Case Number: BC680565 Hearing Date: March 12, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

Byron Jerez, et al.;

Plaintiffs,

vs.

Michael Valenzuela JR, et al.;

Defendants.

Case No.: BC680565

Hearing Date: March 12, 2018

[TENTATIVE] order RE:

Plaintiff’s Motion to Amend Filing Date of Summons and Comlaint Nunc Pro Tunc

PROCEDURAL Background

Plaintiffs Byron Jerez and Maria Elena Roca (“Plaintiffs”) allege that on September 16, 2015, they were involved in a motor vehicle collision caused by Defendant Michael Valenzuela, Jr. Plaintiffs also allege that Defendants Natalie Figueroa and Michael O’Brien owned the vehicle driven by Defendant Valenzuela.

Plaintiffs filed a complaint alleging a cause of action for negligence against Defendants. The complaint bears a file stamp date of October 20, 2017. The filing stamp of October 20, 2017 makes the complaint defective on its face as filed outside the two-year statute of limitations. Plaintiffs contend that they timely filed the complaint when they submitted the complaint for facsimile filing to the Los Angeles Superior Court on September 18, 2017.

Plaintiffs have made multiple unsuccessful attempts to change the date of filing of the complaint to September 18, 2017, which would be within the statute of limitations.[1] On November 14, 2017, Plaintiffs submitted an Ex Parte Application to amend the complaint as having been fax-filed on September 18, 2017. The Court denied the ex-parte application without prejudice and advised Plaintiff that an ex-parte application was not the correct procedure to rectify the filing date of the complaint. The Court advised Plaintiff’s Counsel at the hearing to address this issue by filing a properly noticed motion. Following the denial of Plaintiff’s November 14, 2017 ex parte application, Plaintiff’s Counsel did not file a properly noticed motion in the remaining months of 2017.

On January 2, 2018 Defendants filed a demurrer and motion to strike on the basis that the complaint was filed outside the statute of limitations. On January 3, 2018, Plaintiffs filed an opposition to the demurrer and motion to strike. Plaintiffs’ opposition to the demurrer was virtually identical to the ex-parte application that Plaintiffs had filed on November 14, 2017. Plaintiffs argued that the complaint was not defective because Plaintiffs had initially submitted the complaint for fax filing on September 18, 2017, but it was rejected by the Court Clerk.

At the February 5, 2018, hearing, the Court found that an opposition to a demurrer was not the proper procedure to correct the filing date of the complaint, especially in light of the fact that none of the facts argued by Plaintiffs were stated in the complaint. The Court once again instructed Plaintiffs that the proper procedure to correct the filing date of the complaint was to file a properly noticed motion. The Court also identified Rule 2.304(d) of the California Rules of Court as setting forth the proper procedure a party must follow if there is a question regarding the date of filing for facsimile filing.

The Court sustained the demurrer and granted the motion to strike but stayed the orders for 60 days to allow Plaintiffs an opportunity to file a motion to amend the complaint’s filing date nunc pro tunc pursuant to CRC, Rule 2.304 subdivision (d).

Plaintiff filed the instant motion on February 5, 2018. This motion is very similar to the ex parte application that Plaintiff filed on November 14, 2017 and the opposition that Plaintiff filed on January 3, 2018 in response to Defendants’ demurrer.

Defendant filed an opposition to the motion on February 27, 2018.

Judicial Notice

Plaintiffs request that the Court take judicial notice of Exhibits 1 through 4 pursuant to Evidence Code section 452(d). Plaintiff contends that Exhibits 1 and 2 qualify as records from any court of the state because they are screenshots of the L.A. Superior Court’s website. Exhibits 3 and 4 are pages from a fax transmission sent by the Court. Plaintiff argues that Exhibits 3 and 4 are “records of the court” because they were sent from the court to Plaintiffs and concern the attempted filing.

