Your Federal Quarterly Tax Payments are due April 15th Get Help Now >>

Motion To Quash by 8gUXEW0a

VIEWS: 400 PAGES: 6

									1    __full_name__
     __address__
2
     __city__, __state__ __zip__
3    __phone__

4

5
     Defendant, in pro per

6

7

8
                           SUPERIOR COURT OF THE STATE OF CALIFORNIA

9                                       FOR THE COUNTY OF __COUNTY__
10

11   __plaintiff__,                                     _ CASE NUMBER: __case__
                                                        _
12
                           Plaintiff,                   _
                                                          NOTICE OF MOTION AND MOTION
13
                                                          TO QUASH PLAINTIFF’S SERVICE
        v.
14                                                        OF SUMMONS; MEMORANDUM OF
                                                          POINTS AND AUTHORITIES AND
     __full_name__ and DOES I through X,
15                                                        DECLARATION OF DEFENDANT IN
     inclusive,
                                                          SUPPORT THEREOF
16
                           Defendants.
17                                                           Date:   __hearing_date__
                                                             Time:   __hearing_time__
18                                                           Dept:    __dept__
19

20           PLEASE TAKE NOTICE that on __hearing_date__, __hearing_time__, in Department

21   __dept__ of the Superior Court located at __court_address__, Defendant __full_name__ (hereafter

22   sometimes “Defendant”) will move for an order from the court quashing service of the Summons in

23   this action. The motion is made through Defendant’s special appearance pursuant to Code of Civil
24   Procedure § 418.10.
25           This motion is made on the ground that the court lacks jurisdiction over Defendant in that
26   Defendant was not served in compliance with California Code of Civil Procedure § 415.46 with copies
27

28



                                                         1

                                                MOTION TO QUASH
1    of the Summons and Complaint for Unlawful Detainer (hereafter sometimes “Complaint”), as required
2    by §§ 415.10 - 415.46, 1161, and 1162 of the California Code of Civil Procedure.
3
            This motion will be based on this Notice of Motion, the accompanying Memorandum of Points
4
     and Authorities, the Declaration of the defendant in support of this motion, the papers and records on
5
     file in this action, and such oral and documentary evidence as may be presented at the hearing of this
6
     motion.
7

8
     DATED: __print_date__                                   By:   ________________________
9
                                                                     __full_name__
10                                                                      Defendant, in pro per

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



                                                         2

                                                MOTION TO QUASH
1                            MEMORANDUM OF POINTS AND AUTHORITIES
2

3                                                          I
4                                            STATEMENT OF FACTS
5           On __client1_service_date__, the Summons and Complaint in this matter were __
6    strike_q3a_client1_where_left__, left there presumably by a process server. Defendant
7    __full_name__, was never personally served nor, to the best of his knowledge, was anyone sub-served
8    on his behalf. No Application Requesting Posting of Summons and Complaint permitting posting of
9    the Summons and Complaint accompanied the Summons and Complaint.
10                                                        II
11                                        A MOTION TO QUASH LIES
12                 WHEN THE COURT LACKS JURISDICTION OVER THE DEFENDANT
13          Under California Code of Civil Procedure § 418.10, a motion to quash service of Summons
14   may be filed on the ground that the court lacks jurisdiction over a defendant who has not been served in
15   accordance with Code of Civil Procedure §§ 415.10 – 415.46.
16          Under § 415.10, a Summons may be served by personal delivery to the person to be served.
17   Under § 415.20 (b), if the Summons and Complaint cannot with reasonable diligence be personally
18   delivered to the person to be served, service of process may be effected by leaving a copy of the
19   Summons and Complaint at the person’s dwelling house in the presence of a competent member of the
20   household, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter
21   mailing a copy of the Summons and Complaint to the person to be served at the place where the copy of
22   the Summons and the Complaint were left.
23          In this matter, the papers were affixed to the front door of Defendants’ dwelling. CCP
24   § 417.10(a) requires that the person making substituted service submit an affidavit stating the facts
25   showing that the service was made in accordance with CCP § 415.20(b). The person making that
26   substituted service is required to state acts relied on to establish reasonable diligence in attempting
27   personal service.
28



