What Happens If You Are Not Properly Served?

Service is what gives a court power over a defendant. When it was not done the way the law requires, the defendant has ways to challenge it, and the plaintiff may lose time or the case. This article covers California; federal and other states' rules are noted where they differ.

Jurisdiction starts with proper service

Under Code of Civil Procedure section 410.50(a), a California court gets jurisdiction over a party from the time the summons is served as the law requires. A general appearance by a party counts the same as personal service. The courts' self-help guide, Serving court papers, says the judge cannot make any final decisions until the other side has been properly served.

The motion to quash

A defendant may file a motion to quash service of summons for lack of jurisdiction on or before the last day to respond to the complaint, or within any further time the court allows for good cause (section 418.10(a)(1)). Filing it is not a general appearance, and no default may be entered before the time to respond runs out (section 418.10(d)). Our article on insufficient service of process covers the motion's timing.

Setting aside a default

• If service did not give a party actual notice in time to defend and a default or default judgment was entered, the party may move to set it aside. The motion must be made within a reasonable time, no later than the earlier of two years after the default judgment or 180 days after written notice of the default, with a sworn statement that the lack of notice was not caused by avoiding service or inexcusable neglect (section 473.5).
• A court may, on motion after notice, set aside any void judgment or order (section 473(d)).
• Starting January 1, 2027, the law also says a party may move at any time to vacate a default judgment that is void for lack of proper service (section 473(e)), and new section 473.2 provides that once a party offers evidence that service was not lawful, the side that sought the default must prove lawful service by a preponderance of the evidence.

The plaintiff's deadlines

The summons and complaint must be served within three years after the complaint is filed. If not, the case must be dismissed, and the requirement is not subject to extension or excuse except as a statute expressly provides (sections 583.210(a) and 583.250). In federal court, if a defendant is not served within 90 days after the complaint is filed, the court must dismiss without prejudice or order service within a set time, and must extend the time for good cause (Rule 4(m)).

Other states

Each state sets its own deadline to serve and its own way to challenge service. See process serving by state.

Legal Hub Group arranges process serving for law firms in every state, with each attempt logged from the field and a proof of service built from that record. Representing yourself? Our sister company Famous Legal Services serves papers for individuals.

This is general information, not legal advice.

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