Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Frank Y. Jackson, Judge. Reversed. No. MC 014605
Peter Silverbrand, in pro. per., for Plaintiff and Appellant.
Thever & Associates, Ronald A. Chavez; Pollack, Vida & Fisher, Girard Fisher and Daniel P. Barer for Defendants and Respondents.
FLIER, J.
INTRODUCTION
Peter Silverbrand, a state prison inmate, appealed to this court after the superior court entered a summary judgment against him in respondents’ favor. The court ruled appellant’s medical malpractice claims were barred by the statute of limitations. Appellant placed his notice of appeal in the prison mail system on the last day to appeal, and the notice of appeal was not received or filed by the court until after the last day to appeal had passed. In a prior unpublished opinion, we held that the “prison-delivery” rule does not apply to notices of appeal in civil cases, and we dismissed appellant’s appeal as untimely. (Silverbrand v. County of Los Angeles (Apr. 21, 2006, B176239).)
Respondents are the County of Los Angeles (County) and its healthcare provider employees, Viswanatham Piratla, M.D., and Cheryl Napier, ORT (operating room technician).
The California Supreme Court granted review. (Review granted, Aug. 16, 2006, S143929.)
In Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, the Supreme Court held that the prison-delivery rule properly applies to notices of appeal filed by incarcerated self-represented litigants in civil cases (id. at p. 113) and appellant’s notice of appeal delivered to prison authorities in the manner prescribed for transmitting legal mail, and before expiration of the 60-day jurisdictional period provided for an appeal was therefore timely (id. at p. 129). The Supreme Court accordingly reversed our prior decision and remanded the matter to us for proceedings not inconsistent with its opinion. (Id. at p. 130.)
Pursuant to the Supreme Court’s order upon remand, therefore, we address the merits of appellant’s appeal and reverse the summary judgment.
FACTS AND PROCEDURAL HISTORY
In May 2001, appellant, an inmate of state prison since 1994, underwent a hemorrhoidectomy at the County’s High Desert Hospital. Starting in January 2002, appellant presented four government claims to the County asserting medical malpractice in connection with his hemorrhoidectomy and related treatment. The County denied each claim and informed appellant in each instance that he had six months in which to file suit after the denial of the claim.
Appellant brought a complaint asserting medical negligence against respondents and others. However, his complaint was not actually filed by the clerk of the superior court until March 27, 2003. Respondents moved for summary judgment based on appellant’s failure to timely file a complaint within the statutory six months of the County’s rejection of his claims. (Gov. Code, § 945.6, subd. (a)(1).) The trial court granted the motion for summary judgment and entered a judgment in respondents’ favor.
As discussed post, appellant contends a summons and complaint was first submitted to the superior court clerk on his behalf on December 9, 2002.
Actions against a public entity and its employees are governed by the California Government Claims Act. (Gov. Code, § 900 et seq.) Under the Government Claims Act, a plaintiff cannot sue a public entity or its employees unless he or she first presents a written claim for money or damages to the entity and the claim has been acted upon or deemed to have been rejected by the entity. (§§ 905, 945.4.) A claim based on a cause of action for personal injury must be presented within six months of the date the cause of action accrued. (§ 911.2.) If the public entity denies the claim on its merits by sending a notice prescribed by section 913, the plaintiff has six months from the date of service of such notice to file suit against the entity or its employees. (§ 945.6, subd. (a)(1).)
Appellant then moved to set aside and vacate the judgment under Code of Civil Procedure section 663. He argued the statute of limitations was tolled for 90 days under Code of Civil Procedure section 364 (section 364), subdivision (d), which sets forth the procedure for suits based upon a health care provider’s professional negligence. The court deemed appellant’s motion to be one seeking a new trial and denied the motion. Appellant appealed from the judgment, and such appeal, as the Supreme Court held, was timely. (Silverbrand v. County of Los Angeles, supra, 46 Cal.4th at p. 129.) We thus turn to the merits of the appeal.
