1
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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com
4
Defendant in pro per
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5 6 7 8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SANTA CLARA
10
CIVIL DIVISION
11 12 Case No. 1-12-CV-219272
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Khoa Nguyen,
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Plaintiff,
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v.
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James Alan Bush,
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Defendant.
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NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS [Civ. Code Proc. ยง 418.10(a)(1); Civ. Code Proc. ยง 1167.4] Hearing: March 5th, 2012 8:30 a.m. Department: 21
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NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS
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PLEASE TAKE NOTICE that on March 5th, 2012, at 8:30 a.m., or as soon
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thereafter as the matter can be heard, in Department 21 of the above-
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stated court, located at 191 North First Street, in San Jose, Defendant,
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James Alan Bush, will specifically appear and move for an order from the
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Court to quash service of summons in this action.
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GROUNDS FOR RELIEF
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This motion is made on the ground that the Court lacks jurisdiction
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over the defendant, in that the defendant has not been properly served NOTICE
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1-12-CV-219272
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with summons, as is more fully explained in the attached declaration,
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which makes improper a service of summons that gives only five days to
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respond. SUPPORTING PAPERS
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This motion is based on this notice; all pleadings, papers, and records
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on file in this action; matters of which the Court takes judicial notice;
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the accompanying supporting memorandum and declaration of the defendant;
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and on such evidence as may be presented at the hearing.
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Dated: March 5th, 2012
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By: X
11
James Alan Bush Defendant in pro per
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// NOTICE
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1-12-CV-219272
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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com
4
Defendant in pro per
2
5 6 7 8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SANTA CLARA
10
CIVIL DIVISION
11 12 13
Khoa Nguyen,
14
Plaintiff,
15
v.
16
James Alan Bush,
17
Defendant.
Case No. 1-12-CV-219272 DECLARATION OF DEFENDANT IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS [Civ. Code Proc. ยง 418.10(a)(1); Civ. Code Proc. ยง 1167.4]
18 19
I, James Alan Bush, Defendant, hereby declare:
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1. I am named as the defendant in this matter and reside at 471 East
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Julian Street, in San Jose, which premises is the subject of this
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action. I have never been personally served with a copy of the summons
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and complaint in this case. I am informed and believe that, on or
24
about February 24th, 2012, someone affixed some legal documents to the
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outside wall by my front door. I have never received a copy of the
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summons and complaint in this case through the mail.
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2. Except as described above, I have no knowledge of the delivery to me DECLARATION
PAGE 1 OF 2
1-12-CV-219272
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of the summons and complaint in this case.
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3. The proof of service filed by the plaintiff, which is attached as
3
Exhibit “A�, does not indicate whether he mailed the summons and
4
complaint, and, in fact, does not even indicate that the summons and
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a copy of the complaint were even served; rather, the proof of service
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filed with the complaint identifies the served papers as the two-week
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notice to quit.
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4. I declare under penalty of perjury under the laws of the State of
9
California that the foregoing is true and correct.
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Dated: March 5th, 2012
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X
12
James Alan Bush Defendant in pro per
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// DECLARATION
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1-12-CV-219272
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3
James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com
4
Defendant in pro per
2
5 6 7 8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SANTA CLARA
10
CIVIL DIVISION
11 12 13
Khoa Nguyen,
14
Plaintiff,
15
v.
16
James Alan Bush,
17
Defendant.
Case No. 1-12-CV-219272 EXHIBIT A
18 EXHIBIT A
19 20
In support of the attached Motion to Quash Service of Summons, the
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defedant hereby incorporates as Exhibit “A” a copy of the proof of service
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of summons filed by the plaintiff.
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It shows that the plaintiff failed to serve the summons on
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the defendant in the manner prescribed by Code of Civil Procedure
25
§§ 415.10-415.94, in that the plaintiff failed to indicate that he mailed a
26
copy of the summons and complaint, and, more importantly, that he served
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the summons and a copy of the complaint at all. EXHIBIT A
PAGE 1 OF 2
1-12-CV-219272
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT A
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1-12-CV-219272
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3
James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com
4
Defendant in pro per
2
5 6 7 8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SANTA CLARA
10
CIVIL DIVISION
11 12 13
Khoa Nguyen,
14
Plaintiff,
15
v.
