In law, every word has a meaning and often one statute contradicts another. Today with more electronic service occurring, many statutes need to be updated to reflect that form of service of notice. When that occurs, look at the structure of the statute and if it has a specific focus, (e.g. look at the object of the sentence) . For example, rules calculating dates can be either upon service of a document OR mailing of a document. “Mailing” is a specific fact, while “service” is more general. While the basic/common rule is CCP 1013 referring to “after service”, other rules for specific documents are after “mailing”. Think, the postmarked date may differ from service. An example is the deadline for service of a memo of costs after judgment is after the clerk/party mails notice of entry of judgment (CRC Rule 3.1700) So depositing into a post box at 6:00 p.m. Friday but it is picked up and postmarked the next Monday is mailing on Monday. So look beyond the common “extension statute” CCP § 1013 (mailing) and CCP §1010.6 (fax/overnight delivery) for others such as the following:
The common section, C.C.P. Section 1013 extends deadlines to act or respond for all service methods except electronic service (i.e., mail, fax, express mail or overnight delivery). It provides that “any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended by . . .” five days if mailed within California, and two court days if served via fax, express mail or overnight delivery. Note, the time is further extended if served outside of California and even more if outside the USA.
C.C.P. Section 1010.6 extends certain deadlines to act or respond by two court days when the triggering document is served electronically. Note, two court days is NOT the same as two business days. You must count court holidays that differ, and differ between state and federal court! The easiest method to calculated court days is an online calculator such as at the LASC web site, http://www.lacourt.org/courtdatecalculator/ui/
Examples of states that differ by measuring the date after mailing not service include:
C.C.P. § 411.20, the deadline for paying filing fees after bouncing a check runs from the date the clerk mails notice that the check bounced.
C.R.C., Rule 3.1700, the deadline for filing and serving a memorandum of costs runs from, among other things, the date the clerk mails the notice of entry of judgment. (This date is also extended by 5 days if the document is mailed. See Nevis Homes LLC. v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353–add five days even if a clerk served document may not need to add five days, but the appeal late court also did not make a finding on that issue!
A huge trap, and “secret” is with objections to proposed orders.
C.R.C., Rule 3.1312, sets forth the time limit for a party to object to a proposed order. Before its amendment January 1, 2011, the rule required the prevailing party to mail the proposed order to the opposing party, and allotted the opposing party a mere five days from mailing to notify the prevailing party whether or not it approves the proposed order. Notwithstanding the fact that the deadline was based on mailing, the rule included a Specific Exception: “Code of Civil Procedure section 1013, relating to service of papers by mail, does not apply to this rule.”
The January 1, 2011, amendment made two changes. First, the rule no longer requires the prevailing party to mail the proposed order. Now, service by mail is impliedly prohibited; the proposed order now must be served by a means “reasonably calculated to ensure delivery to the other party or parties no later than the close of the next business day,” i.e., not U.S. Mail. Second, the amended rule provides that: “The extensions of time based on a method of service provided under any statute or rule does not apply to this rule.” Clearly, now there is no extension of time for any service method. Not even the two court days for overnight service!
Other exceptions that do NOT extend time to respond by five days include:
Section 116.140 (Small Claims Actions) providing that “Section 1013 . . . on the extension of the time for taking action when notice is given by mail” does not apply to small claims actions. However, there is an argument that an extension does apply if service is by fax or overnight mail because Sections 1013 and 1010.6 both provide an extension in the absence of a Specific Exception, and this exception specifies mail, nothing else.
Section 413.20 (Service of Summons By Mail) provides: “If a summons is served by mail pursuant to this chapter, the provisions of Section 1013 that extend the time for exercising a right or doing an act shall not extend any time specified in this title.” Confusingly, there are three provisions for serving a summons by mail: (1) service by notice and acknowledgment of receipt under Section 415.30, (2) service by certified mail on an out-of-state defendant under Section 415.40, and (3) certified mail on a lessee in certain unlawful detainer actions under Section 415.47. But this exception makes it clear that you do not add additional time for mail when calculating the response due dates.
Section 437c (Motions for Summary Judgment), which sets forth the deadlines for notices of motion, oppositions, and replies for motions for summary judgment and summary adjudication, expressly provides that Section 1013 does not apply. However, the 437c statute contains its own extensions of time for notice based upon service via fax, express mail or overnight delivery. Confusingly, CCP 437c is silent as to an extension for electronic service, which I think is fairly common with 1000 page MSJ’s.
Section 594 (Notice of Trial) provides that a trial or hearing may be held in the absence of the adverse party so long as the requisite notice has been given. Subsection (b) provides: “The time provisions of Section 1013 shall not serve to extend the notice of trial requirements under this subdivision for unlawful detainer actions.” There is no mention of an exception for electronic service so not clear if that extension applies.
Section 659 (Notice of Intention to Move for New Trial) provides that the time “shall not be extended by . . . those provisions of Section 1013 of this code which extend the time for exercising a right or doing an act where service is by mail.” The specific reference to mail under Section 1013 makes it unclear if time is made after service is by fax, overnight mail, or electronic service, but there is actually an answer to this one. Notice of intention to move for a new trial is one of the Express Exceptions in Sections 1013 and 1010.6. So, this is not really a Specific Exception at all. It is just a very handy reminder that you never, ever extend the deadline for filing notice of intention to move for a new trial regardless of the service method.
Section 663a (Notice of Intention to Move to Set Aside Judgment) provides that the “provisions of Section 1013 of this code extending the time for exercising a right or doing an act where service is by mail shall not apply to extend the time above specified.” Again, how about another form of service?
Section 1005 (Regular Motions), which sets forth the deadlines for notices of motion, oppositions, and replies for regular motions, provides: “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” This also makes it a bit unclear about electronic service of CCP §1010.6.
Section 1094.6 (Petition for Writ of Mandate) provides that the deadline for filing a petition for writ of mandate following a decision of a local agency other than a school district starts running from the date the decision becomes final. Where there is a provision for a written decision or written findings, the decision is final on the date it is mailed to the party seeking the writ. Section 1094.6 provides that “Subdivision (a) of Section 1013 does not apply to extend the time, following deposit in the mail of the decision or findings, within which a petition shall be filed.” Given that the decision is supposed to be mailed. What if not mailed? Albeit, even if not mailed, the decision is final once final!
We need more amendments like this. Statutes which except extensions only for service by mail, should be amended so that they except all service methods under C.C.P. Section 1013 and C.C.P. Section 1010.6. Rather than amending every Specific Exception, perhaps C.C.P. Section 1013 could be revised to provide something to the effect that: “This extension applies in the absence of either of the following in any other statute or rule of court: (i) a specific exception, or (ii) an exception referring to service by mail.” C.C.P. Section 1010.6 could be amended to provide: “This extension applies in the absence of either of the following in any other statute or rule of court: (i) a specific exception, or (ii) an exception to one or more extensions provided by Section 1013.” These amendments would go a long way toward eliminating the pervasive ambiguities with which we currently contend.