Filed 3/30/15

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



SIMPLON BALLPARK, LLC,                            D062901

        Plaintiff and Appellant,

        v.                                        (Super. Ct. No. 37-2011-00084777-
                                                  CU-FR-CTL)
JOHN SCULL,

        Defendant and Respondent.


        APPEAL from a judgment of the Superior Court of San Diego County,

Frederic L. Link, Judge. Affirmed.

        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 the 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

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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.

                                       DISCUSSION

                       I. Summary of the Law and Issues Presented

       The time to file a JNOV or new trial motion is jurisdictional. (Palmer v. GTE

California, Inc. (2003) 30 Cal.4th 1265, 1271.) If such a motion is untimely, the court

has no jurisdiction to rule on it and the order granting the motion is void. (Ruiz v. Ruiz

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(1980) 104 Cal.App.3d 374, 379; Douglas v. Janis (1974) 43 Cal.App.3d 931, 935-936.)

This appeal presents the question whether Scull timely served his posttrial motions. A

JNOV motion must be made within the time period specified for the filing and serving of

a new trial motion under section 659. Subdivision (a) of section 659 provides the

following: "The party intending to move for a new trial shall file with the clerk and serve

upon each adverse party a notice of his or her intention to move for a new trial . . .

[w]ithin 15 days of the date of mailing notice of entry of judgment by the clerk of the

court pursuant to Section 664.5 . . . ." (Italics added.)

       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."

       Section 1013a sets forth three methods for a party to prove service by mail. All

three subdivisions require an affidavit or certificate "setting forth the exact title of the

document served and filed in the cause" and "showing the name and residence or

business address of the person making the service." (§ 1013a, subds. (1), (2) & (3).)

Subdivisions (1) and (2) set forth the method for service where the declarant actually puts

the correspondence in a mailbox or takes it to the post office. Under subdivision (1), the

declarant must state "he or she is a resident of or employed in the county where the

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mailing occurs" and "that he or she is over the age of 18 years and not a party to the

cause." Under subdivision (2), the declarant must state "he or she is an active member of

the State Bar of California and is not a party to the cause." Subdivisions (1) and (2) also

require the declarant "show[] the date and place of deposit in the mail, the name and

address of the person served as shown on the envelope" and "that the envelope was sealed

and deposited in the mail with the postage thereon fully prepaid."

       Subdivision (3) applies where the correspondence is placed in an outgoing mail

bin from which it is picked up and combined with other correspondence for mailing that

day. Under subdivision (3), the declarant must state that he or she is over the age of 18

years and not a party to the cause; he or she is readily familiar with the business' practice

for collection and processing of correspondence for mailing with the USPS; that the

correspondence would be deposited with the USPS that same day in the ordinary course

of business; the name and address of the person served as shown on the envelope; the

date and place of business where the correspondence was placed for deposit in the USPS;

and that the envelope was sealed and placed for collection and mailing on that date

following ordinary business practices. Critically, service under subdivision (3) "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."

       The sole issue on appeal is whether the trial court had jurisdiction to rule on

Scull's JNOV motion. Simplon contends the proof of service declaration shows Scull

served the JNOV motion under subdivision (3). Simplon concedes the motion was timely

                                              5
filed with the trial court on Friday, July 6. It argues the motion was untimely served

because the proof of service declaration states the mailing occurred on Friday, July 6, but

the envelope was postmarked on Monday, July 9, making the service invalid. To support

this argument, Simplon presented a copy of the envelope in which the motion was served

showing a postmark dated Monday, July 9.

       This appeal is premised on the argument that Scull served his posttrial motion in

compliance with the method of service described in subdivision (3) and that the service is

invalid because 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 declaration. We

requested further briefing on whether Scull served his posttrial motions in compliance

with the method of service described in subdivision (1), citing the parties to the

applicable Judicial Council Forms governing civil proofs of service, namely forms POS-

030 and POS-040. Both parties submitted letter briefs, which we have considered. If

Scull served his posttrial motions in compliance with the method of service described in

subdivision (1), the postmark date on the envelope becomes irrelevant.

       To ascertain whether Scull served his posttrial motions in compliance with the

method of service described in subdivision (1) or (3), we turn to the proof of service

declaration. In this document, Stephen M. Hogan (who happens to be Scull's attorney),

declared as follows:

              "That I am, and was at the time of service of the papers herein
          referred to, over the age of eighteen years, and am not a party to the
          action; and I am employed in the County of San Diego, California,
          from within which county I served the following document(s).
              [¶] . . . [¶]

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              "I did so by placing for deposit in the [USPS], this same day a
          copy thereof in a separate sealed envelope with postage thereon fully
          prepaid for each addressee, addressed to each such addressee
          respectively as set forth below:
              [¶] . . . [¶]
              "My business address is 1133 Sixth Avenue, Suite 207, San
          Diego, CA 92101, I am readily familiar with this firm's practice for
          collecting and processing of correspondence for mailing with the
          [USPS], and this mailing will be deposited with the [USPS] on this
          date in the ordinary course of business."
              "I declare under penalty of perjury under the laws of the State of
          California that the forgoing is true and correct.
              "Executed on July 6, 2012" (Italics added.)

