 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Duran v. St. Luke's Hospital12/16/2003
CERTIFIED FOR PUBLICATION
Benjamin Franklin described the snowballing consequences of inattention to a small detail-"For want of a nail, the shoe was lost; for want of a shoe the horse was lost; and for want of a horse the rider was lost." (Oxford Dict. of Quotations (2d ed. 1955) p. 211.) In this case the missing nail is a check that was $3 short of the amount required to file a complaint for medical malpractice that allegedly caused the death of the plaintiffs' infant child. The harsh but unavoidable result is that we affirm the trial court's dismissal of the complaint because it was not filed before the statute of limitations ran.
There is no dispute as to what happened in 2002. The parties agree that the final day for filing the complaint was October 9. On October 7 plaintiffs' San Diego attorney sent the complaint and summons by Federal Express to the filing clerk of the San Francisco Superior Court. Also sent was a check for $203. On October 8 the clerk received the complaint but did not file it because the filing fee was $206, $3 more than the amount of the check. By the time plaintiffs' attorney learned of the situation and tendered the correct filing fee, the statute of limitations had expired. Plaintiffs filed a petition for "an Order Nunc Pro Tunc declaring that the Complaint . . . shall be deemed filed on October 8 . . . ." On November 4 the trial court granted the petition but expressly made its order "subject to a motion to strike by defendants." Defendants duly filed motions to strike, as well as general demurrers, all based on the ground that the limitation period had run. The trial court, although "very sympathetic" to plaintiffs' situation, which it described as "a horror story . . . . [ ] . . . onpayment of . . . that $3 is very very minimal," nevertheless believed the authorities cited by defendants required it to grant the motions. A judgment of dismissal was entered in due course, from which plaintiffs perfected this timely appeal.
The parties approach the problem from different directions. Plaintiffs claim to have the support of our Supreme Court and the Ninth Circuit for analyzing this situation from the perspective of the party attempting to file a document. Plaintiffs also view the amount of the filing fee as governed by local court rules, which do not require the strict compliance demanded of state court rules. Finally, they argue that their complaint "should have been deemed filed on the date initially presented to the clerk for filing, because the $3 discrepancy in the filing fee is an insubstantial defect" and because dismissal solely by reason of discrepancy is "unreasonably drastic." Even though the amount of the filing fee may have a local component, defendants see the issue as one of state law, maintaining that the clerk had the ministerial duty to reject the complaint for filing. What the clerk did was not only statutorily mandated, it was also jurisdictional.
A number of provisions in the Government Code address the topic of court filing fees. Section 6100 states that "Officers . . . of a . . . judicial district shall not perform any official service unless upon the payment of the fees prescribed by law for the performance of the services . . . ." Section 24350.5 states that "County officers shall . . . demand the payment of all fees in civil cases, in advance." Section 26820 directs that "The county clerk shall charge and collect the fees fixed in this article . . . for service performed by the clerk . . . ."
An 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. (I. X. L. Lime Co. v. S
Page 1 2 3 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|