Motion To Quash Service of Summons - Unlawful Detainer CA

1 [Name of Defendant]
2 [Street Address]
[City, State, Zip Code]
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[Phone Number]
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[Email Address]
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Specially Appearing Defendant, In Pro Per
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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For the County of [Name of County]
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[Name of Plaintiff], ) Case No. ______________________
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Plaintiff, )
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vs. ) NOTICE OF MOTION TO QUASH
15 ) SERVICE OF SUMMONS
16 [Name of Defendant(s), )
17 Defendant(s) ) Hearing :[Date] at [Time] A.M./P.M.
18 ) Department : [Court Number]

)
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22 NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS

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24 1TO PLAINTIFF, [Name of Plaintiff], AND ITS ATTORNEY OF RECORD: [Name of Attorney
on Record for the Plaintiff], [Street Address, City, State, Zip Code of Attorney on Record for the
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Plaintiff].
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NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS; MEMORANDUM OF POINTS AND AUTHORITIES
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IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS; DECLARATION OF DEFENDANT IN
SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS
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2 PLEASE TAKE NOTICE that on [Date of Hearing] at [Time], or as soon after that as the matter can
be heard, in Department [Branch Number] of the above-entitled court located at Superior Court of
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State of California, County of [Name of County], [Street Address, City, State, Zip Code of Court],
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specially appearing Defendant-movant, [Name of Defendant(s)], will appear specially and move the
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Court for an order quashing Plaintiff’s purported service of summons and complaint on defendant.
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7 GROUND FOR RELIEF

8 This motion is made under § 418.10 of the California Code of Civil Procedure on the ground
9 that the Court lacks jurisdiction over the Defendant-movant [Name of Defendant(s)], in that the
10 Defendant-movant [Name of Defendant(s)] has not been properly served with summons and
11 complaint, as is more fully explained in the attached declaration and memorandum of points and
authorities, which makes improper service of summons.
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TIMELINESS OF FILING MOTION TO QUASH
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California Code of Civil Procedure § 415.45 (c) provides that, “Service of summons in this
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manner is deemed complete on the tenth (10th) day after posting and mailing.” Here, Plaintiff posted
16 the Summons and Complaint on [Date of Posting, example: 20 November 2020] but the date as to the
17 mailing or compliance of mailing is not determined since Defendant-movant [Name of Defendant(s)]
18 have not received a copy of such via mail.
19 Assuming for the sake of argument, without admitting, that Plaintiff complied with the
mailing requirement on the same date as of its posting on the door on the subject premises,
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Defendant-movant [Name of Defendant(s)] has fifteen (15) days to respond or file any responsive
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pleading, from [Date when Summons and Complaint was posted] or until [Deadline as to filing a
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Response]. Hence, this motion is timely filed.
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24 SUPPORTING PAPERS
25 This motion is based on this notice; all pleadings, papers, and records on file in this action;
26 matters of which the Court takes judicial notice; the accompanying supporting memorandum and
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1 declaration of the Defendant-movant [Name of Defendant(s)]; and on such oral and documentary
2 evidence as may be presented at the hearing.
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Dated: __________________ [NAME OF DEFENDANT(S)]
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Specially Appearing Defendant, Pro Per
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2 [Street Address]
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[Phone Number]
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[Email Address]
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Plaintiff, )
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vs. ) MEMORANDUM OF POINTS AND
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) AUTHORITIES IN SUPPORT OF
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[Name of Defendant(s), ) MOTION TO QUASH SERVICE OF
17 Defendant(s) ) SUMMONS
18 )
19 )
20 )
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22 MEMORANDUM OF POINTS AND AUTHORITIES

23 IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS
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25 In support of the attached Motion to Quash Service of Summons, Defendant, [Name of