Plaintiffs’ requests for judicial notice are denied. Section 452 does not require the Court to take judicial notice, but rather is permissive of judicial notice of certain types of records, including court records. Exhibits 1 and 2 are not “records,” but rather screenshots of the L.A. Superior Court website as seen by Counsel on a particular date. As these are not court records, they cannot be judicially noticed under section 452(d). Exhibits 3 and 4 are not identified or listed in the online case summary and do not appear to be maintained in the court file. Thus, they do not qualify as court records. Even if the Court were to take judicial notice of Exhibits 1 through 4, the Court would not take judicial notice of the truth of any findings in the exhibits. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

In any event, the Court’s denial of Plaintiffs’ requests for judicial notice does not affect the Court’s analysis or ruling in this case because Plaintiffs’ counsel has submitted a declaration authenticating how he obtained each of Exhibits 1 through 4. Defendants have not filed any objections to Plaintiffs’ evidence. Thus, the Court will proceed to consider each of the four exhibits in its analysis below.

FACTUAL BACKGROUND

Plaintiffs assert that they properly filed the complaint on September 18, 2017. Plaintiff’s Counsel, Louis Krass, states that he went to the Court’s website and learned that “e-filing” was unavailable for unlimited civil cases. (Krass Decl., at ¶ 2; see also Exh. 1 [“efiling for Probate is now available at LASC”]; Exh. 2 [reflecting links for “probate efiling,” “small claims efiling,” “family law efiling (coming soon),” and “limited civil efiling (coming soon)”].) As no e-filing link was available for general jurisdiction personal injury matters, Counsel submitted the complaint through facsimile filing on September 18, 2017. (Krass Decl., at ¶ 2.) As proof that Plaintiffs timely transmitted their complaint by fax, Plaintiffs reference Exhibit 3, a fax cover sheet with the Court’s received stamp of September 18, 2017.

On September 21, 2017 — three days after attempting to fax file the complaint — Counsel received a form “NOTICE OF REJECTION – FAX FILING” from the Court. (Krass Decl., at ¶ 3.) The notice from the Court stated that the filing was rejected because “PERSONAL INJURY MATTERS CAN NO LONGER BE SUBMITTED BY FAX. SEE ATTACHED NOTICE.” (Ibid.) From the facsimile transmission line at the top of Exhibits 3 and 4, it is clear that the September 21, 2017 notice from the Court included three pages. (See Exhs. 3, 4.) Counsel attached pages 2 and 3 of the faxed notice as Exhibits 3 and 4, respectively, to his declaration. Exhibit 3 (“Page 2 of 3” according to the facsimile transmission line at the top of the Court’s notice) appears to be the Facsimile Transmission Cover Sheet from Plaintiffs to the Court bearing a “Received September 18, 2017 Fax Filing” stamp. Exhibit 4 (“Page 3 of 3” according to the facsimile transmission line at the top of the Court’s notice) appears to be the explanatory notice that was attached to the Rejection of Filing that Plaintiffs received from the Court on September 21, 2017. Curiously, Plaintiffs have not included the first page of the September 21, 2017 notice from the Court with their motion. Instead, Plaintiff’s Counsel quotes select portions of that page in his declaration. (Krass Decl., at ¶ 3.)

Upon receiving the notice, Plaintiffs’ Counsel called the Civil Clerk to ascertain the status of the case. (Krass Decl., at ¶ 4.) The Clerk directed Counsel to the “online service” page and the “e-filing delivery” part of the website under “civil.” Counsel was then referred to the supervising clerk, Ms. Harriss. Counselor made several calls, left several messages, but never received a return call.

Plaintiff’s Counsel asserts that he believed that the September 18, 2017 fax filing of the Complaint had not been rejected because of the following language in the explanatory notice, which Counsel quotes in his declaration: “At this time, the document(s) you have submitted by fax this date will not be rejected. . .” (Krass Decl., at ¶ 5.) Counsel asserts that he relied on this language as a representation that the fax filing was accepted, and he waited several weeks for the issuance of a case number but never received one. (Krass Decl., at ¶ 5.) After discovering that no case number existed, Counsel states that the initial pleadings were filed on October 4, 2017. (Krass Decl., at ¶ 5.) The file stamp on the complaint, however, shows that it was filed on October 20, 2017. Nor does the online case summary reflect the filing of any documents prior to October 20, 2017 in this case.

