What is Proof of Service by Mail?
Proof of service by mail is the process of providing evidence that a certain party in a case has been notified of some action or decision made by a court in a divorce or family law proceeding, generally by mailing them the document that they were entitled to receive. A proof of service by mail is signed and then filed with the trial court so the court knows that the services has been properly completed in accordance with statutory procedures. It is essentially a verification that a party has been notified that something has occurred in a case.
The general concept of proof of service is provided for in the Code of Civil Procedure and lays out the general procedure for what happens when you have a notification to send out and serve other parties to the action by mail. A lot of the time, it is used in situations where a party files with the court a motion, order to show cause, request for order, or a notice, and then serves all other parties involved by sending the pleading or document through the US mail.
Having proper proof of service in place is extremely important because it gives both the court and all parties to the action fair notice that something has happened in the case , and avoids a situation of the "he said, she said" where a party claims they never received a document.
In family law, a couple examples of proof of service by mail are found under California Family Code sections 232 and 2123. Section 232 applies any time a party files and/or serves a Request for Order or Order to Show Cause, along with all supporting documents, exhibits, and declarations. The person who is to be served must be served by US mail or personal delivery at least 16 days before the hearing. In the proof of service, they are to include the date and place of mailing. The sender also must keep a copy of the papers sent.
Section 2123 provides the procedure for withdrawal from an action. Any time an attorney in a case wants to withdraw, this request or notice must be filed with the trial court and also sent to all parties involved by mail. Parties may file an objection to the withdrawal up until the date of the hearing where the lawyer’s withdrawal is to be considered.
Steps to Serving by Mail
In cases where notice is required, the Code of Civil Procedure section 1013 defines service of pleadings by mail as follows:
(a) Any one of the following methods for giving notice pursuant to this chapter, and in any other proceeding permitted by statute or the California Rules of Court absent contrary provisions of statute or those rules, if mailed from within California, is deemed a substitute for personal delivery of the document:
(1) Service by mail to be effective only when served on the same day.
(V) The correct address of the person to be served.
(B) Correct address. Except as may be otherwise provided by statute, a paper is served pursuant to subdivision (a) upon mailing by the serving party. Service is deemed complete at the time of deposit in the mail as specified in paragraph (2) of subdivision (a). Proof of service has the same effect as established and prescribed by law for proof of personal service.
We find a requirement in Family Law Court rule that specifically addresses the method of serving pleadings by mail and that is Family Law Court rule 5.103(e):
(e) Service by Mail: If any pleading or paper is served by mail, the following must be attached to the pleading or paper when served: either: [Proposed Revisions to Rule 5.103 (2005)]
Section 1005(b) now provides that discovery conducted pursuant to the Hughey case should be served with a 9 court-copy cover sheet.
I will never forget the day I was literally trained on how to serve by mail at my old employment. I examined this cover sheet thoroughly and then folded it to enclose a proof of service, which I taped inside. I checked the filed date to make sure it was current and to determine the deadline for responding to the discovery request. I also made sure all of the signature lines were filled in and that the proof of service was complete. I then stamped each envelope to make sure that there would be no question as to when the documents were mailed. Finally, I stamped each envelope to make sure that it was clear that each document was comprised of multiple pages.
Subsequent to this process a clerk in the Family Law Central filings department would check our work to ensure all signatures were visible. The document was then stamped on the outside, be it the date stamped in the postage meter, stamped "Filed" or the clerk stamp with the date on the lower right hand corner. Obviously, this process was slightly different when the firm prepared the documents for filing, however it is important to be aware of the proper method of serving by mail and to know what the Family Law Court practices and procedures require.
What does the above breakdown into the simple steps needed to complete your proof of service by mail? Let’s start with the simple steps:
1. Fill out the discovery request, stipulation, order, motion, oppositions, declarations, notice of reversal, etc. according to the Family Law rules or as required.
2. Attach a proof of service to each document that is served as follows:
(a) Write "PROOF OF SERVICE BY MAIL" in large letters center-justified near the top of the page. Include your name, address, and telephone number after those words. The proof of service (form FL-335) must be in the same language as the document(s) to be served unless the court finds that it is appropriate not to do so. Also write the title of each attached document. Next, number the pages of the document(s) you are serving and the pages of the attachment, starting with "1." If you are using 2 sides of the page for the proof of service, mark the second side "2." Place an asterisk (*) in the lower left corner. also listed in the table of contents.
If the proof of service is attached to a request for orders, form FL-300, then you can write "Attachment 1" instead of writing a title for each document.
(b) Next write the full name and address of the person who is being personally served. If delivering to the home or usual place of business & It is important to mention the relationship of the person to the responding party whenever it is possible to do so.
(c) Insert the post-office box number in the post office district. Do not use an apartment number.
(d) Print your name, with the words "Signature" and "Type or Print" thereunder.
