Motion to quash service of summons in California due to defective service

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.

Schedule a free consultation today.

Call (800) 691-2721 and let’s talk about your options.

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
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

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Author: nathanmubasher

Attorney Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

8 thoughts on “Motion to quash service of summons in California due to defective service”

  1. Hey thanks for the blog post. I had topics of interest that would make for an interest article/post/comment. You say in your post:

    “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).”

    This language is a little unclear to me. When you say “hearing date on the motion to quash must not be more than 30-days after the filing of the notice of motion to quash” it sounds as if one has to wait until the hearing is less than 30-days away before “filing the notice of motion to quash.” I mean after all, it says that the HEARING DATE itself must be 30-days or less after the filing of the notice of motion to quash.”

    This makes very little sense to me. This language is very ambiguous. Do you mean to say that The FILING DATE on the motion to quash must not be more than 30-days after filing the notice of motion to quash?”

    Because what if one files their motion to quash 5-days before the date on which they must provide an answer to their complaint, and the only hearing date is four months away. Does that means the defendant has to wait 3-months before they are allowed to notify the other party? That makes no sense. And if it makes no sense, then I’m missing something.

    Sorry just trying to learn this stuff — education purposes — and trying to make heads or tails of this whole thing. And it is really confusing. Hell this can be interpreted as saying that one must HOPE the court gives them a hearing date that is within 30-days of when one files their motion to quash and if they don’t, then they’re SOL. Clarity would be nice.

    Thanks for you time to post this.

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    1. Yes the code states that the hearing must be scheduled not later than 30 calendar days after the filing of the notice of motion to quash. Unfortunately due to the lack of funding for the courts it may not be possible to obtain a hearing date within 30 days. If you are the plaintiff and a motion to quash has been filed with a hearing date several months away you could file an ex parte application to advance the hearing date.

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      1. Intersting. From a practical point of view, however, doesn’t the defendant have to notice a place, date and time of the hearing on the notice of motion to quash? How can the defendant possibly satisfy the 30-day requirement if the earliest date for a court hearing is four-months away? Again, from a practical standpoint, I would assume the defendant would first request a court date either electronically on the court website or in person. Then they would state the date, time and place on the notice of the motion to quash. Then they would file it electronically or otherwise. But the date, time and place would be four months out. Is the motion now defective? What an odd requirement. It’s not as if the defendant has any control over court dates.

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      2. Because of the budgetary issues mentioned in my previous reply, many courtrooms statewide had been closed in the last few years. This results in things like 1) hearing set over one year out (earliest date available) 2) domestic violence restraining orders being ordered days after the filing is made 3) family law parties having to wait months for a court mediator and 4) defendants having to wait an entire day just to pay a traffic ticket.

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  2. Also a separate issue that I haven’t seen anyone talk about is whether while a motion to quash is pending on a complaint, the plaintiff can simply just reserve the defendant with a new complaint without leave of court in California. Say I decide I want to sue Joe the Plumber. My process server invalidly serves him by leaving the complaint with a Joe’s friend at his friend’s house — not a valid form of service. Joe the Plumber decides to file a motion to quash which won’t be heard for like 5-months. Wanting a more expedient resolution of the law suit, I decide to just simply reserve him.

    Will that second attempt at serving Joe, prior to a resolution on the first attempt, be valid? Or do I have to wait until after the court has decided on the initial attempt and then reserve him after the court decides?

    Thanks.

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    1. Yes you can have the other party served even after they have filed a motion to quash based on the first attempt at service. You do not have to wait for the hearing on the motion to quash.

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      1. Ah interesting. Then I guess unless the motion to quash challenges personal jurisdiction as a way to defeat default judgment, it makes no sense to ever wait for the hearing and just simply reserve the defendant. Thanks for your clarity. Believe it or not, I’ve spoken to quite a few attorneys now at Avvo and other places and no one has been very clear. They either fail to understand the question or get sidetracked and fail to address it at all. For example, someone will ask a question about proposed orders and you’ll get five answers that have to do with ‘is it ethical to continue litigation’ or ‘have you consider just doing xyz’ instead of answering the actual technical question. You’ve done a great job. I can tell you’re good at this.

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