A review of the notice that Plaintiffs’ Counsel received on September 21, 2017 reveals that the page from which Counsel has quoted includes additional language that Counsel has omitted in his declaration. For example, the sentence on which Counsel states he relied is only partially quoted in Counsel’s declaration. The complete sentence reads: “At this time, the document(s) you have submitted by fax this date will not be rejected because the new rule does not go into effect until September 1, 2017.” (Exh. 4 [emphasis added].) In the next sentence, the notice proceeds to advise:

However, please refrain from fax filing such personal injury documents effective September 1, 2017, as the fax filing will be rejected. Current filing options for general jurisdiction personal injury cases include e-Delivery (electronic submission of documents in PDF format), in person, or via U. S. Mail.

(Exh. 4.) At the very outset, the notice explains that “[e]ffective September 1, 2017 . . . the Court will no longer accept fax filing for general jurisdiction personal injury departments on new personal injury cases . . . (see Los Angeles Superior Court Local Rule 2.22.) (Exh. 4.)

DISCUSSION

Procedural Requirements of California Rules of Court, Rule 2.304(d)

Rule 2.304(d) of the California Rules of Court provides in relevant part: “If the document transmitted to the court by fax machine is not filed with the court because of (1) an error in the transmission of the document to the court that was unknown to the sending party or (2) a failure to process the document after it has been received by the court, the sending party may move the court for an order filing the document nunc pro tunc.” (Emphasis added.) Rule 2.304 sets forth several requirements for a motion to amend nunc pro tunc. First, the “party filing by fax must cause the transmitting fax machine to print a transmission record of each filing by fax.” (CRC, rule 2.304, subd. (d).) This transmission record must be submitted with the motion along with a declaration showing “proof of transmission.” (Ibid.) Rule 2.304 specifies the exact language that must be included in the proof of transmission declaration:

On (date) __________ at (time) __________, I transmitted to the (court name) __________ the following documents (name) __________ by fax machine, under California Rules of Court, rule 2.304. The court’s fax telephone number that I used was (fax telephone number) ___. The fax machine I used complied with rule 2.301 and no error was reported by the machine. Under rule 2.304, I caused the machine to print a transmission record of the transmission, a copy of which is attached to this declaration.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Here, the motion Plaintiffs have submitted does not meet the procedural requirements of Rule 2.304. Plaintiffs did not submit a transmission record showing the date that Plaintiffs sent the fax. Plaintiffs have included a declaration of Counsel, but this declaration does not include the language above to satisfy the requirement of a proof of transmission declaration. In ruling on Defendants’ demurrer, the Court specifically informed Plaintiff’s Counsel of the correct procedural mechanism to bring this motion, Rule 2.304. In addition, the Court’s February 5, 2018 order cited the relevant sections of the rule in its order, including the required language for the proof of transmission declaration. Despite the guidance provided by the Court, Plaintiffs’ motion fails to address Rule 2.304 and the procedural requirements under the rule.

Nonetheless, it is undisputed here that Plaintiff transmitted the Complaint to the Court via facsimile on September 18, 2017. The pivotal issue in the instant case is not when Plaintiff transmitted the facsimile, but rather, whether the Court Clerk was required to accept the facsimile filing for this case. Thus, the Court will proceed to address the merits of Plaintiffs’ motion.

Analysis on the Merits

Plaintiffs contend that September 18, 2017 should be deemed the true filing date for the complaint because it is the date on which they first presented the complaint to the Court. Plaintiffs also contend that the clerk’s rejection of their filing was based on a technical defect under a Local rule, and such rejections are impermissible under cases such as Carlson v. Dep’t of Fish & Game (1998) 68 Cal.App.4th 1268, which hold that a clerk may not refuse to file a complaint for lack of compliance with a local court rule where the complaint complies with state rules.

