Toledo v. Superior Court

Petitioner seeks a peremptory writ of mandate directing the respondent court to issue an order quashing services of summons upon her as administratrix of the estate of a deceased alleged tortfeasor. The real party in interest, who seeks to recover damages for injuries allegedly suf *452 fered as a proximate result of the negligence of the decedent has filed a return to an alternative writ of mandate issued by this court.

Petitioner contends that no notice of the pendency of the action in which the summons was issued and ultimately served on her was filed in the probate proceedings, as required by section 714 of the Probate Code, 1 and that she was discharged as administratrix prior to the service of summons on her in her administrative capacity.

The claimant contends that a motion to quash the service of summons under section 418.10 of the Code of Civil Procedure 2 is not the proper manner to attack the alleged defective service, that petitioner had actual notice of the pendency of the action in which she was served and is estopped to deny the validity of the service, and that in any event the petitioner is in no way prejudiced in being required to defend on behalf of…