Case Number: BC593141??? Hearing Date: August 29, 2016??? Dept: 31
Plaintiff?s Motion for Order Deeming All Requests for Admissions Admitted is DENIED.
Plaintiff moves the Court for an order deeming her first set of Request for Admissions admitted on the ground that Defendant failed to provide a timely response. The requests were served via electronic service on June 2, 2016. (Chmyreva Decl. Ex. 3.) Chmyreva granted an extension to serve responses in writing to Defendant to July 20, 2016. (Chmyreva Decl. ? 3; Ex. 4.) Chmyreva attests that she did not receive any responses on July 20, 2016. (Id. ? 4.) The instant motion was filed the following day.
In Opposition, Defendant provides evidence that the responses were timely served via regular mail on July 20, 2016. (Fay Decl. ? 3, Ex. A; Dutton Decl. ? 14.) Pursuant to CCP ? 1013(a), ?[s]ervice is complete at the time of the deposit? when service is completed via mail. ?The filing of a proof of service creates a rebuttable presumption that the service was proper. However, the presumption arises only if the proof of service complies with the applicable statutory requirements.? Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795. The proof of service provided substantially complies with CCP ? 1013 and CCP ? 1013a. Therefore, there is a presumption that the documents were served as stated. Conservatorship of Wyatt (1987) 195 Cal.App.3d 391, 397.
In Reply, Chmyreva provides a declaration indicating that the documents never arrived in the mail, but she was provided copies via email on July 25, 2016. (Reply at 8; Ex. 11.) However, the fact that Chmyreva did not receive the documents, does not establish that the documents were never deposited in the mail as stated by Fay and Dutton. Caldwell v. Geldreich (1955) 137 Cal.App.2d 78, 81 (?service by mail was held to be complete at the time of the deposit in the post office, and the addressee incurs the risk of the failure of the mail.?); Silver v. McNamee (1999) 69 Cal.App.4th 269, 280 (same). The Court finds that Defendant has provided credible evidence that the requests for admission were timely served. Therefore, the motion is DENIED.
Defendant is ordered to give notice.