Skip to main content

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

Posted

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.

Mark as helpful

1 found this helpful

4 comments

Asker

Posted

Thank you-- the subpoena improperly served was for production of documents. We have a trial the in one week. Should I just bring it up then?

Lloyd Stewart Mann

Lloyd Stewart Mann

Posted

Sorry. I misunderstood the question. Are you a party to the lawsuit? A non-party to the lawsuit may not be served with a subpoena by substituted service. If you are not a party to the lawsuit, it is not necessary for you to appear if you have not been personally served.

Asker

Posted

Thank you.

Lloyd Stewart Mann

Lloyd Stewart Mann

Posted

You are very welcome.

Posted

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.

Mark as helpful

1 comment

Asker

Posted

This is actually a child support modification hearing. I am the moving party with the majority of the custody. My ex has served me (untimely and incomplete) with production of documents. I was going to file a motion to Quash, by the service was not even complete, so I wasn't sure how to proceed. Most of the items my ex is asking for she already has been given. the judge in the case asked for a specific set of documents from both of us, which I have provided. Additionally, I have provided the court and ex with my last three months of bank statements, even though it was not asked for. My hope is that the judge sees I have provided good faith disclosure and in addition to the errors with service, allows the document request to be denied.

Posted

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.

Mark as helpful

1 found this helpful

3 comments

Asker

Posted

There is not default against me or anyone at this point. This is a child modification hearing. I am not in arrears, in fact, I am the custodial parent at 80 percent and make less money than my ex. There is no defect in service once I file the OSC? Ever?

James Carl Eschen III

James Carl Eschen III

Posted

Okay, then "trial" is the wrong term. You meant the hearing. In that event, you go to the hearing and tell the court why you were not properly served. If you argue against the motion on any other grounds, you waive the bad service. The prudent course is just to respond to the OSC and forget the bad service.

Asker

Posted

Thank you, very much. Good to know!

Family law topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics