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2014 California Rules of Court

Rule 8.817. Service and filing

(a) Service

(1)Before filing any document, a party must serve, by any method permitted by the Code of Civil Procedure, one copy of the document on the attorney for each party separately represented, on each unrepresented party, and on any other person or entity when required by statute or rule.

(2)The party must attach to the document presented for filing a proof of service showing service on each person or entity required to be served under (1). The proof must name each party represented by each attorney served.

(b) Filing

(1)A document is deemed filed on the date the clerk receives it.

(2)Unless otherwise provided by these rules or other law, a filing is not timely unless the clerk receives the document before the time to file it expires.

(3)A brief, a petition for rehearing, or an answer to a petition for rehearing is timely if the time to file it has not expired on the date of:

(A)Its mailing by priority or express mail as shown on the postmark or the postal receipt; or

(B)Its delivery to a common carrier promising overnight delivery as shown on the carrier's receipt.

(4)The provisions of (3) do not apply to original proceedings.

(5)If the clerk receives a document by mail from an inmate or a patient in a custodial institution after the period for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing within the period for filing the document, the document is deemed timely. The clerk must retain in the case file the envelope in which the document was received.

(Subd (b) amended effective July 1, 2010.)

Rule 8.817 amended effective July 1, 2010; adopted effective January 1, 2009.

Advisory Committee Comment

Subdivision (a). Subdivision (a)(1) requires service "by any method permitted by the Code of Civil Procedure." The reference is to the several permissible methods of service provided in Code of Civil Procedure sections 1010-1020. What Is Proof of Service? (form APP-109-INFO) provides additional information about how to serve documents and how to provide proof of service.

Subdivision (b). In general, to be filed on time, a document must be received by the clerk before the time for filing that document expires. There are, however, some limited exceptions to this general rule. For example, (5) provides that if the superior court clerk receives a document by mail from a custodial institution after the deadline for filing the document has expired but the envelope shows that the document was mailed or delivered to custodial officials for mailing before the deadline expired, the document is deemed timely. This provision reflects the "prison-delivery" exception articulated by the California Supreme Court in In re Jordan (1992) 4 Cal.4th 116 and Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106.

Note that if a deadline runs from the date of filing, it runs from the date that the document is actually received and deemed filed under (b)(1); neither (b)(3) nor (b)(5) changes that date. Nor do these provisions extend the date of finality of an appellate opinion or any other deadline that is based on finality, such as the deadline for the court to modify its opinion or order rehearing. Subdivision (b)(5) is also not intended to limit a criminal defendant's appeal rights under the case law of constructive filing. (See, e.g., In re Benoit (1973) 10 Cal.3d 72.)

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