Filing a motion to quash service of summons in California litigation is the topic of this blog post. California Code of Civil Procedure Section 418.10 states that a defendant may file a Motion to Quash Service of Summons on the ground of lack of jurisdiction of the Court over him or her. The main grounds used are that the service on the defendant was defective as the Court does not acquire jurisdiction over a defendant unless proper service of the Summons and Complaint has been made. This is so even though the defendant may be a resident of California.
A Motion to Quash Service is a “special appearance” meaning that it does not admit the Court’s jurisdiction over the defendant.
The law in California is well settled that once a defendant files a motion to quash service that the plaintiff has the burden of proving that the service was valid.
Once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court’s jurisdiction over the defendant. Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.
And the Courts in the State of California have ruled that a defendant is under no duty to respond to a defectively served summons until a plaintiff shows that service is valid.
And a defendant is under no duty to respond to a defectively served summons and may stand mute until a plaintiff makes a showing of the validity of the service to the satisfaction of the court. Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111.
This is particularly so when the defendant was served by “substituted service” as the statutes allowing such service are strictly construed..
And the substituted service must be made at the address where the defendant currently lives, even service made at a close relative’s house can be ineffective. See Bolkiah v. Superior Court, supra at 999.
And in an Unlawful Detainer action a Motion to Quash Service may still be filed even though the defendant may actually have notice of the lawsuit!
Even when the defendant tenants (and/or subtenants) actually received summons and complaint and otherwise have actual notice of the lawsuit, a motion to quash will lie if process was not served in a statutorily-authorized manner. Schering Corp. v. Super.Ct. (Ingraham) (1975) 52 Cal. App. 3d 737, 741.
Attorneys or parties who wish to view a portion of a sample motion to quash service for a California litigation case complete with points and authorities and instructions for sale by the author please see below.
The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
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