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Name
2 Address
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City, State, Zip
4 Specially Appearing Defendant In Propria Persona
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Superior Court of California, County of ___________,
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Case No.: _________________
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__________________________________, Notice of Motion and Motion to Quash Simulated Legal
11 Process; Memorandum of Points and Authorities;
Plaintiff, Declarations of ________________
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in Support Thereof
13 vs.
Limited Civil
14 ____________________________ and
DOES 1 to ___, inclusive, Hearing Date : ________________
15 Hearing Time : ________________
Defendants. Assigned to : ________________
16 Department : ________________
17 [Action filed : ____________________
18 ____________ Courthouse
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20 To plaintiff, _____________________________________, (“Plaintiff”) and their attorneys of
21 record:
22 Please take Notice: that on the above-referenced hearing date at the above-referenced
23 hearing time, or as soon thereafter as the matter may be heard, in the above-referenced
24 department of the above-entitled court located at _________________________, California,
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named defendant ______________________ (“Named Defendant”), will appear specially and
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move the Court for an order quashing Plaintiff’s void process, namely the summons.
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This motion is made pursuant to Code of Civil Procedure §§ 418.10, 412.20 and 1167 on
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the grounds that Named Defendant does not recognize the simulated legal process styled as
SUMMONS for the reason that the seal of the court was not affixed to the summons as required
-1-
Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
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by CCP § 412.20; therefore, the purported service on Named Defendant was not valid and should
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be quashed.
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This motion shall be based on (1) this notice of motion, (2) the attached memorandum of
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points and authorities, (3) the complete pleadings, documents, files, and records of this action,
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and (4) such other oral and/or documentary evidence as may be presented at the hearing.
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Respectfully submitted,
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9 Dated: ______________ By:
10 ___________________________,
Specially Appearing Defendant in Propria Persona
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** IMPORTANT NOTICE TO CLERKS **
SETTING THE HEARING OF THIS MOTION ON CALENDAR
15 SERVICE OF THIS NOTICE OF MOTION ON THE PLAINTIFF
16 The notice of motion must designate a date for the hearing that is not less than 3 days and
17 not more than 7 days after the notice is filed. [CCP §1167.4(a); CRC 3.1327(a).] The CCP §1013
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extensions for mailing apply [CRC 3.1327(a)] adding 5 more days to this Notice period, which
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means that the Notice of Hearing needs to be calendared 8 to 12 days from the day after the
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Notice of Motion is served by mail and then filed.
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The CALIFORNIA JUDGES BENCHGUIDES, Benchguide 31 Landlord-Tenant
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Litigation: Unlawful Detainer [Revised 2015] (“Judges Bench Guide”) § 31.3 General
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Background further supports calendaring the hearing 8 to 12 days from the day after the Notice
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of Motion is served by mail in relevant part as follows:
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“A motion to quash (CCP § 1167.4) must be heard within 3 to 7 days and any summary
26 judgment motion (CCP § 1170.7) within 5 days of notice.” [emphasis added]
27 ***You Are Not a Party to This Action – Legal Advice of This Matter Has Not Been Requested From You***
YOUR TIMELY OBEDIENCE AND THE FAITHFUL PERFORMANCE OF YOUR DUTY IS MUCH
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APPRECIATED
***Because of the Summary Nature of this Action YOUR Refusal to File Will Likely Financially Ruin and
Irreparably Injure a Family***
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
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THANK YOU
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Memorandum of Points And Authorities
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I. Statement Of Facts
1. As of the date of this writing, ________________________ (“Named Defendant”) denies being
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served a valid summons and complaint. (See Declaration of Marsha Lee Nichols (“Decl. of
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9 MLN” ¶¶ 1 - 2))
10 2. Named Defendant does not recognize the papers left as valid for the reason that the seal of the
11 court was not affixed to the paper titled SUMMONS as required by CCP §§ 153, 412.20 and
12 1167. (See Decl. of MLN” ¶ 3)
13 Named Defendant contends that she was served a void process.
14 II. Legal Argument
15 A. The Plaintiff has the Burden of Showing that Service of a Summons and
16 Complaint on Named Defendant is Valid
17 Case law is clear that once a defendant files a motion to quash service that the plaintiff
18 has the burden of proving that the service was valid.