SUMMARY JUDGMENT
1. Allegations of the Complaint
Appellant directed two causes of action against respondents, the County and its employees. Appellant alleged in his first cause of action that on May 3, 2001, respondents negligently performed a hemorrhoidectomy on appellant at High Desert Hospital and negligently rendered postoperative care. As a result of respondents’ negligence, appellant suffered an anal stricture causing severe and painful constipation. This condition lasted until appellant underwent corrective surgery on October 24, 2001.
Appellant brought other causes of action against the State of California and its employees (state defendants). The trial court granted a summary judgment to the state defendants, and appellant appealed. In Silverbrand v. State of California (Feb. 23, 2007, B179338) [nonpub. opn.]) (Silverbrand II), we affirmed the judgment in part and reversed in part.
The complaint alleged in the second cause of action that during corrective surgery on October 24, 2001, respondents negligently inserted a Foley tube catheter into appellant’s bladder, resulting in lesions and a blood clot resembling a tumor. Appellant was diagnosed with a possible malignant bladder tumor, and he suffered from anxiety until tumor tests came back negative. Appellant alleged he continued to suffer injuries including irritable bowel syndrome from the negligent placement of the catheter.
2. Motion for Summary Judgment
Respondents moved for summary judgment or, alternatively, for a summary adjudication of issues, maintaining that appellant’s claims were barred by the statute of limitations. Respondents contended it was undisputed that, after presenting four claims to the County under the Government Claims Act, appellant failed to bring suit within six months of the denial of each claim under Government Code section 945.6, subdivision (a)(1), as follows.
Respondents did not raise any issue in their motion for summary judgment concerning any failure by appellant to present his government claims within six months of their accrual. (See Gov. Code, § 911.2.)
i. First Claim Negligent Failure to Notify
Appellant presented a claim to the county board of supervisors on January 7, 2002, alleging the hospital staff failed to notify the state prison staff on May 17, 2001, of a June 14, 2001 follow-up exam for appellant. Respondents contended appellant had six months from the February 4, 2002 denial of the claim, or to and including August 4, 2002, to bring suit, but appellant’s complaint was not actually filed until March 27, 2003, 416 days after service of the denial of the claim.
ii. Second Claim Negligent Hemorrhoidectomy
Appellant presented a second claim, for negligent performance of the May 3, 2001 surgery, to the county board of supervisors on February 14, 2002. The claim was denied on March 13, 2002. Six months after the denial was September 13, 2002. Respondents contended appellant’s second claim was barred for failure to file suit within six months of the denial of his claim because his suit was filed 379 days after the denial.
iii. Third Claim Negligent Catheter Placement
Appellant presented a third claim to the board of supervisors on March 26, 2002, for the negligent placement of a Foley catheter into his bladder during the October 24, 2001 corrective surgery. The claim was denied on April 25, 2002. Six months after the denial was October 25, 2002. Respondents contended appellant’s claim was barred because he did not file suit until March 27, 2003, 10 months and 27 days after the denial of his claim.
iv. Fourth Claim Negligent Hemorrhoidectomy
Appellant filed his fourth government claim with the board of supervisors on August 14, 2002, alleging a hospital surgeon negligently performed the hemorrhoidectomy on May 3, 2001, which he allegedly only discovered on July 5, 2002. Appellant was notified on September 13, 2002, that his claim was duplicative of his second claim, which had been denied on March 13, 2002, and no further action would be taken on the duplicate claim. Respondents contended that because appellant’s complaint was not filed until 379 days after service of denial of the claim, it was time barred.
B. Government Claim Denial
It was undisputed that appellant received the letters denying each government claim. Each letter notified appellant his claim was not timely filed within the six-month period provided by law and also informed appellant of his right to apply for leave to present a late claim. Appellant never filed an application for leave to submit a late claim to the County.
3. Opposition to Motion for Summary Judgment
A. Contentions in Opposition to Summary Judgment
Appellant contended he complied with the Government Claims Act by timely filing government claims against respondents. He also contended he timely filed his complaint after denial of his claims because (1) the six-month statute of limitations imposed by Government Code section 945.6, subdivision (a)(1) was extended 90 days by service of notices of intent to sue under Code of Civil Procedure section 364 and (2) his complaint was constructively filed on December 9, 2002.
