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Legalities for Filing a Motion to Quash Service for Improper Service?
Anonymous6 views2 answers
I found an unlawful detainer on my front door (I have no idea how long it was there, since I don't use the front door.) I called the court to find out that the plaintiff has put in a request for default! The clerk told me that today was my last day to file an answer & that the plaintiff used substitute service & listed serving "Jane Doe" with a description. No one else resides at my home and I certainly wasn't EVER served anything! The server is clearly lying. Had I been served I would of certainly filed an answer! I never received any notice in the mail either. I'm not in a position to vacate immediately & I want to answer the summons and state my case. PLEASE tell me what options do I have at this time...Can I file a motion to quash for improper service? What are my chances??
You have a real problem here. Genarally I am not in favor of pre-answer pleadings, since for the most part they serve no more purpose than delay and usually are a waste of money. In this case, however, you may lose a substantive right: the right to appear and defend yourself in the eviction action. This is one instance where such a motion is warranted, in my opinion. Sewer service is a real problem in the unlawful detainer arena.
A motion to quash must be filed within the time allowed to file an answer, fifteen days in your case it seems. After expiration of that time the landlord can request your default. Practicaly speaking, you still may have time, but it is a race to the courthouse. I would recommend that you consider filing an answer unless you think there is some good reason for a motion to quash. It looks to me that you very well could prevail on the motion, but why spend the money? Just file and serve your answer and defend on the merits, which is what you will be doing even if you prevail on the motion. If you feel you do not have a meritorious defense, then file your answer to preservce your right to defend and then try to work it out with the landlord. Under any circumstance, be at the courthouse when it opens on Monday morning with whatever pleading you want to file. There is a good chance you will beat the request for default.
Whatever you decide, I strongly recommend you get an attorney. This is not the type of thing you want to do yourself.
Good luck.
Yes, if service of the summons was improper, you can file a motion to quash service. Often times, tenants use a motion to quash is used as a delay tactic, but in your situation, it sounds like you have a valid basis. Your chances of success will depend upon how well written your motion and supporting declaration are. If you did not receive the mailed summons and complaint, most likely the purported substitute service was invalid.