Metropolitan News-Enterprise


Wednesday, November 20, 2019


Page 1


Court of Appeal:

Statute of Limitation Equitably Tolled Where Google-Search Caused Misapprehension

Law Firm Acted Reasonably, in Good Faith, Where It Mailed Complaint to Clerk’s Office After Search Engine Brought Up Outdated Page Saying Hard-Copy Filing Is Permitted


By a MetNews Staff Writer


The Fifth District Court of Appeal has reversed the dismissal of an action that was filed electronically 10 days after expiration of the two-year statute of limitation on personal injury actions because the plaintiff’s attorneys believed that hard copies of pleadings could still be filed in the Clerk’s Office and had timely mailed the complaint there.

The court, in an unpublished “By the Court” opinion handed down on Monday, declared that that the doctrine of equitable tolling applies because attorneys for plaintiff Joelle Wright acted in good faith and reasonably, the defendant received prompt service of the complaint after it was electronically filed, and was not prejudiced by the brief delay.

It explained that a Google search was performed that led to a page on the Merced Superior Court website which said electronic filing was merely permissive—a page apparently still on the court’s server though links on the website no longer led to it.

Paper-Copy Mailed

The statute of limitation was set to expire on July 16, 2017. The complaint was mailed to the Clerk’s Office on July 6 and it was received on July 10—but was mailed back three days later because the court, by a local rule, only accepted electronic pleadings unless there had been a waiver.

The complaint was filed electronically on July 26.

Defendant Robinson Oil Corporation demurred, arguing that the action was time-barred. Merced Superior Court Judge Brian L. McCabe told the plaintiff’s counsel at a hearing on the demurrer:

 “[I]if you’d gone to the Merced County Superior Court website, you would have found the current rules online. Whether or not there were old rules somewhere else on some search engine is irrelevant, and something that the Court does not control, doesn’t even attempt to control.”

The lawyer explained:

“We have a screen shot of the Merced County Superior Court website. That was attached as an exhibit, Your Honor. We went to the Merced County website.”

McCabe sustained the demurrer without leave to amend and dismissed the action.

Three Justices

A Fifth District panel—composed of Acting Presiding Justice Donald R. Franson Jr. and Justices M. Bruce Smith and Mark W. Snauffer—said in Monday’s opinion:

“Based on the record before us, it was objectively reasonable for plaintiff’s representatives to use an Internet search engine such as Google to find a website on the Internet. The facts in the record do not suggest, and defendant has not argued, (1) an alternate method for finding the website exists and (2) that alternate method rendered the use of the search engine objectively unreasonable.”

The panel reached this conclusion:

“The appropriate length of the tolling resulting from the law firm’s mistaken belief that electronic was permissive is the amount of time the law firm held that belief. In other words, this incorrect belief and the acts and omissions resulting from the belief constitutes the tolling event….Accordingly, the limitations period was equitably tolled on July 6, 2017, when the firm conducted the Internet search and then mailed the complaint and check for the filing fee to the superior court. That belief continued until the firm received the rejected complaint back from the clerk of court on July 18, 2017. The written notice included with the returned documents informed the representatives of the superior court’s local rule that made electronic filing of the complaint mandatory. Thus, the limitations period was tolled for 12 days.

“When the 12-day tolling period is tacked onto the two-year limitations period, which expired on July 16, 2017, the deadline for filing the action becomes July 28, 2017.”

The case is Wright v. Robinson Oil Corporation, F077203.


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