Service, Schmerice

Aquino v. Superior Court, No. A162836 (D1d5 Dec. 23, 2021)

This writ case addresses a pretty wacky venue question. Plaintiff was in three traffic accidents in three different counties but claimed not to know which accident caused her injuries so she sued all the defendants in Alameda County Superior in a single case. The Oakland defendant settled out of the case. The remaining defendants then challenged the basis for Alameda venue going forward. None of that matters, however, because the Court of Appeal finds defendants filed their writ petition four days two late.

Review of venue motions is governed by Code of Civil Procedure § 400. It permits the losing party to take a statutory writ, which must be filed “with 20 days after service of a written notice of the order.” § 400. Here, the clerk mailed the minute order to the parties, and attached a declaration of service by mail indicating that the “forgoing document” was mailed first class on May 12, 2021. So—adding five days under § 1013(a) for mail service—the § 400 period would have run on Sunday, June 6, which then shifts to June 7, the next available court day. The petition was filed on June 12, so it was too late.

Petitioners take issue with the service and argue it was inadequate to start the § 400 clock. 

First, they argue that the clerk’s declaration of service didn’t comply with § 1013a(4). But their complaints are addressed directly by the statute.
Section 1013a(4) requires a court clerk’s proof of mail service to establish that show that “the envelope was sealed and deposited in the mail with the postage thereon fully prepaid” as well as the date of deposit in the mail. Petitioners argue that the language of the declaration suggested that the clerk may not have personally deposited the envelope in the mail. But § 1013a(4) doesn’t require that. Indeed, it specifically says that this form of proof is sufficient when “the clerk or deputy clerk signing the certificate places the document for collection and mailing on the date shown thereon, so as to cause it to be mailed in an envelope so sealed and so addressed on that date following standard court practices.” § 1013a(4).

Next, they argue that the postmark was not made until the following day, suggesting the proof was invalid because declaration was false. But § 1013a(4) addresses that too. It says that if the postmark is more than a day after the attested date of deposit, the court can find service deemed to have occurred on the date of the postmark. Here, the postmark was on the following day, so the rule for later service didn’t apply.

Petitioners also expressed their belief that the clerk did not actually put the document in the mail on the date on the proof.  Mail sent from the courthouse in Hayward was taking five or more days to be delivered to Walnut Creek. But there wasn’t support for that in the record and the Petitioners don’t account for mail delays during the COVID-19 pandemic. (I would note here that mail has been taking 5-7 days to travel the 8 or so blocks between the courthouse whose address is this blog’s eponym to my office on 5th and Flower, FWIW.) The Court does remark that “it may be prudent for all lower courts to scrutinize the language they use in proofs of service from time to time.”

Finally, Petitioners also argue that service from the clerk can never start the § 400 clock. Their argument is based on § 1019.5, which requires the prevailing party on a motion to give and file notice of the ruling unless notice is waived on the record. Since Plaintiff never gave notice, say Petitioners, the clock never started. The Court doesn’t buy it, however. Under § 400, the 20 days starts on “service of a written notice of the order[.]” Plaintiff’s arguable violation of § 1019.5 does not negate the fact that Petitioners were provided with “service of a written notice of the order,” when they received the mailing from the clerk. The Court notes that the purpose of § 400 and related time limits on other statutory writs is best served if the period runs from written notice by either the clerk or the parties and that cases decided under other statutes have so held.

Petition dismissed.

Ninety Days of Tolling

Selvidge v. Tang, No. C083427 (D3 Mar. 5, 2018)

Under Code of Civil Procedure § 340.5, the statute of limitations for med-mal is one year or three years after discovery of the injury. The patient in this case died, so it’s a one year clock. Plaintiff—patient’s next of kin—sued almost three months after the year and run, so she’s too late under § 340.5.

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.