Filing a motion to quash service of summons in California is the topic of this blog post.
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.
Main grounds for motion to quash service of summons in California.
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.
Burden of proof at the hearing on a motion to quash service of summons in California.
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.
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.
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.
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.
Sample motion to quash service of summons in California for sale.
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.
Law and motion litigation document collection for California containing over 90 sample documents.
Attorneys or parties in California that would like more information on a California law and motion litigation document package containing over 90 sample documents including a sample motion to quash service of summons can use the link shown below.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.
*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.
Follow the author on Twitter at: https://twitter.com/LegalDocsPro
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
Filed under: California civil litigation, California evictions, California freelance paralegal, California unlawful detainer | Tagged: California civil litigation, California law, California law and motion, California Motion to Quash, Law, Motion to Quash Service for California |