Motion to Quash Service of Summons

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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

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Defendant in pro per

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SUPERIOR COURT OF CALIFORNIA

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COUNTY OF SANTA CLARA

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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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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

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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

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Defendant in pro per

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SUPERIOR COURT OF CALIFORNIA

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COUNTY OF SANTA CLARA

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CIVIL DIVISION

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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.

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]

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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

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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

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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

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Exhibit “A�, does not indicate whether he mailed the summons and

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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

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California that the foregoing is true and correct.

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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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// DECLARATION

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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

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Defendant in pro per

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SUPERIOR COURT OF CALIFORNIA

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COUNTY OF SANTA CLARA

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CIVIL DIVISION

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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.

Case No. 1-12-CV-219272 EXHIBIT A

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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

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§§ 415.10-415.94, in that the plaintiff failed to indicate that he mailed a

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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

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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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James Alan Bush 471 East Julian Street San Jose, California 95112 (408) 791-4866 theoknock@yahoo.com

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Defendant in pro per

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5 6 7 8

SUPERIOR COURT OF CALIFORNIA

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COUNTY OF SANTA CLARA

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CIVIL DIVISION

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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.

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]

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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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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

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970]. Service of summons is a jurisdictional requirement, without

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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].

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In an unlawful detainer action, it is of particular importance that

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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

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jurisdiction over the party [Smith v. Jones (1917) 174 C 513, 163

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P 890; Sternbeck v. Buck (1957) 148 CA2d 829, 307 P2d 970]. Mere

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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.

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§§ 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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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

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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

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of the answer to his pleading, demur to the answer [Code Civ.

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Proc. § 430.40(b)]. The notice of this motion was filed on March

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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

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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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