Defendant(s)], proffers the following argument and points of law:
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1 I.
2 STATEMENT OF FACTS
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On [Date when Plaintiff filed the Complaint], [Name of Plaintiff] (“Plaintiff”) filed its
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complaint against the specially appearing one of the named-Defendant(s), [Name of Defendant(s)]
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(“Defendant”).
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The summons filed by Plaintiff shows that Defendant was NOT personally served with the
7 summons and complaint. Defendant denies being personally served and alleges that he had no
8 knowledge of the summons and complaint, nor that anyone was attempting to serve him until [State
9 the circumstance as to how the Summons and Complaint was posted. Example, “22 November 2020
10 when he got home, there were some legal documents posted at the outside wall by his front door”.]
11 Further, Defendant have never received a copy of the summons and complaint in this case by first
class mail.
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Defendant contends that the service on his person was improper and the Court should quash
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the purported service on him.
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II.
16 LEGAL ARGUMENT
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18 A. A MOTION TO QUASH IS AUTHORIZED WHEN DEFENDANT HAS NOT BEEN
19 PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT

California Code of Civil Procedure § 1167.4, in conjunction with § 418.10, gives authority for
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a motion to quash in unlawful detainer proceedings. Absent proper service of summons, the Court has
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no jurisdiction over a party who does not voluntarily appear [see also Code of Civil Procedure §
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415.45, 410.50]
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California Code of Civil Procedure § 418.10 states in part:
24 “A defendant, on or before the last day of his or her time to plead or within any further time
25 that the court may for good cause allow, may serve and file a notice of motion for one or more of the
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1 following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the
2 court over him or her”.

Service of summons is a jurisdictional requirement, without which the Court has no
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jurisdiction in the action. [see Chaplin v. Superior Court (1927) 81 Cal. App. 367, 253 P. 954; §
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1917]. In an unlawful detainer action, it is of particular importance that proper service of summons be
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achieved.
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Defective service of summons is not service and confers no jurisdiction over the party. [see
7 Smith v. Jones (1917) 174 Cal. 513, 163 P. 890; Sternbeck v. Buck (1957) 148 Cal. 2d 829, 307 P.
8 2d, 970]. Mere knowledge of the action, absent voluntary appearance by the party, is not sufficient
9 for the court to asset its jurisdiction over the party. [see Coulston v. Cooper (1966) 245 Cal. 2d 866,
10 54 CR 302; Varra v. Superior Court (1960) 181 Cal. 2d 12, 4 CR 920].
11 California Code of Civil Procedure § 415.10-415.50 governs the methods by which a

summons and complaint may be served on a defendant in an unlawful detainer action. They include
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personal delivery on the Defendant (§ 415.10); substituted service by personal delivery to home or
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business, in the presence of or to the appropriate person there, and thereafter mailing (§ 415.20); and
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posting and mailing under court order (§ 415.45).
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California Code of Civil Procedure § 415.10 states in part:
16 “A summons may be served by personal delivery of a copy of the summons and of the
17 complaint to the person to be served. Service of a summons in this manner is deemed complete at the
18 time of such delivery.”
19 >>> --- for FULL publication,

20 subscribe at https://www.fatfreecartpro.com/i/107yu ---<<<
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22 PROPER SERVICE IN THIS MATTER HAS NOT BEEN ACHIEVED

23 As can be seen form the declaration of the Defendant, [Name of Defendant(s)], attached to
24 this motion, no personal, substituted, or valid “nail and mail” service has been achieved on the
25 Defendant. Absent any affidavit and copy of the summons and complaint to the Defendant via mail,
there can be no valid substituted service.
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subscribe at https://www.fatfreecartpro.com/i/107yu ---<<<
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5 THIS MOTION IS PROPERLY BROUGHT IN THIS COURT, AND IS TIMELY MADE

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B. THE PLAINTIFF HAS THE BURDEN OF SHOWING THAT THE PURPORTED
10 SERVICE OF THE SUMMONS AND COMPLAINT ON DEFENDANT IS VALID
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>>> --- for FULL publication,
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C. IMPROPER SERVICE IS STRICTLY CONSTRUED AGAINST THE PLAINTIFF
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UNDER CALIFORNIA LAW
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>>> --- for FULL publication,
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III.
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CONCLUSION
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Defendant [Name of Defendant(s)] have demonstrated that there is a significant legal
22 deficiency in this case, particularly, the improper service of Summons and Complaint.
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24 IV.
25 RELIEF REQUESTED
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1 WHEREFORE, AND FOR ALL OF THE ABOVE REASONS, Defendant [Name of
2 Defendant(s)] prays that the court grant this motion and order service of summons quashed.
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2 [Street Address]
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[Phone Number]
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[Email Address]
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Plaintiff, )
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vs. )
15 ) DECLARATION OF DEFENDANT IN
16 [Name of Defendant(s), ) SUPPORT OF MOTION TO QUASH
17 Defendant(s) ) SERVICE OF SUMMONS
18 )
)
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)
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22 DECLARATION OF DEFENDANT IN SUPPORT OF

