>Evanston Ins. v. 155 >Hamilton Development

 

 

 

 

 

Filed 6/25/13 
Evanston Ins. v. 155 Hamilton Development CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND
APPELLATE DISTRICT

DIVISION
TWO

 
>

EVANSTON INSURANCE COMPANY,               Cross-complainant and Appellant,               v.   155 HAMILTON DEVELOPMENT, LLC et al.,               Cross-defendants and Respondents.

B243145         (Los Angeles County       Super. Ct. No. BC447544)

 

 

 

            APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Deirdre Hill,
Judge.  Affirmed.

 

            Manning,
Kass, Ellrod, Ramirez, Trester, John M. Hochhausler and Ladell Hulet Muhlestein
for Cross-complainant and Appellant.

 

            James
Mortensen for Cross-defendants and Respondents.

 

 

 

            The
issue presented in this insurance coverage action is whether a claim was
“received” by an insured corporation within the meaning of a “claims made”
insurance policy before the date on which the policy was cancelled.  The trial court interpreted the term
“received by the insured,” which was undefined in the policy, to mean that a
claim letter was deposited in the mailbox at the insured’s place of
business.  Applying the presumption
accorded by Evidence Code section 641, the trial court then found that two
claim letters sent by first class mail to the insured’s address of record was
received by the insured before the policy cancellation date, despite testimony
by the insured’s sole employee that he did not see either letter until after
the instant lawsuit commenced.  The trial
court concluded that the claim was covered under the policy and on that basis
entered judgment against the insurer.  We
affirm the judgment.

>BACKGROUND

The parties

            Appellant
Evanston Insurance Company (Evanston)
issued a professional liability insurance policy to Greg Riley, P.E., The
Structural Engineering Consultants, Inc. (SEC) as the named insured.  Greg Riley (Riley) was the principal
engineer, owner, and president of SEC. 
SEC performed structural engineering services for respondents 155 Hamilton
Development, LLC and 155 Hamilton, Ltd. (collectively, Hamilton)
at a condominium project being developed by Hamilton
in Beverly Hills (the project).

The policy

            The
professional liability insurance policy issued by Evanston to SEC (the policy)
provides indemnity coverage and defense against claims made during the policy
period of June 1, 2007 to June 1, 2008.  The policy
was cancelled effective March 21, 2008 because SEC defaulted on a
loan that funded the policy premiums.

            The
policy’s insuring provision provides in relevant part:

“The Company shall pay on behalf of
the Insured all sums in excess of the Deductible amount . . . , which the
Insured shall become legally obligated to pay as Damages as a result of Claims
first made against the Insured during the Policy Period . . . and reported to
the Company . . . , by reason of a Wrongful Act . . . .”

            The
policy defines “Claim” as follows: 
“Claim means a written demand received by the Insured for money or
remedial Professional Services involving this policy . . . .”

The claim and underlying action

            During
the summer of 2007, Hamilton
discovered structural problems in the project. 
Hamilton notified SEC, and
SEC prepared plans to address those problems.

            In
July 2007, SEC relocated its offices from 27200
Tourney Road, Suite 390, in Valencia,
California, 91355,
to a new location, also in Valencia
and within the same zip code, at 25115 Avenue Stanford, Suite B-125.  At the time SEC moved its offices, it placed
a mail forwarding order with the post office, requesting that mail be forwarded
from the Tourney Road
address to the new address on Avenue Stanford. 
SEC thereafter received forwarded mail at the Avenue Stanford address.

            In
the fall of 2007, SEC began experiencing financial difficulties.  By February 2008, SEC had laid off all of its
employees except Riley.

            In
March and April 2008, Hamilton sent
four letters to SEC informing SEC that structural problems at the project had
resulted in increased costs ranging from $700,000 to $1 million, and asking SEC
to put its insurance company on notice of the claim.  The letters, dated March 10, 2008, March 15, 2008, March
27, 2008, and April 29,
2008, were sent by Hamilton’s
attorney via first class mail to SEC’s Tourney Road
address, which was the address then listed for SEC on its own website and on
the website for the California Secretary of State.  None of the four letters was returned to Hamilton
by the postal service as undeliverable.

