California: Motion to Quash service of Summons in a custody case?

[kissal]

What is the name of your state (only U.S. law)? California State.
I am working on my motion to quash service of Summons based on the fact that the Petitioner filed a custody and paternity case in the improper venue. The child and the mother (Defendant) have lived in another county for 5 years and never lived in the venue where the Petitioner filed, neither one of the parties live there actually.

1. Under what code should this motion be filed? (Civil code &418.10 or Family Law Section 7620?) or both?
2. What code section refers to when the similar case is pending for the same parties at a different venue of the same state and it should be quashed because the case is already pending at another venue?

Thanks

 

[Ohiogal]

What is the name of your state (only U.S. law)? California State.
I am working on my motion to quash service of Summons based on the fact that the Petitioner filed a custody and paternity case in the improper venue. The child and the mother (Defendant) have lived in another county for 5 years and never lived in the venue where the Petitioner filed, neither one of the parties live there actually.

1. Under what code should this motion be filed? (Civil code &418.10 or Family Law Section 7620?) or both?
2. What code section refers to when the similar case is pending for the same parties at a different venue of the same state and it should be quashed because the case is already pending at another venue?

Thanks

Who are you in this situation?

 

[tranquility]

Usually "venue" is something one motions to change and not generally a reason to quash service. Reading between the lines, you might be talking about a case a different court already has jurisdiction over.

 

[kissal]

I am the mother (Defendant)

 

[latigo]

What is the name of your state (only U.S. law)? California State.
I am working on my motion to quash service of Summons based on the fact that the Petitioner filed a custody and paternity case in the improper venue. The child and the mother (Defendant) have lived in another county for 5 years and never lived in the venue where the Petitioner filed, neither one of the parties live there actually.

1. Under what code should this motion be filed? (Civil code &418.10 or Family Law Section 7620?) or both?
2. What code section refers to when the similar case is pending for the same parties at a different venue of the same state and it should be quashed because the case is already pending at another venue?

Thanks

Code sections are meaningless here for the simple reason that you have no legal grounds to cause the service of summons to be quashed.

Nor is moving to have it quashed the proper method to raise the issue of proper venue. What you do is to file and serve your motion and affidavit to have the application dismissed because of lack of proper venue.

 

[kissal]

Code sections are meaningless here for the simple reason that you have no legal grounds to cause the service of summons to be quashed.

Nor is moving to have it quashed the proper method to raise the issue of proper venue. What you do is to file and serve your motion and affidavit to have the application dismissed because of lack of proper venue.

I talked to an attorney and she told me that I have to file a motion to quash the case. May be I am saying it wrong when saying " motion to quash service of summons", may be I should just say " motion to quash the case"? And I thought I would write a motion but I have to state codes that state the grounds for quashing the Petitioner's summons. I wrote that the Petitioner's complaint should be quashed in compliance with Family Code Section 7620. Is that enough, or should I also include some other code? Thank you.

 

[Ohiogal]

I talked to an attorney and she told me that I have to file a motion to quash the case. May be I am saying it wrong when saying " motion to quash service of summons", may be I should just say " motion to quash the case"? And I thought I would write a motion but I have to state codes that state the grounds for quashing the Petitioner's summons. I wrote that the Petitioner's complaint should be quashed in compliance with Family Code Section 7620. Is that enough, or should I also include some other code? Thank you.

You cannot quash a case. You would need to motion to have it dismissed. You really need to hire counsel because if you screw it up you could inadvertently accomplish the exact opposite of what you want to do.

 

[kissal]

You cannot quash a case. You would need to motion to have it dismissed. You really need to hire counsel because if you screw it up you could inadvertently accomplish the exact opposite of what you want to do.

Isn't "quash" and "dismiss" the same? I thought to quash the case is the same as to dismiss the case, but "quash" is proper legal term to use on a pleading form when filing?

 

[Proserpina]

Isn't "quash" and "dismiss" the same? I thought to quash the case is the same as to dismiss the case, but "quash" is proper legal term to use on a pleading form when filing?

Two attorneys have just told you that they're not the same.

You might want to pay attention to both.

 

[kissal]

Two attorneys have just told you that they're not the same.

You might want to pay attention to both.

Thank you so much. Yes, it is hard for me to understand because the attorney I talked to, did in fact mention the term "quash" and that is why I thought so. Anyway, I have another question then. What is better to do in my case then: Dismiss the case or motion for the change of venue? Since the purpose is that the case was filed in the wrong court? What is more likely to be granted by the judge in my case? and again the situation is the following:
1. Petitioner (father) filed for Custody/paternity in County A
2. Petitioner (father) lives in County B
3. Defendant (mother) and the child live in County C
4. DCSS filed for child support in County C

My only problem is that Petitioner filed in the improper venue, plus Petitioner is evading service by DCSS. My goal to have all this handled in the proper court of County C. I have 2 options: dismiss the case ( which is cheaper in terms of fees and less complicated or motion for change of venue ( which involves more fees and paper work).
But what is more likely to be approved by the judge?