23 MOTION TO QUASH SERVICE OF SUMMONS
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I, [NAME OF DEFENDANT(S)], Defendant, hereby declare:
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1 I am the named Defendant(s) in this matter and reside at [Street Address, City, State, Zip Code],
2 which premises is the subject of 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
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stated herein.
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The summons filed by the Plaintiff shows that I was not personally served of it. I was never
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personally served with the summons and complaint for Plaintiff’s lawsuit. [State the circumstance
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how the summons and complaint was served via post and mail. Example, “On 20 November 2020,
7 when I got home, there were some legal documents posted at the outside wall by my front door.
8 Further, I have never received a copy of the summons and complaint in this case by mail.”]
9 Except as described above, I have no knowledge of the delivery to me of the summons and
10 complaint in this case, via personal service or mail. I was not intentionally trying to avoid service as I
11 had no knowledge that anyone was attempting to serve me and at all times I could have been reached
for personal service at my residence.
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There is no affidavit or proof of service filed by the Plaintiff, thus, no indication whether
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personal service was even attempted to by the Plaintiff, nor a copy of the summons and complaint
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was even mailed.
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I respectfully request that the Court grant my motion to quash service of the summons and
16 complaint.
17 I declare under penalty of perjury under the laws of the State of California, that the foregoing
18 is true and correct and that this Declaration was executed.
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1 PROOF OF SERVICE
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I am over the age of 18 and not a party to this action.
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I am a resident of or employed in the county where the mailing occurred; my
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business/residence address is:
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[Street Address, City, State, Zip Code]
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On [Date] I served the foregoing document(s) described as: NOTICE OF MOTION TO
8 QUASH SERVICE OF SUMMONS, MEMORANDUM OF POINTS AND AUTHORITIES IN
9 SUPPORT OF \MOTION TO QUASH SERVICE OF SUMMONS, and DECLARATION OF
10 DEFENDANT IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS, to the
11 following party/ies:
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[Name of Plaintiff / Attorney on Record for the Plaintiff; Street Address, City, State, Zip
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Code]
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15 [ ] (By U.S. Mail) I deposited such envelope in the mail at ______________, California with
postage thereon fully prepaid. I am aware that on motion of the party served, service is
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presumed in valid in postal cancellation date or postage meter date is more than one day
17 after date of deposit for mailing in affidavit.
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[ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger
19 service to the address above;
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[ ] (By Facsimile) I served a true and correct copy by facsimile during regular business hours
21 to the number(s) listed above. Said transmission was reported complete and without error.
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I declare under penalty of perjury under the laws of the State of California that the foregoing
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is true and correct.
25 Dated: __________________ _______________________________________

26 [Name of Server]
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Motion To Quash Service of Summons - Unlawful Detainer CA

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1 [Name of Defendant]

18 ) Department : [Court Number]

22 NOTICE OF MOTION TO QUASH SERVICE OF SUMMONS

7 GROUND FOR RELIEF

2 evidence as may be presented at the hearing.

22 MEMORANDUM OF POINTS AND AUTHORITIES

25 In support of the attached Motion to Quash Service of Summons, Defendant, [Name of

18 A. A MOTION TO QUASH IS AUTHORIZED WHEN DEFENDANT HAS NOT BEEN

19 PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT

2 court over him or her”.

11 California Code of Civil Procedure § 415.10-415.50 governs the methods by which a

19 >>> --- for FULL publication,

22 PROPER SERVICE IN THIS MATTER HAS NOT BEEN ACHIEVED

5 THIS MOTION IS PROPERLY BROUGHT IN THIS COURT, AND IS TIMELY MADE

22 DECLARATION OF DEFENDANT IN SUPPORT OF

25 Dated: _____________________

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