Q: Ca, won't let me file a motion to dismiss insufficient service process as the defendant what should I title the motion?
I am being sued by my brother who hasn't served me, apparently had a hearing and was told he didn't serve me but was extended time to do so. I tried to file a motion to dismiss for insufficient service of process, however, I was informed as the defendant that I cannot file a motion to dismiss, only the plaintiff can. As the defendant, what wording am I afforded to ask for the dismissal for lack of service?
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A:
In California, as the defendant, you may not file a motion to dismiss directly. Instead, you can file a "Motion to Quash Service of Summons" if you believe the service of process was insufficient or improper. This motion challenges the court's jurisdiction over you due to the failure of proper service.
Filing a motion to quash will require you to explain why the service was not valid and request that the court quash, or nullify, the service of summons. This is the correct legal route to contest improper service rather than seeking dismissal outright.
After filing the motion, the court will typically set a hearing date where you can present your case. If the court agrees with your arguments, the plaintiff will need to re-serve you correctly before the case can proceed.
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