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Ask the County Law Librarian – “Quashing” Improper Service of Court Documents



Q. I was handed a summons and complaint for breach of contract, but I didn’t sign for it, so I don’t think it is legal. I want to challenge this in court. How do I do that?

Tom

A. Probably the most common misconception regarding service of the summons and complaint in civil cases is that the receiving party must sign something in order for the service to be valid. A summons may be served by personal delivery of a copy of the summons and complaint to the person to be served. Such service is deemed complete at the time of delivery (California Code of Civil Procedure §415.10). There is no requirement that the person being served sign for anything.

The most common mistake that people make when serving court documents is that they serve the documents themselves, rather than having a person who is at least 18 years of age and not a party to the action serve them (California Code of Civil Procedure §414.10).

Improper service of the summons, however, is not a defense to the underlying facts of the lawsuit, nor does it have any effect on the running of the applicable statute of limitations. You can challenge the validity of the service by filing a motion to quash service of summons on or before your last day to file an answer, or at any later time if the court finds good cause (California Code of Civil Procedure §418.10), but this typically has little effect on a case other than to cause a brief delay. If your motion to quash service of summons is granted, the court will simply require that you properly served.

For this reason, and because of the time and effort involved in preparing a motion to quash service of summons, many defendants choose instead to ignore the issue and simply respond to the lawsuit, assuming they learn about it in time to respond. There is no standardized form for a motion to quash service of summons; and, like most other motions in civil cases, the motion consists of several parts: 1) a notice of motion and motion, 2) a memorandum of points and authorities, and 3) a declaration, with any attachments (California Rule of Court 3.1112). In addition, the motion must be drafted on 28-line pleading paper (California Rules of Court 2.108, 2.111). Although instructions and samples of pleading paper can be downloaded from our website at www.saclaw.org/pages/creating-pleadings.aspx, there aren’t any reputable examples of motions to quash service available for free online. We have both print and online instructions and samples in the Library at 813 Sixth Street downtown, however, and would be happy to show you these resources and, if applicable, how to download samples from the appropriate database.

If the plaintiff in your breach of contract suit is a credit card company or collection agency suing you over a credit card debt, you can find out how to answer the lawsuit on our website at http://www.saclaw.org/pages/respond-to-credit-card-case.aspx. We also offer an "Answer to Breach of Contract Workshop" every Monday through Friday morning in which an experienced paralegal walks you through the entire process of completing the forms used to answer your breach of contract/collection case.

For more on personal service of process of court papers, including a step-by-step guide and an animated video on proper service, go to http://www.saclaw.org/pages/personal-service.aspx

Good luck with your case, Tom, and don’t hesitate to visit us, in person or online, if you need any more help!

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday’s column. Even if your question isn’t selected, though, I will still respond within two weeks.
 

Coral Henning, Director
@coralh & @saclawlibrarian

www.saclaw.org
 

 
  • “Can either of the following California civil procedure codes prevent the California superior court judge from granting a motion to set aside a default?
    code- 473b
    code- 413.10(b)
    code- 414.10
    code- 473

  • Dear Mr. Johnson,
    We re taking care of my parents home, [which will be had not yet gone nto foreclosure]. The Association us trying to evict us and have served use the original aperwork that was served to my parents. Thia paperwork does NOT include our names. I was told, by an attorney at the court house to file motion to Quash.I have the correct paper, I just need to know how to word it. Also, one of use is currently in Arizona taking care of thier aging father and disabled son and is not able to make the court dates. I wouls like to file papers indicating that I am representing all of us fot this proceeding. What paperwork do I need to file in order for the court to recognize me as the ‘Acting Representative”, not attorney in this case? If you could help with my questions, I would greatly apprecoate it. We are two disabled women with two children and need all the assistance we can get. We are taking all the necessary steps to move from here, we are just trying to prevent being homeless.
    Thank you.

    Sincerely.
    Sandra Hamiltom