THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR

UNIVERSITY v. THE SUPERIORCOURTOFSANTA CLARACOUNTY

Filed 4/18/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Story continued from Part I ..

We find the legislative history of section 446 and the wider historical circumstances of its enactment to be informative. Section 446 was derived from section 51 of the California Practice Act of 1851, which included the first California codification of the subscription requirement. Section 51 provided, Every pleading shall be subscribed by the party, or his attorney, and when the complaint is verified by affidavit, the answer shall be verified also, except as provided in the next section. (Stats. 1851, ch. 5, 51, p. 58.)

One legal commentator has noted the background of the Practice Act: California adopted code pleading in 1851. The Practice Act of that year was based on the code which David Dudley Field had prepared for New York three years before; Fields brother, Stephen J. Field, later a Justice of the United States Supreme Court, came to California in 1850 and was the author and prime mover of the California legislation. The 1851 Practice Act was succeeded, in 1872, by a Code of Civil Procedure which, much amended, remains in effect today. [] The California Code was the model which many western states followed when adopting code pleading. It has always enjoyed a liberal interpretation, and indeed the draftsmen of the federal rules drew heavily on the California provisions. (Wright, Procedural Reform in the States (1959) 24 F.R.D. 85, 91.)[1]

Another legal commentator has described the history of the signature requirement in code pleading prior to 1851. [A]nother traditional means by which courts avoided litigation abuse was through a verification or signature requirement. The requirement varied depending on whether the case was based in equity or law. Beginning in the early sixteenth century, in the days of Sir Thomas Moore, English chancery courts required an attorney to sign every bill of complaint. The exact meaning and effect of this early equity signature requirement are subject to debate--some contend that a signature attested that good ground supported the pleading and others say that it was merely an attestation as to form. . . . . [] As American law makers began to codify the general equity practice in the early nineteen century, they included the signature requirement in their new rules. [] On the law side, courts using common law pleading required an offer of proof that announced that the plaintiff could produce proof of his [or her] charges. . . . The code pleading systems required the plaintiff to subscribe the complaint, but left to the plaintiffs discretion whether to also verify the complaint. The subscription was merely a signature, and the optional verification attested to the pleaders belief and knowledge as to the truth of the pleading . . . . Andrews, Motive Restrictions on Court Access: A First Amendment Challenge (2000) 61 Ohio St. L.J. 665, 697-699, fns. omitted.)

Based on our review of the language of section 446, its legislative history and the wider historical circumstances of its enactment, we find no suggestion that the Legislature intended a plaintiffs failure to comply with the subscription requirement of section 446 to constitute an incurable defect. Moreover, for the reasons discussed below, we find that section 128.7 also does not support Stanfords contention that a signature defect of the type at issue in the present case renders the complaint void and not subject to amendment.

b. Section 128.7

Section 128.7, subdivision (a) provides in pertinent part, Every pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorneys individual name, or, if the party is not represented by an attorney, shall be signed by the party.

Subdivision (b) of section 128.7 states the purpose of the signature requirement: By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the persons knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [] (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. [] (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. [] (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Section 128.7 also provides remedies for noncompliance with the signature requirement. Subdivision (a) states in pertinent part, An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. Thus, section 128.7 does not provide that a signature defect in a complaint renders the complaint void and incapable of amendment. To the contrary, it has been stated that the purpose of section 128.7 is to deter frivolous filings, not to punish parties. [Citation.] This purpose is forwarded by allowing the offending party to avoid sanctions altogether by appropriately correcting the sanctionable conduct after being alerted to the violation. [Citations.] (Hart v. Avetoom (2002) 95 Cal.App.4th 410, 414.)

Section 128.7 was modeled almost word for word on rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.) (hereafter Rule 11).[2] (Hart v. Avetoom, supra, 95 Cal.App.4th at p. 127.) Rule 11 was adopted in 1938, with the intention of requiring an attorney to certify, prior to filing an action, (1) that he had read the pleadings; (2) that to the best of his knowledge, information and belief, good grounds existed to support the pleading; and (3) that the pleading was not interposed for delay. (Comment, New Frivolous Litigation Law in Texas: The Latest Development in the Continuing Saga (1996) 48 Baylor L.Rev. 421, 425.) Moreover, [t]he original version consolidated certain provisions found in state codes requiring subscription of pleadings, Federal Equity Rules 21 (scandal and impertinence) and 24 (signature of counsel), and English practice. (Id. at p. 424, fn. 11.)