            Of
the four letters sent by Hamilton’s
attorney, only the April 29, 2008
letter was seen by Riley before the instant lawsuit commenced.  Riley saw the April 29, 2008 letter in early May 2008, at SEC’s new
address on Avenue Stanford.  The April 29, 2008 letter had arrived by
mail at the Avenue Stanford address, even though it was addressed to SEC’s
former Tourney Road
address.

            Hamilton
sued SEC in October of 2009 for engineering defects in the project (the
underlying action).  SEC tendered the
lawsuit to Evanston, who notified SEC on November 9, 2009, that no coverage was available under the policy.

            SEC
filed for bankruptcy on December 29,
2008.  Hamilton
obtained an order from the bankruptcy court lifting the automatic stay so that
it could proceed in the underlying action for purposes of collecting insurance
proceeds available to SEC.

The instant action

            SEC
filed the instant declaratory relief
action against Evanston,
seeking a determination that SEC had no coverage available to it under the
policy but that Evanston owed SEC a
duty to defend the underlying action until the trial court issued its decision
regarding coverage under the policy.  In
its complaint, SEC alleged that it received Hamilton’s
claim in early May 2008, more than a month after the policy had been
cancelled.  Evanston filed a cross-complaint for declaratory relief against SEC and Hamilton seeking a determination that the underlying action was not
covered under the policy.

The trial

            The matter proceeded to a court
trial.  For purposes of the trial, the
parties agreed and stipulated that the policy was cancelled on March 21, 2008,
for SEC’s nonpayment of the policy premium and that no claim received by SEC on
or after that date could be considered timely under the terms of the
policy.  The parties further stipulated
that Evanston had received notice of Hamilton’s claim “as soon as practicable,”
as required under the policy, and that the sole basis for rejecting the claim
was Evanston’s contention that the claim was not received by SEC prior to the
policy cancellation date.

            At the trial, Hamilton’s attorney,
James Mortensen, testified he sent four letters to SEC notifying SEC of
construction defects in the project and asking SEC to contact its insurance
carrier.  The letters, dated March 10,
March 15, March 27, and April 29, 2008, were sent by first class mail to the
address listed for SEC on its own website and on the website for the California
Secretary of State, and were mailed either on the date indicated on the letter
or the following day.  None of the
letters was returned as undeliverable.

            Riley testified that SEC filed a
mail forwarding order with the post office in July 2007 when SEC moved its
office from Tourney Road to Avenue Stanford. 
SEC thereafter began receiving mail at the Avenue Stanford address which
had been forwarded from the former Tourney Road address.  Riley further testified that of the four
claim letters sent by Hamilton’s counsel to SEC, the April 29, 2008 letter was
only one he saw before the instant litigation commenced.  The April 29, 2008 letter arrived by mail at
SEC’s Avenue Stanford address and Riley opened the letter in early May
2008.  Because of SEC’s financial
difficulties, Riley was the sole remaining employee at SEC after February 2008
and the only person who would thereafter open SEC’s mail.  Riley described conditions at SEC at that
time as chaotic and admitted that mail may have remained unopened for months.  Riley further testified he did not know
whether any of Hamilton’s previous claim letters dated March 10, 15, or 27,
2008 had been delivered to SEC’s Avenue Stanford address.

            Evanston’s claims manager, Melanie
Brown, testified that the term “received by the Insured” as used in the policy
can have several meanings.  Brown agreed
the term could mean deposit of a sealed claim letter in the mailbox at the
insured’s office.  Brown further agreed
that the insured would not have to open a sealed claim letter deposited in the
insured’s mailbox and read the contents of the letter in order to be deemed to
have received the claim.

            At the conclusion of the trial, the
trial court found that Hamilton sent four claim letters on or within a day of
March 10, 15, 27 and April 29, 2008, by first class mail to SEC at its Tourney
Road address, which was SEC’s then address of record with the California
Secretary of State’s office.  Applying
the presumption accorded by Evidence Code section 641, the trial court then
found that it was more likely than not that Hamilton’s claim letters dated
March 10, 2008 and March 15, 2008, were received by SEC in the ordinary course
of mail before the March 21, 2008 policy cancellation date.  That presumption, the trial court found, was
not rebutted by any evidence produced by Evanston.  The trial court concluded that Hamilton’s
claim letters were properly addressed to SEC’s Tourney Road address because
Hamilton was entitled to rely on that address as SEC’s address of record listed
with the California Secretary of State and on SEC’s own website.  The trial court further found that it was
“probable” that Hamilton’s March 10 and March 15, 2008 letters were delivered
by mail to SEC’s Avenue Stanford address before the March 21, 2008 policy cancellation
date because both the Avenue Stanford and the Tourney Road addresses were
located within the same zip code and the forwarding process would not have
resulted in any significant delay in the delivery of forwarded mail.  The trial court concluded that the term
“received” by the insured was ambiguous, and that the term could reasonably be
interpreted to mean deposit in SEC’s mailbox, either at the former Tourney Road
address or at the subsequent Avenue Stanford address.

