On occasion, an Applicant’s Attorney will file penalty petitions for non-payment of expenses such as medical mileage or deposition fees. Under these circumstances, an Applicant’s Attorney will use a proof of service endorsed on the correspondence demanding such payment. In many circumstances, Defendants did not receive the demand nor receive any documentation prior to the penalty petition. Nevertheless, Applicant’s Attorney will assert a presumption of service merely by producing the endorsement on the correspondence.
The issue is whether the form of an endorsement on a document rather than a separate, more formal proof of service is valid. Unfortunately, the Code of Civil Procedure and the Workers’ Compensation Rules are not in sync.
California Code of Civil Procedure Section 1013a Proof of Service by Mail
Proof of service by mail may be made by one of the following methods:
(1) An affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.
. . .
(3) An affidavit setting forth the exact title of the document served and filed in the cause, showing (A) the name and residence or business address of the person making the service, (B) that he or she is a resident of, or employed in, the county where the mailing occurs, (C) that he or she is over the age of 18 years and not a party to the cause, (D) that he or she is readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service, (E) that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, (F) the name and address of the person served as shown on the envelope, and the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and (G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices. Service made pursuant to this paragraph, upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit.
Title 8 California Code of Regulations Section 10520 Proof of Service by Workers’ Compensation Appeals Board (REPEALED 11/17/2008)
“Proof of service by the Appeals Board may be made by endorsement on the document served, setting forth the fact of service on the persons listed on the official address record on the date of service. The endorsement shall state whether such service was made personally or by mail, the date of service and the signature of the person making the service.”
Title 8 California Code of Regulations Section 10505 Service by the Parties or Lien Claimants (AMENDED 11/17/2008)
(a) This section shall apply when a document is served by a party, a lien claimant, or their attorney or other agent of record.
. . .
(d) If a document is served by a party or lien claimant by mail on persons listed on the official address record who have designated mail as their preferred method of service, who have failed to make any designation, or who have previously agreed to accept mail service in accordance with subdivision (g), the proof of mail service may be made by: (1) affidavit or declaration of service; (2) written statement endorsed upon the document served and signed by the party making the statement; or (3) letter of transmittal. The proof of service shall set forth the names and addresses of persons served, the fact of service by mail, the date of service, and the address(es) to which mailing was made.”
The provisions of CCP § 1013a, providing methods by which proof of service may be made, are not exclusive and do not forbid the method adopted by the Workmen’s Compensation Appeals Board for proof of service in 8 CCR 10520, providing that proof of service may be made by endorsement on the document served, setting forth the fact of service on the persons listed on the official address record on the date of service and stating whether such service was made personally or by mail, the date of service, and the signature of the person making the service. Cavanaugh v. Workers’ Comp. Appeals Bd. (Cal. App. 4th Dist. Oct. 18, 1967), 255 Cal. App. 2d 181, 62 Cal. Rptr. 871, 1967 Cal. App. LEXIS 1257.
The Cavanaugh case essentially states that in the realm of workers’ compensation, a proof of service can be endorsed on correspondence and only must meet the requirements of the now repealed 8 CCR 10520. This begs the question of whether a case that relies on a repealed regulation can be relied upon to enforce a new regulation. 8 CCR 10520 was repealed in 2008 and 8 CCR 10505 was enacted.
The main distinction of note is that the name of the person serving the document is not required to appear on an endorsed proof of service. This provides a template for an applicant attorney to have someone serve the document and simply sign it, without identifying themself since a signature is often illegible.
If the signature on the proof of service is the same as that of the applicant attorney on the same document, the applicant attorney would be a witness for the purpose of litigation. However, when there is a different signature, who shall defendant list as a witness when litigating the issue of service?
One potential solution is to ask applicant attorney whose signature is on the document. Another solution is to demand an opportunity to conduct discovery on the issue.
Rule 8 CCR 10505 cites to Cal. Labor Code Section 5307 as statutory authority, which may or may not account for the issue of a regulation conflicting with a statute. A statute is intended to govern over a regulation when there is conflict. In this case, the regulation cites to the Labor Code as statutory authority. Cavanaugh dealt with this issue, however, in Cavanaugh, the issue was that the WCAB issued an Order with a proof of service endorsed on it rather than a demand for payment from an applicant’s attorney.
In summary, if the issue arises regarding disputed receipt of documentation, the substance of the proof of service may be worth litigating. Precedent in the form of the Cavanaugh case gives the WCAB framework for finding in favor of the party who served the documents with an endorsed proof of service, however, there are arguments to be made that the law is not settled on this issue.
By Cameron J. Ross, Associate Attorney, Stockton Office 8/16/19