Quashing service of summons in an eviction in California is the topic of this blog post.
Quashing service of summons in an eviction in California is authorized under the provisions of Code of Civil Procedure section 418.10 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 most common grounds used for a motion to quash service 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 actually be a resident of California as the Court does not acquire jurisdiction over a defendant until valid service of the summons and complaint has been made.
I do want to stress that the motion to quash in an eviction case should 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 than the hearing must be set between 8-12 days because of the additional 5 calendar days required by the provisions of Code of Civil Procedure § 1013. See California Rule of Court 3.1327(a). However some Courts will not allow the additional 5 days for service by mail so contacting the clerk of the court is a good idea to determine if they allow the additional 5 calendar days or not.
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 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.
A California Court of Appeal ruled in a published case that in an eviction case a motion to quash service may still be filed even though the defendant may actually have notice of the lawsuit.
Attorneys or parties in the State of California who wish to view a portion of a sample motion to quash service for unlawful detainer containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.
Sample Motion to Quash Service for California Unlawful Detainer (eviction) by Stan Burman on Scribd
Attorneys or parties in California who would like more information on a California eviction document collection containing over 30 documents including a sample motion to quash service sold 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 300 sample legal documents for sale.
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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.