            The trial court ruled that the claim
was covered under Evanston’s policy and entered judgment against Evanston.  This appeal followed.

>EVANSTON’S
CONTENTIONS

            Evanston contends the trial court erred as a href="http://www.mcmillanlaw.com/">matter of law by concluding that deposit
of Hamilton’s claim in SEC’s mailbox, without SEC’s awareness of the claim, was
a claim “received by the Insured” within the meaning of the policy.  Evanston further contends the trial court
erred by applying Evidence Code section 641, and that absent the presumption
accorded by that statute, there was insufficient
evidence to sustain Hamilton’s burden of proving that a claim was timely
received.href="#_ftn1" name="_ftnref1"
title="">^[1]

>DISCUSSION

I. 
Interpreting the policy language

            A. 
General principles

            The principles applicable to the
interpretation of an insurance policy are the same as those that govern the href="http://www.mcmillanlaw.com/">interpretation of contracts
generally.  (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254,
1264.)  The parties’ mutual intention at
the time the contract is formed governs interpretation.  (AIU
Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821.)  “If possible, we infer this intent solely
from the written provisions of the insurance policy.  [Citation.] 
If the policy language ‘is clear and explicit, it governs.’  [Citation.] 
[¶]  When interpreting a policy
provision, we must give its terms their ‘“ordinary and popular sense,” unless
“used by the parties in a technical sense or a special meaning is given to them
by usage.”’  [Citations.]  We must also interpret these terms ‘in
context’ [citation], and give effect ‘to every part’ of the policy with ‘each
clause helping to interpret the other.’ 
[Citations.]”  (>Palmer v. Truck Ins. Exchange (1999) 21
Cal.4th 1109, 1115.)  “‘A policy
provision will be considered ambiguous when it is capable of two or more
constructions, both of which are reasonable. 
[Citation.]  But language in a
contract must be interpreted as a whole, and in the circumstances of the case,
and cannot be found to be ambiguous in the abstract.’  [Citation.]” 
(ACS Systems, Inc. v. St. Paul
Fire & Marine Ins. Co. (2007) 147 Cal.App.4th 137, 146.)

            >B. 
The meaning of “received by the Insured”

            The policy does not define the term
“received by the Insured.”  The term may
reasonably be construed to have several different meanings, as evidenced by the
different interpretations advanced by the parties in this case.  The trial court interpreted the term  to mean deposit by the postal service in the
mailbox at SEC’s place of business.  This
interpretation is supported by the testimony of Evanston’s own claims manager,
Melanie Brown, who agreed that the term “received by the Insured,” as used in
the policy, can have several meanings, including deposit of a claim letter in
the insured’s mailbox.  Brown also
confirmed that a claim letter deposited in the insured’s mailbox would be
deemed “received” under the policy whether or not the insured opened the letter
and became aware of its contents.

            Evanston claims that Brown’s
testimony was an inadmissible legal conclusion. 
Evanston raised no objection to this testimony in the trial court below,
however, and therefore forfeited the right to challenge its admissibility on
appeal.  The record shows that the
trial court sustained Evanston’s objection to the following question by
Hamilton’s counsel to Brown, before Brown responded to the question, on the
ground that it called for a legal conclusion: 
“So that would mean that if the letter of March 15th hit Mr. Riley’s
mailbox before March 21st, 2008, a valid claim would have been stated?”  Hamilton’s counsel then rephrased the
question and obtained the following response from Brown, without any objection:

“Q: 
If the letter of March 15th had hit Mr. Riley’s mailbox before March
21st of 2008, for Evanston’s purposes it would be considered that Mr. Riley and
SEC had received notice of the claim within the policy period?

 

“A: 
Yes.”

 

            Hamilton’s
counsel also elicited the following testimony from Brown, without any objection
from Evanston:

 

“Q: 
If the letter, the envelope, the sealed envelope containing the claim is
placed in the mailbox of the insured’s office or residence or whatever the
address is, does that not also constitute a receipt of the letter, receiving
the letter?

