Service by mail must be made in strict compliance with the mandates of sections
1013 and 1013a. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509; Dobrick v.
Hathaway (1984) 160 Cal.App.3d 913, 921.) Section 1013 provides that for service by
mail, the correspondence must be "deposited in a post office, mailbox, subpost office,
substation, or mail chute, or other like facility regularly maintained by the [USPS], in a
sealed envelope, with postage paid, addressed to the person on whom it is to be served"
and that "[s]ervice is complete at the time of the deposit."
Section 1013a sets forth three methods for a party to prove service by mail. All
three subdivisions require an affidavit or certificate "setting forth the exact title of the
document served and filed in the cause" and "showing the name and residence or
business address of the person making the service." (§ 1013a, subds. (1), (2) & (3).)
Subdivisions (1) and (2) set forth the method for service where the declarant actually puts
the correspondence in a mailbox or takes it to the post office. Under subdivision (1), the
declarant must state "he or she is a resident of or employed in the county where the
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mailing occurs" and "that he or she is over the age of 18 years and not a party to the
cause." Under subdivision (2), the declarant must state "he or she is an active member of
the State Bar of California and is not a party to the cause." Subdivisions (1) and (2) also
require the declarant "show[] the date and place of deposit in the mail, the name and
address of the person served as shown on the envelope" and "that the envelope was sealed
and deposited in the mail with the postage thereon fully prepaid."
Subdivision (3) applies where the correspondence is placed in an outgoing mail
bin from which it is picked up and combined with other correspondence for mailing that
day. Under subdivision (3), the declarant must state that he or she is over the age of 18
years and not a party to the cause; he or she is readily familiar with the business' practice
for collection and processing of correspondence for mailing with the USPS; that the
correspondence would be deposited with the USPS that same day in the ordinary course
of business; the name and address of the person served as shown on the envelope; the
date and place of business where the correspondence was placed for deposit in the USPS;
and that the envelope was sealed and placed for collection and mailing on that date
following ordinary business practices. Critically, service under subdivision (3) "upon
motion of a party served, shall be presumed invalid if the postal cancellation date or
postage meter date on the envelope is more than one day after the date of deposit for
mailing contained in the affidavit."
The sole issue on appeal is whether the trial court had jurisdiction to rule on
Scull's JNOV motion. Simplon contends the proof of service declaration shows Scull
served the JNOV motion under subdivision (3). Simplon concedes the motion was timely
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filed with the trial court on Friday, July 6. It argues the motion was untimely served
because the proof of service declaration states the mailing occurred on Friday, July 6, but
the envelope was postmarked on Monday, July 9, making the service invalid. To support
this argument, Simplon presented a copy of the envelope in which the motion was served
showing a postmark dated Monday, July 9.
This appeal is premised on the argument that Scull served his posttrial motion in
compliance with the method of service described in subdivision (3) and that the service is
invalid because the "postal cancellation date or postage meter date on the envelope is
more than one day after the date of deposit for mailing" contained in the declaration. We
requested further briefing on whether Scull served his posttrial motions in compliance
with the method of service described in subdivision (1), citing the parties to the
applicable Judicial Council Forms governing civil proofs of service, namely forms POS-
030 and POS-040. Both parties submitted letter briefs, which we have considered. If
Scull served his posttrial motions in compliance with the method of service described in
subdivision (1), the postmark date on the envelope becomes irrelevant.
To ascertain whether Scull served his posttrial motions in compliance with the
method of service described in subdivision (1) or (3), we turn to the proof of service
declaration. In this document, Stephen M. Hogan (who happens to be Scull's attorney),
declared as follows:
"That I am, and was at the time of service of the papers herein referred to, over the age of eighteen years, and am not a party to the action; and I am employed in the County of San Diego, California, from within which county I served the following document(s). [¶] . . . [¶]
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"I did so by placing for deposit in the [USPS], this same day a copy thereof in a separate sealed envelope with postage thereon fully prepaid for each addressee, addressed to each such addressee respectively as set forth below: [¶] . . . [¶] "My business address is 1133 Sixth Avenue, Suite 207, San Diego, CA 92101, I am readily familiar with this firm's practice for collecting and processing of correspondence for mailing with the [USPS], and this mailing will be deposited with the [USPS] on this date in the ordinary course of business." "I declare under penalty of perjury under the laws of the State of California that the forgoing is true and correct. "Executed on July 6, 2012" (Italics added.)
Simplon argues the proof of service declaration does not show service under
subdivision (1) because it does not show the "date and place of deposit" as required by
subdivision (1) and does not confirm the documents were actually placed with or at the
USPS. Simplon argues the only reasonable inference is that service was under
subdivision (3), as suggested by the last paragraph in the proof of service declaration.
Simplon asserts that service under subdivision (3) was untimely and the trial court lacked
jurisdiction to rule on the JNOV motion.