       Simplon argues the proof of service declaration does not show service under

subdivision (1) because it does not show the "date and place of deposit" as required by

subdivision (1) and does not confirm the documents were actually placed with or at the

USPS. Simplon argues the only reasonable inference is that service was under

subdivision (3), as suggested by the last paragraph in the proof of service declaration.

Simplon asserts that service under subdivision (3) was untimely and the trial court lacked

jurisdiction to rule on the JNOV motion.

       Scull concedes that the proof of service declaration is not perfect, but argues it is

sufficient to establish service under subdivision (1). If there is any doubt whether service

was under subdivision (1) or (3), Scull claims this uncertainty was addressed in his reply

briefs below where his counsel argued that the motions were timely filed and served on

July 6. Assuming we conclude service was under subdivision (3), Scull notes that

Simplon failed to file the required motion under subdivision (3), nor did it provide cogent

argument and legal authority to the trial court to inform the court and Scull's counsel of

the exact nature of any flaw in the proof of service declaration. Had Simplon filed the

                                              7
required motion before the posttrial motions were submitted for decision, the trial court

could have addressed, and Scull could have cured, any flaw. Scull argues Simplon

denied him a fair opportunity to be heard by raising its argument in vague objections

claiming untimely service that never referenced the presumption of invalidity in

subdivision (3). Rather, he notes that Simplon made only two passing references to

subdivision (3) in its opposition briefs.

                                            II. Analysis

A. Service was under Subdivsion (3)

       To comply with subdivision (1), a proof of service declaration must show the

correspondence was "deposited in the mail." In contrast, subdivision (3) requires that the

proof of service declaration state "that the correspondence would be deposited in the

[USPS]."

       Here, the proof of service declaration states, "I served the following document(s)

. . . I did so by placing for deposit in the [USPS]." This language suggests the declarant

placed the correspondence in a location for later deposit with the USPS. This

interpretation is supported by inclusion of the last paragraph which states, "[T]his mailing

will be deposited with the [USPS] on this date in the ordinary course of business." This

last paragraph is unnecessary for service of correspondence under subdivision (1).

       Additionally, Simplon argues the proof of service declaration does not comply

with subdivision (1) because it does not show "the date and place of deposit in the mail."

Simplon is correct. Subdivision (1) requires the proof of service declaration show "the

date and place of deposit in the mail." In contrast, subdivision (3) does not contain this

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requirement and instead requires that the proof of service declaration show "the date and

place of business where the correspondence was placed for deposit in the [USPS]." Here,

the proof of service declaration does not show "the date and place of deposit in the mail"

as required by subdivision (1); rather, it shows the date and place of business where the

correspondence was placed for deposit in the USPS as required by subdivision (3).

       We conclude the proof of service declaration is not ambiguous and clearly shows

service under subdivision (3).

B. Simplon Did Not Properly Raise the Defect Below

       Our fundamental task involving statutory interpretation " 'is to determine the

Legislature's intent so as to effectuate the law's purpose.' [Citation.] 'We begin with the

plain language of the statute, affording the words of the provision their ordinary and

usual meaning and viewing them in their statutory context, because the language

employed in the Legislature's enactment generally is the most reliable indicator of

legislative intent.' [Citations.] The plain meaning controls if there is no ambiguity in the

statutory language. [Citation.]" (People v. Cornett (2012) 53 Cal.4th 1261, 1265; § 16

[courts generally construe words and phrases according to the context and the approved

usage of the language].) "If there is no ambiguity in the language of the statute, 'then the

Legislature is presumed to have meant what it said, and the plain meaning of the

language governs.' [Citation.] 'Where the statute is clear, courts will not "interpret away

clear language in favor of an ambiguity that does not exist." [Citation.]' " (Lennane v.

Franchise Tax Bd. (1994) 9 Cal.4th 263, 268.) " 'If the statutory language permits more

than one reasonable interpretation, courts may consider other aids, such as the statute's

                                             9
purpose, legislative history, and public policy.' " (Imperial Merchant Services, Inc. v.

Hunt (2009) 47 Cal.4th 381, 388.)

       We found no published authority addressing the meaning of the motion

requirement or whether the presumption set forth in subdivision (3) is rebuttable.

