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Court of Appeal:
Delay in Refiling After Clerk Returns Pleading for Cover Sheet Error Irrelevant to Timeliness
Opinion Says Waiting Eight Days After Notice of Error to Refile Did Not Make Complaint Untimely, Despite Passing of Statutory Deadline, As Constructively Filed Day Originally Submitted
By a MetNews Staff Writer
Div. Five of the First District Court of Appeal held yesterday that the refiling of a complaint eight days after the clerk returned all papers to the plaintiffs with a notice of a defect in the civil cover sheet—and 11 days after the applicable two-year statute of limitations—is irrelevant to a timeliness analysis as the governing rules of court provide that a pleading filed with such an error is to be accepted by the clerk on the date of submission.
Declining to adopt a rule that the statute should be tolled only for the period of time between the original filing date and the notice of defect by the clerk—in the present case, a period of seven days—the court said that the case presents an issue of constructive filing and not of tolling.
At issue is California Rule of Court 3.220(c) which provides that “[i]f a party that is required to provide a cover sheet under this rule or a similar local rule fails to do so or provides a defective or incomplete cover sheet at the time the party’s first paper is submitted for filing, the clerk of the court must file the paper.”
Arguing that the complaint was timely were Ebonee S. Martin and Shronna Martin, who filed a complaint against Ronald and Terry Brazell asserting causes of action for negligence and wrongful death. The complaint alleged March 11, 2021 as the date of loss and was file-stamped by the clerk as received on March 7, 2023.
One week later, on March 14, 2023, the clerk returned all documents to the plaintiffs with a notice informing them that they had checked two boxes instead of one on the civil case cover sheet describing the type of civil action. The plaintiffs corrected the error and refiled the complaint on March 22, 2023—11 days after the expiration of the governing two-year statute of limitations.
A demurrer was sustained, without leave to amend, by Solano Superior Court Judge Earl Nelson, who agreed with the defendants that the action was time-barred.
Justice Danny Y. Chou wrote the unpublished opinion, deeming the order sustaining the demurrer as incorporating a judgment of dismissal, and reversing.
Acting Presiding Justice Mark B. Simons and Justice Gordon B. Burns joined in the opinion.
Clerk’s Error
Chou said:
“California Rules of Court, rule 3.220, subdivision (c) requires that a court clerk file a complaint even if it is accompanied by a defective or incomplete civil case cover sheet. Therefore, the clerk erred when it [sic] refused to file plaintiffs’ complaint on March 7, 2023—the date plaintiff initially submitted it for filing. The appropriate remedy for this error is to treat the complaint as filed on March 7, 2023….Thus, plaintiffs’ complaint is timely because it should be deemed to have been filed before the limitations period expired on March 11, 2023.”
The defendants argue that the clerk’s error should, at most, toll the statute of limitations for the period of time that the plaintiffs were not aware of the clerk’s rejection of their initial filing—from March 7 to March 14—and because the plaintiffs waited until March 22 to refile their complaint, it was untimely.
Unpersuaded, Chou wrote:
“But as of March 7, plaintiffs had taken every action necessary to comply with the statute of limitations. Because plaintiffs did not need to do anything else to avoid the statute of limitations bar, tolling serves no purpose here….[T]he clerk’s error in this case—the mistaken rejection of a complaint based on a defect in the civil cover sheet—presents a constructive filing and not a tolling issue.”
Maggin Case
The defendants point to the 1999 decision by this district’s Court of Appeal in Maginn v. City of Glendale as supporting their position. In Maggin, the plaintiffs were required to file their complaint and serve the summons by Aug. 12—and filed with the court on that day—but the clerk erroneously waited until the following day to issue the summons. The plaintiffs then waited two more days before serving it.
The Court of Appeal held, in an opinion by then-Presiding Justice Charles S. Vogel (now retired) that “[t]his additional delay is fatal to plaintiffs’ case and not excusable” and that they missed the deadline for service even if it was tolled for one day due to the clerk’s error.
Distinguishing the present case, Chou remarked:
“By contrast, plaintiffs did not miss any deadline. By timely submitting their complaint for filing on March 7, 2023, they did everything they needed to do to avoid the limitations bar. Thus, plaintiffs’ failure to timely file their complaint was due solely to the clerk’s error. Accordingly, we deem plaintiffs’ complaint to have been constructively filed on March 7—four days before the expiration of the limitation period.”
Chou cited two cases from this district’s Court of Appeal supporting the result reached in yesterday’s decision.
In 1998, Div. Six held, broadly, in Rojas v. Cutsforth, authored by Arthur Gilbert:
“The functions of the clerk are purely ministerial….The clerk has no discretion to reject a complaint that substantially conforms to the local rules.”
Div. One in 2010 said in Mito v. Temple Recycling Center Corp., an opinion by Presiding Justice Frances Rothschild dealing with the lack of a cover sheet:
“[W]e agree that the clerk was required to file their complaint as first presented on July 24. Although LASC Local Rule 2.0, subdivision (d), required the Cover Sheet, California Rules of Court, rule 3.220, subdivision (c), prohibited the court clerk from rejecting the filing for failure to comply with this rule.”
Yesterday’s decision came in Martin v. Brazell, A169770.
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