Legal Question in Civil Litigation in California

Re: Motion to quash

Judges take all motions seriously.

If you were not served you can file a motion to quash, and if the plaintiff cannot prove you were served the judge will quash service. I have successfully quashed service in the past.

However, as a practical matter there may be no reason to quash service, as they will simply serve you later (or in fact at the hearing to quash service itself).

As to your response, the type of response you file depends on the facts of your case -- and the plaintiff's claim against you.

Take the time, spend the money, talk to a lawyer. You should not try and handle court on your own.

Re: Motion to quash

Yes, judges will grant the motion if you can show no service occurred. Remember that there is an affidavit filed by the process server saying you were served. point out the errors in that. The pleading used in limited jurisdiction cases is the same I beleive for unlimited; if there is a court form, they will tell you whether it can be used for both types of court.

Is it worthwhile to file the motion? Will doing so resolve the case in your favor [now blocked by the Statute of Limitations, etc.]; if not, will they just reserve you so you just gain a delay but have to spend several lhours to get that delay?

Re: Motion to quash

Of course they take such motions seriously. The court can only act once it has personal jurisdiction over you, and improper service does not give it such jurisdiction. Any ruling a court makes which exceeds its jurisdiction is void. No judge wants to be caught issuing a void order.

But proper service is not the only way the court can get jurisdiction over you. If you file an answer you will thereby submit to the court's jurisdiction even if you had not been properly served. You need to first make what is called a "special appearance" in order to challenge the court's jurisdiction over you.

Bear in mind that if you win a motion to quash, the plaintiff will probably have additional time to serve you properly. If you handle the motion yourself you will make it very easy for him to do so. Getting a lawyer will help, but in the end you may not be able to avoid being served. If that is the case, then the effort and expense involved in moving to quash may not be worthwhile.