San Bernardino County Superior Court (2014) PERB Decision No. A416-E (Issued on 8/26/14)
This case provides a good refresher on PERB’s regulations for serving documents. Here, charging party’s exceptions were served by facsimile and regular mail. After respondent informed charging party that the facsimile was illegible, charging party sent a version via email. The issue before the Board was whether respondent was entitled to additional time to file its response. Respondent argued that charging party’s service by facsimile was defective because it was illegible. Further, respondent argued that it never agreed to accept service by email, so the copy it received via email was simply a courtesy copy. Therefore, respondent asserted that the only proper service was by regular mail, which entitled respondent to another five days to file its response. Based on the proof of service, the Board agreed with respondent’s argument that it was only properly served by mail and therefore its response was timely. But here are some tips for practitioners:
Service by Regular Mail
PERB regulations allow for service by mail. (PERB Reg. 32140.) That’s how most people do it. When a document is served by mail, you generally get an extra five days to file any response that is due. (PERB Reg. 32130.) For those of you who practice civil litigation, this is an easy rule to remember since it comports with Code of Civil Procedure section 1013.
Service by Facsimile
PERB regulations also allow for service of documents via facsimile. (PERB Reg. 32090.) Under PERB regulation 32130, no extension of time is given if a response is due to a document served by facsimile. This is a trap for the unwary because this rule is different from that under CCP 1013. Under CCP 1013(e), you get an extra two court days to respond to a document served by facsimile. You do not get those extra two court days with PERB.
Service by Email
PERB regulations now allow for service of documents via electronic service (i.e. email). (PERB Reg. 32140.) To my knowledge, the PERB regulations are silent on whether service via email allows additional time for any response. Under CCP 1010.6(a)(4), service via email generally gives you an extra two court days for any response, just like facsimile service. However, since PERB regulations do not expressly provide any extra time, and because PERB regulations do not provide extra time for facsimile service, practitioners should assume that no additional time is given when documents are served via email.
Under CCP 1010.6, a party generally has to agree to accept service via email before you can serve documents that way. In this decision, PERB noted that its regulations are different. While a party can agree to accept service via email, PERB regulation 32140 provides that if a party files any document with PERB electronically, it is agreeing to accept service by email. In this regard, PERB regulation 32140 is similar to the rule imposed by the Electronic Case Filing (ECF) system in the federal courts. When you sign up for ECF, you are agreeing to accept service by email.