Case Number: BC683075 Hearing Date: March 07, 2018 Dept: 92

LUCAS FERUGLIO, et al.,

Plaintiffs,

vs.

JOSE CARRILLO, et al.,

Defendant(s).

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Case No.: BC683075

[TENTATIVE] ORDER GRANTING PLAINTIFFS’ MOTION TO NUNC PRO TUNC CORRECT THE DATE OF FILING OF PLAINTIFFS’ COMPLAINT

Dept. 92

1:30 p.m.

March 7, 2018

Motion of Plaintiffs Lucas Feruglio and Natalia Montes de Oca for Order Nunc Pro Tunc Correcting the Date of Filing of Plaintiffs’ Complaint is GRANTED. The Court orders the date of filing on Plaintiffs’ complaint corrected nunc pro tunc to reflect that the complaint was filed on October 24, 2017.

Plaintiffs Lucas Feruglio and Natalia Montes de Oca were involved in a motor vehicle accident on October 24, 2015. Accordingly, per the statute of limitations, the last day to bring an action was October 24, 2017. On that date, Plaintiffs submitted their complaint and request for fee waiver pursuant to the Court’s electronic filing system. They received an email confirming that the files had been received. (Martinez Decl., Exh. 1.) However, on October 26, 2017, Plaintiffs received an email indicating the filing had been rejected, because requests for fee waivers could not be filed via the electronic filing system. Without either a fee waiver or the payment of fees, the complaint could not be filed. (Martinez Decl., Exh. 2.) Plaintiffs communicated with the Clerk’s Office to remedy the situation, and were told that no such remedy was possible without a court order. (Martinez Decl., Exhs. 4-5.) Plaintiffs therefore filed the complaint and fee waiver in person on November 13, 2017. After receiving a demurrer challenging the complaint based on the of the statute of limitations, Plaintiffs filed the instant motion, requesting that the Court order nunc pro tunc that the complaint was timely filed on October 24, 2017.

Pursuant to the Seventh Amended General Order re: Personal Injury Court Procedures, ¶ 2 (emphasis added):

Parties may file documents in person at the filing window, via U.S. Mail, via e-Delivery, which is available online at www.lacourt.org (link on homepage). Please note that filings are no longer accepted via facsimile and must be filed either in person, via U.S. mail or via e-Delivery. Claims involving an attorney-client fee dispute, documents in which the filing party is a minor, legally incompetent person, or person for whom a conservator has been appointed, Requests to Waive Court Fees (FW-001) and Requests for Accommodations by Persons with Disabilities (MC-410), may not be filed via e-Delivery.

Plaintiffs argue this provision violates CCP § 1010.6(b) and Gov. Code § 68634(b).

Pursuant to CCP § 1010.6(b):

(b) A trial court may adopt local rules permitting electronic filing of documents, subject to rules adopted pursuant to subdivision (e) and the following conditions:

. . .

(6) The court shall permit a party or attorney to file an application for waiver of court fees and costs, in lieu of requiring the payment of the filing fee, as part of the process involving the electronic filing of a document.

Pursuant to Gov. Code § 68634(b)

(b) All applications for an initial fee waiver shall be accepted for filing. If an applicant submits an application without providing all required information to complete the form, the clerk may request that the applicant supply the omitted information, but shall not refuse to file the application, or refuse to file any pleadings accompanying the application, on the ground that the fee has not been paid.

The Court agrees that under both provisions, the Court’s policy of refusing to file a complaint when the fee waiver accompanying it was filed electronically is invalid. (See Carlson v. State of California Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1270 [“[W]e . . . hold that the local Superior Court may not condition the filing of a complaint on local rule requirements. Instead, so long as a complaint complies with state requirements, the clerk has a ministerial duty to file. In legal effect, a complaint is ‘filed’ when it is presented to the clerk for filing in the form required by state law. Plaintiff’s complaint was hence effectively filed when it was first presented to the clerk, and the statute of limitations therefore did not run.”].)

Defendants’ only argument in opposition is to state that because the General Order is a pilot program, it should not be subjected to the foregoing laws. Defendants submit no authority to support this position.

The plain text of CCP § 1010.6(b) states that a trial court “may” adopt rules for the filing of electronic documents, but that if they do so, they “shall” permit fee waivers as part of the electronic filing process. There is no qualification on this requirement. Additionally, even the Court were empowered to do such, under Gov. Code § 68634(b), improprieties in the fee waiver filing is generally not a basis for refusing to file the complaint; the Court therefore should, at a minimum, have filed the complaint effective October 24, 2017, while further instructing Plaintiffs on how to submit whatever additional information—in this case, apparently hard copies of the documents—was needed to complete the fee waiver application.

Defendants argue that, even if the foregoing is correct, a nunc pro tunc order is an incorrect method to seek the relief sought. Defendants provide no explanation as to what process would be more appropriate. However, the authority cited by Defendants make clear that a nunc pro tunc order is precisely the proper remedy for this situation: A nunc pro tunc order “cannot be made for the purpose of declaring that something was done which was not done. Its only office is to cause the record to show something done which was actually done, but which, by misprision or neglect, was not at the time entered in the record.” (City of Los Angeles v. Superior Court for Los Angeles County (1968) 264 Cal.App.2d 766, 771.)

This order meets this definition precisely. Plaintiffs’ complaint was actually filed on October 24, 2017. It was incorrectly not recorded as having been filed, based on a perceived—but nonexistent—error in the manner in which it was filed. The record should be corrected to reflect the correct filing date.

For the foregoing reasons, Plaintiffs’ motion is GRANTED. The Court orders the date of filing on Plaintiffs’ complaint corrected nunc pro tunc to reflect that the complaint was filed on October 24, 2017.

Dated this 7th day of March, 2018

Hon. Marc Gross

Judge of the Superior Court