California Court of Appeals, Fourth District, First Division
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2011-00084777- CU-FR-CTL Frederic L. Link, Judge.
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Higgs, Fletcher & Mack and John M. Morris for Plaintiff and Appellant.
Stephen M. Hogan for Defendant and Respondent.
Code of Civil Procedure section 1013a sets forth three methods for a party to prove service by mail. (Undesignated statutory references are to the Code of Civil Procedure.) 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. (Undesignated subdivision references are to section 1013a.) 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.
In this case, a party sought to invoke the presumption of invalidity to show the trial court lacked jurisdiction to rule on posttrial motions. 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. We conclude the party seeking to invalidate the service did not affirmatively invoke the issue below. Accordingly, we reject the argument presented by appellant and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Simplon Ballpark, LLC (Simplon) sued John Scull for breach of fiduciary duty. After a bench trial, the court issued a statement of decision and entered
a judgment in favor of Simplon. On June 21, 2012, the court clerk served by mail the statement of decision and judgment. (All date references are to 2012.)
Scull filed a series of posttrial motions, including for judgment notwithstanding the verdict (JNOV). Thereafter, Simplon objected to and moved to strike Scull's posttrial motions on the ground they were untimely filed and served. Specifically, Simplon's counsel noted the court's register of actions indicated a filing date of July 9 and although the proof of service for the posttrial motions stated the motions were served by mail on July 6, the envelope containing the posttrial motions was postmarked July 9. Simplon argued in objections and requests to strike that the trial court lacked jurisdiction to rule on the posttrial motions based on the untimely filing and service. In its opposition points and authorities, Simplon withdrew its objection to the extent it claimed the motions had been untimely filed, but argued the 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 § 1013(a)." Scull argued that his motions were timely filed and served on July 6.
The trial court heard oral argument on the posttrial motions. It started the hearing stating it "read every piece of paper that's been submitted." During the hearing, Simplon's counsel argued the motions were untimely "as... the file stamp date is three days past the alleged date of service" and the issue was jurisdictional. The trial court stated it would "get into the jurisdiction if you want me to, " but Simplon's counsel transitioned back to the merits. After hearing argument on the posttrial motions, the trial court granted Scull's JNOV motion. The trial court never expressly ruled on Simplon's objections and motions to strike. The trial court filed an amended judgment vacating its earlier statement of decision and entering judgment in favor of Scull. Simplon timely appealed.
I. Summary of the Law and Issues ...