Filing a motion to quash service in a California unlawful detainer (eviction) case is the topic of this blog post. California 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. 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 true even though the defendant may be a resident of California.
Note that the motion to quash in an eviction case must be set for hearing within 3-7 calendar days from filing of the motion. See Code of Civil Procedure § 1167.4(a) and California Rule of Court 3.1327(a). If the motion to quash is served by mail, the hearing may be set between 8-12 days because of the additional 5 days required by the provisions of Code of Civil Procedure § 1013. See California Rule of Court 3.1327(a). Note that some Court clerks will not allow the additional 5 days for mail.
A Motion to Quash Service is known as a “special appearance” meaning that it does not admit the Court’s jurisdiction over the defendant. The Motion to Quash Service must be filed before any answer or demurrer is filed.
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.
The Courts in the State of California have ruled that a defendant is under no duty to respond to a defectively served summons.
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..
Statutory provisions for substituted service must be strictly complied with, and statutory conditions upon which such service depends will be strictly construed.
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 in the State of California who wish to view a portion of a sample motion to quash service for unlawful detainer sold by the author can see below.
The author of this blog post, Stan Burman, is a freelance paralegalwho has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at http://www.legaldocspro.net
Subscribe to his weekly newsletter with legal tips and tricks for California and Federal litigation. http://www.legaldocspro.net/newsletter.htm