Jump to content

Sued 2nd time - looking for Motion to Quash Service


Recommended Posts

I was first sued by a JDC in 2010. I was scared but found this board and with your help filed an Answer, answered/sent interogatories, etc (thank you all again!).

The JDC withdrew w/o prejudice later that year. Not that it matters now, but I was improperly served but figured why bother to file a Motion to Quash Service of Process - I'll just get served again. Besides, the papers were left on the doorstep when nobody was home and they also mailed a copy. For only $80, it's unreasonable to make people make 4 attempts in my opinion.

I thought I may be sued a 2nd time, and sure enough, 1 day before the SOL expired in Feb 2012, the JDC filed (I was checking online periodically). I knew that I needed to wait (up to 60 days) to be served but this time I installed time-stamped security cameras. Sure enough the process server never came to my house at all or mailed a copy, but filed a fraudulent substituted service with fake days/times and lied about mailing a copy. Nice gig for someone that wants to work from home!

Since the SOL expired in Feb 2012 and the 60 days to (properly) serve me will expire in a couple weeks, I assume this time there is a strategic reason to file a Motion to Quash Service.

Does anyone have any examples (for California) and any tips? The standard response is typically to not bother because they will just re-serve and nothing is gained - but in my case I assume the plaintiff can't re-serve me after the 60 days expire in a couple weeks. Getting a date with the judge to hear my Motion will certainly be past the 60 days. I also plan to ask the judge to dismiss the case, the JDC is wasting my time and the courts when they withdrew their own case 2 years ago only to keep trying for another bite.

Thanks,

California

Edited by genesplitter
Link to comment
Share on other sites

You'll want somebody from CA who knows CA laws and rules regarding this to chime in, but my personal preference here would be to answer the suit and take the process server down. If you can get the suit dismissed outright because of the sewer service, that's obviously the best choice, but if they are just given an opportunity to re-serve you, well, you've not gained anything.

Link to comment
Share on other sites

You will need to file a motion to quash...also file a fraud suit against the process server...in CA they are required to maintain a $2,000 bond you can go after...also, you may want to report them to the local DA's office as that is technically criminal activity (fraud, perjury).

Link to comment
Share on other sites

Thanks 1stStep and Usagi555,

It appears there are no good "Motion to Quash Service of Process" examples from a search on this forum and others sites. This makes sense as it's not of much help as the plaintiff will simply re-serve. I did find one example, which had blanks to fill in date/time/court-room#, so I called my court and they set a date and time for my Motion. Note that my Motion hearing is 1 month away and the 60 days to serve me (properly) expires in 2 weeks. Does this means I'm home free if my Motion to Quash Service is granted? I'll also ask the judge to dismiss the case while I'm there anyway. Do I simply ask the judge verbally during the Motion hearing?

I'll stop by my local law library and get the "big book" (forgot the name) of sample California forms and motions that lawyers often use, to find a better example, and post here for future reference.

Edited by genesplitter
Link to comment
Share on other sites

I'd like to run this by the members:

Even though I have time-stamped security video, I would also like to have the process server or the company that contracted the server to send me or file with the court a statement saying there was a "mistake" and the service was not actually completed. My plan is to call the company first and tell them I plan to file a complaint with the California Attorney General, and then file a suit in small claims court. They are located far away in Southern Ca, so it's probably cheaper for them to lose by default then fly up to the Bay Area to defend a small claims suit. This SHOULD motivate them to do something - hopefully send me that letter!

Next I would do the same of the local process server. Between the two, hopefully one will file something with the court about their "mistake". My only concern is if they do as I want, then I'd feel obligated to not sue them to collect the $2000 bond (plus abuse of process, negligence, infliction of emotional distress, punitive damages, etc).

Again, it seems like I'm going into unexplored territory as this motion seems very rare.

BTW - I can't imagine this is the first time the process server so blatantly disregarded her duty to the court, or the SoCal company paying $69.50, (only if successfully served, wink, wink) is not aware of what they are encouraging. I would truly hope the Attorney General or court would review all other service and overturn the resulting default judgements.

Edited by genesplitter
Link to comment
Share on other sites

I'd like to run this by the members:

Even though I have time-stamped security video, I would also like to have the process server or the company that contracted the server to send me or file with the court a statement saying there was a "mistake" and the service was not actually completed. My plan is to call the company first and tell them I plan to file a complaint with the California Attorney General, and then file a suit in small claims court. They are located far away in Southern Ca, so it's probably cheaper for them to lose by default then fly up to the Bay Area to defend a small claims suit. This SHOULD motivate them to do something - hopefully send me that letter!

Next I would do the same of the local process server. Between the two, hopefully one will file something with the court about their "mistake". My only concern is if they do as I want, then I'd feel obligated to not sue them to collect the $2000 bond (plus abuse of process, negligence, infliction of emotional distress, punitive damages, etc).

Again, it seems like I'm going into unexplored territory as this motion seems very rare.

BTW - I can't imagine this is the first time the process server so blatantly disregarded her duty to the court, or the SoCal company paying $69.50, (only if successfully served, wink, wink) is not aware of what they are encouraging. I would truly hope the Attorney General or court would review all other service and overturn the resulting default judgements.

People in Cali would have better info on the best way to do this, but I wouldn't give them much of a chance. Sewer service is one of those things that, even though it hasn't happened to me, really pisses me off. It is a serious miscarriage of justice for those of us who are willing to fight, and as was pointed out, is also criminal.

Link to comment
Share on other sites

first did they claim personal service or substituted service? If they claim personal service and you can prove other wise that is fraud and perjury.