In opposition, Defendants argue that this case is not similar to Carlson and its progeny because Plaintiffs’ complaint was not rejected for a minor defect. Rather, the filing was rejected because Plaintiffs did not use the proper avenue to file the complaint, and thus, the complaint was not presented to the Court in a manner in which it could be recorded as filed by the clerk.

California Rules of Court, rule 2.304(a) provides that “[a] party may file by fax directly to any court that, by local rule, has provided for direct fax filing.” (Emphasis added.) Los Angeles Superior Court Rule 2.22(a), entitled “Authorization to Accept Facsimile Filing,” in turn, provides that “[t]he court permits facsimile filing in general civil (except for cases assigned to the Personal Injury courts), family law, and probate cases pursuant to California Rules of Court, rule 2.300 et seq. and the following rules.” (Emphasis added.) The revision of Local Rule 2.22(a) that resulted in the exclusion of personal injury courts from fax filing became effective on July 1, 2016. Finally, Los Angeles Superior Court Rule 2.3(a)(1)(A) provides that “[e]very unlimited civil tort action for bodily injury, wrongful death, or damage to personal property (hereinafter referred to as “Personal Injury Action”) must be filed in the Central District at the filing window at the Stanley Mosk Courthouse.”

Los Angeles Superior Court Rule 2.22(a)

As noted in Usher v. Soltz (1981) 123 Cal.App.3d 692, “[t]he requirements of orderly administration of judicial business support the conclusion that court filing requirements should be scrupulously observed.” (Usher v. Soltz (1981) 123 Cal.App.3d 692, 750.) Further, “[a] central place of filing is an essential component of an efficient and error-free court filing system.” (Richmond v. Shipman (1976) 63 Cal.App.3d 340, 344.)

Hence, “California courts have consistently denied the effectiveness of a court filing accomplished at a place or in a manner other than that normally established for such purpose.” (Usher v. Soltz, supra, 123 Cal.App.3d 692, 698 [citing Richmond v. Shipman, 63 Cal.App.3d 340, 343]) (emphasis added); Boyd v. Desmond (1889) 79 Cal. 250, 253-254 (document found in clerk’s office in place which indicated document had not been delivered to anyone in the office); People v. Englehardt (1938) 28 Cal.App.2d 315, 319-320 (delivery to clerk’s residence); W. J. White Co. v. Winton (1919) 41 Cal.App. 693, 694-695 (document passed through door of clerk’s office.).)

For example, in the case of Hoyt v. Stark (1901) 134 Cal. 178, an attorney attempted to file an undertaking on the last day it could be filed, but the court was closed for the day when the attorney arrived at the courthouse. (134 Cal. At 179.) The attorney then went to a social club and found one of the deputy clerks, who agreed to endorse the undertaking as filed on that day. (Ibid.) The Supreme Court held that the document was not timely filed. (Id. at 181.) The Court reasoned that “a paper whose filing carries notice, or affects private rights, is filed only when deposited with the proper officer at his office for this especial purpose. . . . [T]he proper offer means more than a mere presentation to the officer. It means a presentation to him at the proper place, and within the proper time.” (Id. at 180.) Similarly, in Richmond v. Shipman, 63 Cal.App.3d 340, 343, the Court concluded that delivery of a complaint to a judge at his residence was ineffective to interrupt the running of the statute of limitations.

In the instant case, pursuant to California Rules of Court, rule 2.304(a), Los Angeles Superior Court Rule 2.22(a), and Los Angeles Superior Court Rule 2.3(a)(1)(A), the Court Clerk was not authorized to accept facsimile filings for general jurisdiction personal injury actions on the date that Plaintiffs’ Counsel submitted the Complaint for fax filing – September 18, 2017. Because Plaintiffs did not deliver their Complaint in a manner which the Court Clerk was authorized to accept, their attempted fax filing was ineffective to stop the running of the statute of limitations. (Usher v. Soltz, supra, 123 Cal.App.3d at 698; Richmond v. Shipman, 63 Cal.App.3d 340, 343) [delivery to a judge at his residence was ineffective to interrupt the running of the statute of limitations]).

