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Court of Appeal, Fourth District, Division 2, California.

Raymond Hugh ALGER and Dwight F. Coats, Petitioners, v. SUPERIOR COURT, SAN BERNARDINO COUNTY, Respondent. Burt Clark FOSSUM, Real Party in Interest.

No. E008120.

Decided: June 25, 1990

Harrington, Foxx, Dubrow & Canter and Thomas O. Russell, III, Jennifer N. Pahre, Los Angeles, and Todd M. Elliott, Pasadena, for petitioners. No appearance for respondent. No appearance for real party in interest.

This petition for a writ of mandate asks us to overturn a nunc pro tunc order by the trial court changing the filing date of a stipulation to file a cross-complaint and the cross-complaint so as to come within the personal injury limitations period of one year.   Petitioners contend that the trial court had no power to change the filing date nunc pro tunc from the date when the clerk actually filed the papers to the date when the clerk received the papers but rejected them because the stipulation had an incorrect case number.   We disagree.

This litigation stems from a multiple-vehicle, single-fatality accident that occurred on October 11, 1988.   The decedent's parents commenced the action suing the petitioners and real party in interest, all of whom answered.   Subsequently, petitioners executed a stipulation permitting real party to file a cross-complaint.1  The stipulation and the cross-complaint, which alleged negligence and prayed for damages in a fourth cause of action, were mailed to the clerk with a request for filing and stamped received by the clerk on October 3, 1989, within the limitations period.   The clerk returned the stipulation and cross-complaint by mail to real party's counsel with a form letter stating that the documents had not been filed because the stipulation had the wrong case number (“OCV 41599” instead of “RCV 047064”).   Real party's counsel received the documents back in the mail October 17, 1989, after the expiration of the limitations period.   The documents were once again presented and accepted for filing on October 20 with the incorrect case number lined out and the correct number handwritten next to it.

Petitioners filed an answer to the cross-complaint two weeks later, unaware of the cross-complaint's record filing date, and the matter proceeded to mandatory settlement conference where the plaintiffs settled with the petitioners.   The trial court granted the petitioners' motion for good faith settlement and sustained a demurrer “in its entirety” to real party's cross-complaint with thirty days leave to amend.   The grounds of the demurrer included the elimination of the causes of action for indemnity, contribution, and declaratory relief by the settlement, as well as the vagueness of the negligence cause of action and its filing after the statute of limitations had run.   Real party filed a first amended cross-complaint on February 9, 1990, expanding and clarifying the cause of action for negligence previously pled in the original cross-complaint.

The day before, real party filed the motion for a nunc pro tunc order changing the original cross-complaint's October 20 filing date of record to October 3, 1989.   Petitioners opposed the motion contending that the first amended cross-complaint's negligence cause of action did not relate back to the filing date of the original cross-complaint because the earlier pleading did not include a cause of action for negligence, and the amended cross-complaint clearly violated the one-year statute of limitations.   A minute order dated March 30, 1990, records the granting of the nunc pro tunc motion;  apparently no reporter was present to transcribe the proceedings.   The trial court rejected petitioner's opposition because a cause of action for negligence was stated in the original cross-complaint and the good faith settlement order only barred cross-complaints insofar as they stated causes of action for indemnity or contribution for the plaintiffs' wrongful death damages.   The real party's cause of action for negligence against petitioners survived.

The minute order does not reflect any further grounds stated by the trial court for making the nunc pro tunc order.   Petitioners did not contend that the trial court lacked the power to make the record reflect an earlier filing date for the complaint, as they now do in this writ proceeding.   The trial court did not address the issue because it was not raised.   We hold, as subsequently explained, that the trial court had such power under California Rules of Court, rule 201(g) 2 .

 The clerk should not have rejected the stipulation and cross-complaint for filing in the first place.   We recognize that the stipulation was defective in failing to state the correct case number.  Rule 201(g) provides, “The clerk of the court shall not accept for filing or file any papers which do not comply with this rule,” and failing to put the correct case number on a document violates rule 201(c)(5), which requires the case number be placed on the first page of any paper.   However, rule 201(g) continues on to provide the means to deal with such a minor and easily correctable mistake:  “but for good cause shown the court may permit the filing of papers which do not comply.”   Such good cause includes the running of a statute of limitations and the ease of correcting the nonconformity, as in this case.

 While the clerk is not expressly commanded in rule 201(g) to present all defective papers to the court to determine whether good cause exists to file them despite the error or errors, certainly such procedure should be followed when, as in this case, the error is trivial and the importance of timely filing so great.   The clerk should exercise discretion as to whether to present defective papers to the court for approval of filing by the court under rule 201(g) rather than automatically refusing to file papers for minor, easily correctable errors.  (Compare Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669, 157 Cal.Rptr. 212 [judge dependent on clerk to bring nonconforming answers to interrogatories to court's attention for exercise of discretion under rule 201(g) (then rule 201(h)) ].)  When the clerk does incorrectly reject papers for filing, whether because the relevant circumstances that provide good cause for filing defective papers are not known or the clerk fails to exercise proper discretion, the court has the authority to retroactively exercise its discretion to file defective papers under rule 201(g) as of the date presented for filing by means of a nunc pro tunc order.

Petitioners misplace reliance on the holding in City of Los Angeles v. Superior Court (1968) 264 Cal.App.2d 766, at page 773, 70 Cal.Rptr. 826, that the trial court did not have the authority to change the filing date by a nunc pro tunc order.   The clerk allegedly refused to file a complaint and guardian ad litem petition because the latter document did not allege the minor's age;  a corrected petition and complaint was not filed until after the expiration of a limitations period.  (264 Cal.App.2d at pp. 767–769, 70 Cal.Rptr. 826.)   The court of appeal held that a nunc pro tunc order could not be used to declare the filing had occurred on the earlier date when in fact it had not.  (264 Cal.App.2d at p. 771, 70 Cal.Rptr. 826.)   The court did not reach the question of whether the clerk erred, as we do in this case, in rejecting the papers allegedly presented for filing because the appellate court found, contrary to the implied finding of the trial court, that the papers were not presented for filing at all.  (264 Cal.App.2d at pp. 772–773, 70 Cal.Rptr. 826.)

Finally, the court in City of Los Angeles made no reference to the rule 201(g), which at that time had been recently renumbered from rule 201(f) to rule 201(g) effective January 1, 1966.  (See Historical Note, 23 West's Annotated Cal.Codes, Civil and Criminal Rules (1981 ed.) Pt. 1, rule 201, p. 550.)

The petition for writ of mandate is denied.


1.   Petitioners allege that the “Stipulation allowing Real Party to file a Cross–Complaint [was] limited to indemnity, contribution and declaratory relief.”   However, the written stipulation makes no mention of any such limitation.   Furthermore, petitioners did not object to the filing of the cross-complaint on this ground in their answer, subsequently filed demurrer, or written opposition to real party's nunc pro tunc motion to change the filing date of the cross-complaint.   Petitioners have not provided a transcript of the hearing on the motion and do not contend that they raised the issue at the hearing.   Thus, petitioners have waived the issue.

2.   All further rule references are to the California Rules of Court unless otherwise specified.

DABNEY, Associate Justice.

HOLLENHORST, Acting P.J., and TIMLIN, J., concur.

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