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Can you make an argument to quash in person on day of trial?

Davis, CA |

I was served by substitution, tacking on days to service and making the service untimely.

Perhaps more importantly, no mailing of substitution has taken place, making service incomplete.

Do I need to file a motion to quash? If so are there time lines for this?

Attorney Answers 3

  1. If the plaintiff is attempting to serve you by substituted service (meaning the complaint was left with someone other than you), but there has been no follow up mailing, then you have not been served. However, there is a legal answer to every question and a practical one. The practical answer is that you have not received anything in the mail, but you don't know that the plaintiff won't contend that a mailing occurred. Therefore, it could potentially create problems if you just ignore the complaint, for now, and a motion to quash is not appropriate. Hence, a logical way to proceed would be to contact the plaintiff, confirm in writing that you have not received a follow up mailing, but that you are prepared to deem service completed as long as you you have 35 or 40 days from now to file a response. You will be served anyway because the plaintiff has completed the potentially difficult part (serving someone with the complaint in your household or at your office), and by getting 35, or so, days you are getting about what you would be entitled to if not more if he had completed the mailing. Otherwise, he may try to claim that he mailed it to you, and file a request to enter default, and you will then have to move to set that aside. Good luck.

    THIS RESPONSE IS NOT LEGAL ADVICE. IT HAS BEEN PROVIDED FOR EDUCATION AND INFORMATION ONLY. Mr. Mann is licensed to practice in the State of California. There is no implied or actual attorney-client relationship arising from this educational exchange. Moreover, the facts provided by you were not sufficient to allow Mr. Mann to advise you specifically regarding what you should or should not do. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Mann is under no obligation to answer subsequent emails or phone calls related to this matter, or to take any action whatsoever.

  2. Your inquiry is difficult to ansswer without first knowing whether you served with a subpaena to appear as a witness at trial ( which your question seems to suggest) or served with a summons and complaint. Counsel's response above assumes it was complaint. If it was a subpoena to appear and testify then you do have some time limits to adhere to and which will be waived if not observed correctly.

    Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.

  3. Once you answer or otherwise respond to the complaint, you waive any defect in the service. There is no timeline to move to quash: bad service is bad service. But if a default has been entered against you, you must move diligently to set it aside. If you have filed papers with the court, then you have waived your ability to move to quash.

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