Judge Ronald F. Frank, Case Number: 24TRCV00358, Date: 2024-04-30 Tentative Ruling

Judge: Ronald F. Frank, Case: 24TRCV00358, Date: 2024-04-30 Tentative Ruling

Case Number: 24TRCV00358 Hearing Date: April 30, 2024 Dept: 8

Tentative Ruling¿¿

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HEARING DATE: April 30, 2024

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CASE NUMBER: 24TRCV00358

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CASE NAME: Leidaly Diaz v. Herman Weissker Power, Inc., et al.

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MOVING PARTY: Plaintiff, Leidaly Diaz

OPPOSING PARTY: Defendant, Herman Weissker Power, Inc.

TRIAL DATE: Not Set.

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MOTION:¿ (1) Plaintiff’s Motion to Deem Complaint filed on November 14, 2023.

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Tentative Rulings: (1) Plaintiff’s Motion to Deem Complaint filed on November 14, 2023 is GRANTED. But the Court will need to hear oral argument from Plaintiff’s counsel as to why a pleading rejected in November of 2023 did not become the subject of a re-submitted Summons and Complaint until January 31, 2024, over two months later. The Chesney Declaration does not explain that substantial lapse of time, which troubles a Court being asked to excuse a mistake by counsel, not a mistake by the clerk’s office.

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I. BACKGROUND¿¿¿

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A. Factual¿¿¿

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On January 31, 2024, Plaintiff, Leidaly Diaz filed a Complaint against Defendants, Herman Wissker Power, Inc., and DOES 1 through 50. The Complaint alleges causes of action for: (1) Motor Vehicle Negligence; and (2) General Negligence. The current Complaint was field more than two years after the date of the subject motor vehicle collision, but a prior version of the Complaint had been submitted for filign but was rejcted byt eh Clerk’s office for non-compliance with the requirement in the statewide rules of court for naming each defendant in the caption.

After meet and confer between counsel and the assertion by defendant of a likely statute of limitations motion, Plaintiff now files a Motion to Deem the Complaint filed on November 14, 2023, which would be within the two-year statute.

B. Procedural¿¿¿

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On March 8, 2024, Plaintiff filed this Motion to Deem Complaint filed November 14, 2023. On April 16, 2024, Defendant filed an opposition brief. On April 23, 2024, Plaintiff filed a reply brief.

¿II. ANALYSIS¿¿

A. Legal Standard

The Court has the power to correct clerical mistakes in its judgment or orders as entered to conform the judgment or order. (Code Civ. Proc., § 473, subd. (d).) Similarly, the Court has broad inherent power to correct its records at any time so that they may truthfully reflect what proceedings actually transpired. (Chester v. Chester (1946) 76 Cal.App.2d 265, 268-69.) In addition, amendments that merely correct clerical errors are not barred by the statute of limitations. (See Ball v. Lowe (1905) 1 Cal.App.228.) The Supreme Court in United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912 stated that “it is the filer's actions that are scrutinized in determining whether a petition was timely filed. Rejection of the petition by the clerk…for a technical defect cannot undo a ‘filing’ that has already occurred.” (Id. at p. 918.)

California Rule of Court 2.111 requires the complaint to separately state the name of each defendant in the caption of the Complaint. It states: “Below the title of the court, in the space to the left of the center of the page, the title of the case. In the title of the case on each initial complaint or cross-complaint, the name of each party must commence on a separate line beginning at the left margin of the page.” (Id. subdiv. (3).) “Compliance with these provisions is important; the Law Revision Commission has stated that ‘the clerk is to rely on the caption in determining how to classify a civil case that is brought in a unified superior court.’” (Stratton v. Beck (2017) 9 Cal.App.5th 483, 493.)

Rule 2.119(a) requires the Clerk’s office to reject for filing any papers that do not comply with the rules of court, including Rule 2.111. Code of Civil Procedure section 422.40 requires the title of the action to include the names of all parties, as contained in the caption of the Complaint. But Rule of Court 2.118(c) gives the Court discretion, for good cause shown, to permit the filing of papers that do not comply with the Rules of Court.

B. Discussion

The moving papers assert that on November 13, 2023, Stephen L. Chesney, counsel for Plaintiff, prepared the summons, complaint, civil cover sheet, and civil case cover sheet addendum for filing. Plaintiff further notes that counsel also prepared an additional parties form for the summons, and attachment 1 for the Complaint. Plaintiff contends that the documents were scanned into the firm’s computer system as a pdf by Mr. Chesney so that the documents could be filed with the court through USA Express. Plaintiff’s counsel further notes that he instructed his secretary to use the USA portal to submit the documents to the court, which she did. Plaintiff asserts that the pdf was uploaded on November 14, 2023 at 3:01 pm.