 

“A: 
That would constitute receipt of a letter.”

 

The foregoing testimony was
admissible to show Evanston’s claim handling procedures.

            Evanston argues that the term
“received by the Insured” must be more narrowly interpreted to mean receipt by
an individual, in this case Riley, SEC’s only employee at the time Hamilton’s
letters were posted.  Evanston further
argues that in order for the claim to have been “received” by SEC, Riley not
only had to physically receive Hamilton’s claim letter, he must also have
opened the letter and had actual notice of its contents.  As support for its interpretation, Evanston
relies on Safeco Surplus Lines Co. v.
Employers’ Reinsurance Corp. (1992) 11 Cal.App.4th 1403 (>Safeco) and Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474 (>Bonzer). 
As we discuss, neither case supports Evanston’s position.

                        1.  Safeco and Bonzer are distinguishable

            Safeco
involved a declaratory relief action between two insurers, Safeco and ERC,
each of whom had issued a “claims made” liability insurance policy to the same
insured, but for different consecutive policy periods.  At issue in that case was whether a third
party claim against the insured was “a claim first made” against the insured on
October 27, 1989, the date shown on the demand letter, and therefore covered
under ERC’s policy, or on November 6, 1989, the date the insured received the
letter, and therefore covered under Safeco’s policy.  (Safeco,
supra, 11 Cal.App.4th at p.
1407.)  ERC’s policy defined “claims
first made” to mean “‘that the Insured has received notice of legal process,
that a demand for money or services had
been made against the Insured, or that the Insured has become aware of a
proceeding, event or development which has resulted in or could in the future
result in the institution of a claim against the Insured. . . .’”  (Ibid.)

            The court in Safeco concluded that the claim was “made” on the date the insured
received the demand letter, not on the date indicated on the letter, and was
therefore covered under Safeco’s policy and not ERC’s.  (Safeco,
supra, 11 Cal.App.4th at p. 1407.) 
The court reasoned that case law as well as “common sense” supported the
principle “that a claim is not ‘made’ until the party against whom it is
asserted has notice of the claim.”  (>Ibid.) 
The court in Safeco noted that
definitions of the term “claim,” collected in prior case law, including to “ask
for,” “seek to obtain,” “demand as due,” or “assert” “necessarily imply
two-party transactions.”  (>Id. at p. 1408.)  The court concluded that the definitions
“logically lead to the conclusion that a claim is ‘made’ only when the party
claimed against learns of the claim.”  (>Ibid.)

            Safeco
is distinguishable in several respects. 
Unlike the instant case, in Safeco
there was no dispute as to when or whether the insured received the
claimant’s demand letter.  The court in >Safeco accordingly did not address the
factual issue of whether the insured had received the demand letter.

            The policy language considered by
the court in Safeco also differs from
the relevant language in Evanston’s policy. 
The policy in Safeco defined
“claims first made” to include “a demand for money or services” that “>has been made against the Insured.”  (>Safeco, supra, 11 Cal.App.4th at p.
1407.)  The definition also included the
insured’s awareness of a claim or potential claim:  “‘[T]he term “claims first made” shall mean .
. . that the Insured has become aware of
a proceeding, event or development which has resulted in or could in the future
result in the institution of a claim against the
Insured. . . .’”  (>Id. at pp. 1406-1407, italics
added.)  The language of the policy was
thus consistent with the Safeco court’s
conclusion that a claim could not be “made” against the insured until it became
aware of the claim.  In contrast, there
is nothing in Evanston’s policy that suggests the insured’s knowledge or
awareness of a claim is required for the claim to be “received by the Insured.”  Evanston’s policy defines “claim” simply as
“a written demand received by the
Insured.”  (Italics added.)  It makes no reference to the insured’s
awareness of the claim.

            For the foregoing reasons, >Safeco is distinguishable from the
instant case.  The Safeco court’s conclusion that a claim is “made” against an insured
only when the insured has notice of the claim was not intended to apply to the
circumstances presented here. 

            Evanston’s argument that the term
“received by the Insured,” when the insured is a corporation, can only mean
receipt by an individual authorized to act for the corporation is inconsistent
with the language of the policy, which does not require that a claim be
received by an individual representative of the insured.  Such an interpretation would effectively require
personal service of claims asserted against an insured corporation or other
form of business entity.  Corporations,
like individuals, can “receive” claims and demand letters by mail.  Nothing in Evanston’s policy suggests
otherwise.