We do not address appellant’s allegations that he presented his government claims within six months of accrual as respondents did not raise any issue regarding the untimeliness of appellant’s government claims in their motion and the trial court did not purport to grant summary judgment on that ground.
i. Extension of Time to File Suit
Appellant contended the six-month limitations period for each claim was tolled for 90 days under section 364, which requires potential medical malpractice plaintiffs to notify health care providers of their intent to sue 90 days before filing a complaint. Appellant asserted that because respondents were served (or, in the County’s case, allegedly constructively served) with notices of intent to sue on September 4, 2002, which was within a period of 90 days before expiration of the time to file suit, service of notice of intent to sue had the following effect on his claims under section 364, subdivision (d): (1) the first claim was forfeited because the notices of intent to sue were served after the six-month period to file a complaint had already expired; (2) the deadline to file a complaint based on his second claim was extended to December 12, 2002; (3) the deadline to file a complaint based on his third claim was extended to January 23, 2003; and (4) the deadline to file a complaint based on his fourth claim was extended to December 12, 2002, if considered redundant to the second claim, and to July 5, 2004, if not (see Gov. Code, § 945.6, subd. (a)(2) [two-year limitation if notice of denial of claim not given]). Therefore, appellant argued, the first cause of action of his complaint was timely because it was based on his second and fourth government claims, which had a filing deadline of December 12, 2002, and the second cause of action of his complaint was timely because it was based on the third claim, which had a filing deadline of January 23, 2003.
Appellant therefore concedes his first claim, respecting the hospital staff’s failure to notify the prison authorities of appellant’s follow-up appointment, is not viable.
ii. Constructive Filing of Complaint
Appellant additionally contended that his complaint was submitted to the Los Angeles Superior Court on Monday, December 9, 2002, together with associated documents and a money order for the filing fee, the complaint package purportedly was lost by the clerk’s office and, regardless of the reason for the complaint package’s disappearance, the complaint must be deemed filed as of December 9, 2002, because the clerk’s failure to file the complaint was an “‘extrinsic factor’ beyond [appellant’s] control.”
B. Declarations in Opposition to Motion for Summary Judgment
Appellant submitted his declaration and that of his wife, Betty Ballard, in opposition to respondents’ motion for summary judgment. The declarations stated the following.
In August 2002, appellant sent a letter to the clerk of Los Angeles County inquiring if the hospital was a division of the County and was told the hospital was a corporation and not a division of the County. Appellant then sent Ballard notices of intent to sue for medical negligence, dated September 2, 2002, and instructed her to serve them by certified mail, return receipt requested, on the director of the hospital and on respondents Dr. Piratla and Napier. Ballard served the notice of intent to sue letters on Dr. Piratla and Napier, as well as the director of the hospital, on September 4, 2002. The notice of intent to sue letter addressed to the hospital director, however, was returned to Ballard as a refused delivery. Following the rejection, appellant wrote to the Los Angeles County Department of Health Services inquiring whether the hospital was a division of the County; he was advised the hospital was part of the County and service of process could be made on the hospital director’s office staff. Appellant then sent Ballard a notice of intent to sue letter directed to the county board of supervisors. Ballard served the notice of intent to sue letter upon the board of supervisors on October 15, 2002.
Appellant declared that had the Los Angeles county clerk and Department of Health Services not misled him, he would have instructed Ballard to serve the county board of supervisors with the notice of intent to sue letter on September 4, 2002, the same date she served Dr. Piratla and Napier.
In late November 2002, appellant mailed a complaint package to an attorney in Visalia. The package included a complaint, summons, case cover sheet, certificate of assignment and a cover letter to the court clerk, together with a self-addressed stamped envelope and copies of the title pages to file-stamp. His cover letter instructed the attorney to hold the package for pick up by Ballard. Appellant asked Ballard to pick up the complaint package, add a money order for $214.50 payable to the Los Angeles Superior Court and mail them to the Palmdale branch of the court by certified or express mail. He told Ballard the filing deadline for two of the causes of action in the complaint was December 9, 2002, and he asked her to call the court clerk to verify that the complaint was filed.