FOLD TO FIT
Today’s legal document are created on state-of-the-art computers, that are incredibly powerful, fast, and small. They actually have calculators, calendars, reminders, and customized preferences. You have the ability to scan PDF documents, OCR them for easy word searches, even cut, copy & paste text from a video file and send it back to your display screen…and even edit to your heart’s desire. Yet, you have to be careful to follow the rules of court and you can even be sanctioned for not following the Title and Rule format, these are not just header type settings…we are talking about the margins, headings, and layouts on your documents. For many attorneys these requirements come second nature, and they type, spell check, and printer check to perfection…without ever mentioning the proof of service (FL-335).
Documents that are recorded and Notices of Appeal are exceptions that require a full page for the proof of service. That means you print the document, pre-punch it, create a cover sheet with the title of each paper listed with the page number next to the title. Take the original, make two copies and serve the first copy and file the second original. I will not get into the specific requirements for notices of appeal, that is for another blog.
When you get it right…you get it right. Family law courts can be demanding, and they often require that you bring in multiples of files in "blue backs" or "red backs", believing that you are more likely to be happy with your work if it looks good. I have always been the 1st to admit that I like my documents to be pretty…but the law is what matters. I do not think they know the difference between a straight line and an angle, but they will look to see that the margins are perfect, the lines are straight, the header requirements are met, and the proof of service is unaltered…so I make sure to tape them. If they are not perfect, I will let you know they are not perfect…just in case someone wants to sue you over it.
3. Next, staple the proof of service to the first page of the document you are serving, followed by the proposed Order and/or points and authorities, followed by the rest of the documents you are serving. Finally create a pleadings cover sheet with the same information you attached to the proof of service and double sided tape the cover sheet to the back of the pleadings, stick it in the window envelopes with a window that shows the address on the attached pleadings.
4. Mail the documents.
Legal Requirements and Statutory Compliance
In addition to the requirements for service of process in California Family Law cases, specifically California Family Code section 215, courts have held that service must also comply with the provisions of Code of Civil Procedure sections 1013a(4) and 1013a(6) when service is by mail. (See In re Marriage of Layton (1987) 194 Cal.App.3d 580, 594). Service of a document by mail under the Family Code, however, requires a more narrow interpretation.
Service by mail on a party whose address is unknown is permitted only if there are no other reasons to believe the person will not receive it, and the party is required to sign a declaration or notice regarding the change of address for the post office. (California Code of Civil Procedure). Specifically, it provides:
1013a. Service by mail; personal delivery; express mail, etc. Deliveries are made when received at the address addressed to the addressee on the date of personal delivery or on the day the notice or other document deposited in the mail is postmarked or, when sent by express mail, on the business day following the day the notice of other document is delivered to the depositary for transmission by express mail.
(4) Except as provided in Sections 415.50 and 1288.2 of the Code of Civil Procedure, if any notice or other document served by mail or express mail must be served on a party using the address last given for that party in the underlying proceeding, and the address of that party is no longer known to, or reasonably ascertainable by, the serving party, as a substitute for personal service and service by express mail, service shall be deemed complete upon deposit in the mail addressed to the party’s attorney of record or if that party has no such attorney, to that party at the most recent address given. For purposes of this section, the "last address given" shall be deemed to be that determined by the probation officer pursuant to Section 3004, except for a party concerning whom the probation officer has not been able to determine an address after diligent effort.
(6) When personal delivery is performed by express mail, and the original notice or other document is delivered in lieu of service of a copy, a proof of service shall accompany the original, pursuant to subdivision (b) of Section 1013.
Non-compliance with the statutory requirements may lead to a motion to quash or set aside the service.
Common Issues and Mistakes
Proof of service by mail can be a tricky thing to get right, and there are several common mistakes that people make in the process. One of the biggest issues I see is that there is often a lack of proof of service by mail for documents that are actually served through email or personal service. If something is personally served to a non-attorney, like a party or a witness, proof of service by mail is not appropriate. Likewise, if a copy of a document is emailed to an attorney, you don’t need proof of service by mail.
In fact, I highly recommend that people stop using this form completely. It isn’t relevant to any local forms in Orange County, California. It’s an outdated form used on the east coast, and it was used by everyone, until it wasn’t, and we moved on. We as a society move on from things very quickly, leaving some people still using them out of habit.
One other common mistake is that people often forget to cross out CHECK ONLY ONE BOX IN EACH COLUMN at the top of the form. You have to cross out the boxes that don’t apply to the service that was done, so for example, if you were serving something by email, you have to cross out the box in section 3 that says "By Hand", and you have to cross out the box in section 4 that says "By Mail." Don’t ask me why, but I’ve seen so many people file proof of service by mail, and there are no boxes crossed out? Like I said – no idea why, but it’s super important, and I’ve seen lots of judges only deny orders and set hearings to sort this stuff out because someone forgot to cross out boxes on a proof of service!