19 Once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance
20 of the evidence the validity of the service and the court's jurisdiction over the defendant. Bolkiah v.
21 Superior Court (1999) 74 Cal.App.4th 984, 991.
22 A defendant is under no duty to respond to a process that only pretends authority and may stand
23 mute until a plaintiff makes a showing of the validity of the service to the satisfaction of the court.
24 Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111.
25 The authorities are uniform that all process issuing from a court, which by law
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authenticates such process with its seal, is void if issued without a seal. Aetna Insurance Co. v.
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Hallock, 73 U.S. 556 (1868).
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Thus, Plaintiff now has the burden of showing service of a valid Summons and Complaint on
Named Defendant.
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
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B. The Paper titled SUMMONS Served is Void
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1. California Code of Civil Procedure § 418.10 states that a defendant may file a Motion to Quash
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Service of Summons on the ground of lack of jurisdiction of the Court over him or her. The main
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grounds used are that the service on the defendant was defective as the Court does not acquire
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jurisdiction over a defendant unless proper service of the Summons and Complaint has been made.
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This is so even though the defendant may be a resident of California.
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8 2. California Code of Civil Procedure § 412.20 expressly deals with jurisdiction of the court and
9 requires that a summons shall be directed to the defendant, signed by the clerk and issued under
10 the seal of the court in which the action is pending. In this instant action, the summons directed to
11 the defendant contains no seal. This is despite the fact that said form titled SUMMONS provides a
12 designated space for the court’s seal to be affixed and cites CCP § 412.20.
13 3. Additionally, the burden to obtain the correct number of copies of a valid summons to be directed
14 to the defendant lies with the Plaintiff, see California CCP § 412.10 which states: “After payment
15 of all applicable fees, the plaintiff may have the clerk issue one or more summons for any
16 defendant.” Defendant does not waive Plaintiff’s duty to obtain a copy of a valid summons.
17 4. Furthermore, even in the case of an electronically-filed summons and complaint, a trial court, upon
18 request of the party filing the action, shall issue a summons with the court seal and the case
19 number. The court shall keep the summons in its records and may electronically transmit a copy
20 of the summons to the requesting party. Personal service of a printed form of the electronic
21 summons shall have the same legal effect as personal service of an original summons.
22 5. According to California Government Code § 68074.1. The seal of any superior court may be
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affixed by a seal press or stamp which will print or emboss a seal which will reproduce legibly
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under photographic methods.
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6. It stands to reason that if the seal is required to reproduce legibly under photographic methods then
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the Defendant is entitled to have a “copy” of the original summons that is directed to ___, signed
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by the clerk and issued under the seal of the court in which the action is pending. In fact the only
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exception to this would be if the summons was transmitted by telegraph, see CCP § 1017, where
the exception is expressly provided. Defendant believes that in this instant matter said summons
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
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was not transmitted by telegraph and therefore not entitled to the benefit of the exception.
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7. A Motion to Quash Service is a “special appearance” meaning that it does not admit the Court’s
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jurisdiction over the defendant.
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8. Case law in California is well-settled that once a defendant files a motion to quash service that the
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plaintiff has the burden of proving that a summons is valid.
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9. Once a defendant files a motion to quash, the burden is on the plaintiff to prove by a
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preponderance of the evidence the validity of the service and the court’s jurisdiction over the
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defendant. Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991.
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10. The Courts in the State of California have ruled that a defendant is under no duty to respond to a
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defectively served summons until a plaintiff shows that service is valid.
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11. In this instant action, process is fatally defective on its face. The defendants have received nothing
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and this limited jurisdiction court lacks subject matter jurisdiction to proceed.
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12. This motion is timely and is filed before the time to plead has expired and is not intended to
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hinder, annoy or cause any unnecessary delay to the purported Plaintiff but is in the assertion of
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the Respondents Rights to due process.