Ballard picked up the complaint package from the attorney, purchased a $214.50 money order payable to the clerk of the Los Angeles Superior Court and sent the money order and the complaint package to the Palmdale branch of the court by express mail on Friday, December 6, 2002. She called the clerk of the court to confirm the filing in the afternoon on Monday, December 9, 2002. She was told by the clerk that the complaint was not yet filed and that legal papers received one day and file-stamped the next were back-dated to indicate filing on the day received.
Ballard called the clerk again on December 23, 2002, and the clerk denied having any record of appellant’s case on file. On December 25, 2002, appellant wrote to the clerk asking that the court records be checked to ascertain whether his complaint was filed or lodged with the court. The clerk responded on January 7, 2003, stating there was no such case on file.
Appellant submitted the same complaint package once again to the court on January 22, 2003. He sent the package by certified mail, return receipt requested, with a cover letter asking the clerk to “hold it pending payment of the filing fee by Ballard once delivery of the Complaint was confirmed.” However, because appellant had used obsolete forms, the clerk rejected the filing on March 18, 2003.
Meanwhile, Ballard obtained an express mail receipt for the December 6, 2002 complaint package, as well as copies of track/confirm documents showing routing and delivery times for the mailing. The track/confirm documents indicated the express mail package was delivered to the Palmdale court the morning of December 9, 2002, and received by “T. Cruz.” Appellant provided the clerk with these documents on January 27, 2003.
Ballard submitted a money order tracing and refund request to recover the missing $214.50 on January 10, 2003, and this amount less a service charge was eventually refunded to appellant by the issuer.
Ballard spoke with a clerk at the court on January 10, January 30 and March 3, 2003, regarding the missing complaint package and regarding payment of the filing fee for the second complaint package. On March 3, 2003, Ballard learned from the clerk that the court had no record of receiving the first package.
Ballard ultimately submitted a personal check for the filing fee to the clerk on March 10, 2003, and appellant resubmitted a complaint using the proper form on March 24, 2003. The complaint was officially filed by the clerk on March 27, 2003.
Ballard was informed by the clerk the filing fee in the interim had been increased to $224.50, and Ballard submitted the current fee amount to the clerk.
4. Summary Judgment and Appeal
The court granted respondents’ motion for summary judgment and entered a judgment of dismissal against appellant. The court indicated: “After considering all of the [p]leadings, evidence and argument of the parties, it appears that [appellant] failed to comply with the requirements of Government C[o]de [s]ection 945.6 in filing his complaint.... Even if the Court accepts [appellant’s] argument that his complaint should be found to have been filed on [December 9, 2002,] [e]ven though the [co]mplaint [had] a filing date of [March 27, 2003], it was still untimely pursuant to the requirements of a suit against a public entity....” In so ruling, the trial court did not give appellant the benefit of any tolling under section 364.
Appellant moved to set aside and vacate the judgment, arguing the statute of limitations was tolled for an additional 90 days under Wurtz v. County of Fresno (1996) 44 Cal.App.4th 380, 385 (Wurtz). The trial court deemed the motion to be a motion for new trial and denied the motion. The court further ruled, even considering Wurtz, “the Court still finds that the evidence shows that [appellant’s] [c]omplaint was filed on March 27, 2003 and not on December 9, 2002. Thus, [appellant’s] [c]omplaint is untimely, even if the Court were to allow the tolling pursuant to... [s]ection 364[, subdivision] (d).” Thus, the court concluded as a matter of law the complaint could not be deemed to have been constructively filed on December 9, 2002. This appeal followed.
STANDARD OF REVIEW
Summary judgment is proper when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s grant of summary judgment de novo, considering all of the evidence the parties offered in connection with the motion and the uncontradicted inferences reasonably supported by the evidence. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) The interpretation of a statute raises a question of law, which we review de novo. (Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1099.)
