Woodland Hills personal injury lawyer Barry P. Goldberg runs into litigation service deadlines on a regular basis. It can be confusing calculating when a legal document is considered “served” according to the Code of Civil Procedure. Even a minor mistake can be costly to a client and, depending on the document, deprive the court of jurisdiction.
In a busy litigation and trial practice, we see documents served early, on time and late. Further, it is interesting to actually read the proofs of service filed with the documents, in all likelihood, prepared by a legal assistant or para-professional. Many lawyers never bother to look at the form and format for the proofs of service. That could be a costly mistake and subject the lawyer to malpractice claims.
It is common knowledge that Code of Civil Procedure section 1013a sets forth three methods for a party to prove service by mail Subdivision (3) of section 1013a governs the method of service where correspondence is placed in an outgoing mail bin from which it is picked up, combined with other outgoing mail and then deposited with the United States Postal Service (USPS) that same day in the ordinary course of business. Service under subdivision (3) is presumed invalid if the postmark is more than one day after the date of deposit for mailing contained in the proof of service declaration. A simple comparison of the postmark with the date on the proof of service can be enlightening!
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.”
Sometimes the mail “gets messed up!” Therefore, the above 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. In order to effectively rebut the presumption, a party seeking to invalidate the service must “affirmatively invoke” the issue.
Recent case law suggests that a party’s failure to file a motion or otherwise clearly indicate to the trial court and the opposition that it was seeking an order invoking the presumption of invalidity deprived the court and opposition of notice of the issue presented. Moreover, it deprived the opposition the opportunity to present any evidence to rebut the presumption.
It is recommended that any time critical document service be reviewed by the lawyer. Special attention should be paid to the affidavit of service and post markings. Perhaps more importantly, the mailing procedures of the office should be reviewed and establish to make certain the presumption of service both attaches and can be defended.
