2017-00220979-CU-PT

Michael R. Fondren vs. CDCR

Nature of Proceeding: Petition for Relief from Claim Requirement

Filed By: Fondren, Jr., Michael R.

Petition for Relief from Claim Requirement is granted.

If oral argument is requested by either side, it will take place at 2:00 p.m. on May 29, 2018 in Department 53. Since petitioner may not have access to request oral argument on April 4, he may request oral argument by telephone or by mail deposited on or before April 14.

If no oral argument is requested, the tentative ruling will become final as of April 30.

The litigation coordinator shall provide a copy of the tentative ruling to Mr. Fondren by April 6.

Respondent’s Request for Judicial Notice is granted.

Petitioner’s Request for Judicial Notice is granted.

On February 27, 2018, with oral argument set for March 7, 2018, the Court tentatively denied petitioner’s relief from the claims requirement. At the hearing on March 7, 2018, the Court continued the matter to March 21, 2018 to consider petitioner’s request for judicial notice that had not been filed in CCMS at the time of the hearing. On March 21, 2017, the Court continued the matter to this date to allow respondent to file a response to the petitioner’s supplemental papers that were filed with the Court on March 6 and March 9 (ROA Items 26, 27 and 28.) Respondent’s supplemental brief was filed on March 27, 2018.

Petitioner’s application to the public entity to file a late claim was denied on March 27, 2017. The letter informed him that he had six months from the date of the notice to file a petition for relief from the claims requirement, pursuant to Government Code section 945.4. The Petition was filed October 19, 2017, approximately three weeks late. The last day to file a petition was September 27, 2017.

Respondent CDCR has opposed the Petition only on the ground it is untimely.

The Government Claims Act (§ 810 et seq.) requires that any civil complaint for money damages must first be timely presented to and rejected by the pertinent public entity. (§§ 910, 912.4; 912.8, 945.4.) Under section 945.4, the presentation of a timely claim is a condition precedent to the initiation of suit. If the claim is not timely presented, the claimant may file a written application with the public entity, in this case the Board, seeking leave to present the late claim. (§911.4.) If the Board fails or refused to act upon the application within 45 days, it is deemed denied by operation of law. (§ 911.6, subd. (c).) “If the application for leave to present the late government claim is timely rejected or deemed denied, the

claimant may petition the superior court for an order relieving him or her from the claim requirements. (§946.6, subds. (a) & (b).) “A petition for such an order must be filed with the court within six months after the application is denied or deemed denied.” (

Rason v Santa Barbara City Housing Authority (1988) 201

Cal.App.3d 817, 823.) This six- month period “operates as a statute of limitations. It is mandatory, not discretionary.” (D.C. v. Oakdale Joint Unified School Dist. (2012) 203 Cal.App.4th 1572, 1582.) This six-month statute of limitations “begins to run on denial of an application for leave and not on notice of that denial.” (City of San Diego v. Superior Court (2015) 244 Cal.App.4th 1,10.)

Petitioner’s initial moving papers contained no explanation as to why he did not timely file this Petition. However, Petitioner’s supplemental papers describe the following attempts to file his Petition prior to September 27, 2017. Each petition was rejected for various reasons.

1. Returned document memorandum, dated July 12, 2017. The court clerk indicates in that the Petition was rejected by the Court on July 12, 2017 because (1) Petitioner had not chosen a hearing date for the Petition; and (2) Petitioner had not submitted documents (inmate trust statement) necessary to process the petition and Fee Waiver.

Petitioner contends the he did include an inmate trust statement that was necessary to process the petition and Fee Waiver. However, he has not attached a copy of it with his Petition or Response to opposition. (See Response filed March 6, 2018)

2. Returned document memorandum, dated August 14, 2017. The court clerk indicates that the Petition was rejected because the format of the first page did not comply with CRC 2.111. Because the Register of Actions does not include a copy of the document that was rejected, it cannot be determined on the record before the court why it did not comply with CRC 2.111. That document indicates that once the petition is filed and assigned a case number, then petitioner may submit a notice of hearing. The Fee Waiver was rejected because it was “not appropriate to file at this time.”

3. Returned document memorandum , date September 15, 2017. The clerk indicated that the petition was rejected because the $435 filing fee waiver or fee waiver form is required. The clerk sent petitioner a copy of the fee waiver form. The document further states that petitioner was required to provide a certified copy of his CDCR inmate statement.

Petitioner contends that because he sent his first Petition in June of 2017, the mail box rule applies so that his October filing is timely. Documents mailed by a party from prison are deemed filed on the date they are mailed, not the date they are delivered to prison authorities for mailing, nor the date they are filed. Houston v Lack (1988) 487 U.S. 266, 270.