Plaintiffs’ reliance on Carlson v. Dep’t of Fish & Game (1998) 68 Cal.App.4th 1268, is misplaced. In Carlson, the Plaintiff filed a motion for an order to correct the filing date of the complaint to the day when the complaint was first presented to the court. (68 Cal.App.4th at 1271.) The pleading had been originally presented to the court within the statute of limitations, but the clerk rejected the filing because Plaintiff had not included a “Certificate of Assignment,” which was required by the Local court rules. (Id. at 1273.) When the Plaintiff resubmitted the complaint with the correct form, the statue of limitations had run. (Ibid.) The trial court denied Plaintiff’s motion to correct the filing date and found that the statute of limitations had run. (Id. at 1271-1272.) The Court of Appeals reversed and held that “if a pleading presented for filing complies with CRC 201, the clerk may not refuse to file it for lack of compliance with a Los Angeles Superior Court local rule.” (Id. at 1282-1283.) Thus, “so long as a complaint complies with state requirements, the clerk has a ministerial duty to file [it]. In legal effect, a complaint is ‘filed’ when it is presented to the clerk for filing in the form required by state law.” (Id. at 1270.)

Carlson is inapplicable to this case. First, the Local rule at issue in this case is directly incorporated into the State rule, whereas in Carlson, the Local rule at issue was merely supplemental to the State rule in that it imposed additional formatting requirements separate and apart from CRC 201. In Carlson, CRC 201 established the required format of papers for filing and provided that nonconforming papers could not be filed. (68 Cal.App.4th at 1272.) The court reasoned that state law clearly requires a clerk to file a paper that complies with CRC 201 when it is presented to the court, regardless of whether the supplemental forms required by the Local rules are submitted with the filing. (Id. at 12276.) So long as the paper complies with the state rules, then the clerk does not have the authority to reject the filing. (Ibid.)

Here, California Rules of Court, Rule 2.304 does not set forth any uniform state-wide requirements for fax filing and does not mandate that all California courts accept fax filing. Instead, Rule 2.304 allows for fax filing only to any court that, by local rule, has provided for direct fax filing. In doing so, Rule 2.304 delegates to each court decision-making authority as to what local rules to adopt allowing for and restricting fax filing. Unlike Carlson, compliance with the state rule requires compliance with the local rule. Any failure to follow Local Rule 2.22 also constitutes a failure to comply with the state rule, CRC 2.304.

As the case at bar is a personal injury action, Local Rule 2.22, and by extension, California Rules of Court, Rule 2.304, do not permit fax filing of pleadings in this type of case. Thus, the submission of the complaint by fax filing on September 18, 2017 was not a proper means to present the complaint for filing, and the Court Clerk was not authorized to accept it.

Plaintiffs’ citation to United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912 is equally unavailing. In United Farm Workers, the Supreme Court found that filing for purposes of timeliness means “actual delivery of the petition to the clerk at his place of business during office hours.” (37 Cal.3d at 918.) The Court stated: “[w]e hold only that a defective petition may not be dismissed for untimeliness . . . when it is delivered to the appropriate clerk’s office during office hours within the time limits set therein.”[2] (Ibid.)

Both of the cases on which Plaintiffs rely – Carlson and United Farm Workers presume a complaint that has been presented to the Court Clerk during office hours in a manner authorized for that purpose. Under that scenario, a Court Clerk may not reject a complaint that has been presented for filing on the grounds that the plaintiff has failed to comply with a Local Rule that imposes additional requirements above and beyond those required under state rules. Unlike Carlson and United Farm Workers, the Complaint that was transmitted by facsimile on September 18, 2017 was not rejected for a technical defect or missing form required under a Local Rule. Instead, the Clerk rejected the Complaint because the Court Clerk was not authorized to accept any pleadings filed by fax for PI cases under both the state rule (CRC 2.304) and the Local Rule (Local Rule 2.22).

