There are multiple areas in our profession where the Code of Civil Procedure and the workers’ compensation rules do not fall in line with each other. One of these areas is regarding the all-important Proof of Service.
There are times when opposing counsel may file a Petition for Penalties due to an alleged non-payment of some expenses in relation to a case matter. These may include Labor Code Section 5710 Fees for a past deposition, or even medical mileage reimbursement per the IRS Reimbursement Rate. This is by no means a comprehensive list, but they are certainly ones that tend to show up a lot.
When this happens, you can bet that opposing counsel will use a Proof of Service endorsement attached to the proposed correspondence at issue. You can also bet that the proposed correspondence is likely something the defendant has not seen before the submission of the Petition for Penalties. Nonetheless, the opposing counsel will still assert the “Presumption of Service” rule based on the Proof of Service.
The main issue here is whether the form being asserted as proof is a mere endorsed document rather than a formal Proof of Service form. It turns out, both can suffice.
- California Code of Civil Procedure Section 1013(a) Proof of Service by Mail
- Title 8 California Code of Regulations Section 10520 Proof of Service by Workers’ Compensation Appeals Board (REPEALED 11/17/2008)
- Title 8 California Code of Regulations Section 10505 Service by the Parties or Lien Claimants (AMENDED 11/17/2008)
What Does Case Law Note?
As interpreted by the Cavanaugh case, the provisions of CCP Section 1013(a), note the methods by which a Proof of Service may be made. These are not exclusive and do not forbid the method adopted by the Workers’ Compensation Appeals Board for a Proof of Service. Specifically, 8 CCR Section 10520 notes that a Proof of Service may be made by endorsement on the document served. Said document must, however, set forth the facts of service upon those persons listed on the official address record on the date of service and must further state whether such service was made personally or by mail, along with the signature of the person making the service. See 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.
Here is the run through. The Cavanaugh case is founded on a repealed regulation. Essentially, the case notes that in the area of workers’ compensation, a Proof of Service need only be endorsed on proposed correspondence and only need meet the requirements of 8 CCR Section 10520. However, and as noted above, this regulation is now repealed and replaced with 8 CCR Section 10505. So, we must ask, can we rely on a case that relies on repealed law? The answer plainly stated is like most things in law, it is arguable. Essentially, this gives wiggle room to both parties on the issues of whether or not a Proof of Service is valid.
Discussion and Attack Plan
An important thing to keep in mind here is that the person who is physically serving the document(s) has no actual duty to endorse or appear on the Proof of Service itself. Thus, this flexibility allows someone other than the opposing counsel to file the proposed documents. This someone could be a secretary, legal assistant, paralegal, or any other individual affiliated with the opposing counsel’s office.
This has direct implications on litigation thereto. That is, if the person who signed and endorsed the proposed Proof of Service is opposing counsel, then for litigation purposes, they double as the witness. If, however, the signature or endorsement is someone else, then that person would be a witness of knowledge for litigation purposes.
Thus, if we are dealing with a litigation situation wherein there is a dispute regarding the receipt or lack thereof, with a document or documentation, the actual Proof of Service form and/or mere endorsement of the Proof of Service is possibly worth litigating. With this in mind, here are four common scenarios of Proof of Service issues and their corresponding proper recourse of action:
Scenario number one: (Proof of Service form signed by opposing counsel): Call opposing counsel as a witness and attack his personal knowledge of both the document alleged served and the Proof of Service itself.
Scenario number two: (Proof of Service form signed by other party): Call the other party as a witness and attack their personal knowledge of both the document alleged served and the Proof of Service itself, while attempting to show that the servicer did not actually know what they were serving. This could raise questions as to service of the correct document.
Scenario number three: (Mere Proof of Service endorsement signed by opposing counsel): Call opposing counsel as a witness and attack his personal knowledge of both the document alleged served and the informal POS itself, while attempting to argue a formal POS form should have been used and the endorsement should be thrown out thus nullifying proof of service itself.
Scenario number four: (Mere Proof of Service endorsement signed by other party): Call the other party as a witness and attack their personal knowledge of both the document alleged served and the informal Proof of Service itself. Attempt to argue a formal Proof of Service form should have been used and the endorsement should be thrown out, thus, nullifying the Proof of Service itself. This could raise questions as to the service of the correct document, as well as attempt to show the servicer did not actually know what they were serving, This scenario is the strongest for defense due to the layers of disconnect.
Due to the inconsistencies of statute, regulation and case law, the argument could be made that this particular area of law is not fully settled. In short, argue against Proof of Service issues per the above scenarios as findings may be different on a judge-by-judge basis.
Contact Our Workers’ Compensation Defense Attorneys Today
At Yrulegui & Roberts, our California workers’ compensation defense lawyers have more than four decades of experience representing employers, insurance companies, and claims administrators in the San Joaquin Valley and beyond. We will protect your rights and interests. If you have questions, our attorneys are here to help. For a strictly confidential initial case evaluation, please contact us at (559) 222-0660.