DISCUSSION
1. Tolling Under Section 364
Appellant argues that Code of Civil Procedure section 364 tolled for 90 days the six-month limitations period imposed by Government Code section 945.6, subdivision (a)(1). Appellant asserts he served respondents with notices of intent to sue for medical negligence on September 4, 2002, i.e., within 90 days of the original September 13, 2002 and October 25, 2002 filing deadlines. As we held in Silverbrand II, Code of Civil Procedure section 364 applies to toll the six-month limitations period mandated by Government Code section 945.6, subdivision (a)(1) by 90 days when the plaintiff serves a notice of intent to sue for medical negligence within 90 days of the expiration of the six-month period of limitations. (Silverbrand II, supra, B179338 [at p. 13].)
In Silverbrand II, we stated: “Subdivision (d) of section 364 provides that if the notice of intention to sue ‘is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.’ Subdivision (a) of section 364 declares that ‘[n]o action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.’ The statute thus does not distinguish between private health care provider defendants or governmental health care provider defendants. [¶] Our Supreme Court has held that when such a notice is served within the 90-day period, the applicable statute of limitations is tolled for 90 days. (Woods v. Young (1991) 53 Cal.3d 315, 319, 325 [tolling ‘results in a period of 1 year and 90 days in which to file the lawsuit’].) The Supreme Court has also indicated the tolling provision applies to the six-month statute of limitations under Government Code section 945.6. (Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 218..., citing Wurts[, supra,] 44 Cal.App.4th 380, 385..., and Anson v. County of Merced (1988) 202 Cal.App.3d 1195, 1204-1205 (Anson).) As the Supreme Court explained in Reiswig, ‘“‘a plain reading of the language of subdivision (d) of... section 364 extends the six-month period by ninety days from service of the notice of intention to institute legal action.’”’ (Reiswig, at p. 218.)” (Silverbrand II, supra, B179338 [at pp. 10-11].)
Appellant asserts his complaint incorporated only the allegations of the second and fourth government claims in the first cause of action and the allegations of the third government claim in the second cause of action. He states that the six-month deadlines to file his first and second causes of action were September 13, 2002, and October 25, 2002, and argues those deadlines were extended by 90 days, to December 12, 2002, and January 23, 2003, because he served notices of intent to sue on September 4, 2002. Each notice specifically stated, “This notice is served upon you pursuant to... section 364,” and the notice detailed his claimed injury pursuant to the statute.
As noted, ante, appellant concedes his claim based on respondents’ alleged failure to notify the prison staff of his postsurgery appointment has been forfeited.
Respondents contend that because appellant first presented government claims that met notice requirements under section 364, service of the subsequent notices of intention to sue did not toll the six-month statute of limitations. Respondents argue that a government claim and a section 364 notice serve essentially the same function of notifying the defendant of the plaintiff’s claim of wrongdoing and giving the defendant an opportunity to investigate the situation and settle if appropriate.
Nonetheless, as we stated in Silverbrand II, “[t]here is a crucial difference between the information required for a government claim and the information required for a notice of intention to file suit for medical negligence. Section 364, subdivision (b) requires a plaintiff to provide specific details regarding the claim: ‘[n]o particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.’ In contrast, a claim made under the Government Claims Act need only contain ‘[a] general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.’ (Gov. Code, § 910.)” (Silverbrand II, supra, B179338 [at p. 12].)
Respondents cite Anson, supra, 202 Cal.App.3d 1195 stating the court there addressed the interrelationship between government claims and section 364 notices. Respondents argue that, in Anson as in this case, the plaintiff first presented a claim to the public entity health care provider and later, in the last 90 days of the statute of limitations, served a section 364 notice. We note there the Fifth District stated, in dictum, that if a government claim could be construed to be a proper section 364 notice, “then the subsequent notices to the physicians could not have extended the time for filing the action because the first notice was filed before the six-month statute of limitations had even begun to run, and therefore well in advance of the threshold of 90 days before the expiration of the applicable statute of limitations....” (Anson, at p. 1203.) The court went on to observe that if the claim was also valid as a section 364 notice, “the later notices would have been mere surplus paperwork, the only practical effect of which would have been an attempt to extend the statute of limitations.” (Anson, at p. 1203.) However, the government claim there in issue fell significantly short of the specificity requirement, and the court held it could not qualify as a section 364 notice. (Anson, at p. 1204.) Therefore, the 90-day tolling period applied. (Id. at p. 1205.)