Scull concedes that the proof of service declaration is not perfect, but argues it is
sufficient to establish service under subdivision (1). If there is any doubt whether service
was under subdivision (1) or (3), Scull claims this uncertainty was addressed in his reply
briefs below where his counsel argued that the motions were timely filed and served on
July 6. Assuming we conclude service was under subdivision (3), Scull notes that
Simplon failed to file the required motion under subdivision (3), nor did it provide cogent
argument and legal authority to the trial court to inform the court and Scull's counsel of
the exact nature of any flaw in the proof of service declaration. Had Simplon filed the
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required motion before the posttrial motions were submitted for decision, the trial court
could have addressed, and Scull could have cured, any flaw. Scull argues Simplon
denied him a fair opportunity to be heard by raising its argument in vague objections
claiming untimely service that never referenced the presumption of invalidity in
subdivision (3). Rather, he notes that Simplon made only two passing references to
subdivision (3) in its opposition briefs.
II. Analysis
A. Service was under Subdivsion (3)
To comply with subdivision (1), a proof of service declaration must show the
correspondence was "deposited in the mail." In contrast, subdivision (3) requires that the
proof of service declaration state "that the correspondence would be deposited in the
[USPS]."
Here, the proof of service declaration states, "I served the following document(s)
. . . I did so by placing for deposit in the [USPS]." This language suggests the declarant
placed the correspondence in a location for later deposit with the USPS. This
interpretation is supported by inclusion of the last paragraph which states, "[T]his mailing
will be deposited with the [USPS] on this date in the ordinary course of business." This
last paragraph is unnecessary for service of correspondence under subdivision (1).
Additionally, Simplon argues the proof of service declaration does not comply
with subdivision (1) because it does not show "the date and place of deposit in the mail."
Simplon is correct. Subdivision (1) requires the proof of service declaration show "the
date and place of deposit in the mail." In contrast, subdivision (3) does not contain this
8
requirement and instead requires that the proof of service declaration show "the date and
place of business where the correspondence was placed for deposit in the [USPS]." Here,
the proof of service declaration does not show "the date and place of deposit in the mail"
as required by subdivision (1); rather, it shows the date and place of business where the
correspondence was placed for deposit in the USPS as required by subdivision (3).
We conclude the proof of service declaration is not ambiguous and clearly shows
service under subdivision (3).
B. Simplon Did Not Properly Raise the Defect Below
Our fundamental task involving statutory interpretation " 'is to determine the
Legislature's intent so as to effectuate the law's purpose.' [Citation.] 'We begin with the
plain language of the statute, affording the words of the provision their ordinary and
usual meaning and viewing them in their statutory context, because the language
employed in the Legislature's enactment generally is the most reliable indicator of
legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the
[courts generally construe words and phrases according to the context and the approved
usage of the language].) "If there is no ambiguity in the language of the statute, 'then the
Legislature is presumed to have meant what it said, and the plain meaning of the
language governs.' [Citation.] 'Where the statute is clear, courts will not "interpret away
clear language in favor of an ambiguity that does not exist." [Citation.]' " (Lennane v.
Franchise Tax Bd. (1994) 9 Cal.4th 263, 268.) " 'If the statutory language permits more
than one reasonable interpretation, courts may consider other aids, such as the statute's
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purpose, legislative history, and public policy.' " (Imperial Merchant Services, Inc. v.
Hunt (2009) 47 Cal.4th 381, 388.)
We found no published authority addressing the meaning of the motion
requirement or whether the presumption set forth in subdivision (3) is rebuttable.
Although we find the language of the statute to be clear and unambiguous, we searched
the legislative history to ascertain whether these issues were addressed. The Legislature
added subdivision (3) by amendment in 1987. (Stats. 1987, ch. 190, § 1, enacting Assem.
Bill No. 727 (1987-1988 Reg. Sess.).) Our independent research disclosed nothing in the
legislative history on the issues before us. Thus, we turn to the statutory language.
Subdivision (3) states, in part that "[s]ervice made pursuant to this paragraph,
upon motion of a party served, shall be presumed invalid if the postal cancellation date or
postage meter date on the envelope is more than one day after the date of deposit for
mailing contained in the affidavit." (Italics added.) Thus, the plain language of
subdivision (3) requires the party served to file a motion to invoke the presumption of
invalidity. Section 1003 provides that "[a]n application for an order is a motion."
Accordingly, the party served must request an order to invoke the presumed invalidity of
service based on an evidentiary showing that the postal cancellation date or postage meter
date on the envelope is more than one day after the date of deposit for mailing contained
in the affidavit.