            Evanston cites Bonzer as further support for its argument that an actual notice
standard should apply when determining whether a claim was received by the
insured.  That case, too, is factually
distinguishable.  In Bonzer, the respondent’s counsel mailed notice of a hearing on a
petition for writ of mandate to the City of Huntington Park.  (Bonzer,
supra, 20 Cal.App.4th at p. 1477.) 
When no representative for the City appeared at the hearing, an order
was entered against the City.  The City
then filed an unsuccessful motion for relief under Code of Civil Procedure
section 473, supported by six uncontested declarations that no notice of the
hearing had been received.  (>Ibid.) 
The Court of Appeal reversed, finding the City’s six unimpeached and
uncontested declarations that it had not received any notice of the hearing
rebutted any presumption accorded by Evidence Code section 641.  In light of those declarations, the court in >Bonzer concluded that any inference that
the notices were actually received was inappropriate as a href="http://www.fearnotlaw.com/">matter of law.  (Bonzer,
at p. 1481.)

            Here, in contrast, Riley did not
testify that Hamilton’s letters were not received at SEC’s Avenue Stanford
address; he could only state that he had not seen the letters.  He also admitted that conditions at SEC were
chaotic at the time and that he may not have attended to the mail that was
delivered for months.  In light of the
evidence, the trial court did not err by concluding that Riley’s testimony was
insufficient to rebut the Evidence Code section 641 presumption that Hamilton’s
letters were received by SEC.  Moreover,
Riley’s admissions regarding the chaotic state of SEC’s affairs at the time the
letters were posted are sufficient to support the inference that the letters
were received but overlooked, forgotten, or misplaced.  Bonzer does
not compel a finding to the contrary.

                        2.  Construing ambiguities
against the insurer

            Evanston argues that the trial
court’s interpretation of the policy language is unfair to insureds generally
because an insured who receives a claim in the mail but does not have actual
notice of the claim and cannot report it to the insurer in a timely manner will
forfeit coverage under its policy. 
Evanston further argues that the “deposit-without-awareness”
interpretation adopted by the trial court precludes an insured from ever
rebutting the presumption accorded by Evidence Code section 641, because a
recipient can never testify that a letter was not deposited in its mailbox.

            The mailbox rule applied by the
trial court in this case benefits both the insurer and the insured by setting a
uniform standard, thereby enabling the parties to determine with greater
certainty whether and when a claim has been “received” by the insured.  A claim is presumed “received” when delivered
in the ordinary course of mail, unless rebutted by evidence to the
contrary.  Evanston’s argument that this
presumption can never be rebutted is contradicted by case authority on which
Evanston itself relies.  As discussed,
the court in Bonzer found that six
uncontroverted and unimpeached declarations produced by the alleged recipient
that a notice of hearing sent by mail was never received was sufficient to
rebut any presumption accorded by Evidence Code section 641 and to preclude any
inference that the notice had been delivered. 
(Bonzer, supra, 20 Cal.App.4th> at p. 1481.)  Evanston’s proposed standard, based on the
insured’s actual knowledge of the claim, does not benefit SEC in the instant
case, and we are not persuaded that it benefits insureds generally.

II.  Whether
Hamilton’s claim was timely received by SEC

            Evanston contends the trial court
erred by applying Evidence Code section 641 because the statute does not apply
to forwarded mail and because the statutory requirements were not met.  Evanston further contends the statutory
presumption, even if applicable, was rebutted. 
Finally, Evanston argues that the presumption, even if not rebutted,
does not establish that the letters were delivered before the policy
cancellation date.

            >A. 
Evidence Code section 641

            Evidence Code section 641
states:  “A letter correctly addressed
and properly mailed is presumed to have been received in the ordinary course of
mail.”  The presumption accorded by
Evidence Code section 641 is one that affects the burden of producing evidence.  It requires the trier of fact to assume a
letter correctly addressed and properly mailed was received unless and until
evidence is introduced to support a finding that it was not.  (Evid. Code, § 604.)  The presumption may be rebutted by
contradictory evidence; however, the statute does not prohibit the trier of
fact from drawing appropriate inferences from the same circumstances that gave
rise to the presumption.  (>Ibid.; Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.)

