Judge Blaine K. Bowman, Case 37-2023-00046283-CU-PA-NC 2024-01-19 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2023-00046283-CU-PA-NC, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 18, 2024

01/19/2024 10:00:00 AM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited PI/PD/WD - Auto Motion Hearing (Civil) 37-2023-00046283-CU-PA-NC MACIAS VS APODACA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 11/15/2023

The Motion for Order for Filing Complaint for Damages Nunc-Pro-Tunc brought by plaintiff Jose Macia (Plaintiff) is DENIED.

This is an auto accident case. Plaintiff admits in his briefing that: 'The Statute of Limitations ran on September 17, 2022...' for the claims being brought in this case. Plaintiff, through his counsel, which in turn acted through its attorney service agent, One Legal, attempted to file the initial complaint in this case two days before that expiration date – i.e. on September 15, 2022. The Clerk correctly rejected the filing for the following reason: As of April 15, 2021, filings submitted by attorneys for represented parties must be submitted electronically through one of the court's approved e-filing services.

(ROA 9, PDF p. 16 (emphasis added).) Plaintiff's counsel admits receiving the formal rejection notice by September 29, 2022. Because this date was after the statute of limitations expired, Plaintiff now requests that this Court order the Clerk to file the initial complaint on a nunc pro tunc basis – effectively backdating it to the September 15, 2022 date that it was submitted – on grounds that the Clerk should not have rejected the filing.

Plaintiff's argument appears to misconstrue what occurred. The declaration submitted in support of the instant motion recites: 6. I only learned after the statute of limitations had ran [sic], on September 17, 2022 that the court clerk refused to file the timely-filed complaint, because it was filed under a 'non-approved' e-filing service.

(ROA 9, PDF p. 5 (emphasis added).) From the passages quoted above, Plaintiff appears to be arguing that the operative phrase with regard to the dispute that has arisen turns on whether Plaintiff used an 'approved e-filing service.' That, however, is not the Court's reading of why the filing was rejected.

Factually, it appears that Plaintiff used One Legal, which is an attorney service that routinely files documents in this Court and is considered 'approved' as a filing service. The problem, however, does not appear to be that Plaintiff did not use an 'approved' filing service, but, rather, that that service did not file electronically. In other words, whatever miscommunication may have occurred between Plaintiff's counsel and One Legal, it appears that the type of service that One Legal attempted to make was via hard paper copy – i.e. 'over the counter' filing rather than electronic filing. Indeed, the Clerk's specification of April 15, 2021 is a reference to when electronic filing became mandatory for unlimited Calendar No.: Event ID: TENTATIVE RULINGS

3052576 CASE NUMBER: CASE TITLE: MACIAS VS APODACA [IMAGED] 37-2023-00046283-CU-PA-NC civil cases in the San Diego Superior Court – the Court accepted electronic filing well before that particular date, but it was optional, not mandatory, up until April 15, 2021. As such, the argument made in Plaintiff's present motion focuses on the incorrect language and misconstrues the operative failing that led to the rejection of the filing. Attorneys are required to e-file in unlimited civil cases in San Diego Superior Court.

The Court, however, notes that the issue being raised appears to be a clerical or procedural one – the kind of issue that, given the general but strong preference for resolving cases on their merits under California law, risks a miscarriage of justice and/or an unfair result to a client due to either a misunderstanding of counsel or a miscommunication with the attorney service. As such, in considering the instant motion, the Court takes a broad view of the declaration and information provided and would be prepared to construe the motion as a motion for relief under Code of Civil Procedure § 473(b). Under that authority, this Court would be inclined to grant relief on grounds of mistake, surprise, inadvertence, or excusable neglect if not for the fact that there has been significant delay.

In first reviewing the moving papers, the Court noted the September 15th date of the original attempt to file the complaint and presumed that it was the most recent September 15th date that had passed – i.e.

September 15, 2023. However, upon a closer review and considering the matter in light of granting relief under Code of Civil Procedure § 473(b), the Court noted that the actual date of the attempted initial filing was on September 15, 2022. Plaintiff admits in the moving papers that '[t]he notice of rejection was received by Plaintiff's counsel on September 29, 2022.' The instant motion for an order granting nunc pro tunc filing of the complaint was not filed until over a year later on November 15, 2023. In other words, Plaintiff had over a year of time to sit with the knowledge that his original complaint had been rejected and chose not to seek relief until more than a year had passed. Such late filing makes relief under Code of Civil Procedure § 473(b) impossible as even if this Court construes the instant motion as seeking such relief (itself an act of considerable discretion to treat the information before the Court in a manner designed to avoid a potentially unjust result or the foreclosing of an opportunity to reach trial on the merits), such motions must be brought within six months of the error sought to be corrected.

Moreover, this lateness in seeking relief in the form of an order for a nunc pro tunc filing date also strongly weighs against any concerns of manifest injustice or unfairness that may result from application of the statute of limitations. To be clear, had Plaintiff moved for relief immediately or even quickly after learning of the rejection, opportunities for relief under Code of Civil Procedure § 473(b) and/or equitable principles might exist in order to prevent an injustice, but after a delay of over a year with this clear rejection being known to Plaintiff the delay of more than a year saps the facts of any concern that might otherwise arise of a manifest injustice or unfairness due to precluding a trial as a result of the statute of limitations.

Ultimately, Plaintiff did file another complaint on October 25, 2023. That complaint remains on-file. And, though the briefing on the instant motion indicates that: 'The Statute of Limitations ran on September 17, 2022,' as Plaintiff is not prevailing on the instant motion, that particular statement will not preclude Plaintiff from making other arguments to extend, toll, or delay the running of the statute of limitations. In other words, today's ruling does not dispose of the case – it only denies Plaintiff the requested relief of backdating the existing complaint that is on-file and that was filed a little over a year after the earlier attempted filing in September 2022.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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3052576