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Motion to quash service in dissolution (divorce) case in California

A motion to quash service in a dissolution (divorce) case in California 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 term respondent is used in a California divorce case but this blog post will use the term defendant instead as the issues discussed herein apply equally to either a defendant or a respondent.

This post will discuss using the grounds 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 applies even though the defendant may be a resident of California.

A motion to quash service may be filed in a legal separation, nullity or other family law case in California pursuant to Family Code section 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

Code of Civil Procedure section 418.10 states in pertinent part 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.

A motion to quash service must be filed within 30 calendar days from the alleged date of service unless the Court has granted an extension of time to plead or a stipulation to extend the time to plead has been entered into. The motion to quash must be filed before any response is filed as it is considered a “special appearance” meaning that it does not admit the Court’s jurisdiction over the defendant. Failure to timely file a motion to quash constitutes a waiver of any objection to the service of process pursuant to Code of Civil Procedure section 418.10(e)(3). The hearing on the motion must be set within 30 days from the date of filing of the motion to quash pursuant to Code of Civil Procedure section 418.10(b).

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.

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.

The statutes allowing what is known as “substituted service” are strictly construed. Therefore 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.

Attorneys or parties in California who wish to view a portion of a sample 10 page motion to quash service in a divorce case complete with brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

*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 http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

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.

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