Although we find the language of the statute to be clear and unambiguous, we searched

the legislative history to ascertain whether these issues were addressed. The Legislature

added subdivision (3) by amendment in 1987. (Stats. 1987, ch. 190, § 1, enacting Assem.

Bill No. 727 (1987-1988 Reg. Sess.).) Our independent research disclosed nothing in the

legislative history on the issues before us. Thus, we turn to the statutory language.

       Subdivision (3) states, in part that "[s]ervice 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." (Italics added.) Thus, the plain language of

subdivision (3) requires the party served to file a motion to invoke the presumption of

invalidity. Section 1003 provides that "[a]n application for an order is a motion."

Accordingly, the party served must request an order to invoke the presumed invalidity of

service based on an evidentiary showing that 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.

       Here, Simplon did not file a dedicated motion seeking such an order. Even

assuming, without deciding, a dedicated motion is not required, we note Simplon's

objections and motions to strike Scull's posttrial motions did not request such an order or

                                             10
otherwise give Scull or the trial court sufficient notice of the issue presented or the relief

requested. Rather, Simplon argued that the posttrial motions were untimely served and

filed, noting the court's register of actions indicated a filing date of July 9 and although

the proof of service for the posttrial motions stated that the motions were served by mail

on July 6, the envelope containing the posttrial motions was postmarked July 9. Simplon

never sought to invoke the presumption of invalidity or even cited section 1013a.

       In its opposition points and authorities, Simplon conceded Scull's posttrial motions

were timely filed, but argued the posttrial 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 § 1013a(3)." This

superficial argument is insufficient to put Scull or the trial court on notice that Simplon

was requesting an order invoking the presumed invalidity of service. As we shall

explain, this defect is fatal.

       By statute, presumptions are either conclusive or rebuttable and every rebuttable

presumption is either a presumption affecting the burden of producing evidence or a

presumption affecting the burden of proof. (Evid. Code, § 601.) Evidence Code section

602 states the following: "A statute providing that a fact or group of facts is prima facie

evidence of another fact establishes a rebuttable presumption." Subdivision (3) is such a

statute as subdivision (3) provides the existence of a postal cancellation date or postage

meter date on an envelope that is more than one day after the date of deposit for mailing

contained in the proof of service affidavit is prima facie evidence of another fact—that

the service is invalid. Thus, we hold subdivision (3) creates a rebuttable presumption.

                                              11
       We next address whether the rebuttable presumption is one that affects the burden

of producing evidence or is a presumption that affects the burden of proof. (Evid. Code,

§ 601.) Evidence Code sections 603 and 604 address presumptions affecting the burden

of producing evidence. Evidence Code section 603 provides the following: "A

presumption affecting the burden of producing evidence is a presumption established to

implement no public policy other than to facilitate the determination of the particular

action in which the presumption is applied." "The effect of a presumption affecting the

burden of producing evidence is to require the trier of fact to assume the existence of the

presumed fact unless and until evidence is introduced which would support a finding of

its nonexistence, in which case the trier of fact shall determine the existence or

nonexistence of the presumed fact from the evidence and without regard to the

presumption." (Evid. Code, § 604.) Applying the criteria in these two Evidence Code

sections shows that the presumption established in subdivision (3) is a presumption

affecting the burden of producing evidence as the purpose of the presumption is to

facilitate the determination of the particular action in which the presumption is applied,

not to carry out or effectuate some other public policy. (Compare, Evid. Code, §§ 605,

606 [addressing presumptions affecting the burden of proof].)

       Having determined that the presumption created by subdivision (3) is a rebuttable

presumption affecting the burden of producing evidence, the obvious purpose of the

motion requirement is to seek an order invoking the presumption of invalidity and allow

the party that made the service to present its own evidence to rebut the presumption of

invalidity. Simplon's failure to file a motion or otherwise clearly indicate to the trial

                                              12
court and Scull that it was seeking an order invoking the presumption of invalidity

deprived the court and Scull of notice of the issue presented. Moreover, it deprived Scull

the opportunity to present any evidence to rebut the presumption. Simplon did not

present a fully developed argument seeking to invoke the presumption of invalidity until

it filed the instant appeal. " ' "[I]t is fundamental that a reviewing court will ordinarily not

consider claims made for the first time on appeal which could have been but were not

presented to the trial court" and "[g]enerally, issues raised for the first time on appeal

which were not litigated in the trial court are waived. [Citations.]" ' [Citation.]" (Bank of

America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1398-1399.)

       In summary, we hold that Simplon forfeited reliance on the presumption of

invalidity by failing to properly raise it below. Accordingly, the judgment is affirmed.

                                        DISPOSITION

       The judgment is affirmed. Respondent is entitled to his costs on appeal.




                                                                      MCINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

MCDONALD, J.




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