Judge: Stephen Morgan, Case: 23AVCV00758, Date: 2023-10-10 Tentative Ruling
Case Number: 23AVCV00758 Hearing Date: October 10, 2023 Dept: A14
Background
This is a bodily injury action.
Plaintiff Alejandro Banuelos (“Plaintiff”) alleges that on or about July 16,
2021, he was a patron at 45244 32nd St. W, Lancaster, CA, 93536 (the
“Premises”) when he was approached by Defendant John Doe while in the parking
lot. Plaintiff presents that John Doe had an unknown object in his hands and
assaulted and battered Plaintiff, causing physical and psychological injuries.
On July 18, 2023, Plaintiff filed
his Complaint alleging five causes of action for: (1) Assault; (2) Battery; (3)
Intentional Infliction of Emotional Distress (“IIED”); (4) Negligence; and (5)
Negligent Hiring, Supervision, and Retention.
On September 06, 2023, Plaintiff
filed this Motion for an Order Nunc Pro Tunc Correcting an E-Filing Error of
the Filing Date of the Summons and Complaint.
No Opposition has been filed. “All
papers opposing a motion so noticed shall be filed with the court and a copy
served on each party at least nine court days. . .before the hearing.” (Cal.
Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which
a right may be exercised or an act may be done, does not apply to a notice of
motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.)
The hearing is set for October 10, 2023. Accordingly, an Opposition was due by September
27, 2023. Should an Opposition be filed, it is now untimely.
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Discussion
Application – Plaintiff
moves for a court order deeming the Complaint filed on July 17, 2023. Plaintiff
presents that the Complaint was originally submitted to CalWest, a company
whose services Plaintiff’s counsel had previously utilized, for filing on July 17,
2023 and that the Complaint was later rejected at 4:46 pm the same day with the
notation: “Defendant Leslie Doe name is missing from the case information
screen.” (Motion 4:25-36.) Plaintiff also presents that there was an attempt to
file the Complaint on July 14, 2023, but another rejection occurred with the
notation: “Do not include an individual when entering the names in e-Filing.
Cover sheet must be dated above the attorney’s name.” (Id. 4:27, 5:1.)
Plaintiff argues that the Court should not have rejected the documents on
either occasion. Plaintiff contends that the Court is allowed to correct
clerical mistakes, including the date of filing of the Summons, Complaint, and
Civil Case Sheet with Addendum under Cal. Code Civ. Proc. §473(d) and it is
evident that Plaintiff’s counsel completed the necessary forms before the
statute of limitations ran.
The Court notes that the motion
makes conflicting requests: (1) a request that the date of filing the Summons
and Complaint be corrected such that this action is shown to have been filed on
July 14, 2023, and on July 17, 2023 (Motion 5:23-24), and (2) a request that
the date of filing of the Summons and Complaint be corrected such that this
action is shown to have been filed on July 17, 2023 (Motion 6:2-4). The Notice
appears to be requesting that the date of filing of the Summons and Complaint
be corrected such that this action is shown to have been filed on July 14,
2023. (Motion, Notice at No. 6.)
“The functions of the clerk are
purely ministerial.” (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774,
777.) “The clerk has no discretion to reject a complaint that substantially
conforms to the local rules.” (Id.) “Where . . . 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.” (Id. at 777.)
The Court looks at the filed
documents that were rejected. (See Motion, Exhs. 2 and 3.) The rejection
notices reflect Plaintiff’s arguments. The Court finds the defects that
prevented the filing of the Summons and Complaint insubstantial, especially in
light of the fact that there seems to be no issue with the Complaint itself.
The Court thus finds it proper to deem the Complaint in this action filed as of
the date it was first submitted to the clerk—i.e., July 14, 2023. (See Rojas,
supra, 67 Cal.App.4th at 778 [“[A] paper is deemed filed when it is
deposited with the clerk with directions to file the paper.”].)
Accordingly, the Motion is
GRANTED.
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Conclusion
Plaintiff Alejandro Banuelos’
Motion for an Order Nunc Pro Tunc Correcting an E-Filing Error of the Filing
Date of the Summons and Complaint is GRANTED.