Of Proofs and Postmarks

Simplon Ballpark v. Scull, No. D06291 (D4d1 Mar. 30, 2015)

I don’t often think about proofs of service. A legal assistant attaches them after my work is done. But when they go wrong, they can go really wrong, especially when a jurisdictional deadline is at issue.  The court here reads the mail service statute to save a defendant, who lost at trial but won a JNOV, and then almost lost again due to a postmarking issue. 

Most documents can be served by mail. Code of Civil Procedure § 1013a addresses the various methods of proof of that service. Apropos here, § 1013a(1) permits proof by attesting that the document was “deposited in” the mail. On the other hand, § 1013a(3) permits proof of service by attestation that the mail was placed in an outgoing mail bin, when an established office practice is to combine the binned mail and give it to the post office on the same day. That proof, however, is presumed invalid if the postmark is more than one day after the pleading was supposedly served. The presumption is a burden-shifting rebuttable presumption. I.e., it affects the burden of coming forward with evidence.

The court here first finds that this wasn’t § 1013a(1) service. In light of the statutory structure, “deposited in” requires a declaration stating the date and place where the document was actually delivered to the postal service or put in a mailbox. That’s not what was at issue here.

As far as §1013a(3) goes, the one-day postmarking presumption applies only “upon motion of the party served.” Thus, to be entitled to the benefits of the presumption of non-compliance, the served party must file a motion or application seeking an invalidation of the service. Since plaintiff never filed a motion to invoke the presumption, the burden never shifted to defendant. Because of that, defendant never received notice that it would have needed to submit evidence in rebuttal. So plaintiff’s argument that there was no jurisdiction for the trial court to address the JNOV due to late service was forfeited in the trial court.

Affirmed.