Oppose motion to quash service of summons in California

Oppose a motion to quash service of summons in California is the topic of this blog post.   Parties who wish to oppose a motion to quash service should ensure that any opposition is served and filed at least nine (9) Court days before the hearing, and is served by personal service or express mail or another service providing for overnight delivery as this is required by Code of Civil Procedure section 1005.

Parties served with a motion to quash service in California should carefully review the motion and supporting documents to determine if the supporting declarations contain competent evidence to support the motion and that the motion meets the requirements of Code of Civil Procedure § 418.10(b) which requires that the notice of motion designate a hearing date not more than 30 days after filing of the notice. If the hearing date is more than 30 days after the filing of the notice then a good argument can be made that the motion violates the right of Plaintiff to a timely hearing, is dilatory and was filed in bad faith as a delaying tactic.

As previously mentioned the supporting declarations should be carefully scrutinized as many Defendants will file a motion to quash and include only vague and conclusory allegations in the supporting declarations.

Another important factor is whether the Defendant has ever contacted the Plaintiff and acknowledged receipt of the summons and complaint in any way, entered into settlement negotiations or made offers to settle the case, or requested an extension of time to answer the complaint. If any of these factors are present the motion to quash can be opposed on the grounds that Defendant received actual notice of the lawsuit.  California law is settled that the statutes relating to service of process are to be liberally construed in favor of proper service and the upholding of jurisdiction if actual notice has been received by the Defendant.

If a Registered Process Server served the summons and complaint that creates a presumption that service was proper under Evidence Code § 647 which states that, “The return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”

If the opposing party has any credible evidence that the moving party has attempted to evade service that should be included in any opposition as well as supporting declarations.

Attorneys or parties in California who would like to view a portion of a 12 page sample opposition to a motion to quash service of summons which includes brief instructions,

a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can use the link shown below.

http://www.scribd.com/doc/231393703/Sample-Opposition-to-Motion-to-Quash-Service-in-California

 

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

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DISCLAIMER:

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

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