Superior Court of California

County of Los Angeles

Department 26

In re AUSTIN SONG, for Change of Name

Case No.: 22STCP02022

Hearing Date: September 26, 2022

[TENTATIVE] order RE:

Third party song shuai’s motion to quash service of order to show cause for change of name and petition for name change

Background

On May 26, 2022, petitioner Austin Song, a minor, by and through Jingyi Feng (“Petitioner”) filed the instant petition for change of name seeking to change Austin Song’s name to Austin Feng. On July 18, 2022, the Court continued the hearing for the petition to August 8, 2022 because Petitioner had failed to file proof of service on the other parent or a declaration as to why such service could not be made. (Minute Order 7/18/22.) On July 18, 2022, Petitioner filed a declaration noting that the other parent Song Shuai (“Song”) lived in Shanghai, China, and that Petitioner had hired a law firm in China who attempted to personally serve Song three times.

On August 4, 2022, Song filed the instant motion to quash the service of the order to show cause for name change and petition for name change. On August 8, 2022, the Court continued the petition for name change to September 26, 2022. (Minute Order 8/8/22.) On September 20, 2022, Petitioner filed an opposition. No reply has been filed.

Legal Standard

“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.” (Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1152, [alterations in original].) If service of process is insufficient, a defendant may move to quash service of summons on or before the last day to plead in response to the complaint or within such further time as the court may allow for good cause. (CCP § 418.10(a)(1).)

When a defendant challenges the court's personal jurisdiction on the ground of improper service of process “the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) However, when there has been a filing of a proof of service by a registered process server, there is “a rebuttable presumption that the service was proper.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441). Evidence Code § 647 provides: “[t]he return of a process server registered pursuant to … upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”

“The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Evid. Code, § 604.)

International treaties such as the Hague Convention may limit the manner of service on persons located in signatory countries. “ ‘[C]ompliance with the Convention is mandatory in all cases to which it applies’ [Citation], and ‘the Convention pre-empts inconsistent methods of service prescribed by state law in all cases to which it applies’ [Citation.]” (Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 137.)

Discussion

The Motion to Quash

The instant motion to quash is improper and unnecessary. Song has no basis to move to quash service of a petition for name change. A motion to quash under Code of Civil Procedure section 418.10 provides that a defendant may file a motion to quash. (CCP § 418.10(a), [“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 [to quash] …”].) Song is not a defendant. Nor is Song even a party to the instant petition. Rather, Song is an objector to the name change. Moreover, a name change is a special proceeding pursuant to Code of Civil Procedure section 1276, et seq.

Section 1276, et. seq., governs the process by which an individual can obtain a formal legal name change in California. The statute provides that, once a petition seeking a name change is filed, the superior court shall make an order setting forth the details of the petition and direct all persons interested in the matter “to appear before the court at a time and place specified ....” (§ 1277, subd. (a).) The order directs that notice of the hearing and pending petition be published in a newspaper of general circulation. Section 1278 provides that if an objection is filed by any person, the court may examine “on oath” any persons “touching the petition or application” and “may” order the name change or dismiss the petition “as to the court may seem right and proper.” (§ 1278, subd. (a).) If no objection is filed with the court, the court “may, without hearing, enter the order that the change of name is granted.” (§ 1278, subd. (a).) The word “may” is construed as granting the superior court discretion in deciding whether to grant the petition. (Lee v. Superior Court (1992) 9 Cal.App.4th 510, 514, [superior court is vested with discretionary power to grant or deny request for name change].)

(In re Arnett (2007) 148 Cal.App.4th 654, 657–658.)

