Judge: Kenneth J. Medel, Case: 37-2023-00040663-CU-OE-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2023-00040663-CU-OE-CTL BROWN VS AEROTEK INC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 02/23/2024

PLAINTIFF's MOTION FOR ORDER NUNC PRO TUNC TO SET COMPLAINT FILING DATE AS SEPTEMBER 12, 2023 is GRANTED.

In this motion, plaintiff states the Complaint was first electronically filed and presented on September 12, 2023 to San Diego clerk's office. The filing was rejected by the clerk's office because of failure to bookmark the exhibit. Plaintiff was not notified of this rejection until nearly one week later, on September 18, 2023, at 8:01 p.m., which was after hours. Once Plaintiff was notified of the rejection, Plaintiff resubmitted the Complaint and it was filed on September 19, 2023. (Otkupman Decl., ¶ 5, Exhibit C) Plaintiff relies on Litzmann v. Workmen's Compensation Appeals Board, Azusa Western, Inc., et al., where a claimant sought review of a worker's compensation decision. The claimant presented a petition for filing on the last day of the applicable period, but the clerk rejected it, claiming that it was not in 'the proper form' and not on 'proper size sheets.' (Litzmann v. Workmen's Compensation Appeals Board, Azusa Western, Inc., et al. (1968) 266 Cal.App.2d 203, 204) The court ruled: 'Assuming the facts alleged to be true, it appears to us that, since the petition was deposited with the clerk for filing on April 17, 1968, albeit in defective form, this court may make an order that the petition be deemed to have been filed on that date. There is a strong policy in favor of hearing cases on their merits and against depriving a party of his right of appeal because of technical noncompliance in matters of form.' (Id. at 205; see also, e.g., Mentzer v. Hardoin (1994) 28 Cal.App.4th 1365, 1372 ['In superior court, the clerk is required to endorse on each paper filed with the court the day, month, and year it is filed.' (Gov.Code, § 69846.5; see Judicial Council com., 37 West's Ann. Gov.Code (1976 ed.) § 69846.5, p. 215.) 'It is the legislative and judicial policy of this state to prefer disposition of litigation on the merits rather than on procedural grounds. (See, e.g., Traweek v. Finley, Kumble, etc. Myerson & Casey (1991) 235 Cal.App.3d 1128, 1136) In Rojas v. Cutsforth, the Court stated, '[w]here, as here, the defect, if any, is insubstantial, the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity. (See Code Civil Procedure section 128.7, subdivision (a), providing in part that [a]n unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.' That should create no more difficulty than returning all the documents with a notice pointing out the defects.' (Rojas v. Cutsforth, 79 Cal. Rptr. 2d 292) The Court further stated, '[t]o deny Rojas her cause of action for lack of a signature makes a mockery of judicial administration.' (Id.) Justice Gilbert went on to rule that 'a paper is deemed filed when it is deposited with the clerk with directions to file the paper.... Because here the clerk had no proper basis for rejecting Rojas' complaint, it must be deemed filed when it was presented on November 7, 1996.' (Id. at p. 778) Certainly, rejection of document based solely upon a Local Rule would be improper. The Court in Carlson v. State Dept. of Fish and Game, the Court stated, '[t]he conclusion that a clerk lacks authority to enforce the Los Angeles County Superior Court local rules by rejecting papers that comply with CRC, Calendar No.: Event ID:  TENTATIVE RULINGS

3094516  27 CASE NUMBER: CASE TITLE:  BROWN VS AEROTEK INC [E-FILE]  37-2023-00040663-CU-OE-CTL rule 201 does not mean that those local rules cannot be enforced. It simply means that they cannot be enforced by the method of rejecting filings which conform to state law. After a paper is filed, the panoply of possible sanctions provided for in CCP Section 575.2, CRC, rule 227 and elsewhere become available to redress local rule violations. However, applying a sanction of the type authorized by the CCP and the CRC is far different from rejecting a conforming paper and possibly causing the statute of limitations to run. (Carlson v. State Dept. of Fish and Game (1998) 80 Cal. Rptr. 2d 601, 609- 610) In this case, Plaintiff's Complaint was first electronically filed and presented on September 12, 2023, but rejected by the clerk's office because of a technical error - a failure to bookmark the exhibit. The California Rules of Court regulate electronic filings. (Cal. Rules of Court, rules 2.250–2.261.) They set forth a requirement to bookmark exhibits in electronically filed documents. (Id., rule 3.1110(f).) The Clerk's office enforces that rule for all documents. (Superior Court of California, County of San Diego, Electronic Filing Requirements (Civil), p. 1 ['Documents that contain exhibits must be bookmarked, as set forth on the [electronic filing service provider's] site. Documents not so bookmarked, including moving papers containing non-compliant exhibits, shall be rejected and/or not considered.'].) The rejection of documents for failing to bookmark is a local rule. Based on the authority cited, the rule is as to form of the filing of the documents. It could have been corrected without outright rejection.

Further, the mandate to reject the documents appears to be a local rule and not required by the California Rules of Court.

The rejection notice was not sent by the Clerk of Court until nearly a week later, after which Plaintiff immediately re-submitted his Complaint and it was filed by the Clerk. Under case law and the California Rules of Court, the filing date for Plaintiff's Complaint is set to September 12, 2023.

The Court grants the relief requested and issues an order nunc pro tunc setting (or amending) the filing date for Plaintiff's Complaint in this case for September 12, 2023.

The Court cannot actually change the date in the ROA or change the date of the file stamp.

However, this Court issues an order the filing of the Complaint is deemed to be September 12, 2023.

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