Plaintiffs’ attempt to file via facsimile in contravention of California Rule of Court 2.304 and Local Rule 2.22 is essentially the modern day functional equivalent of failing to file the complaint with the Clerk at his designated place of business. Had Plaintiffs attempted to present the complaint in this personal injury action to the deputy clerk for the Family Law courts, the Complaint could not have been accepted for filing. Similarly, Plaintiffs’ Counsel’s declaration establishes that he recognized, from the Court’s website, that e-filing was not yet available for a general jurisdiction civil matter such as the instant one; if Plaintiffs had nonetheless used the link on the Court’s website for Probate e-filing to file the Complaint in this case, Plaintiffs could not reasonably contend that the Court Clerk would be obligated to accept the complaint filed in this unauthorized manner. Finally, if Plaintiffs had emailed one of the many deputy clerks assigned to a civil filing window and attached the compliant to the email, the complaint could not be deemed filed. In the absence of a state or local rule authorizing filing via email, such an emailed complaint would properly be rejected for filing despite the fact that it would have reached the correct office on the correct day.

These examples illustrate that allowing Plaintiffs to select any haphazard manner of physically delivering the complaint to the Clerk for filing would yield unwieldy results. Plaintiffs must deposit the papers at the proper office by the proper means in order for them to be accepted and filed into the Court’s records. As noted in Usher v. Soltz (1981) 123 Cal.App.3d 692, “[t]he requirements of orderly administration of judicial business support the conclusion that court filing requirements should be scrupulously observed.” (Usher v. Soltz (1981) 123 Cal.App.3d 692, 750.)

As Plaintiffs used the wrong mechanism to file the complaint, the complaint was not timely presented and cannot be amended nunc pro tunc to September 18, 2017.

Plaintiffs also argue that they relied on the notice they received from the Court on September 21, 2017, attached as Exhibit 4, and they believed that the complaint had been filed. However, Counsel has failed to demonstrate that any such reliance was reasonable.

First, Plaintiffs’ Counsel did not receive the notice from the Court until September 21, 2017. Plaintiffs could not possibly have relied on the notice before Counsel received it. By then, a full three days had elapsed between September 18, 2017, when Counsel submitted the Complaint by facsimile, and September 21, 2017, when Counsel received the notice, and yet, Counsel apparently did not take any actions to rectify having submitted the Complaint in a manner that was not authorized under either state rules or local rules.

Second, according to Counsel’s declaration, the first page of the notice that he received from the Court on September 21, 2017 stated unambiguously: “NOTICE OF REJECTION – FAX FILING” and “PERSONAL INJURY MATTERS CAN NO LONGER BE SUBMITTED BY FAX. SEE ATTACHED NOTICE.” (Krass Decl., at ¶ 3.) The first page of the Rejection Notice thus refers to Exhibit 4 only as providing further information. Counsel urges the Court to focus on the phrase of Exhibit 4 which states “[a]t the time, the document(s) you have submitted by fax this date will not be rejected . . .,” but to ignore the rest of the sentence which states “because the new rule does not go into effect until September 1, 2017.” Plaintiffs have also overlooked the next sentence, which states, “However, please refrain from fax filing personal injury documents effective September 1, 2017, as the fax filing will be rejected.” (Emphasis added.) Read together, the language of the notice advises that any documents fax filed in personal injury cases after September 1, 2017 would be rejected. In light of the multiple references throughout the first and third pages of the notice stating that the fax filing had in fact been rejected, Plaintiffs have failed to demonstrate that their reliance on the isolated phrase that Counsel has quoted was reasonable.

Accordingly, Plaintiffs’ motion to amend the complaint nunc pro tunc is denied. The stays on the order from February 5, 2018 are lifted.

Conclusion and Order

Plaintiffs’ motion to amend the complaint nunc pro tunc is denied.

Plaintiffs are ordered to provide notice of this ruling.

DATED: March 12, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] September 16, 2017 was a Saturday. Therefore, the last day to file this action within the statute of limitations was September 18, 2017, which was a Monday.

[2] This holding explicitly applied to petitions under the Labor Code section 1160.8. (United Farm Workers, supra at 918.) However, later courts have found this holding to apply to papers filed in other types of cases, including civil complaints. (See Carlson, supra, at 1275.)