Kowal Law Group Logo
legal chess

Understand the Difference Between a Presumption Affecting the Burden of Production and a Presumption Affecting the Burden of Proof

Tim Kowal     June 16, 2021

So you think you understand legal presumptions? Well, do you know the difference between a presumption that affects the burden of production, and one the affects the burden of proof?

If not, do not feel too bad. The trial judge in Felix v. People of California (D5 Jun. 8, 2021) no. F080255 (non-pub.) didn't understand the difference, either.

The trial judge entered a default judgment against the defendant. The defendant, an inmate, moved to set aside the default judgment, submitting a declaration stating he had never gotten notice of the complaint. Only "very slight evidence" is needed for relief from default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 (Elston).) The defendant's declaration should have been plenty to set aside the default under Code of Civil Procedure section 473.

Ah, but a legal presumption applies! The trial judge noted that under Evidence Code section 641, a letter is presumed to have been received in the ordinary course. The letter here was correctly addressed. So the trial judge found the defendant's merely denying receipt did not overcome the presumption.

Reversed. True, Evidence Code section 641 does presume the letter was received. But section 641 is contained under the article for presumptions affecting "the burden of producing evidence," not the "burden of proof." The former just tells you who has to get the ball rolling in terms of putting on evidence, but does not otherwise express any public policy about how the fact question should come out. White moves before black in chess. That doesn't suggest white is better than black. It's just that someone has to go first.

Here is how the Fifth District Court of Appeal explained it:

" “A presumption affecting the burden of producing evidence is a presumption established to implement no public policy other than to facilitate the determination of the particular action in which the presumption is applied.” (Evid. Code, § 603.) The legal effect of such a presumption is described in Evidence Code section 604, which states the presumption requires “the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, 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.” In other words, once a party denies receipt of a properly mailed letter, the presumption is gone from the case. (Bear Creek Master Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 1486.)"

Here, the defendant's declaration was evidence. That was all that was needed to meet his burden of producing evidence. He did not have to also overcome any special burden of proof. As a result, the Evidence Code required the trial court to “determine the existence of nonexistence of [the defendant's receipt of the notice] from the evidence without regard to the presumption.” (Evid. Code, § 604.) The trial court did not comply with this statutory directive. Its conclusion that “the presumption created by Evidence Code section 641 is not rebutted” shows the court did not make its determination “without regard to the presumption” as required by Evidence Code section 604. In accordance with that section, the presumption about the delivery of mail no longer had any effect and should have been disregarded.

The court also noted that, in the case of a prison inmate, the presumption of delivery under Evidence Code section 641 raises this question: does section 641 also presume that, after the US Postal Service duly delivers the letter to the prison, the prison staff duly delivers the letter to the inmate? No, the court held: "We decline to interpret the statute to add the second presumption because courts are “not to insert what has been omitted” when construing a statute. (Code Civ. Proc., § 1858.)"

This suggests that presumptions are to be narrowly construed, and fact-finders are not to go hogwild piling inferences on top of them.

If you are wondering whether you need to worry about the presumptions in your case are presumptions affecting the burden of proof or merely the burden of production, the presumptions can be found here:

Presumptions Affecting the Burden of Producing Evidence (Evid. Code, §§ 630-647).

Presumptions Affecting the Burden of Proof (Evid. Code, §§ 660-670).

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

"A judge is a law student who grades his own papers."

— H.L. Mencken

Copyright © 2024 Kowal Law Group
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram