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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

Khoa Nguyen, Plaintiff, v. James Alan Bush, Defendant.

Case No. 1-12-CV-219272 NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS [Civ. Code Proc. § 418.10(a)(1); Civ. Code Proc. § 1167.4] Hearing: March 5th, 2012 8:30 a.m. Department: 21

NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS PLEASE TAKE NOTICE that on March 5th, 2012, at 8:30 a.m., or as soon thereafter as the matter can be heard, in Department 21 of the abovestated court, located at 191 North First Street, in San Jose, Defendant, James Alan Bush, will specifically appear and move for an order from the Court to quash service of summons in this action. GROUNDS FOR RELIEF This motion is made on the ground that the Court lacks jurisdiction over the defendant, in that the defendant has not been properly served NOTICE PAGE 1 OF 2 1-12-CV-219272

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with summons, as is more fully explained in the attached declaration, which makes improper a service of summons that gives only five days to respond. SUPPORTING PAPERS This motion is based on this notice; all pleadings, papers, and records on file in this action; matters of which the Court takes judicial notice; the accompanying supporting memorandum and declaration of the defendant; and on such evidence as may be presented at the hearing. Dated: March 5th, 2012 By: X James Alan Bush Defendant in pro per // // // // // // // // // // // // // // // // NOTICE PAGE 2 OF 2 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 Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

Khoa Nguyen, Plaintiff, v. James Alan Bush, Defendant.

Case No. 1-12-CV-219272 DECLARATION OF DEFENDANT IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS [Civ. Code Proc. § 418.10(a)(1); Civ. Code Proc. § 1167.4]

I, James Alan Bush, Defendant, hereby declare: 1. I am named as the defendant in this matter and reside at 471 East Julian Street, in San Jose, which premises is the subject of this action. I have never been personally served with a copy of the summons and complaint in this case. I am informed and believe that, on or about February 24th, 2012, someone affixed some legal documents to the outside wall by my front door. I have never received a copy of the summons and complaint in this case through the mail. 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. 3. The proof of service filed by the plaintiff, which is attached as Exhibit “A”, does not indicate whether he mailed the summons and complaint, and, in fact, does not even indicate that the summons and a copy of the complaint were even served; rather, the proof of service filed with the complaint identifies the served papers as the two-week notice to quit. 4. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: March 5th, 2012 X James Alan Bush Defendant in pro per // // // // // // // // // // // // // // // DECLARATION PAGE 2 OF 2 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 Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

Khoa Nguyen, Plaintiff, v. James Alan Bush, Defendant.

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

EXHIBIT A In support of the attached Motion to Quash Service of Summons, the defedant hereby incorporates as Exhibit “A” a copy of the proof of service of summons filed by the plaintiff. It shows that the plaintiff failed to serve the summons on the defendant in the manner prescribed by Code of Civil Procedure §§ 415.10-415.94, in that the plaintiff failed to indicate that he mailed a copy of the summons and complaint, and, more importantly, that he served the summons and a copy of the complaint at all. EXHIBIT A PAGE 1 OF 2 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 Defendant in pro per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

Khoa Nguyen, Plaintiff, v. James Alan Bush, Defendant.

Case No. 1-12-CV-219272 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS [Civ. Code Proc. § 418.10(a)(1); Civ. Code Proc. § 1167.4]

In support of the attached Motion to Quash Service of Summons, Defendant, James Alan Bush, proffers the following argument and points of law: ARGUMENT A. A MOTION TO QUASH IS AUTHORIZED WHEN A DEFENDANT HAS NOT BEEN PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT 1. Code of Civil Procedure § 1167.4, in conjunction with Code of Civil Procedure § 418.10, gives authority for a motion to quash in unlawful detainer proceedings. Absent proper service of summons, the court MEMORANDA PAGE 1 OF 3 1-12-CV-219272

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has no jurisdiction over a party who does not voluntarily appear [see also Code Civ. Proc. § 415.45, 410.50]. B. JURISDICTION IS REQUIRED FOR AN ENFORCEABLE JUDGMENT 1. A judgment entered without jurisdiction over the party subject to that judgment is void [Sternback v. Buck (1957) 148 CA2d 829, 307 P2d 970]. Service of summons is a jurisdictional requirement, without which the Court has no jurisdiction in the action [Chaplin v. Superior Court (1927) 81 CA 367, 253 P 954; Code Civ. Proc. § 1917]. In an unlawful detainer action, it is of particular importance that proper service of summons be achieved [Greene v. Municipal Court (1975) 51 CA3d 446, 1245 CR 139]. 2. Defective service of summons is not service and confers no jurisdiction over the party [Smith v. Jones (1917) 174 C 513, 163 P 890; Sternbeck v. Buck (1957) 148 CA2d 829, 307 P2d 970]. Mere knowledge of the action, absent voluntary appearance by the party, is not sufficient for the Court to assert its jurisdiction over the party [see Coulston v. Cooper (1966) 245 CA2d 866, 54 CR 302; Varra v. Superior Court (1960) 181 CA2d 12, 4 CR 920; see also Code Civ. Proc. §§ 415.10-415.50]. 3. Code of Civil Procedure §§ 415.10-415.50 govern the methods by which a summons and complaint may be served on a defendant in an unlawful detainer action. They may include personal delivery to the defendant [Code Civ. Proc. § 415.10]; substituted service by personal delivery to home or business, in the presence of or to the appropriate person there, and thereafter mailing [Code Civ. Proc. § 415.20]; and posting and mailing under court order [Code Civ. Proc. § 415.45].

MEMORANDA

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1-12-CV-219272

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C. PROPER SERVICE IN THIS MATTER HAS NOT BEEN ACHIEVED 1. As can be seen from the declaration of the defendant, as well as the proof of service itself shown in Exhibit “A”, no personal, substituted, or “nail and mail” service has been achieved on the defendant. D. THIS MOTION IS PROPERLY BROUGHT IN THIS COURT, AND IS TIMELY MADE 1. If any aspect of the summons or the manner in which it was served is defective, the tenant’s attorney may file a motion to quash service of summons based on the court’s lack of jurisdiction over the tenant [Code Civ. Proc. § 418.10(a) ]. (1) 2. A notice of motion to quash must be served and filed within the five-day period to answer after the alleged service of the summons [see Code Civ. Proc. § 418.10(a) however, a party who has filed ]; a complaint or cross-complaint may, within 10 days after service of the answer to his pleading, demur to the answer [Code Civ. Proc. § 430.40(b) The notice of this motion was filed on March ]. 5th, 2012, seven days after the date the answer to the plaintiff’s complaint was filed (i.e., February 27th, 2012). RELIEF REQUESTED WHEREFORE, AND FOR ALL OF THE ABOVE REASONS, Defendant prays that the court grant this motion and order service of summons quashed. Dated: March 5th, 2012 X James Alan Bush Defendant in pro per \\ \\ \\ MEMORANDA PAGE 3 OF 3 1-12-CV-219272