Legal Question in Credit and Debt Law in California
Motion to Quash Service of Summons and complaint
I received a letter in the mail saying that I had been served (but no copy of the actual complaint and proof of service). When I called the court, I was told that it had been served by substituted service. I had a friend pick up the complaint and proof and in reading the proof, the process server said he gave a copy to a woman with the same last name as I and said she was an occupant. I have never heard of the woman and I have lived alone for the last 6 years. The description does not match anyone living on the property nor any of the neighbors. I did a zabasearch on the internet and the only person with that name is an 87 yo woman living in FL. Furthermore, reviewing the CA Code of Civil Proc., sec. 1011 (b) requires that service be performed between 8am and 6pm. The PoS states 7:12pm. Can I file a motion to quash based on faulty service and buy more time since I received this 1 week prior to when I need to respond (6/08)?
3 Answers from Attorneys
Re: Motion to Quash Service of Summons and complaint
Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.
You need to retain a lawyer immediately. The question is what stage of litigation is plaintiff in. Is there a default entered against you? Is there a judgment entered against you? If so, how long ago were these entered? You may have to bring a motion so set aside default or default judgment, or motion to quash service of process. You should immediately consult your own attorney to protect your legal rights.
Re: Motion to Quash Service of Summons and complaint
Ultimately, you will be served. Section 1011 does not apply to service of a summons and complaint, and only to subsequent documents.
If you file a motion to quash and show up to argue the motion, then the plaintiff's attorney likely will hand the summons and complaint to you on the spot. You'd waste $40 filing your motion and a lot of your time.
Re: Motion to Quash Service of Summons and complaint
It certainly sounds like you have grounds to move to quash service, and yes it will buy you some time, but only about another 30 days.
*Due to the limitations of the LawGuru Forums, The Gibbs Law Firm, APC's (the "Firm") participation in responding to questions posted herein does not constitute legal advice, nor legal representation of the person or entity posting a question. No Attorney/Client relationship is or shall be construed to be created hereby. The information provided is general and requires that the poster obtain specific legal advice from an attorney. The poster shall not rely upon the information provided herein as legal advice nor as the basis for making any decisions of legal consequence.
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