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Which should come first, mailing the motion to compel further responses to the defendants or filing the motion first in state

San Jose, CA |

court? Can the motion be mailed by any individual not a party to the case or should it be by a process server?

Attorney Answers 4


  1. After the complaint, all documents are served first, then filed. Anyone not a party to the action may mail it. The person mailing it then signs the proof of service by mail, which is then filed with the document.

    After all, one couldn't very well swear something was mailed, file it, then mail it.


  2. The typical practice is for the service by mail to take place first, then file the original with signed proof of service attached with the court.

    Anyone who is an adult who is not a party to the litigation can serve the motion. It does not have to be a registered process server.

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.


  3. The clerk of the court should check to ensure that there is a proof of service for the motion, before allowing it to be filed. Thus, you need to have a signed proof of service by a non-party when you show up at the window with your motion for filing. Be sure that your motion to compel includes a declaration of good faith attempt to meet and confer, or you could end up paying sanctions to the court or to the other side for opposing the motion without first conducting proper meet and confer.

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  4. You can mail notice of the motion at the same time you are filing the motion. The proof of service with the notice should be signed by an adult individual ,not a party to the action. Please remember it is necessary for you to meet and confer with the opposing party or if she has an attorney, their attorney concerning why you believe a Motion to
    Compel is appropriate in regard to each particular request you have a dispute with.
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