Judge: Timothy B. Taylor, Case: 37-2023-00017607-CU-PA-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2023-00017607-CU-PA-CTL VILLA NAVARRO VS QAYSSAR [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/19/2023

Tentative Ruling on Motion to Set Aside Clerk's Rejection of Complaint, and to Deem the Complaint Filed Villa Navarro v. Qayssar, Case No. 2023-17607 Oct. 13, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This case is a cautionary tale for attorneys practicing outside their home counties. This is true in at least two senses: First, just because you can wait until three days before the statute of limitations runs to file your complaint out of town doesn't mean you should do so. Second, always read the Local Rules of the court in the county you propose to file a complaint in.

Plaintiffs' counsel sent the complaint, summons and GAL applications in this personal injury case from Beverly Hills to San Diego on January 18, 2023. The two year statute of limitations ran on January 21, 2023, because the subject automobile accident occurred on January 21, 2021.

The GAL applications did not comply with SDSC Local Rule 2.4.6. So the clerk rejected the whole package and shipped it all back to plaintiff's counsel unfiled. By the time plaintiffs' counsel realized what he had done, the statute of limitations had run. The complaint was not filed until April 26, 2023. ROA 1.

No summons has been issued, and no new GAL applications have been filed.

Presently, plaintiffs' counsel seeks an order deeming the complaint to have been filed on January 18, 2023. ROA 7-9. The moving papers have not been served on the defendants, as they have not yet been served with a summons. The court has reviewed the papers.

2. Applicable Standards.

Trial courts have the inherent authority to enter nunc pro tunc orders to address clerical errors, but not judicial errors. Sannmann v. Department of Justice (2020) 47 Cal.App.5th 676, 683. 'The test which distinguishes clerical error from possible judicial error is simply whether the challenged portion of the judgment was entered inadvertently (which is clerical error) versus advertently (which might be judicial error, but is not clerical error).' Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 117. A court should grant or refuse to enter a nunc pro tunc judgment 'as justice Calendar No.: Event ID:  TENTATIVE RULINGS

2998717  57 CASE NUMBER: CASE TITLE:  VILLA NAVARRO VS QAYSSAR [IMAGED]  37-2023-00017607-CU-PA-CTL may require in view of the circumstances of a particular case.' Norton v. City of Pomona (1935) 5 Cal.2d 54, 62.

3. Discussion and Ruling.

The motion is granted. Although the court is not excusing plaintiffs' counsel's inattention, there is no reason his shortcomings should prejudice his clients. The clerk should have accepted the complaint for filing and rejected only the summons and the GAL applications. The complaint is deemed filed nunc pro tunc to January 18, 2023.

Plaintiffs' counsel is ordered forthwith to submit GAL applications which comply fully with Local Rule 2.4.6, and to submit a summons for issuance. Thereafter, plaintiffs must seasonably serve the summons and complaint on the defendants. The CMC heretofore set for 11/3/23 (ROA 4) is hereby continued to December 8, 2023 at 9:45 a.m. in Dept. 72, so that plaintiffs' counsel will have time to carry out these directives.

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