XXX
XXX
XXX
SUPERIOR COURT OF THE STATE OF XXX
COUNTY OF XXX
The PEOPLE OF STATE OF XXX
Plaintiff,
v.
XXX
Defendant.
Case No.: XXX
NOTICE OF MOTION AND MOTION TO
DISMISS FOR LACK OF PERSONAL
JURISDICTION
Judge: XXX
Department: XXX
Time/Date:
NOTICE OF MOTION TO DISMISS
TO THE SUPERIOR COURT, TO THE PEOPLE OF THE STATE OF XXX
AND TO THEIR ATTORNEYS OF RECORD AND TO HON. MEGAN WAGNER:
NOTICE IS HEREBY GIVEN that Defendant XXX , at the venue indicated or
at such other venue as the court shall prescribe, will move this Court for an Order dismissing the
above captioned matter, Case No.: XXXX
The Motion to Dismiss will be based on the grounds that there is insufficiency of service,
and that this Court lacks personal jurisdiction over the Defendant.
Further, the motion will be based on this Notice of Motion, the Motion itself and the
averments therein, on any records and files already filed in this case, and on such evidence as
may be presented at the hearing of the motion.
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NOTICE OF MOTION AND MOTION TO DISMISS
Dated: 21 st June XXX
Respectfully submitted,
______________________________
XXX
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NOTICE OF MOTION AND MOTION TO DISMISS
MOTION TO DISMISS
COMES NOW, Defendant XXX, pro se, and files this Motion to Dismiss the
Plaintiff’s Complaint, pursuant to Rule 4.112(b) of the Criminal Rules. In support of this Motion,
Defendant states as follows:
BACKGROUND
Plaintiff filed the instant case against Defendant on or about May 3, XXX. In the said
Complaint, the Plaintiff averred inter alia, that Defendant, in violation of Section 12951 (b) of
the Vehicle Code (Failure to Present License to Peace Officer), allegedly failed to present his
license for examination upon demand by a peace officer enforcing the provisions of the Vehicle
Code.
Defendant hereby files this Motion to Dismiss the said case on the grounds of want of
this Court’s jurisdiction; and insufficient service of process.
I. THERE WAS INSUFFICIENT SERVICE OF PROCESS
According to Section 740 of California’s Penal Code, “all misdemeanors and infractions
must be prosecuted by written complaint under oath subscribed by the complainant. Such
complaint may be verified on information and belief” ”. (Emphasis added). See CA Penal Code
§740 (2018). Section 959.1 of California’s Penal Code proceeds to state that “[A]n accusatory
pleading [or a Complaint,] shall be deemed to have been filed when it has been received by the
magistrate or court” It is at this point that the Court then serves the documents to the Defendant.
See CA Penal Code § 959.1 (2018).
In the instant action, Defendant asserts that the court failed to issue service of process
pursuant to CA Penal Code §§ 740 & 959.1 (2018), et seq. The Complaint has not been sworn
under oath and/or subscribed by the complainant. Besides, the Defendant never waived the
defects in the service of process.
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NOTICE OF MOTION AND MOTION TO DISMISS
II. THE COURT LACKS PERSONAL JURISDICTION OVER THE
DEFENDANT
According to Section 962 of California’s Penal Code, “[t]he facts constituting jurisdiction
… must be established on the trial”. See CA Penal Code § 962 (2018). When a Defendant moves
to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of
demonstrating facts justifying the exercise of jurisdiction. See Burdick v. Superior Court, 233
Cal. App. 4th 8, 183 Cal. Rptr. 3d 1 (2015).
It is also noteworthy that insufficiency of service of process is a ground to challenge
personal jurisdiction of the case over the Defendant. To determine whether the assertion of
personal jurisdiction is consistent with due process, Courts have long relied on the principles
traditionally followed by American courts in marking out the territorial limits of each State’s
authority. See Pennoyer v. Neff, 95 U.S. 714, 722, 24 L.Ed. 565. The classic expression of that
criterion appeared in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154,
158, 90 L.Ed. 95, which held that a state court’s assertion of personal jurisdiction must not
violate "traditional notions of fair play and substantial justice." Accordingly, all rules of state-
court jurisdiction must satisfy contemporary notions of due process. See Haffer v. Heitner, 433
U.S. 186, 212, 97 S.Ct. 2569, 2584, 53 L.Ed.2d 683. It is in that light that courts have held that a
prerequisite to the court’s acquiring personal jurisdiction over the defendant is proper service on
the defendant of the summons and complaint. Grand Entm’t Grp. v. Star Media Sales, Inc., 988
F.2d 476, 492 (3d Cir. 1993).
In the instant action, Defendant avers that the insufficiency of process divested this Court
of personal jurisdiction over the Defendant. It should be noted in that regard that “[j]urisdiction
of the person, on the other hand, may be created by the consent of a party, who thereby waives
any objection to defects in the process by which he is brought before the court”. Crown
Construction v. Neifeld v. Steinberg, 438 F. 2d 423 (3d Cir. 1971); See also 21 Am. Jur. 2d,
Criminal Law § 379 (1968). Accordingly, Defendant EUN JUNG LIM never granted the court
Personal Jurisdiction.
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NOTICE OF MOTION AND MOTION TO DISMISS
CONCLUSION
WHEREFORE, the foregoing considered, Defendant avers that there was insufficient
service of process in the case. As a result, the SUPERIOR COURT OF THE STATE OF
XXX, COUNTY OF ORANGE, does not possess Personal Jurisdiction over
Defendant XXX. This case should therefore be dismissed on the said grounds.
Date: 21 st June XXX
Respectfully submitted,
______________________________
XXX
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NOTICE OF MOTION AND MOTION TO DISMISS
CERTIFICATE OF SERVICE
I hereby certify that on 21 th June XXX, copies of the foregoing document have been
served upon the prosecutor in this case by personal delivery to his or her office at the following
address:
XXXX
District Attorney
Suite
XXX
XXX
XXXX
District Attorney
Suite XXX
XXX
XXX
DATED: 21 st June XXX
Respectfully submitted,
_________________________
XXX
Respectfully submitted,
_________________________
XXX
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NOTICE OF MOTION AND MOTION TO DISMISS
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California County of _______________
Subscribed and sworn to (or affirmed) before me on this ______ day of _____________, 20___,
by _______________________ ___________________________________________________,
proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.
(Seal)
_________________________
Signature
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