A motion to quash service of summons in California due to defective service is the topic of this blog post.
A motion to quash service of summons in California due to defective service is authorized by Code of Civil Procedures section 418.10(a)(1) which 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 fact that the service of the summons and complaint was defective is the reason that the Court lacks jurisdiction over the defendant. The Court does not acquire jurisdiction over any defendant unless proper service of the summons and complaint has been made even if the defendant is a resident of California.
If you are not sure whether or not you were properly served with a summons and complaint you should contact an experienced litigation attorney who can review your situation and determine whether filing a motion to quash service of summons is the appropriate way to proceed.
Deadline to file motion to quash service of summons in California due to defective service.
It is very important that you determine whether or not you were properly served before you file any response to a summons and complaint as a motion to quash service of summons must be filed before any answer, demurrer or other response is filed otherwise the defendant has waived their right to object pursuant to Code of Civil Procedure section 418.10(e)(3).
A motion to quash service is known as a special appearance which means that it does not admit the Court’s jurisdiction over the defendant.
However any motion to quash service must be filed in a timely manner to avoid a default being entered. The hearing date on the motion to quash must not be more than 30 days after the filing of the notice of motion to quash pursuant to Code of Civil Procedure section 418.10(b).
Law authorizing a motion to quash service in California due to defective service.
Code of Civil Procedure section 418.10 states that,
“(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:
(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.
(2) To stay or dismiss the action on the ground of inconvenient forum.
(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.
(b) The notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice. The notice shall be served in the same manner, and at the same times, prescribed by subdivision (b) of Section 1005. The service and filing of the notice shall extend the defendant’s time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant’s time to plead for an additional period not exceeding 20 days.
(c) If the motion is denied by the trial court, the defendant, within 10 days after service upon him or her of a written notice of entry of an order of the court denying his or her motion, or within any further time not exceeding 20 days that the trial court may for good cause allow, and before pleading, may petition an appropriate reviewing court for a writ of mandate to require the trial court to enter its order quashing the service of summons or staying or dismissing the action. The defendant shall file or enter his or her responsive pleading in the trial court within the time prescribed by subdivision (b) unless, on or before the last day of the defendant’s time to plead, he or she serves upon the adverse party and files with the trial court a notice that he or she has petitioned for a writ of mandate. The service and filing of the notice shall extend the defendant’s time to plead until 10 days after service upon him or her of a written notice of the final judgment in the mandate proceeding. The time to plead may for good cause shown be extended by the trial court for an additional period not exceeding 20 days.
(d) No default may be entered against the defendant before expiration of his or her time to plead, and no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, or application to the court or stipulation of the parties for an extension of the time to plead, shall be deemed a general appearance by the defendant.
(e) A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.
(1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion.
(2) If the motion made under this section is denied and the defendant or cross-defendant petitions for a writ of mandate pursuant to subdivision (c), the defendant or cross-defendant is not deemed to have generally appeared until the proceedings on the writ petition have finally concluded.
(3) Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution.”
The law is well settled in California that once a defendant has filed a motion to quash service of summons on the grounds of defective service that the plaintiff has the burden of proving that the service on the defendant was valid.
Once a defendant files a motion to quash service of summons in California the plaintiff has the burden 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 until a plaintiff shows that service is valid.
A published decision from a California Court of Appeal has stated that 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 what is known as “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.
Published decisions from the California Courts of Appeal have stated that the fact that the moving party may actually have notice of the lawsuit does not prevent them from filing a motion to quash if they were not properly served in accordance with California law.
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CONTACT INFORMATION FOR NATHAN MUBASHER:
Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
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