Tillamook, OR asked in Consumer Law for Oregon

Q: what happens if i did not receive a letter that was claimed to be sent without tracking under section 641 of California

evidence code

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1 Lawyer Answer
Adam Savett
Adam Savett
  • Consumer Law Lawyer
  • Allentown, PA

A: Evidence Code section 641 creates a rebuttable presumption that a properly addressed letter has been received. The plain language makes that clear - "A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail."

The effect of a rebuttable presumption impacts the burden of producing evidence, like the presumption that a letter correctly addressed and properly mailed has been received (Evid. Code, § 641), “is to require the trier of fact to assume the existence of the presumed fact [that the letter has been received] unless and until evidence is introduced which would support a finding of its nonexistence [that the letter has not been received], 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.)

The rebuttable presumption that a letter correctly addressed and properly mailed has been received (Evid. Code, § 641) “disappears” and “has no further effect,” once there is evidence sufficient to support a finding that the letter was not mailed. (Evid. Code, § 604; Coffey v. Shiomoto 60 Cal.4th 1198, 1209-1210 (2015)) At that point, the trier of fact must “‘weigh the denial of receipt against the inference of receipt arising from proof of mailing and decide whether

or not the letter was received.’” (Coffey v. Shiomoto, at 1210).

In other words, the statute presumes that the letter, if properly addressed and mailed, was received. You have the burden to try and prove that it was not sent.

Without knowing the details of what was allegedly sent to you, and allegedly not received by you, it is tough to say how you could do this. But, if for example, you were allegedly sent a check, and the office manager of the business that sent you the check explains the process for sending and recording outgoing checks, and that company's records don't line up with what they say the procedure is (e.g. not recorded in the check register, no copy of the accompanying letter in the client file, etc.) then your burden MIGHT be met.

But it is a high burden.

Best of luck.

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