Judge: Salvatore Sirna, Case: 22PSCV01986, Date: 2023-01-04 Tentative Ruling

Case Number: 22PSCV01986    Hearing Date: January 4, 2023    Dept: G

Plaintiff Esther Lopez’s Motion for Order Nunc Pro Tunc Correcting Date of Filing Complaint

Respondent: NO OPPOSITION (Due 12/20/2022)

TENTATIVE RULING

Plaintiff Esther Lopez’s Motion for Order Nunc Pro Tunc Correcting Date of Filing Complaint is GRANTED. The court deems Plaintiff’s complaint filed on November 17, 2022 at 4:00 PM when it was presented to the clerk via electronic submission.

BACKGROUND

This is a personal injury action. On November 17, 2020, Plaintiff Esther Lopez was involved in a motor vehicle accident with Defendant Juan Ladislado Saldana in La Puente. On November 22, 2022, Plaintiff filed a complaint for negligence against Defendant, Angelica Maria Saldana, and Does 1-50.

On December 1, 2022, Plaintiff filed the present motion. A hearing is set for January 4, 2023. An OSC Re: Failure to File Proof of Service and case management conference are also set for April 20.

ANALYSIS

Plaintiff moves for a nunc pro tunc order correcting the filing date of Plaintiff’s complaint from November 22, 2022 to November 17, 2022.

“The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made.”  (APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 185, quoting Hamilton v. Laine (1997) 57 Cal.App.4th 885, 890.) An order nunc pro tunc “cannot be made for the purpose of declaring that something was done which was not done. Its only office is to cause the record to show something done which was actually done, but which, by misprision or neglect, was not at the time entered in the record.”  (City of Los Angeles v. Superior Court for Los Angeles County (1968) 264 Cal.App.2d 766, 771, quoting Cowdery v. London & San Francisco Bank¿(1903) 139 Cal. 298, 306.)

“[A] paper is deemed filed when it is deposited with the clerk with directions to file the paper.”  (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 778 (Rojas).) When a filing has an insubstantial defect, “the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity.” (Id., at p. 777.) Examples of such defects include failing to submit a form required by local rules and listing the wrong courthouse or division. (Id., at p. 777-778.)

In this case, Plaintiff’s counsel submitted the complaint electronically on November 17, 2022, at 4:00 PM. (Villarreal Decl., ¶ 2, Ex. B.) On November 21 at 10:42 AM, a Notice of Court Reject of Electronic Filing was generated, noting the following defects: (1) Plaintiff failed to file form CIV 109 that was revised May 2022, and (2) Plaintiff listed the address for the Spring Street Courthouse when Plaintiff should have listed the address for the Pomona Courthouse. (Villarreal Decl., ¶ 3, Ex. B.) On November 22, Plaintiff resubmitted the complaint and it was electronically filed at 11:55 AM. (Villarreal Decl., ¶ 4.)

Local Rule 2.3, subdivision (a)(1) requires the filing of LACIV 109 (Statement of Location) in motor vehicle personal injury actions. The purpose of this form is to help parties avoid filing their complaint with the wrong courthouse, as happened here. However, failure to comply with this rule is not a substantial defect as noted in Rojas where the court allowed a filing in Ventura County even though party did not sign a Declaration for Court Assignment Form and submitted to the wrong division. (Id., at p. 776-778.)

Accordingly, the court GRANTS Plaintiff’s motion.

CONCLUSION

Based on the foregoing, Plaintiff’s motion for an order nunc pro tunc is GRANTED. The court deems Plaintiff’s complaint filed on November 17, 2022, at 4:00 PM when it was presented to the clerk via electronic submission.