16
James Alan Bush,
17
Defendant.
Case No. 1-12-CV-219272 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS [Civ. Code Proc. ยง 418.10(a)(1); Civ. Code Proc. ยง 1167.4]
18 19
In support of the attached Motion to Quash Service of Summons,
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Defendant, James Alan Bush, proffers the following argument and points of
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law: ARGUMENT
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A. A MOTION TO QUASH IS AUTHORIZED WHEN A DEFENDANT HAS NOT BEEN PROPERLY
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SERVED WITH THE SUMMONS AND COMPLAINT
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1. Code of Civil Procedure ยง 1167.4, in conjunction with Code of Civil
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Procedure ยง 418.10, gives authority for a motion to quash in unlawful
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detainer proceedings. Absent proper service of summons, the court MEMORANDA
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1-12-CV-219272
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has no jurisdiction over a party who does not voluntarily appear
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[see also Code Civ. Proc. § 415.45, 410.50].
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B. JURISDICTION IS REQUIRED FOR AN ENFORCEABLE JUDGMENT
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1. A judgment entered without jurisdiction over the party subject to
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that judgment is void [Sternback v. Buck (1957) 148 CA2d 829, 307 P2d
6
970]. Service of summons is a jurisdictional requirement, without
7
which the Court has no jurisdiction in the action [Chaplin v.
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Superior Court (1927) 81 CA 367, 253 P 954; Code Civ. Proc. § 1917].
9
In an unlawful detainer action, it is of particular importance that
10
proper service of summons be achieved [Greene v. Municipal Court
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(1975) 51 CA3d 446, 1245 CR 139].
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2. Defective service of summons is not service and confers no
13
jurisdiction over the party [Smith v. Jones (1917) 174 C 513, 163
14
P 890; Sternbeck v. Buck (1957) 148 CA2d 829, 307 P2d 970]. Mere
15
knowledge of the action, absent voluntary appearance by the party,
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is not sufficient for the Court to assert its jurisdiction over the
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party [see Coulston v. Cooper (1966) 245 CA2d 866, 54 CR 302; Varra v.
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Superior Court (1960) 181 CA2d 12, 4 CR 920; see also Code Civ. Proc.
19
§§ 415.10-415.50].
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3. Code of Civil Procedure §§ 415.10-415.50 govern the methods by which
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a summons and complaint may be served on a defendant in an unlawful
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detainer action. They may include personal delivery to the defendant
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[Code Civ. Proc. § 415.10]; substituted service by personal delivery
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to home or business, in the presence of or to the appropriate person
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there, and thereafter mailing [Code Civ. Proc. § 415.20]; and posting
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and mailing under court order [Code Civ. Proc. § 415.45].
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// MEMORANDA
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1-12-CV-219272
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C. PROPER SERVICE IN THIS MATTER HAS NOT BEEN ACHIEVED
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1. As can be seen from the declaration of the defendant, as well as
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the proof of service itself shown in Exhibit “A”, no personal,
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substituted, or “nail and mail” service has been achieved on the
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defendant.
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D. THIS MOTION IS PROPERLY BROUGHT IN THIS COURT, AND IS TIMELY MADE
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1. If any aspect of the summons or the manner in which it was served
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is defective, the tenant’s attorney may file a motion to quash
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service of summons based on the court’s lack of jurisdiction over
10
the tenant [Code Civ. Proc. § 418.10(a)(1)].
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2. A notice of motion to quash must be served and filed within the
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five-day period to answer after the alleged service of the summons
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[see Code Civ. Proc. § 418.10(a)]; however, a party who has filed
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a complaint or cross-complaint may, within 10 days after service
15
of the answer to his pleading, demur to the answer [Code Civ.
16
Proc. § 430.40(b)]. The notice of this motion was filed on March
17
5th, 2012, seven days after the date the answer to the plaintiff’s
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complaint was filed (i.e., February 27th, 2012). RELIEF REQUESTED
19 20
WHEREFORE, AND FOR ALL OF THE ABOVE REASONS, Defendant prays that the
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court grant this motion and order service of summons quashed.
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Dated: March 5th, 2012
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X
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James Alan Bush Defendant in pro per
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\\ MEMORANDA
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1-12-CV-219272