However, Plaintiff’s counsel asserts that unbeknownst to him or his secretary, Attachment 1 to the Complaint (which listed Juan Jose Saldana, Jr. as an additional defendant) was not part of the pdf. Further, Plaintiff also notes that apparently there was a malfunction with the feeder for the scanner, so that Attachment 1, though fed through the scanner, was not actually scanned. Plaintiff notes that because of this, on November 20, 2023, at 3:40 pm, the court rejected the documents, stating that the basis was that Attachment 1, though referenced, was not part of the submitted documents. Counsel for Plaintiff notes that he failed to become aware of the rejection until “several weeks later.” Because of this, Plaintiff’s counsel acknowledges that this resulted in Plaintiff’s later-field lawsuit being subject to a statute of limitations defense. As such, Plaintiff moves for an order deeming the January 31, 2024-filed Complaint to be filed on November 14, 2023.

Defendant’s opposition argues that this Court has no discretion to deem the complaint filed on a date within the statute of limitations. This is incorrect. Rule of Court 2.118(c), which is not mentioned in the Opposition, states that “For good cause shown, the court may permit the filing of papers that do not comply with the rules in this chapter.” Further, Code of Civil Procedure section 128 gives the courts inherent authority to “amend and control its process and orders so as to make them conform to law and justice.” (Code Civ. Proc., § 128, subd. (a)(8).) A nunc pro tunc order is one such exercise of this inherent authority: “A nunc pro tunc order is a retroactive entry by the court. It is effective at the date which the court states it is to be effective, not at the date it was made. It is an exercise of inherent power of the court for the purpose of doing justice between the parties.” (Wexler v. Goldstein (1956) 146 Cal.App.2d 410, 412.) It is “generally limited to correcting clerical errors[.]” (People v. Borja (2002) 95 Cal.App.4th 481, 485.)

Here, Plaintiff’s counsel attempted to file the complaint on November 14, 2023. The Notice of Rejection of Electronic Filing confirms that the Superior Court received the complaint on November 14, 2023 at 3:01 pm, but did not reject the complaint until November 20, 2023 at 3:46 pm. (Declaration of Stephen L. Chesney (“Chesney Decl.”), ¶ 5, Exhibit D.) Thus, the Complaint had been attempted to be filed prior to the November 19, 2023 statute of limitations deadline. Plaintiff’s motion cites to Rojas v. Cutsforth (1998) 67 Cal.App.4^th 774, 777 and Carlson v. State Department of Fish & Game (1998) 68 Cal.App.4^th 1268, 1279, where the appellate courts reversed dismissals of lawsuits that had been timely filed but the papers were rejected by clerical staff for the failure to comply with local rules of court. The Opposition distinguished these cases from the case at bar because, as defendant argues, the Complaint here was rejected because of the application of a statewide Rule of Court, not a local rule.

But the Opposition fails to address the good cause exception of Rule of Court 2.118(c). Rule 2.118 was adopted effective January 1, 2007, after either of the Rojas or Carlson cases were decided. But the substance of Rule 2.118(c)’s good cause standard is foreshadowed in the earlier precedents. For example, the Carlson court held that “Where, 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.” (Carlson, supra, 68 Cal.App.4th at p. 1276.) The Carlson court reversed the trial court’s dismissal under the statute of limitations so that the later-filed suit could be deemed to have been timely filed. In Rojas, the Second District reversed the dismissal of plaintiff’s untimely filed lawsuit – which had been rejected for the insubstantial pleading defect of failing to sign the declaration of courthouse assignment -- with instructions to deem the complaint filed when it was first presented to the Clerk for filing.

In the Court’s view here, the insubstantial defect of failing to include the name of each party, because of a clerical mishap in scanning an attachment to an otherwise timely submitted Complaint, fits the circumstances of Rojas and Carlson. The circumstances presente here are, in the Court’s discretion, the type of good cause contemplated by Rule 2.118(c) to consider an untimely later-submitted complaint to be deemed to have been filed at the time the original and timely-submitted complaint was presented to the Clerk for filing. However, for the Court to exercise its discretion in plaintiff’s favor here, it needs more facts from plaintiff’s counsel as to the unexplained two months of delay between the Clerk’s notice of rejection and counsel’s belated filing of the later-submitted complaint. As with the exercise of the Court’s discretion under Section 473, discretion under Rule 2.118(c) requires a showing of reasonable diligence in seeking relief.