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17 The Document Titled SUMMONS is Void on its Face
18 13. California Government Code § 22 states:
19 “Process” includes a writ or summons issued in the course of judicial proceedings of either a civil
20 or criminal nature.
21 14. The California legislature has defined that a process must be sealed. California Code of Civil
22 Procedure § 153 states:
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“Except as otherwise expressly provided by law, the seal of a court need not be affixed to any
24 proceeding therein, or to any document, except to the following:
(a) A writ.
25 (b) A summons.
26 (c) A warrant of arrest.”
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
1
2 15. In CCP § 412.20(a) it is clear that the sealed summons is directed to the “defendant”; and states:
3 “Except as otherwise required by statute, a summons shall be directed to the defendant, signed by
the clerk and issued under the seal of the court in which the action is pending, …”
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16. In regards to a summons, a writ and a warrant of arrest the legislature clearly required that a sealed
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process was required and in the case of a summons that the sealed process be directed to the
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defendant.
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17. In i.e. Aetna Insurance Co. v. Hallock, 73 U.S. 556 (1868), in regards to the failure to use the
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9 official court seal, the United States Supreme Court looked at whether or not the omission to use
10 the seal of the court made the order void, or was it merely voidable. It was decided that if the law
11 required that the process be issued under the seal of the court, there can be no question that it was
12 void and conferred no authority.
13 18. It is clear that if a summons is void and confers no authority then any subsequent process will also
14 be void. In California for instance the sheriff has a duty to serve a facially valid process, see
15 California Government Code § 22608, which states:
16 “The sheriff shall serve all process and notices in the manner prescribed by law.”
17 19. Additionally, that a sheriff or other ministerial officer is justified in the execution of, and shall
18 execute, all process and orders regular on their face and issued by competent authority, whatever
19 may be a defect in the proceedings upon which they were issued, see CCP § 262.1.
20 20. In determining whether process and orders are `regular on their face' so far as the liability of such
21 an officer is concerned, the following statement from Aetna Ins. Co. v. Blumenthal (1943), 129
22 Conn. 545, 553 [29 A.2d 751], is pertinent: `When we speak of process “valid on its face,” in
23 considering whether it is sufficient to protect an officer, we do not mean that its validity is to be
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determined upon the basis of scrutiny by a trained legal mind; nor is it to be judged in light of facts
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outside its provisions which the officer may know. [Citations.] Unless there is a clear absence of
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jurisdiction it is sufficient if upon its face it appears to be valid in the judgment of an ordinarily
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intelligent and informed layman. To hold otherwise would mean that an officer must often act at
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his peril or delay until he has had an opportunity to search out legal niceties of procedure, and ...
“a result subjecting him to constant danger of liability would be an intolerable hardship to him,
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
1
and inevitably detract from the prompt and efficient performance of his public duty. Also see: 42
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Cal. Jur.3d, Law Enforcement Officers, Sec. 62; see also Hayward Lumber & Inv. Co. v. Biscailuz
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(1957) 47 Cal. 2d 716, 722; Norcross v. Nunan (1882)61 Cal. 640, 643; Arrieta v. Mahon (1982)
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31 Cal.3d 381].
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21. In this instant action the page titled SUMMONS is void on its face because it is not certified by the
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clerk and directed to the defendant and made under the legislatively-mandated seal of the superior
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court and as a result this court lacks subject matter jurisdiction and personal jurisdiction.
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22. Any further attempt at presenting a pretended legal process as valid will make the initiating party
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criminally and civilly liable.
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III.
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Conclusion
12 For all of the aforementioned reasons, Named Defendant respectfully requests the court
13 to quash void summons to prevent a miscarriage of justice.
14 Respectfully submitted,
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Dated: ________________ By:
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_______________________,
18 Specially Appearing Defendant in Propria Persona
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20 Declaration of __________________
21 I, _________________________, am a named defendant in this matter, and I declare the
22 following in support of my Motion to Quash Summons as a void Process:
23 1. A true, correct, and materially complete copy of the simulated legal process titled SUMMONS
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received is attached to my declaration.
