A motion to quash service of summons in California litigation 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. 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 known as a “special appearance” meaning that it does not admit the Court’s jurisdiction over the defendant.
A California Court of Appeal has stated that once a defendant files a motion to quash service that the plaintiff has the burden of proving that the service was valid by a preponderance of the evidence.
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.
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 some situations 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 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 225 sample legal documents.
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Copyright 2013 Stan Burman. All rights reserved.
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.