Sewer service has become an epidemic in my area, and they always claim personal service. I guess they figure you cant prove other wise.

Bad thing is all that is required by the rules of process of service is a reasonable assurance that you will receive the summons and they can call it personal service.

I am going to, along with a few other friends and law students, lobby for more stringent rules for process of service. In my opinion and a lot of others for it to actually be personal service your signature on the affidavit of service is the only way they can prove personal service.

It does not take a rocket scientist to understand the word PERSONAL. My argument is how can it be considered personal when the actual person was not present when they claim service was personal?

Link to comment
Share on other sites

This may sound crazy, but they sued ONE DAY before the SOL? I would get out my calendars (or go to time and date on the internet) and see if there was a leap year involved. There must be a legal definition of what constitutes a year floating around, I should think 365 days should suffice.

Link to comment
Share on other sites

Thanks,

Last partial payment was Feb 29, 2008, which is a leap year. Not too concerned yet about possibly using 365 days * 4 as a defense, since I do not want to Answer yet and file a Motion to Quash Service first. This was substituted service by the way. I have a hearing on May 25. I went to the law library and found what I needed in "California Pretrial Practice & Forms". This is a great resource and gives you the fill-in-the-blank forms, tips, and relevant rules in an easy to understand format. I just copied what I needed. I will post my Motion to Quash for others to copy.

Note that in the tips section, it mentioned that this is typically a waste of time as the plaintiff will just re-serve anyway. However this is assuming you are paying your defense attorney $250/hour to show up to the pretrial hearing. As a pro se, you can take a half day off to show up to the hearing.

Link to comment
Share on other sites

[Your NAME HERE]

(PRO PER)

[your street address]

[your city, state, zip]

SUPERIOR COURT OF CALIFORNIA, COUNTY OF PUT-COUNTY-HERE

Junk Debt Collector,

Plaintiff,

vs.

<YOUR NAME HERE>

DOES 1 TO 10.

Defendant )

) Case No.: ABC123456789

NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF SUMMONS; MEMORANDUM IN SUPPORT; AND DECLARATION OF MY-NAME-HERE

Hearing date/time: Jan 1, 2000 1:30PM

Dept. No. 1

Date action filed: Jan 1, 2000, 2000

TO EACH PARTY AND TO COUNSEL OF RECORD FOR EACH PARTY:

YOU ARE HEREBY NOTIFIED THAT ON Jan 1 at 1:30PM in Department 1 of this Court, located at court-address, defendant my-name will appear specially and move the court for an order quashing the service of summons in this action on the ground of lack of personal jurisdiction over defendant. The motion will be made on the basis that the summons and complaint were not properly served upon defendant my-name.

The motion will be based upon this notice, the attached Memorandum In Support and Declaration of my-name, the files and records in this action and any further evidence and argument that the Court may receive at or before the hearing.

Date: Jan 1, 2012 By ________________________________

my-name

(Pro Per)

Edited by genesplitter
Link to comment
Share on other sites

MEMORANDUM IN SUPPORT OF MOTION TO QUASH SERVICE OF SUMMONS

I. BACKGROUND

Flor Cortez, a process server registered in Alameda County (Registration No. 1120), claims to have served defendant by substituted service at defendants home at [insert-address-here]. Time-stamped security video at this address show no attempt to serve on the dates and times claimed in the declaration of service of process, nor was summons or complaint mailed to this address. On April 30, 2012 defendant contacted Holly Godshall, owner of Nationwide File & Serve Inc, to notify her of these allegations and requested that she contact Flor Cortez for an explanation. Defendant also asked Mrs. Godshall if it is her policy to pay if service is not completed. Mrs. Godshall declined to answer. On May 2, 2012 defendant contacted plaintiff's attorney requesting that Flor Cortez appear at this hearing.

Defendant asked plaintiff's attorney what percentage of cases he wins by default judgement. Plaintiff's attorney declined to answer. Defendant asserts that Flor Cortez filed a false declaration of service of process and plaintiff would benefit by winning a default judgement.

II. LEGAL ARGUMENT

[i copied and paste this article from Serving Process on the Process Server. Still trying to verify this is acceptable. ]

III CONCLUSION

Defendant respectfully requests this court to grant motion to quash service of summons, dismiss this case with prejudice, as service of process was not completed within 60 days, and sanction Plaintiff in the amount of $2000.00.

Dated: Jan 1, 2000 By __________________________

My Name

(Pro Per)

Edited by genesplitter
Link to comment
Share on other sites

A request to the community, does my Background and Conclusion look OK? I plan to file this motion with court and mail to plaintiff later this week.

Here are just a few random tips from California Pretrial Practice & Forms (there are too many great tips to list - go to the law library!):

- Filing this motion extends defendant's time to answer or demur [CPP 418.10b]

- Burden of Proof on Plaintiff - "When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove...the facts requisite to an effective service." [summers v. McClanahan (2006) 140 CA4th 403,413, 44 CR3d 338, 345

-Tort Action for False Proof of Service: A process server who knowingly executes a false proof of service is subject to liability for the tort of abuse of process; so also is the process server's employer, under respondeat superior. [Kappell v. Bartlett (1988) 200 CA3d 1457, 1465, 246 CR 815, 820]

- Notice and hearing date: The notice of motion must set a hearing date within 30 days after the notice is filed. The service requirements are those on motions generally (CPP 1005 requires at least 16 court day's notice, increased for service by mail, see below). [CPP 418.10(B)]

Edited by genesplitter
  • Like 1
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.