There is only a single party to a name change – i.e., the petitioner seeking the name change. There is no respondent or defendant for a name change petition, and thus, no basis for a “defendant” or “respondent” to move to quash service of a name change petition. The basis for Song receiving notice of the petition is pursuant to Code of Civil Procedure section 1277. This section provides in relevant part that:

If a petition has been filed for a minor by a parent and the other parent, if living, does not join in consenting thereto, the petitioner shall cause, not less than 30 days before the hearing, to be served notice of the time and place of the hearing or a copy of the order to show cause on the other parent pursuant to Section 413.10, 414.10, 415.10, or 415.40. If notice of the hearing cannot reasonably be accomplished pursuant to Section 415.10 or 415.40, the court may order that notice be given in a manner that the court determines is reasonably calculated to give actual notice to the nonconsenting parent. In that case, if the court determines that notice by publication is reasonably calculated to give actual notice to the nonconsenting parent, the court may determine that publication of the order to show cause pursuant to this subdivision is sufficient notice to the nonconsenting parent.

(CCP § 1277(a)(4).)
Thus, section 1277(a)(4) merely requires that service of the order to show cause be provided on the non-consenting parent by personal delivery or if the non-consenting parent is out of state by mail with return receipt. However, section 1277(a)(4) does not require that personal service be accomplished under all circumstances. Instead, section 1277(a)(4) explicitly provides that if service by personal service or by return receipt for an out of state resident is not possible that the Court may determine that publication alone is sufficient. This is because service of the order to show cause is merely to provide notice -- not to establish jurisdiction over the non-consenting parent. Accordingly, Song’s improper motion to quash is DENIED.

The Petition for Name Change

As to the name change, there generally must be a substantial and principled reason for denying the name change. (In re Arnett (2007) 148 Cal.App.4th 654, 661 [“the court must exercise its discretion under the correct legal standard, which is to determine whether there are substantial and principled reasons for denying the petition. If not, the petition should be granted.”]; In re Ross (1937) 8 Cal.2d 608, 610 [“We do not mean to suggest that the lower court must in every case grant a petition in proper form for change of name, but it is our view that some substantial reason must exist for the denial…”].) In addition, “[i]n any proceeding pursuant to this title in which a petition has been filed to change the name of a minor, and both parents, if living, do not join in consent, the court may deny the petition in whole or in part if it finds that any portion of the proposed name change is not in the best interest of the child.” (CCP § 1278.5.)

In his declaration in support of his motion to quash, Song objects to the name change. Song asserts that Petitioner has engaged in a scheme to abduct Song’s son – Austin Song – from Song. (Song Decl. ¶¶ 1, 8.) Song states that Petitioner left China on a tourist visa to the US on May 1, 2022 with their son and took Song’s Chinese passport, preventing Song from traveling to the United States. (Song Decl. ¶¶ 6-7.) Song reported that Petitioner took his son without permission to the U.S. Embassy in Beijing and also made a report to the Chinese Court. (Song Decl. ¶¶ 9-10, Exh. 2.) Moreover, Song states that Petitioner is not a resident of California, is only present on a visitor’s visa, and has been traveling state to state. (Song Decl. ¶¶ 11-13, Exh. 3.) As noted in the attached social media posts, Petitioner has been traveled from Florida to California and plans to go to Washington. (Song Decl., Exh. 3.) Notably, the mediation decree that dissolved Petitioner’s and Song’s marriage does not indicate that Petitioner has sole custody as claimed in the instant petition. Instead, the decree is silent and clearly states that Song has visitation rights. (Song Decl., Exh. 1.)

Song’s evidence provides a sufficient basis to deny the instant petition for name change. Song has presented evidence indicating that Petitioner is preventing Song from visiting his son, as ordered by the court in China, and that the proposed name change is to further this attempt. Given that a court in China has already entered orders relating to the custody dispute between Petitioner and Song, the Court finds that it would be in the best interest of the minor to have the court in China with jurisdiction over the custody dispute to resolve any petition for a name change. The Court thus finds that it is not in the best interest of the minor to have his name changed by this Court while the dispute over custody is ongoing. Accordingly, Petitioner’s request for change of name is DENIED.

CONCLUSIONS AND ORDER

Based on the foregoing, Song Shaui’s motion to quash is DENIED.

Petitioner Austin Song, a minor, by and through Jingyi Feng’s petition for change of name is DENIED.

The Court’s Judicial Assistant is to give notice of this order to all parties and to Song.

DATED: September 26, 2022 ___________________________

Elaine Lu

Judge of the Superior Court