            We agree with the trial court’s
conclusion that Hamilton’s claim letters were correctly addressed to SEC at the
Tourney Road address because Hamilton was entitled to rely on SEC’s then
address of record listed with the California Secretary of State and on SEC’s
own website.  Hamilton’s demand letter
was not, as Evanston argues, “incorrectly” addressed to the only address for
SEC publicly available at the time. 
Evidence Code section 641 contains no exception for forwarded mail, and
Evanston cites no authority creating such an exception.  The statutory presumption that a letter
correctly addressed and properly mailed has been received by the addressee may
include mail that is forwarded to the addressee “in the ordinary course of
mail.”  (Evid. Code, § 641.)  The trial court did not err by concluding
that Evidence Code section 641 created a rebuttable presumption that one or
both of Hamilton’s letters dated March 10 and March 15, 2008, were “received”
by SEC in the ordinary course of mail.

            Riley’s testimony that he did not
see Hamilton’s March 10 and March 15, 2008 claim letters until sometime in 2010
is insufficient to rebut the presumption that SEC received those letters.  Riley did not deny receiving the letters, nor
could he make such a denial because he did not know whether or not the letters
had been delivered to SEC’s Avenue Stanford address.  (Compare Savarese
v. State Farm Mut. Auto Ins. Co. (1957) 150 Cal.App.2d 518, 521 [insured’s
statement that he never received written notice from insurance company was
sufficient to prove document was never mailed] with Colleen M. v. Fertility & Surgical Associates of Thousand Oaks (2005)
132 Cal.App.4th 1466, 1478-1480 (Colleen
M.) [attorney’s testimony that he was “never aware or made aware” of
subpoena served by mail was insufficient to rebut presumption accorded by
Evidence Code section 641 that documents were received at the attorney’s office
in the ordinary course of mail].)

            Riley testified that he was the only
person who would have opened SEC’s mail in March 2008; he admitted that
conditions at SEC were chaotic at that time; and he could not deny that mail
may have sat unopened for months.  From
this evidence, the trial court could reasonably infer that Hamilton’s March 10
and March 15, 2008 letters were delivered to SEC at the Stanford Avenue address
in the ordinary course of mail but that the letters were overlooked or
misplaced given the chaotic circumstances at SEC’s offices at that time.  (In re
Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358 [“Where statement of
decision sets for the factual and legal basis for the decision, any conflict in
the evidence or reasonable inferences to be drawn from the facts will be
resolved in support of the determination of the trial court decision”].)

            B. 
Substantial evidence of delivery before March 21, 2008

            There is substantial evidence to
support the trial court’s finding that it was more likely than not that
Hamilton’s letters dated March 10 and March 15, 2008, were received by SEC
before the March 21, 2008 policy cancellation date.href="#_ftn2" name="_ftnref2" title="">^[2]  Hamilton’s attorney
testified that he sent letters dated March 10, March 15, March 27, and April
29, 2008, to SEC by first class mail on or within a day after those respective
dates to the Tourney Road address listed for SEC on its own website and on the
website for the California Secretary of State. 
None of the four letters was returned as undeliverable.  SEC placed a mail forwarding order with the
post office when it relocated its offices to the Avenue Stanford address in the
summer or fall of 2007 and it received mail at the Avenue Stanford address that
had been forwarded from its former Tourney Road address.  Because SEC’s former Tourney Road address and
its subsequent Avenue Stanford address were located in the same city and within
the same zip code, it was unlikely that there would have been any significant
delay in the delivery of mail forwarded from the Tourney Road address.  The absence of any such delay was confirmed
by Riley’s testimony that he received Hamilton’s April 29, 2008 letter (sent by
mail to SEC’s Tourney Road address) at SEC’s Avenue Stanford address in early
May 2008 -- within three or four days after the letter was mailed.  Based on this evidence, the trial court could
reasonably conclude that Hamilton’s March 10, and March 15, 2008 letters were
delivered to SEC’s Avenue Stanford address within three or four days after
those letters were mailed.

DISPOSITION

            The judgment is
affirmed.  Hamilton is awarded its costs
on appeal.

            NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.

 

 

                                                                                    ____________________________,
J.

                                                                                    CHAVEZ

 

We concur:

 

 

 

______________________________, P. J.

BOREN

 

 

 

_____________________________, J.

ASHMANN-GERST