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PHONE
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xxxxx,
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Plaintiff,
vs.
DEFENDANT - ENTER YOUR NAME,
Defendant
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the matter can be heard, in Department # of the above-entitled court located at ENTER ADDRESS
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appear specially and move the Court for an order quashing plaintiffs purported service of summons
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and complaint on defendant. This motion is made under Section 418.10 of the Code of Civil
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Procedure on the grounds that the summons and complaint were not properly served on defendant in
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that Defendant, DEFENDANT - ENTER YOUR NAME was not personally served with the
summons and complaint, instead they were placed between the front door screen and front door
despite the fact that no order to post had been requested by plaintiff, nor granted by the Court.
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Therefore the purported service on Defendant was not valid and should be quashed.
This motion will be based on this notice of motion, the memorandum of points and
authorities; the Declaration of DEFENDANT - ENTER YOUR NAME, the pleadings, documents,
records and files in this action, and such oral and documentary evidence as may be presented at the
hearing.
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Dated: ________________
__________________________________________
Specially Appearing Defendant
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- 2 NOTICE OF MOTION AND MOTION TO QUASH SERVICE
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I.
STATEMENT OF FACTS
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HERE IS AN EXAMPLE: she opened her front door and noticed the summons and complaint was in
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Plaintiff did not request, nor did they obtain an order from this Court to allow posting of the
summons and complaint as required by law before a summons and complaint may be served by
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posting.
Defendant contends that the service on her was improper and the Court should quash the
purported service on her.
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II.
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LEGAL ARGUMENT
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A.
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- 3 NOTICE OF MOTION AND MOTION TO QUASH SERVICE
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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.
Code of Civil Procedure 415.10 states in part:
A summons may be served by personal delivery of a copy of the summons and of the
complaint to the person to be served. Service of a summons in this manner is deemed complete at the
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to be served cannot with reasonable diligence be served in any manner specified in this article other
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than publication and that: (1) A cause of action exists against the party upon whom service is to be
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made or he is a necessary or proper party to the action; or (2) The party to be served has or claims an
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interest in real property in this state that is subject to the jurisdiction of the court or the relief
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demanded in the action consists wholly or in part in excluding such party from any interest in such
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property. (b) The court shall order the summons to be posted on the premises in a manner most likely
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to give actual notice to the party to be served and direct that a copy of the summons and of the
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complaint be forthwith mailed by certified mail to such party at his last known address. (c) Service of
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summons in this manner is deemed complete on the 10th day after posting and mailing. (d)
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- 4 NOTICE OF MOTION AND MOTION TO QUASH SERVICE
Notwithstanding an order for posting of the summons, a summons may be served in any other manner
authorized by this article, except publication, in which event such service shall supersede any posted
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summons.
Because Plaintiff did not request, nor did they obtain an order from this Court to allow
posting of the summons and complaint, the posting of the summons and complaint by dropping it
between the screen and front door did not constitute valid service and should be quashed.
And the fact that Defendant received the summons and complaint does not preclude a motion
to quash due to the fact that Plaintiff did not serve the summons and complaint in a statutorily
authorized manner.
Even when the defendant tenants (and/or subtenants) actually received summons and
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complaint and otherwise have actual notice of the lawsuit, a motion to quash will lie if process was
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not served in a statutorily-authorized manner. Schering Corp. v. Super.Ct. (Ingraham) (1975) 52 Cal.
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B.
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preponderance of the evidence the validity of the service and the court's jurisdiction over the
defendant. Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.
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- 5 NOTICE OF MOTION AND MOTION TO QUASH SERVICE
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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.
Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111.
Thus, Plaintiff now has the burden of showing that the purported service of the summons and
complaint on Defendant DEFENDANT - ENTER YOUR NAME is valid.
III.
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CONCLUSION
Based on the above, it is requested that defendants motion to quash service of the summons
and complaint be granted.
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Dated: ________________
__________________________________________
Specially Appearing Defendant
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- 6 NOTICE OF MOTION AND MOTION TO QUASH SERVICE
DECLARATION OF
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I am over the age of 18 years and am a party to this action. I have personal
knowledge of the facts stated in this declaration, and if called as a witness, could and would testify
competently to the truth of the facts as stated herein.
2.
The summons filed by Plaintiff shows that I was NOT personally served. I was never
personally served with the summons and complaint for Plaintiffs lawsuit. When <ENTER
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door on December 10, 2010, there was a summons and complaint lying in between my front door
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by Plaintiffs.
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I was not intentionally trying to avoid service as I had no knowledge that anyone
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was attempting to serve me and at all times I could have been reached for personal service at my
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residence.
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4.
I respectfully request that the Court grant my motion to quash service of the
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is true and correct and that this Declaration was executed on <ENTER DATE YOU ARE
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__________________________________________
DEFENDANT - ENTER YOUR NAME, Defendant
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- 7 NOTICE OF MOTION AND MOTION TO QUASH SERVICE
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PROOF OF SERVICE
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[ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger
service to the address above;
[ ] (By Facsimile) I served a true and correct copy by facsimile during regular business hours
to the number(s) listed above. Said transmission was reported complete and without
error.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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DATED: ________________
____________________________________
NAME OF PERSON MAILING PAPERS
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- 8 NOTICE OF MOTION AND MOTION TO QUASH SERVICE