTA CHAPTER OF THETA CHI FRATERNITY, individually, and as an and agent and alter-ego of Theta Chi Fraternity, Inc. ATTENTION: CHRISTOPHER GUEVARA - LAST ACTING PRESIDENT OF THE THETA IOTA CHAPTER OF THETA CHI FRATERNITY 7330 HILLSVIEW COURT WEST HILLS, CA 91307 | am readily familiar with the firm's practice for collection and processing of documents for mailing. Under that practice, it would be deposited within the United States Postal Service, on that same day, with postage thereon fully prepaid at LOS ANGELES, California in the ordinary course of business. Fee for Service: $ 190.00 | declare under penalty of perjury under the laws of County: the The State of California that the foregoing Prova Registration: information contained in the return of service and ~—=—=. ProLegal Reg#: 2017025418 statement of service fees is true and correct and that P.O. Box 54846 this declaration was executed on June 10, 2020. Los Angeles, CA 90054 (888) 722-6878 Ref: 00068 Signature: SS Sandra Felix PROOF OF SERVICE BY MAIL Order#: 2386345/mailproof PROOF OF SERVICE Beletsis, et al. v. Theta Chi Fraternity, Inc., et al. Case No.: 19CV03287 STATE OF CALIFORNIA ) ) ss: COUNTY OF LOS ANGELES ) lam employed in the County of Los Angeles, State of California. | am over the age of 18 and not a party to the within action; my business address is: 1520 W. Colorado Boulevard, Second Floor, Pasadena, California 91105. OnJuly 17, 2020, | served the foregoing documentas NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ELAINE KOBYLECKI on the parties in this action by placing a true copy thereof enclosed ina sealed envelope addressed as follows: 10 * PLEASE SEE ATTACHED SERVICE LIST * 11 L] MAIL SERVICE: As follows: | am "readily familiar" with the firm's practice of 12 collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully 13 prepaid at Pasadena, California, in the ordinary course of business. | am aware that 14 on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in 15 affidavit. 16 (| FEDERAL EXPRESS SERVICE: | caused such envelopes to be delivered by Federal Express to the offices of the addressee listed on the attached Service List. | 17 further designed such envelopes to be delivered to all addressees on the attached Service List utilizing Fed-Ex's “Overnight Next-Day Delivery Service.” 18 [Xx] ELECTRONIC MEANS (EMAIL): | caused such document(s) to be electronically 19 served through email for the above-entitled matter. This service complies with 20 Emergency Rule 12 of the California Rules of Court. The file transmission was reported as complete and a copy of the “Sent” page noting the date and time of such 21 transmission will be maintained with the file copy of the document(s) in our office. 22 [| PERSONAL SERVICE: | caused such document to be hand-delivered to the addressees indicated below, via First Legal. 23 (_] FACSIMILE SERVICE: | caused such document to be faxed to the addressee. 24 | declare under penalty of perjury under the laws of the State of California that 25 the above is true and correct. Executed onJ uly 17, 2020, at Pasadena, California. 26 bh Arts Z; 27 atasha 28 PROOF OF SERVICE SERVICE LIST Beletsis, et al. v. Theta Chi Fraternity, Inc., et al. Case No.: 19CV03287 Attorneys for Plaintiffs, DAPHNE BELETSIS and YVONNE RAINEY Douglas E. Fierberg, Esq. Ivo Labar, Esq. J onathon N. Fazzola, Esq. SAWYER & LABAR, LLP THE FIERBERG NATIONAL LAW 201 Mission St. Suite 2240 GROUP, PLLC San Francisco, CA 94105 161E. FrontSt, Suite 200 Tel. No.: (415) 262-3820 Traverse City, MI 49684 Fax No.:( Tel. No.: (202) 351-0510 labar@ sawyerlabar.com Fax No.: (231) 252-8100 guzman@ sawyerlabar.com dfierberg@ tfnigroup.com tpicard@ ftnigroup.com jfazzola@ tfnigroup.com Icloutier@ tfnigroup.com 10 Attorneys for Defendant, THETA CHI FRATERNITY, INC. 11 Michael C. Osborne, Esq. Stevie B. Newton, Esq. 12 COKINOS | YOUNG One Embarcadero Center, Suite 390 13 San Francisco, CA 94111 14 Tel. No.: (415) 228-0208 Fax No.:( 15 mosborne@ cokinoslaw.com newton@ cokinoslaw.com 16 Attorneys for Defendant, CHRISTOPHER GUEVARA 17 Matthew C. J aime, Esq. 18 Robert W. Sweetin, Esq. MATHENY SEARS LINKERT &J AIME, LLP 19 3638 American River Dr. Sacramento, CA 95864 20 Tel. No.: (916) 978-3434 Fax No.: (916) 978-3430 21 mjaime@ mathenysears.com 22 sweetin@ mathenysears.com 23 Attorneys for Defendant, BRAD VISACKI Derek H. Lim, Esq. 24 Shannon Mallory, Esq. DEMLER, ARMSTRONG & ROWLAND, LLP 25 1350 Treat Blvd., Suite 400 Walnut Creek, CA 94597-7960 26 Tel. No.: (415) 949-1900 27 Fax No.:( lim@ darlaw.com 28 mal@ darlaw.com 2 PROOF OF SERVICE Attorneys for Defendant, QUINN McLAUGHLIN Andrew M. Lauderdale, Esq. STRATMAN, PEDERSEN & LAUDERDALE 1 Almaden Blvd., Suite 400 San Jose, CA 95113-2246 Tel. No.: (408) 271-5325 Fax No.:( Andrew.lauderdale@ farmers.com Attorneys for Defendant, ] ORDAN KEIICHI TAKAYAMA Julie M. Azevedo, Esq. Shawn Toliver, Esq. LEWIS BIRSBOIS BISGAARD & SMITH, LLP 2185 N. California Blvd., Suite 300 Walnut Creek, CA 94596-3577 10 Tel. No.: (925) 357-3441 11 Fax No.: (925) 478-3260 ulie.azevedo@ lewisbrisbois.com 12 Shawn.toliver@ lewisbrisbois.com Kristen.garcia@ lewisbrisbois.com 13 Attorneys for Defendant, STEFAN MATIAS LEON 14 Ryne W. Osborne, Esq. 15 RobertT. Mackey, Esq. Veatch Carlson, LLP 16 1055 Wilshire Blvd., 11" Floor Los Angeles, CA 90017 17 Tel. No.: (213) 404-1108 Fax No.: (213) 383-6370 18 ‘osborne@ veatchfirm.com 19 mackey@ veatchfirm.com porter@ veatchfirm.com 20 Attorneys for Defendant, MOISES FRANCISCO TENORIO GARCIA 21 Patrick R. Ball, Esq. Idin Kashefipour, Esq. 22 MESSNER REEVES, LLP 23 610 Newport Center Dr., Suite 420 Newport Beach, CA 92660-6450 24 Tel. No.: (949) 612-9128 Fax No.: (310) 889-0896 25 pball@ messner.com ikashefipour@ messner.com 26 27 28 3 PROOF OF SERVICE Attorneys for Defendant, RAFAEL GARCIA, JR Alan F. Hunter, Esq. Elizabeth G. Landess, Esq. Jack T. Bussell, Esq. GAVIN, CUNNINGHAM & HUNTER 1530 The Alameda, Suite 210 San Jose, CA 95126 Te