Today I received a call from a friend. He shared how several weeks ago a homeowner had received a notice from the Court about an Unlawful Detainer being filed against them. They came home a couple of weeks later and found an unstamped summons and complaint sitting in their mailbox, with no postage and no US stamp.
For those of you who follow Unlawful Detainers (or are about to) – service of the Summons and Complaint needs to be done in person. In order for the process server to “drop it off” at your porch or post it to your door the process server must first attempt to “serve” you; then after their “due diligence” seek the Court’s approval, via a signed order, to do a “post and mail” service. (i.e post it to your door and then mail it first class). Anything varying from this is “improper service”. (Sticking it in the mailbox is actually a federal offense!)
In this particular case, the homeowner checked with the Court and there was no order for post and mail; so they did nothing. The Plaintiff sought, and received, a default judgment. No surprise but now the homeowner is freaked because they never got a chance to “defend the action”. Uh well actually, yeah, they did but they did nothing. How would the Court know it is improper service if no one tells the Court? The only person talking to the Court is the Plaintiff – your silence is your agreement with what the Court is being told.
The above scenario is the whole purpose of a motion called a “Motion to Quash”. The defendant files a Motion to Quash as a “specially appearing defendant” claiming that the Court has NO jurisdiction over them since service was improper. But the ONLY WAY THE COURT WILL KNOW THIS IF YOU TELL THEM THIS. “Even when the defendant tenants (and/or subtenants) actually received summons and complaint and otherwise have actual notice of the lawsuit, a motion to quash will lie if process was not served in a statutorily-authorized manner”. Schering Corp. v. Super.Ct. (Ingraham) (1975) 52Cal. App. 3d 737, 741.
In this particular case the process server put it in the mail box and then claimed “actual personal service”. They filed their “proof of service” and requested the “entry of default” on the SAME day. The homeowner should have filed the Motion to Quash on the day they found the summons (or the next day)– and stopped these people in their tracks. By ignoring the complaint they gave the liars another opportunity to mislead the Court and now the homeowner is further behind the eight ball because now they have to seek to get the default set aside. Not a pretty place to be. Getting the default set aside should be a no brainer but the reality is whether the default will be set aside is at the “discretion of the court”. If you get a Judge who doesn’t want to be bothered, you run the risk of never getting your day in Court.
If you get a Summons and Complaint – don’t ignore it. If it was improperly served do a Motion to Quash; if you don’t then the lie will continue right into a writ of possession that removes you from your home. There is a sample template of a Motion to Quash in our Documents for paid annual members, please make use of it if you find yourself in this situation.
KEEP UP THE FIGHT!
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