My last bit of advice is to double-check the recipient’s address information before mailing the documents. I know that’s easier said than done, but if you don’t have the correct mailing address for a party or a witness, you’ll have a really difficult time proving that you served that person.
The reasoning behind this is that the court needs to make sure that everyone has a fair chance to respond to the paperwork that is served to them. For example, if you serve a witness with a subpoena to appear, and you sent it to the wrong address, that witness will not show up for court, and that can cause problems for your case.
Serving by Mail versus Personal Service
Proof of service by mail differs from personal service, a requirement that parties are personally presented with a court related document. For example, a lawsuit can be served on a spouse to establish grounds for divorce. This personal service can be met through a county’s sheriff, a registered process server or even a friend. Proof of service by mail typically deals with proof of sending filing documents to the court and other parties involved in the case. You will generally require both methods of serving papers in a family law case.
The biggest difference between the two methods is the immediate forcing element – personal service informs the recipient they have been served promptly. If the recipient was not properly served, then your suit can be dismissed. In other words, while proof of service by mail is useful for informally communicating documents, personal service is essential for actually compelling the recipient to respond.
However , failure to respond does not always mean a dismissal of the suit. California allows you to obtain a default judgment if the responding party doesn’t respond to your complaint. A court can process the default judgment if the responding party was properly served within 60 days of the complaint being filed. The most efficient method to accomplish this is through personal service. However, if the response is timely, it can be mailed or delivered. A default judgment will not be accepted if the responding party has served to them:
Also, a default judgment will not hold if the plaintiff treated the paper as a request for relief or a newly filed complaint, such as a motion for relief from default or a request to set aside a judgment. If the responding party responds, then the default judgment cannot be entered unless the party does not respond to an amended complaint.
When serving others politely, it is typically best to serve others through proof of service by mail. However, if you are looking for an immediate response, then personal service is the better option.
Disputing Effectiveness of Service by Mail
In most cases, proving service of a family law located in California is pretty straightforward; service is either effectuated or it is not. There are some circumstances, however, under which a dispute may arise concerning whether someone has been served with a family law document according to the law.
Pursuant to CCP, section 417.20, if any defendant located in California disputes the fact that he or she was served with a family law document, the court will not hold a default against the alleged party until it has become clear to the court that the defendant served has been duly and properly served.
Additionally, pursuant to CCP, section 417.20, disputes over whether a plaintiff technically cleared all the legal hurdles of service are resolved by the court. A party disputing service must have evidence of improper service before the order will be vacated, but it only takes a miniscule amount of evidence (such as a sworn declaration) to demonstrate improper service to the court for purposes of invoking it’s power to vacate an order that was entered by default. Upon making such a showing, the burden of proof shifts to the party claiming proper service was accomplished.
This essentially means that there is no such thing as a free, default divorce in California; spouses cannot ignore and avoid service and thus avoid a divorce. Even a default order cannot be entered unless and until service is properly carried out.
The issue of proper service often comes up because the person served has gone to a skilled family law attorney and explained the situation that way, often curtailing at the end, "I need you to help me avoid giving my spouse anything." If that is the case, it comes as a shock at the time of first meeting with opposing counsel when the other party presents evidence of service. If the other party has made no effort whatsoever to respond, that will usually be sufficient to get such a motion set aside.
Completing Service: Return and Filing
The final step in proper service is the return and filing of the documents with the Court. The Government Code defines when a document is "served by mail": (a) Whenever any act is required to be performed or omitted within a specified period after the service of a notice or other paper upon any party, and except where a contrary intention clearly appears from the provisions hereinafter prescribed, a similar period is required to be presumed after the service of such notice or other paper by mail. (b) Service by mail upon (1) a judge; (2) a state officer; (3) the State of California; (4) a judge’s secretary, clerk, or court commissioner; (5) a district director in the State of California of the United States Internal Revenue Service who is an employee of the United States; or (6) an employee of the State of California Franchise Tax Board who is an employee of the State of California, shall be deemed complete five days after the date of deposit in the United States mail (as evidenced by the postmark) except where the last day of the period so prescribed is the day of deposit , in which case the service is not complete until the following date. The five-day additional period prescribed in this section shall not apply (except as specified in this section) to any service of which other time is specifically prescribed by statute….. The final step is to make sure the return is properly filed with the court. Any litigant can file a response to the Ex Parte Application. Be warned, however, that if your Ex Parte is denied and you did not question them on oath, they will be able to mess up your response by trying to sneak in things that are not true or misunderstandings. Potentially, you will have to bring them in for a second, more expensive, Ex Parte hearing to sort it all out. I recommend that you file with a declaration under penalties of perjury regarding the original mailing and process. Your declaration should contain all of the facts necessary to show proper service was performed. Remember that there is a higher evidentiary standard for false declaration than perjury.