                                                          3

                                                  MOTION TO QUASH
1           The right to lawful service as a prerequisite for a lawful action in suit has been upheld by
2    numerous California court sections. In Sternbeck v. Buck 148 Cal.App.2d 829 (1957), Buck’s process
3    server handed the papers to Sternbeck’s wife while Sternbeck was standing less than 100 yards away.
4    The Court ruled that the papers were not served according to the requirements of the code. Whether or
5    not the defendant receives the Summons and Complaint through some other means than lawful service
6    was deemed irrelevant. The effect of the fraud on the court is not vitiated by the fact the defendant did
7    receive the Summons and Complaint. Sullivan v. Sullivan 256 Cal.App.2d 301, 305 (1967). Code of
8    Civil Procedure § 415.45 allows substitution by posting and mailing only when the Court issues an
9    order permitting such service.
10          In an unlawful detainer action, the right to proper service becomes a necessity, so that the
11   defendant tenant may respond within the allotted time.
12          In this instance, service of the Summons and Complaint was not made as required by statute.
13   The Summons and Complaint were not personally served on Defendant. There was no proper service
14   by substitution, because copies of the Summons and Complaint were not mailed to Defendant and were
15   not delivered to an appropriate adult. Service by posting was inadequate, since it was not accompanied
16   by a notice from the Court permitting such posting.
17                                                CONCLUSION
18          Defendant has not been served in any manner provided by Code of Civil Procedure §§ 415.10
19   through 415.46 and is, therefore, entitled to the relief requested.
20

21
     DATED:      ____ day of ___________, 2012                      By:    _____________________
22                                                                          __full_name__
                                                                            Defendant, in pro per
23

24

25

26

27

28



                                                           4

                                                  MOTION TO QUASH
1                                DECLARATION OF JOHN S. CHATMAN, JR.
2

3
            I, __full_name__, declare as follows:
4
            I was the owner of record of the property located at __address__, __city__, __state__ __zip__
5
     (hereafter sometimes the “subject property”), which is the property at issue in the above-captioned
6
     unlawful detainer action.
7
            1. I have first-hand knowledge of the facts stated herein, except where such facts are stated
8
     on information and belief, and in those instances, I believe them to be true. If called upon to
9
     testify to the veracity of this information, I could and would do so.
10
            2. I had a vested interest in the subject property.
11
            3. On or about __foreclosure_date__, my property was foreclosed through a trustee sale.
12
            4. On __service_date__, the summons and complaint were __
13
                strike_q3a_client1_where_left__.
14
            5. To date, I have not been personally served with a copy of the Summons and Complaint in
15

16
     this action. No one has attempted to serve me with the Summons and Complaint pursuant to California

17   Code of Civil Procedure § 415.10 – 415.46.

18          6. To the best of my knowledge, no one has been sub-served on my behalf.

19          7. As of the date I sign this Declaration, I have not received copies of the Summons and

20   Complaint via United States mail.
21          8. No notice allowing posting of the Summons and Complaint on my property was attached to
22   the Summons and Complaint which were posted on the door of my home.
23          I declare under penalty of perjury under the laws of the State of California that the foregoing is
24   true and correct.
25
            This declaration was executed on ____ day of _________, 2012 at Fontana, California.
26

27                                                  ____________________________
                                                       __full_name__
28



                                                          5

                                                 MOTION TO QUASH
1                                           PROOF OF SERVICE
2
            I                              in the County of                             , State of California.
3    I am over the age of 18 and not a party to the within action. My                            address is
                                                                                                        .
4

5
            On _____ day of ____________, 2012, I served the following document described as Notice of
     Motion and Motion To Quash Plaintiff’s Service of Summons; Memorandum of Points and
6    Authorities and Declaration of Defendant in Support Thereof on all interested parties in this action by
     placing [X] a true copy [ ] the original thereof enclosed in sealed envelopes addressed as follows:
7

8
                    __counsel__
                    __counsel_address__
9                   __counsel_city__, __counsel_state__ __counsel_zip__
10
     [   ]   (BY FACSIMILE) The facsimile machine I used complied with Rule 2003(3) and no error
11           was reported by the machine. Pursuant to Rule 2008(e)(4), I caused the machine to print a
             record of the transaction.
12
     [ X]    (BY MAIL, 1013a, 2015.5 C.C.P.)
13
             [ X] I deposited such envelope in the mail at ______________________, California. The
14   envelope was mailed with postage thereon fully prepaid.
             []     I am readily familiar with the firm’s practice for collection and processing
15   correspondence for mailing. Under that practice, this document will be deposited with the U.S. Postal
     Service on this date with postage thereon fully prepaid at Corona, California in the ordinary course of
16
     business. I am aware that on motion of the party served, service is presumed invalid if postal
17   cancellation date or postage meter date is more than one day after date of deposit for mailing in
     affidavit.
18
     [ ]     (BY PERSONAL SERVICE) I caused the foregoing envelope to be delivered by hand to the
19
     offices of the addressee.
20
     [X]    (STATE) I declare under penalty of perjury under the laws of the State of California that the
21   above is true and correct.
     [ ]    (FEDERAL) I declare that I am employed in the office of a member of the bar of this       court
22
     at whose direction the service was made.
23
             Executed on _____day of___ ______, 2012 at _________________________, California.
24

25

26                  ____________________________             ____________________________
                          (Print name here)                            (Signature)
27

28



                                                         6

                                                MOTION TO QUASH

								
To top