Carraway v. Superior Court
Filed 7/12/13 Carraway v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
SHAKAREE CARRAWAY,
Petitioner,
v.
THE SUPERIOR COURT
OF
SAN BERNARDINO COUNTY,
Respondent;
COUNTY
OF SAN
BERNARDINO,
Real Party in Interest.
E058822
(Super.Ct.No. CIVDS1213290)
OPINION
ORIGINAL
PROCEEDINGS; petition for writ of mandate.
Bryan Foster, Judge. Petition
granted.
Law
Offices of Vincent W. Davis & Associates, Vincent W. Davis and Danielle K.
Little for Petitioner.
No
appearance for Respondent.
Jean-Rene
Basle, County Counsel, and Matthew J. Marnell, Deputy County Counsel, for Real
Party in Interest.
In this matter we have reviewed the petition and the
opposition thereto, which we conclude adequately address the issues raised by
the petition. We have determined that
resolution of the matter involves the application of settled principles of law,
and that issuance of a peremptory writ in the first instance is therefore
appropriate. (Code Civ. Proc.,
§ 1088; Palma
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179;
Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American
River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)
We
conclude that the trial court erred in denying petitioner’s motion to vacate
the order striking her petition filed on December
24, 2012, seeking relief under Government Code section 946.6.
As a
preliminary matter, we note that the trial court erred in requiring petitioner
to complete the second page of the application for waiver of court fees and
costs. However, the court did not act in
excess of jurisdiction in so doing.
Rather, the crucial issue with respect to the survival of petitioner’s
action is the January 14, 2013 order striking the petition
for late claim relief. Real Party in
Interest (real party) contends that vacating this order would serve no purpose
because the December 24 petition was void.
While Government Code section 68634 provides that the clerk shall void
the petition upon nonpayment, we do not believe that the December 24 petition
was void ab initio.
Real
party relies on Hu v. Silgan Containers
Corp. (1999) 70 Cal.App.4th 1261, where the plaintiff filed an action for
alleged discrimination against her employer shortly before the expiration of
the statute of limitations, but failed to pay the required filing fee to the
court. The clerk gave plaintiff notice
that she had to pay the fee within 20 days of the letter. The clerk’s letter was returned marked “unclaimed.†The pleading was voided. After the running of the statute of limitations
on the cause of action, plaintiff paid the late fee charges. The plaintiff thereafter paid the filing fee
and late charges and obtained an order “retroactively reinstating†her
complaint. (Id. at p. 1264.) The
employer moved for judgment on the pleadings, arguing that the statute of
limitations barred Hu’s claims and that the trial court has no jurisdiction to
“reinstate†an action that had been voided for failure to pay required
fees. The trial judge granted the
motion, finding that once the court properly voided the plaintiff’s complaint,
the only way the plaintiff could pursue her discrimination claims was by filing
a new action, but the one-year statute of limitations ran three months before
the court voided the plaintiff’s complaint.
(Hu, at pp. 1264–1265.)
Unlike Hu, petitioner did file a
completed fee waiver application within the allotted time, but for whatever
reason, the clerk did not record as it being filed in the first case. In its response, real party argues that the
clerk acted properly in assigning a new number based on the documents that
petitioner filed. While the clerk’s
error was understandable and arguably the result of petitioner’s counsel’s
ineptitude, the bottom line is that there was a mistake in assigning a new case
number rather than filing the amended waiver application under the old case
number. The distinction between a
clerical error and a judicial error does not depend so much on the person
making it as it does on whether it was the deliberate result of judicial reasoning
and determination. The term “clerical
error†covers all errors, mistakes, or omissions that are not the result of the
exercise of the judicial function. If an
error, mistake, or omission is the result of inadvertence, but for which a
different judgment would have been rendered, the error is clerical and the
judgment may be corrected to correspond with what it would have been but for
the inadvertence. (Pettigrew v. Grand Rent-A-Car (1984) 154 Cal.App.3d 204, 209-210.)
We conclude the mistake in
assigning a new case number to the completed fee waiver application constituted
a clerical error—and not a judicial error.
Accordingly, the trial court should have granted the motion to vacate
the order striking the December 24 petition, reinstating that petition as of
its original filing date.
DISPOSITION
Let a
peremptory writ of mandate issue directing the Superior Court of San Bernardino
County to set aside its order denying petitioner’s motion to vacate the order
striking her petition filed on December 24, 2012, and to issue new orders
granting this motion, reinstating the petition nunc pro tunc, and granting
petitioner’s application for waiver of court fees and costs.
Petitioner
is directed to prepare and have the peremptory writ of mandate issued, copies
served, and the original filed with the clerk of this court, together with
proof of service on all parties.
The
parties are to bear their own costs, if any.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
CODRINGTON
J.