 

[latigo]

Thank you so much. Yes, it is hard for me to understand because the attorney I talked to, did in fact mention the term "quash" and that is why I thought so. Anyway, I have another question then. What is better to do in my case then: Dismiss the case or motion for the change of venue? Since the purpose is that the case was filed in the wrong court? What is more likely to be granted by the judge in my case? and again the situation is the following:
1. Petitioner (father) filed for Custody/paternity in County A
2. Petitioner (father) lives in County B
3. Defendant (mother) and the child live in County C
4. DCSS filed for child support in County C

My only problem is that Petitioner filed in the improper venue, plus Petitioner is evading service by DCSS. My goal to have all this handled in the proper court of County C. I have 2 options: dismiss the case ( which is cheaper in terms of fees and less complicated or motion for change of venue ( which involves more fees and paper work).
But what is more likely to be approved by the judge?

You could either file your motion and affidavit asking that venue be transferred to County C, or that the petition under California' Uniform Parentage Act be dismissed for improper venue and jurisdiction. And in either instances cite as authority Section 7620 (b) of the California Family Code. *

Under normal circumstances improper venue is never grounds to dismiss a complaint. But lack of jurisdiction is. And here by use of the conjunctive the Act implies that both jurisdiction and venue are afforded only to the county where the child resides or can be found.
__________________

"CHAPTER 3. JURISDICTION AND VENUE §7620:

* * * * *

(b) An action under this part may be brought in the county in which the child resides or is found . . . . "

Good luck

 

[kissal]

You could either file your motion and affidavit asking that venue be transferred to County C, or that the petition under California' Uniform Parentage Act be dismissed for improper venue and jurisdiction. And in either instances cite as authority Section 7620 (b) of the California Family Code. *

Under normal circumstances improper venue is never grounds to dismiss a complaint. But lack of jurisdiction is. And here by use of the conjunctive the Act implies that both jurisdiction and venue are afforded only to the county where the child resides or can be found.
__________________

"CHAPTER 3. JURISDICTION AND VENUE §7620:

* * * * *

(b) An action under this part may be brought in the county in which the child resides or is found . . . . "

Good luck

Here is what I wrote on my first page of the Motion to Change Venue. I am not sure if I should keep all those other codes in there or just file based on 7620 Section alone? I would appreciate your advice. Thank you.

" TO PLAINTIFF, Mr.X AND THEIR ATTORNEYS OF RECORD.

PLEASE TAKE NOTICE that on ______, at__________M, or as soon as this matter can

be heard, in Department ___ of the above-entitled court located at 3341 Power Inn Rd,

Sacramento CA 95826, specially appearing defendant, Ms.Y will appear and

move the Court, pursuant to California Code of Civil Procedure &&395(a), 397(a),(c),

and California Family Code Section 7620(b)(1) and Section 3900 for an order transferring this

action to the Superior Court of California for the County of Placer. This Motion is

made on the grounds that the court designated in Plaintiff Mr.X complaint

is not the proper court because Defendant and the minor child reside in Placer County,

neither one of the parties of this case nor witnesses reside in Sacramento County, and

Child Support action is pending in the Placer County Court; and no basis exists for

venue to be proper in Sacramento County.""

 

[CourtClerk]

You really need to hire an attorney because no one here is going to hold your hand, proofread your motions, write them for you, etc. That would be something we get paid for.

 

[kissal]

You really need to hire an attorney because no one here is going to hold your hand, proofread your motions, write them for you, etc. That would be something we get paid for.

oh, I am sorry. I did not know that. I just thought it would not matter what kind of legal advice is asked here. I just could not afford the attorney as I spoke to a few and just to write a motion for me the attorney would charge $900. And after that every paper is about $900. That is why I had to write it myself but I am sorry if I insulted anyone. Thank you.

 

[CourtClerk]

oh, I am sorry. I did not know that. I just thought it would not matter what kind of legal advice is asked here. I just could not afford the attorney as I spoke to a few and just to write a motion for me the attorney would charge $900. And after that every paper is about $900. That is why I had to write it myself but I am sorry if I insulted anyone. Thank you.

You didn't insult anyone, but we don't hand hold over here. There isn't enough time in the day, nor are there enough people in every state of the union who could sit and walk you through this. I will tell you this. There are self help clinics in every county in CA that MAY be able to help you along a bit. That help may come in the form of reading and suggesting or giving you a book to read for you to help yourself, but CA courts are REALLY busy. My courtroom was nonstop and at some point, you just have to tell people know.

Granted, my experience comes from LA County, can't speak much for Placer or Sacramento County