We have previously concluded and stated in Silverbrand II that “appellant’s government claim contained all the specifics necessary to satisfy the requirements of a notice of intent to sue for medical negligence. However, as the Fifth District noted in a case subsequent to Anson, ‘[a] claimant who... has complied with the letter and spirit of both [Code of Civil Procedure] section 364 and Government Code section 910 is entitled to the full benefit of both statutes, including tolling for 90 days of the 6-month limitations period of Government Code section 945.6.’ (Wurts, supra, 44 Cal.App.4th at p. 387.) Wurts held that ‘when... the pertinent facts do not disclose an intent on the part of the claimant to combine the two, the tort claim cannot be deemed to also constitute a notice [of an intention to sue].’ (Id. at p. 388.)... ‘... [Citation.] By holding that a tort claim cannot serve as a notice where there is no evidence the claimant intended the tort claim to serve as a notice, we expect that needless uncertainty and potential controversy will be avoided and full disclosure of all available information in a tort claim will be encouraged, thereby promoting the goals of the [Government Claims Act] by facilitating prompt investigation by the agency and possible early settlement of the claim. [Citation.]’ (Id. at pp. 387-388.)” (Silverbrand II, supra, B179338 [at pp. 12-13].)
As in Silverbrand II, appellant’s government claims in this particular instance contained no reference to section 364, and there is no indication appellant intended his government claim to also serve as a notice of intention to file suit under section 364. Conversely, appellant’s notices of intention to sue specifically refer to section 364 and explicitly give notice that “[i]n 90 or more days, you will be sued by [appellant] for malpractice through negligence.” As we held in Silverbrand II, service of notice of intent to sue within the 90 days before expiration of the six-month limitations period extends the limitations period in a suit against a public entity by 90 days. (Silverbrand II, supra, B179338 [at p. 13].)
This case is unlike Bennett v. Shahhal (1999) 75 Cal.App.4th 384, in which the plaintiff served a notice of intent to sue more than 90 days before the expiration of the applicable statute of limitations and then served a second notice of intent to sue within the 90-day period. (Id. at p. 387.) The court held the tolling under section 364 applies only to plaintiffs who have served their original notice of intent to sue within 90 days of the expiration of the applicable limitations period. (Bennett, at p. 390.) Service of an early notice would fully accomplish the legislative objective of “encouraging negotiated resolutions of disputes without the necessity of suit.” (Ibid.) A second notice, on the other hand, “would generally serve no purpose other than... extending the... limitations period by ninety days.” (Ibid.) Here, appellant’s government claims did not indicate any intent thereby to give notice of an intention to sue, and his subsequent notices of intent were thus not superfluous.
We conclude the trial court erred in ruling that section 364 did not serve to toll the six-month statute of limitations when in this case appellant presented government claims that demonstrated no intent to serve as notices of intent to file suit under section 364.
2. Constructive Filing a Triable Issue of Fact
Assuming the statute of limitations was tolled by his notices to sue, appellant contends his action against respondents was timely filed because his complaint was constructively filed when the clerk received his original complaint, together with a money order for the full filing fee, on December 9, 2002. We agree with appellant that there is at least a triable issue of fact whether his action was timely filed.
As we concluded in Silverbrand II, appellant presented evidence in opposition to the motion for summary judgment from which it could be inferred his complaint was constructively filed on December 9, 2002, and within any extended filing deadlines. (See Silverbrand II, supra, B179338 [at p. 7].)
In the trial court, appellant submitted a declaration from his wife stating that she sent the complaint, together with a money order for the full filing fee, by express mail to the court clerk on December 6, 2002. Appellant also submitted a copy of the postal service customer receipt for the mailing as well as a tracking confirmation showing the mailing was received by the court on December 9, 2002. The complaint was not in fact filed by the court on December 9, 2002, and the money order for the filing fee was never cashed. The evidence showed appellant did everything in his power to insure the court clerk timely received his complaint package including the correct filing fee.
