Metropolitan News-Enterprise


Thursday, December 18, 2003


Page 1


Lawsuit Held Time-Barred Where Check for Filing Fee Was $3 Short

Result ‘Harsh but Unavoidable,’ Presiding Justice Laurence Kay of First District’s Div. Four Says


By KENNETH OFGANG, Staff Writer/Appellate Courts


A complaint that the clerk did not accept for filing because the filing fee check was $3 short of the amount required was untimely filed and the action time-barred, the First District Court of Appeal has ruled.

The justices Tuesday affirmed San Francisco Superior Court Judge David A. Garcia’s order dismissing a malpractice suit against St. Luke’s Hospital and other defendants. The plaintiffs claimed the defendants’ negligence resulted in the death of their infant child.

Presiding Justice Laurence Kay called the result “harsh but unavoidable.”

California law, he said, gives court clerks no authority to file documents when the filing  party is required to pay a fee and fails to do so in the correct amount. And it makes  no exception to the statutes of limitations when a complaint is presented to the clerk within the allowed time but the clerk correctly declines to file it, the jurist said.

Kay quoted Benjamin Franklin: “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.” 

The “missing nail” is, in this case, the check that the plaintiffs’ attorney sent from San Diego to the clerk in San Francisco for $203 rather than the required $206, Kay said.

The check arrived on Oct. 8 of last year, one day before time ran. By the time counsel learned of the problem, time had run out.

Nunc Pro Tunc

The court granted the plaintiffs’ petition to file the complaint “nunc pro tunc” with a filing date of Oct. 8, but did so subject to motions to strike by the defendants. The defendants filed such motions, along with general demurrers based on the statute of limitations.

Garcia expressed sympathy for the plaintiffs, saying it was a “horror story” for them to lose their action based on a “very minimal” discrepancy in the filing fee. But he said he had no legal alternative to granting the defendants’ motions.

Kay agreed, rejecting the defendants’ claims that the shortfall was an “insubstantial defect” and that because the precise amount of the fee is set by local rule, full payment is not a prerequisite to the filing of a complaint.

The case law, Kay said, is uniform in requiring clerks “to demand and receive” the filing fee before a paper can be filed.

The requirement is not jurisdictional, Kay acknowledged, and courts have held that filings were timely in cases where the clerk misadvised as to the amount due or erroneously filed a document where no fee was tendered or where an attorney was told that a document could be filed upon payment of part of the fee with the understanding that the balance would be paid later.

Unpaid Fees

But that is not the case here, nor does a statute allowing a filing to stand where the fee check bounces but is made good within 20 days apply,. the presiding justice noted. And none of the cases excusing pleading defects that were deemed insignificant involve unpaid fees, Kay said.

“In any event, no scrutiny of plaintiffs’ actions can ignore the fact that the full amount of the mandatory filing fee was not submitted in a timely fashion,” he wrote.

The clerk’s refusal to file the document, Kay went on to say, was based not on a local rule—which the Court of Appeal has held cannot be a condition to the filing of a complaint—but on “state statutes of unambiguous language and meaning, which make the payment of fees the condition precedent to the filing of court documents or pleadings.”

The case is Duran v. St. Luke’s Hospital, 03 S.O.S. 6433.


Copyright 2003, Metropolitan News Company