Here, Simplon did not file a dedicated motion seeking such an order. Even
assuming, without deciding, a dedicated motion is not required, we note Simplon's
objections and motions to strike Scull's posttrial motions did not request such an order or
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otherwise give Scull or the trial court sufficient notice of the issue presented or the relief
requested. Rather, Simplon argued that the posttrial motions were untimely served and
filed, noting the court's register of actions indicated a filing date of July 9 and although
the proof of service for the posttrial motions stated that the motions were served by mail
on July 6, the envelope containing the posttrial motions was postmarked July 9. Simplon
never sought to invoke the presumption of invalidity or even cited section 1013a.
In its opposition points and authorities, Simplon conceded Scull's posttrial motions
were timely filed, but argued the posttrial motions were still untimely "because the facts
show that Scull did not serve [them] until three days later on July 9 . . . and the Court has
no jurisdiction to entertain this Motion. See, Cal. Civ. Proc. Code § 1013a(3)." This
superficial argument is insufficient to put Scull or the trial court on notice that Simplon
was requesting an order invoking the presumed invalidity of service. As we shall
explain, this defect is fatal.
By statute, presumptions are either conclusive or rebuttable and every rebuttable
presumption is either a presumption affecting the burden of producing evidence or a
presumption affecting the burden of proof. (Evid. Code, § 601.) Evidence Code section
602 states the following: "A statute providing that a fact or group of facts is prima facie
evidence of another fact establishes a rebuttable presumption." Subdivision (3) is such a
statute as subdivision (3) provides the existence of a postal cancellation date or postage
meter date on an envelope that is more than one day after the date of deposit for mailing
contained in the proof of service affidavit is prima facie evidence of another fact—that
the service is invalid. Thus, we hold subdivision (3) creates a rebuttable presumption.
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We next address whether the rebuttable presumption is one that affects the burden
of producing evidence or is a presumption that affects the burden of proof. (Evid. Code,
§ 601.) Evidence Code sections 603 and 604 address presumptions affecting the burden
of producing evidence. Evidence Code section 603 provides the following: "A
presumption affecting the burden of producing evidence is a presumption established to
implement no public policy other than to facilitate the determination of the particular
action in which the presumption is applied." "The effect of a presumption affecting the
burden of producing evidence is to require the trier of fact to assume the existence of the
presumed fact unless and until evidence is introduced which would support a finding of
its nonexistence, in which case the trier of fact shall determine the existence or
nonexistence of the presumed fact from the evidence and without regard to the
presumption." (Evid. Code, § 604.) Applying the criteria in these two Evidence Code
sections shows that the presumption established in subdivision (3) is a presumption
affecting the burden of producing evidence as the purpose of the presumption is to
facilitate the determination of the particular action in which the presumption is applied,
not to carry out or effectuate some other public policy. (Compare, Evid. Code, §§ 605,
606 [addressing presumptions affecting the burden of proof].)
Having determined that the presumption created by subdivision (3) is a rebuttable
presumption affecting the burden of producing evidence, the obvious purpose of the
motion requirement is to seek an order invoking the presumption of invalidity and allow
the party that made the service to present its own evidence to rebut the presumption of
invalidity. Simplon's failure to file a motion or otherwise clearly indicate to the trial
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court and Scull that it was seeking an order invoking the presumption of invalidity
deprived the court and Scull of notice of the issue presented. Moreover, it deprived Scull
the opportunity to present any evidence to rebut the presumption. Simplon did not
present a fully developed argument seeking to invoke the presumption of invalidity until
it filed the instant appeal. " ' "[I]t is fundamental that a reviewing court will ordinarily not
consider claims made for the first time on appeal which could have been but were not
presented to the trial court" and "[g]enerally, issues raised for the first time on appeal
which were not litigated in the trial court are waived. [Citations.]" ' [Citation.]" (Bank of
America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1398-1399.)
In summary, we hold that Simplon forfeited reliance on the presumption of
invalidity by failing to properly raise it below. Accordingly, the judgment is affirmed.
DISPOSITION
The judgment is affirmed. Respondent is entitled to his costs on appeal.
MCINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
MCDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The presumption of invalidity for service by mail under Code of Civil Procedure section 1013a, subdivision (3) is a rebuttable presumption affecting the burden of producing evidence that must be affirmatively invoked by a motion in the trial court. Because the appellant failed to properly raise or invoke this presumption in the trial court, the issue was forfeited on appeal.
Issues
Whether the presumption of invalidity under Code of Civil Procedure section 1013a, subdivision (3) is a rebuttable presumption affecting the burden of producing evidence.
Whether a party must affirmatively invoke the presumption of invalidity under section 1013a, subdivision (3) via motion in the trial court.
Whether the appellant forfeited the right to rely on the presumption of invalidity by failing to properly raise it in the trial court.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We hold that the presumption set forth in subdivision (3) is a rebuttable presumption affecting the burden of producing evidence that must be affirmatively invoked by the party seeking to invalidate the service.”
“the plain language of subdivision (3) requires the party served to file a motion to invoke the presumption of invalidity.”
“we hold that Simplon forfeited reliance on the presumption of invalidity by failing to properly raise it below.”