California Motion of Defendant to Quash Service of Process

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Multi-State
Control #:
US-01914BG
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Word; 
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Description

A defendant may object to lack of jurisdiction over the person because of defects in the form or contents of process or in the service of the process by a Motion to Quash or a motion or set aside the process or service of the process. The defense of insufficiency of process or insufficiency of service of process may, at the option of the pleader, be raised either in the responsive pleading or by motion. A motion making these defenses must be made before pleading (e.g., answering the complaint).


This form is a generic motion and adopts the "notice pleadings" format of the Federal Rules of Civil Procedure, which have been adopted by most states in one form or another. This form is for illustrative purposes only. Local laws should be consulted to determine any specific requirements for such a form in a particular jurisdiction.

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FAQ

The purpose of filing a motion to quash is to challenge the legal sufficiency or validity of the document or proceeding in question. When a motion to quash is filed, the court will review the arguments and evidence presented by the party filing the motion, as well as any opposing arguments.

If a defendant thinks the other side did not have the Complaint and Summons properly served, they can file a motion to ask the judge to cancel (to quash) the service. This is called a motion to quash service of summons.

Instead, as California Civil Jury Instruction 200 explains: ?A party must persuade you [the jury], by the evidence presented in court, that what he or she is required to prove is more likely to be true than not true. This is referred to as ?the burden of proof.?

Motion to Quash (cancel) Service of Summons: This motion asks the court to say that the complaint was not served properly. Say why service was not right. Read Sections 413.10 ? 418.10 of the Code of Civil Procedure about service carefully so you can explain to the court why you were not served properly.

On a motion to quash, the burden is on the plaintiff to prove by a preponderance of the evidence that the service was valid and that the court has jurisdiction over the defendant. (Bolkiah v. Superior Court (1999) 74 Cal.

A defendant or cross-defendant may move under CCP §418.10 (to quash for lack of personal jurisdiction, to stay or dismiss on ground of inconvenient forum, or to dismiss for delay in prosecution) and simultaneously answer, demur, or move to strike the complaint or cross-complaint.

(e) A motion to quash pursuant to Government Code section 11450.30 shall be made in compliance with Article 1, section 551.19. The motion shall be made within a reasonable time after receipt of the subpoena. The person bringing the motion shall serve copies of the motion on all parties.

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California Motion of Defendant to Quash Service of Process