A summons for unlawful detainer was stamped by Clerk 6-20. Court docket shows Status Conference to be held 6/26.
I was not and have not been personally served. No mail regarding summons was in my mailbox on 6-20, 6/21, or 6/22. 6/23 no mail as it is Sunday. Around 9 am this morning I left my house and found on my door 2 copies of the summons.
I want to file a motion to Quash for improper service. Based on the way they served me (valid or not) I have ten days after the date of mailing to answer the complaint.
My question can I file the Motion to Quash after the 5th day the court has presumed is the date the answer should be given? I'm afraid if I don't file it by the 5th day (two days from now) I will receive a default judgement as opposed to my motion to Quash being heard and ruled.
2 Answers from Attorneys
A summons in an unlawful detainer action may be served by posting if the court is satisfied that the defendant cannot be served by any other method using reasonable diligence. (Code Civ. Proc., § 415.45.) That statute tells you that service is complete on the 10th day after posting and mailing.
Why don't you check to see if they filed an affidavit , before running off and making a federal case of everything? I understand you may want to stall and delay, but you are not going to engender yourself to the judge if your motion is frivolous at the outset. I can tell from your tenor that you want to play games with service, rather than be available to be personally served, which is just going to satisfy the court that you were properly served by publication.
If you want to file your motion do it ASAP. I would not take chance. However I would suggest filing an answer, this may be the best way to get the best deal possible in resolving your case. I would be concerned with irritating the other side more than they are that you did not pay rent. If you have a valid defense then state those in your affirmative defenses.
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