In the Matter of NHU TRAN

10:30 Calendar Line 1

Case Name: In the Matter of NHU TRAN Case No.: 23CV420007

If a petition filed for a minor lacks one parent’s consent, that parent must be served with 30-days notice. (Code Civ. Proc. § 1277(a)(4).)

“A defendant may seek relief from default for improper service more than two years after the default judgment as follows: First, a motion to vacate based on the ground of extrinsic fraud or mistake may be made at any time (...); Second, “ ‘[a] judgment or order that is invalid on the face of the record ... may be set aside on motion, with no limit on the time within which the motion must be made.’ ” (...) This rule has also been applied when uncontested extrinsic evidence shows that the defendant was never properly served. (...) Third, a judgment or order valid on its face but claimed to be void based on extrinsic evidence may be attacked in an independent equitable action without time limits.” (California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 215.)

Here, the Petition filed by Mother in 2023 did not list Father as a parent or provide an address for him under Section 7e of the Petition. Father did not sign the Petition, and there was no Proof of Service filed indicating that Father was ever served with the Petition. Mother filed a Declaration (“Mother’s Declaration”) on August 4, 2024, alleging that the Father did not want to be “acknowledged as the father of my child” and “didn’t want his name on the birth certificate.” But Mother’s Declaration failed to provide a reason why she was unable to serve Father or the steps she had taken to locate and serve Father, both of which would have been necessary for an order dispensing with notice.

Mother’s Objection to the current motion, dated August 19, 2026, alleges that Father told Mother on two occasions that she was “free to change Sydney’s last name.” (Mother’s Objection, ¶¶ 4–5.) However, the alleged statements occurred in April 2022 and January 2023, months before Mother filed her August 2023 Petition for Name Change. (See Mother’s Objection, Exs. A–B.) The timing of these statements indicates that Mother had expressed an intent to change Sydney’s last name before April 2022 but had not taken any action on it.

Neither alleged statement by Father was made on or near the date Mother filed the August 2023 Petition. Accordingly, the statements do not demonstrate that Father had notice that Mother intended to proceed with the formal name-change petition in August 2023. Moreover, even assuming Father’s statements could be construed as consent to the requested name change in early 2023, Mother did not identify Father as a parent on the Petition, provide Father’s address in section 7(e), or obtain Father’s signature on the Petition.

Furthermore, the November 2023 Decree does not indicate that the Court dispensed with Notice.

Based on the above, Mother failed to provide Father with Notice as required by Code of Civil Procedure § 1277(a)(4). Thus, Father did not have an opportunity to be heard, and Father may make a motion to set the judgment aside with no limit on the time with which the motion must be made because the judgment is invalid on the face of the record. Indeed, due process requires that all parties with a significant interest in a matter, such as a parent in the case of a minor child, receive adequate notice and an opportunity to be heard before a judgment is entered. (Adoption of B.C. (2011) 195 Cal.App.4th 913, 924-925.) [“Since the interest of a parent in the companionship, care, custody, and management of his children is a compelling 25

one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard.”]

Because the Decree Changing Name is void, Father’s motion to vacate is GRANTED.

The Court will prepare the final order.

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