However, the mailbox rule only applies to documents that are in submitted in proper form. Petitioner’s three filings with the court prior to the deadline were rejected for various reasons. Therefore, the issue is not whether the mailbox rule applies but rather if any of plaintiff’s petitions that were sent before the six month deadline should be deemed timely filed because they were rejected from the filing counter for merely technical reasons.

In reviewing the three rejections, it appears petitioner was provided inconsistent information. He was first told that a hearing date was required on the Petition, but the second time he was told that the hearing date could be determined after the petition was filed when a case number and department was determined. It also appears that

in the first filing in June, petitioner submitted the correct fee waiver form, but was lacking only the inmate trust statement. The submission contained a fee waiver form that was rejected as “not appropriate at this time.” Petitioner had provided the supplemental fee waiver form FW-002, not the initial fee waiver form FW-001. In the third and final submission, plaintiff submitted no fee waiver form and no inmate trust statement.

Petitioner contends that he is a layman and did not understand that he was supposed to submit a fee waiver with the last submission since the clerk had stated that the Fee Waiver form he provided with the second submission was “not appropriate to file at this time.”

Under state law, a paper is deemed filed when it is presented to the clerk for filing at the clerk’s place of business. (Carlson v. State of California Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1273-76; United Farm Workers of America v. Agricultural Labor Relations Bd (1985) 37 Cal.3d 912, 918.) Court clerks generally do not have the power to refuse to file a paper for technical defects. (Ibid.) However, there are two relevant exceptions to this rule: the clerk can refuse to file a paper if (1) it fails to conform with the California Rules of Court; or (2) when the required filing fee is not paid. (Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457, 459; see Carlson, supra, 68 Cal.App.4th at p. 1276 [the only authority for rejecting a complaint is contained in the California Rules of Court].) As explained in Duran, “[a]n unbroken line of decisions by our Supreme Court holds that it is mandatory for court clerks to demand and receive the fee required by statute before documents or pleadings are filed.” (Duran, supra, 114 Cal.App.4th at p. 459 [italics added].) Under Rule 2.118, subdivision (a) of the California Rules of Court, a clerk of the court “must not accept for filing” documents that do not comply with the rules of that chapter, with limited exceptions which are not applicable here. (Cal. Rules of Court, 2.118 [a paper may not be rejected solely on the ground that it is handwritten, in a color other than black or blue-black, or the font size is not the point size required by the rules].)

CRC 2.118(c) provides that for good causes shown, the court may permit the filing of papers that do not comply with the rules in this Chapter.

The Court finds that petitioner was provided incorrect information when he filed the first petition. A Petition does not require a hearing date. As correctly explained in the second rejection, a Petition, which is considered a case initiated document, does not require a hearing date. A Notice of Hearing may be served at a later date, as indicated in the clerk’s second rejection notice. The first filing presumably contained the correct fee waiver form because it was not rejected for lack of a Fee Waiver form. The first rejection was also due to the failure to include an inmate trust statement with the Fee Waiver. The Court finds that the first attempted filing satisfied the requirements of the rules of court as well as the submission of the correct Fee Waiver form since the Petition was delivered to the clerk’s office in a timely manner. The petition was rejected for the technical reason of not including the inmate trust statement.

In an appeal of a Labor Code ruling, the petition was delivered to the clerks office in a timely manner but was rejected for not being verified. The Court ruled “Accordingly, we conclude that “filing” for purposes of compliance with the time limits of Labor Code section 1160.8 means what it does in all other contexts: actual delivery of the petition to the clerk at his place of business during office hours. (See People v. Slobodion (1947) 30 Cal.2d 362, 367; Hallett v. Slaughter (1943) 22 Cal.2d 552.) Thus, it is the

filer’s actions that are scrutinized in determining whether a petition was timely filed. Rejection of the petition by the clerk… for a technical defect cannot undo a “filing” that has already occurred. UFW of Am. v. Agric. Labor Relations Bd. (1985) 37 Cal. 3d 912, 918. The Court determines that petitioner’s initial filing in June of 2017 was rejected for a technical reason and is therefore deemed timely.

The Court has determined that the Petition is timely due to the fact that Petitioner had timely presented the petition and fee waiver form with the initial filing in June of 2017.

Respondent opposed the petition only on the basis that it was untimely. If Respondent wishes to raise additional arguments to oppose the Petition it may request a continuance of this motion and the Court may continue the matter to allow supplemental briefing.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.