Filing a Motion to Quash Service in a California Unlawful Detainer (Eviction) Case

This article will discuss the filing of a motion to quash service in an unlawful detainer also known as eviction case in California.

The first thing any tenant who has been served with a summons and complaint should do is determine if they were properly served or not. If the summons and complaint were not served in a statutorily authorized manner than a motion to quash service of the summons and complaint may be filed to request that the Court determine that the service was defective and should be quashed. This will force the landlord to reserve you correctly.

Here are some examples of what some judges would consider defective service.

1. Leaving a copy of the summons and complaint at the front door or attaching to the door knob and then claiming that the tenant was personally served;

2.Posting a copy of the summons and complaint on the front door without obtaining a specific order of the Court to do so, and

3. Not strictly complying with an authorized form of service such as handing a copy of the summons and complaint to another person at the residence without also mailing a copy of the summons and complaint to the tenant as required by law.

You MUST file a motion to quash if you want to object to the service of the summons and complaint. If you file any other type of response instead of a motion to quash you have waived any right to object to the service. See Code of Civil Procedure Section 418.10(e)(3).

California Code of Civil Procedure Section 418.10 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 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 true even though the defendant may be a resident of California.

Note that the motion to quash in an eviction case must be set for hearing within 3-7 calendar days from filing of the motion. See Code of Civil Procedure Section 1167.4(a) and California Rule of Court 3.1327(a). If the motion to quash is served by mail the hearing must be set between 8-12 calendar days because of the additional 5 calendar days required by the provisions of Code of Civil Procedure Section 1013. See California Rule of Court 3.1327(a).

If there is a Court holiday in that time frame then the clerk might give you a later date. Do not schedule your hearing date past the time frame I have mentioned, unless the clerk of the Court schedules otherwise.

You do NOT want the Judge to think that you just filed your motion to quash to buy time. If they do think that then you will most likely lose the motion to quash and the Judge will look very closely with a jaundiced eye at any other type of motion or answer that you file later in the case.

Some Courts only hear motions to quash one day per week, while others hear them several days a week, and some hear them Monday through Friday. Check with the clerk of the court where your case has been filed to find out which days and times, and in which department, the motions to quash for eviction cases are heard.

A Motion to Quash Service is a “special appearance” meaning that it does not admit the Court’s jurisdiction over the defendant.

Case 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.

And in an Unlawful Detainer action 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.

Please note that the author of this article, 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 article is NOT intended to constitute legal advice.

These materials and information contained in this article have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this article is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Readers should not act upon this information without seeking professional counsel.



Source by Stan Burman