Appellant thus presented sufficient evidence to raise at least a triable issue of fact whether the complaint was constructively filed on December 9, 2002. (See Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1270 [“a complaint is ‘filed’ when it is presented to the clerk for filing in the form required by state law”]; United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, 918 [“it is the filer’s actions that are scrutinized in determining whether a petition was timely filed”]; see also Silverbrand v. County of Los Angeles, supra, 46 Cal.4th at p. 129 [referring to the “fundamental rule of equal treatment and access” for self-represented prisoners]; Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1486, fn. 14 [evidence that prisoner submitted complaint rejected by clerk for failure to use proper forms within limitations period raised legal and factual issues regarding timeliness of complaint].)
Respondents acknowledge appellant presented evidence in the trial court “purportedly show[ing] that in December 2002 his wife express-mailed the complaint and a money order for the filing fee to the superior court; that the package was delivered and signed for; and that it subsequently disappeared.” But respondents assert the undisputed facts establish the trial court never cashed the filing-fee money order, and neither appellant nor his wife and agent Ballard paid the filing fee until March 2003.
Respondents urge that “‘payment’ requires more than merely sending a money order to the court, even if the court receives the money order,” and assert that “[t]he trial court must also cash the money order.” For this proposition, they place reliance on Duran v. St. Luke’s Hospital (2003) 114 Cal.App.4th 457 (Duran), a case in which the plaintiff’s attorney submitted a summons and complaint to the clerk of the court with an insufficient filing fee. (Id. at pp. 459-460.) Duran stated that “[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.” (Id. at p. 459, italics added.) But respondents read too much into this language. As Duran also explained: “while it is mandatory for court clerks to demand and receive statutorily required filing fees, it is not, as defendants maintain, a jurisdictional defect if the precise fee is not collected. Thus, if the clerk misadvises an out-of-state party as to the amount of the required fee, payment of the incorrectly quoted amount may be deemed sufficient for the filing. [Citation.] If a clerk advises an attorney that a pleading submitted with a check for less than the correct fee will be filed, with the attorney to pay the balance of the fee, the pleading will be deemed filed when submitted. [Citation.] Or, if a clerk does file without receiving the fee, the filing is nevertheless valid. [Citations.] Finally, if the clerk files a pleading accompanied by a check subsequently not honored for insufficient funds, the filing remains valid if the fee is paid within 20 days. [Citation.]” (114 Cal.App.4th at pp. 460-461, italics added.) The court noted that as Duran’s particular circumstances fit into none of these exceptions, there was no constructive filing. (Id. at p. 461.)
The present circumstances, on the other hand, are akin to the exceptions Duran listed. Here, there is no dispute that the money order submitted with appellant’s complaint was for the full amount of the filing fee but the money order, together with the summons, complaint and related papers, was lost by the clerk’s office. When a plaintiff has submitted to the clerk a money order or check for the full filing fee, accompanied by the complaint and summons, and the clerk has received the submission but lost it through no fault of the plaintiff, the complaint may be deemed constructively filed.
Respondents point out that the undisputed evidence showed appellant knew about the nonpayment in December 2002, yet neither he nor Ballard attempted to cure it until March 2003, which was too late. One can reasonably infer from appellant’s evidence payment of the fees could have been accomplished when first tendered on December 9, 2002, if only the clerk had not lost the money order and complaint package. Appellant provided evidence that he and his wife were in communication with the clerk and the clerk was investigating the whereabouts of appellant’s money order and complaint. A finder of fact could conclude appellant acted reasonably, especially when, once it was established the clerk had misplaced the money order, his wife promptly paid the filing fees.
Indeed, respondents concede that money orders are “the functional equivalent of a negotiable instrument” and that “[m]oney orders and negotiable instruments such as checks are indistinguishable once they are placed in the stream of commerce.”
The trial court erred in concluding there could be no constructive filing on December 9, 2002, and in denying appellant’s motion on that basis.
DISPOSITION
The judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this decision. Appellant is to recover costs on appeal.
We concur: RUBIN, Acting P. J. BIGELOW, J.