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Lost In The Mail? Problems Serving Items by Mail in California (CA Evidence Code Section 641)

When it comes to the law and court cases, it is extremely common to have to serve documents by mail. You can serve documents in person as well, of course, but that can be inconvenient or impractical given the need to coordinate schedules, locations, etc. It’s obviously much more convenient to be able to serve legal documents by simply dropping it in the US Mail.

If you subscribe to my Youtube channel, you’ll know that I have a video on how to fill in California Judicial Council form FL-335 (available here), or Proof of Service by Mail for California Family Law cases. Here’s the video:

There is an equivalent proof of service by mail form in California civil court (i.e. the form POS-030, which is available here). I don’t have a video on the POS-030, but the concept is virtually identical to the FL-335.

The keen-eyed among you, though, will have realized a flaw in the concept of a proof of service by mail:

“Just because I drop it in the mail, doesn’t mean it gets there. What happens if it gets lost in the mail?”

There are two answers to this excellent question. First, the US Mail does occasionally lose items. Moving mail in the scale that the US Postal Service does involves a ton of human labor and machines so mistakes and accidents do happen. In my experience, though, lost mail happens far less often than people claim. In the vast majority — I would say 95% of the time — of instances, legal documents that are served by mail do arrive as they are supposed to. The excuse of “It must have gotten lost in the mail!” is claimed in court far more often than actual loss occurs.

The second answer is more law-related and it’s this: In California, items that are served via the US Mail that are properly addressed and include the correct postage… are presumed to have arrived in the 0rdinary course of the mail. In other words, California law assumes that the US Postal Service will deliver items in the normal course of its operations, provided that the address indicated and postage used are correct.

The legal authority for this is Section 641 of the California Evidence Code, which states: “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.”

It’s important to remember that Section 641 refers to the burden of proof. In other words, no code or statute section can guarantee that mail will never get lost again. It will be rare, like I mentioned above, but it will continue to happen. When the loss does happen, Section 641 says that the burden of proving it happened is on the recipient. If the sender can prove that they mailed the item in question — again, with the correct address and postage — California law assumes the item was delivered on time.

Realistically, of course, there is no way to prove that something did not happen (i.e. X item was never received, despite supposedly being mailed). What often occurs, though, in a dispute like this about service is that neither party wins because neither party has anything to prove their case other than their sworn statement that the item was mailed or that the item was never received. Judges will often order that the item in question be served again and hint that it would be prudent to use a more secure method so that this same dispute does not arise again.

If the documents you’re serving are extremely time-critical, there’s a cheap and easy way of increasing your odds of being able to prove the documents in question were indeed sent: just email it. To prove that the documents were received, ask the recipient to reply to your email with a simple “Received” or “I confirm receipt”.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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