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2. Said page titled SUMMONS lacks the legislative-mandated seal of a superior court.
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3. I do not recognize the process left as valid for the reason that the seal of the court was not affixed
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to the page titled SUMMONS as required by California Code of Civil Procedure § 153.
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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true, correct and materially complete that if called as a witness I am competent to
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
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testify to such matters.
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Executed this 13th day of May , 2019.
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
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Attachment 1 - Summons
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
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Proof of Service
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I am over the age of 18 and not a party to this action.
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I, (name,) am a resident of or employed in the county where the
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mailing occurred; my business/residence address is:
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, CA
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7 On (date) I mailed the foregoing document(s) described as:
8 1. Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points
and Authorities; Declarations of ______________________ in Support Thereof
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On the following parties:
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11 _________________
_______________________
12 _______________________
_______________________
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[XX] (By U.S. Mail) I deposited such envelope in the mail at San Jose, California with postage thereon
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fully prepaid. I am aware that on motion of the party served, service is presumed invalid in postal
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cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.
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[ ] By overnight delivery. I enclosed the documents in an envelope or package provided by an
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20 overnight delivery carrier and addressed to the persons at the above addresses. I placed the envelope or
21 package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight
22 delivery carrier.
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I declare under penalty of perjury under the laws of the State of California that the foregoing is
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true and correct.
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DATED:
28 ___________________________________________
(Sign)
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
1
Instructions (Not To Be Served Or Filed)
2
These are instructions of what we would do to serve and file this Motion to Quash.
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4 Pre-Filing Steps:
1. Print, sign (blue ink) the Motion to Quash
5 2. Complete the Proof of Service (last page) with the mailer’s name and address.
3. Do not have the mailer sign the Proof of Service until after it has been mailed.
6 4. Make two black & white copies (3 for some counties).
7 5. Address an envelope to the attorney
a. Use Defendant’s Return Address
8 b. Use the Attorney’s address that is on the Proof of Service
6. Affix proper postage (1 stamp for every 3 pages)
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10 Day of Filing:
1. Make 1st visit to the courthouse to confirm (or acquire) the hearing date
11 a. Ask to be directed to the unlawful detainer filing clerk
b. Tell the filing clerk that you are not there to file at that very moment but that you
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would like to confirm (or acquire) the hearing date before you mail the copy to
13 Plaintiff’s attorney. If the clerk wants to set the date inside of 12 days from the filing
date, please refer him/her to the Notice to Clerk on line 12 of page 2 and argue that
14 extra days must be added for notice to the attorney. If pushed to accept less than 8
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days, leave and call us to discuss.
c. Hand-write corrections (or the date and time if not previously printed) on all copies.
16 d. Leave the court with all paperwork.
2. Have mailer seal a copy of Motion to Quash and an unsigned Proof of Service in the
17 envelope and then mail it to the attorney.
18 3. Have the mailer sign (blue ink preferred) the original Proof of Service to be filed.
4. Go back to the filing clerk and file the paperwork.
19 a. Pay the filing fees (we pay cash or we apply for a fee waiver + order on fee waiver)
b. Have the court stamp our copies for our records
20 c. (San Francisco & Marin only) deliver a courtesy copy to the department (courtroom)
21 (identified on page 1) clerk.
d. Always ask the filing clerk for a print-out of the Register of Actions
22 Congratulations! The papers are now served and filed.
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Court filing fees can be found here - http://www.courts.ca.gov/documents/filingfees.pdf
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The filing fees will be as follows: (check the form at
25 https://www.courts.ca.gov/documents/fw001.pdf to see if you qualify for a fee waiver)
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27 First Motion to Quash Limit under $10,000 Limit over $10,000 Any Subsequent Motion to Quash
Statewide (most counties) $225 $435
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Riverside $255 $450
San Bernardino $240 $435 $60
San Francisco $225 $450
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Notice of Motion and Motion to Quash Simulated Legal Process; Memorandum of Points and Authorities; Declarations
of _________________________________ in Support Thereof
