Motion to Quash Service of Summons in California
A Motion to Quash Service of Summons challenges Plaintiff’s improper Service of Summons and Complaint. It further objects to the Court’s personal jurisdiction upon Defendant. California Code of Civil Procedure Section 418.10.
Details: Once the Motion to Quash is filed, Plaintiff has the burden to prove that service was legally sufficient. In the interim, the Defendant is under no legal obligation to respond to the defective summons until the Plaintiff demonstrates validity of service by evidence. (Bolkiah v. Superior Court (1999) 74 Cal.App.4th984, 991). However, in practice, this is dangerous because if Defendant fails to respond, even to a defective Summons and Complaint, Plaintiff may secure a Default Judgment. As a Defendant you never want to avoid responding to the Complaint and ultimately allow Plaintiff to secure a Default Judgment. A Default Judgment will allow a Plaintiff to come after your assets. Thus, if the Plaintiff has not served Defendant with a Summons and Complaint, a good practice for Defendant is to see an Attorney who may suggest filing a Motion to Quash Service of Summons.
More Legal Information About a Motion to Quash Service of Summons in California
Note: A Motion to Quash Service of Summons functions as a “special appearance,” meaning that the alleged Defendant’s do not submit to the Court’s jurisdiction. Defendant submits to the Court’s jurisdiction only when it files a general appearance (e.g. Answer, Demurrer, or such other pleadings in response to the Complaint) rather than a special appearance.
Tip: Defendants must make supporting declaration(s) attached to the Motion to Quash. Defendants should provide detailed declaration(s), avoiding vague and broad allegations. Such declarations are carefully scrutinized by the Court when assessing the merits of you Motion to Quash.
Time Limitations: Defendant must file a response to Plaintiff’s Complaint within (30) days of being served with the Summons and Complaint.
Pro Per Motion to Quash for $999.99: If you would like to file a Motion to Quash, give our office a call to get more information about how we can file a Motion to Quash.
EDIT 2016:
Effective January 1, 2016 Under California Section 430.41, before filing a demurrer, the demurring party must engage in a “meet and confer” process with the pleader to determine if an agreement can be reached that would resolve objections to the pleading. In simple terms, section 430.41, requires the parties to “meet and confer” prior to demurring to a complaint. Thus, if you disagree with any of the actions in the pleading, you must reach out to the other side whether via telephone or letter discussing the portions of the complaint that may be subject to demurrer. You would also have to file proper documentation with the court, known as “declaration” that you attempted to meet and confer with the opposing side under section 430.41. If you are unsure with the requirements, please feel free to give our litigation attorneys a call at (310) 943-1171 for more information.
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