Motion to Quash Service of Summons
53 Phan vs. Bleu Motion to Quash Service of Summons Restaurant and Dancing The Motion to Quash Service of Summons brought by Specially Appearing Defendant Kenney Nguyen is GRANTED, pursuant to Code of Civil Procedure 24-01448536 section 418.10, subd. (a)(1).) The service of the summons and complaint which was purportedly completed on December 21, 2025, as reflected in the Proof of Service filed on January 8, 2026 (ROA No. 62), is quashed.
The Court notes that this order is limited to review of the above Proof of Service and does not address the newly filed Proof of Service, dated May 4, 2026 (ROA No. 75.)
The Request for Judicial Notice made by Specially Appearing Defendant Kenney Nguyen (ROA No. 65) is GRANTED, pursuant to Evidence Code section 452, subdivision (d).
“A defendant on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion...[t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” (Code Civ. Proc., § 418.10, subd. (a)(1).)
“In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish that court's personal jurisdiction over a defendant....” (Floveyor Inernat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 793.) “A party cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)
Additionally, “[w]hen a defendant challenges that jurisdiction by bringing a motion to quash, the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439-1440
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Per the Proof of Service filed on January 8, 2026, Defendant Kenney Nguyen was personally served the summons and complaint on December 21, 2025, at 7112 Bluesails Drive in Huntington Beach, California. (ROA No. 62.) Notably, the Proof of Service was executed by a registered process server. (See ¶7(e)(3) of ROA No. 62.)
“The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.” (Evid. Code, § 647.)
“Evidence Code section 647 provides that a registered process server’s declaration of service establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390.) “Because of the statutory presumption, defendant was thus required to produce evidence that he was not served.” (Ibid.)
Here, after reciting the details of the Proof of Service listed above, Defendant Nguyen declares: “I was not at the property on that date and, further that I and my ex-wife had sold the property more than two (2) years prior to the alleged date of service at that location.” (¶8(a) of Kenney Nguyen Declaration.) “Said conveyance of the property on or about September 28, 2023 is evidenced by a certified copy of the Grant Deed associated with that conveyance attached hereto as EXHIBIT B...” (¶8(a) of Kenney Nguyen Declaration.)
Attached as Exhibit B to the Declaration is a Grant Deed, which indicates the property 7112 Bluesails Drive, Huntington Beach, California was transferred from Kenney K. Nguyen and Trang T. Nguyen, as Husband and Wife, to ThoaiVy LLC, on September 26, 2023. (¶8(a) of Kenney Nguyen Declaration and Exhibit B thereto.)
Defendant additionally declares: “On the date of the purported personal service, I was not even located in the United States, as I had traveled to my home country of Vietnam and, arrived on December 12, 2025 and remained there until the date of January 5, 2025, when I departed the country of Vietnam, as evidenced by the markings in my United States Passport, a copy of which is attached hereto as EXHIBTI C...” (¶8(c) of Kenney Nguyen Declaration and Exhibit C thereto.) Included within Exhibit C is a photocopy of Defendant’s passport which, indeed, bears stamps referencing the dates December 12, 2025, and January 5, 2026. (Ibid.)
The above is sufficient to dispute service.
In response, Plaintiff raises two limited arguments.
Initially, Plaintiff asserts the motion should be denied as untimely, as it was filed more than 30 days after the service purportedly completed on December 21, 2025; however, this argument is unpersuasive, given service was insufficient.
As noted by Defendant, Code of Civil Procedure section 418.10 permits a motion to quash “on or before the last day of his or her time to plead” (Code Civ. Proc., § 418.10, subd. (a)), and the “time to plead” is within 30 days “after summons is served on the defendant.” (Code Civ. Proc., § 412.20, subd. (a)(3).) Defendant persuasively argues that this time limitation is not triggered where, as here, it is demonstrated that service was not completed.
Moreover, regardless, Code of Civil Procedure section 418.10 permits a motion “within any further time that the court may for good cause allows...” (Code Civ. Proc., § 418.10, subd. (a).) Here, given Defendant has established he was not personally served, contrary to the Proof of Service filed on January 8, 2026, “good cause” exists to permit this motion to proceed.
Thereafter, Plaintiff asserts the motion should be denied, as Defendant and his insurer had notice of the action, as early as January 12, 2026. Per Plaintiff’s Counsel, Plaintiff spoke with Debora Paez on January 12, 2026, wherein she confirmed that her insured was served and had tendered the matter to Triton Claims Management for further handling. (¶3 of Dennis Declaration.)
Plaintiff, essentially, relies on the existence of actual notice to defeat this motion; however, “[n]otice of the litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons.” (Mannesmann DeMag Ltd. v. Superior Court (1985) 172 Cal.App.3d 1118, 1124.)