The original version of Rule 11 also required unrepresented parties to sign pleadings. (5A Wright & Miller, Federal Practice & Procedure (3d ed. 2004) Purpose and Effect of Signature, 1334, p. 538.) The purpose of requiring unrepresented parties to sign their pleadings was not to place them under an obligation to investigate as thoroughly as would an attorney whether there were reasonable grounds to support the action. Rather, it was to make certain that those named as parties in an action in which there was no lawyer representing them had actually assented to the filing of the action on their behalf. (Ibid.; Gonzales v. Wyatt (5th Cir. 1998) 157 F.3d 1016, 1021; Huffman v. Nebraska Bureau of Vital Statistics (D. Neb. 1970) 320 F. Supp. 154, 156.)

Because section 128.7 was modeled on Rule 11, [i]n examining the provisions of section 128.7, California courts may look to federal decisions interpreting the federal rule. [Citations.] (Hart v. Avetoom, supra, 95 Cal.App.4th at p. 413.) The federal courts have indicated that a signature defect in a complaint is not a fatal defect. A bungled signature on a pleading or a pleading filed inadvertently without any signature may be viewed as a technical defect and not a substantial violation of Rule 11. The law is clear that the pleading shall not be stricken unless the pleader fails to sign it promptly after being alerted to the defect. [Citations.] (Hadlock v. Baechler (W.D. Ark. 1991) 136 F.R.D. 157, 159; see also Burak v. Commonwealth of Pennsylvania (E.D. Pa. 1972) 339 F. Supp. 534, 535, fn. 2.)

In Covington v. Cole (5th Cir. 1976) 528 F.2d 1365, 1369, the complaint was signed by the plaintiffs wife as attorney in fact for the plaintiff. The federal court stated, [w]ithout deciding whether a signature by a spouse as attorney in fact can be sufficient under Rule 11, we can easily conclude that sua sponte dismissal with prejudice is not a proper disposition in the face of this arguable defect, at most a technical defect, in the complaint. Even if it might have been appropriate for the trial court to dismiss the complaint without prejudice to its refiling with the plaintiffs signature, we think that in the present posture of the case, the interests of justice require that we treat the complaint, as did the district court, as properly filed, and proceed to the merits of the appeal. (Id. at pp. 1369-1370.)

The court in Covington v. Cole also observed that [i]n situations in which a party is not represented by an attorney, the Rule 11 signature requirement seems designed mainly to assure the court that the named party is actually in assent to the filing of an action on his behalf. [Citation.] When a court is otherwise assured that the party endorses the pleading, even a complete failure to sign has been termed a mere technical defect. [Citations.] (Covington v. Cole, supra, 528 F.2d at p. 1369, fn. 7; Gonzales v. Wyatt, supra, 157 F.3d at p. 1021.)

Our review of the federal authorities convinces us that under Rule 11 a signature defect does not warrant striking of the complaint or dismissal of the action unless the plaintiff fails to timely remedy the defect or the court determines that the plaintiff did not actually assent to the filing of the action. We therefore determine that section 128.7 may be similarly interpreted to allow correction of a signature defect in a complaint after the defect is called to the attention of the plaintiff, where the correction is promptly made and the court finds that the plaintiff actually assented to the filing of the action.

We note that our determination is consistent with the decisions of state courts that have construed a statutory signature requirement based on Rule 11. In Save Our Creeks v. City of Brooklyn Park (Minn. 2005) 699 N.W.2d 307, 309, the Minnesota Supreme Court considered the issue of whether a complaint filed and signed on behalf of a corporate entity by a non-lawyer is a legal nullity.  The state high court answered the question in the negative, ruling that the signature defect was cured by adding the signature of the corporations attorney and that the amendment related back to the date of the original complaint. (Id. at pp. 310-312.) The appellate court of New York similarly granted the plaintiff leave to file and serve a properly signed complaint. (Cardo v. Board of Managers (N.Y. App. Div. 2006) 29 A.D.3d 930, 931, 801 N.Y.S. 2d 694 [granting leave to file a complaint properly signed under 22 NYCRR 130-1.1a(a)].)

5. Dixey v. Pollock

Stanford relies on the decision in Dixey, supra, 8 Cal. 570 for its contention that the falsely signed signature on Brians complaint renders the complaint void and not subject to amendment. We are not convinced that Dixey supports Stanfords position.

The issue addressed by the California Supreme Court in Dixey was the priority of three writs of attachments on the same goods. Plaintiff Dixey had obtained the last writ of attachment. He moved for an order requiring the sheriff to pay him the proceeds of the attached goods, asserting that the two prior attachments were void for irregularity. (Dixey, supra, 8 Cal. at p. 570.) The two prior attachments were obtained in two other cases, Adams v. Pollock and Pollock v. Pollock. Each case had a different procedural posture.

In Adams v. Pollock, the complaint was a printed blank, and the blanks were filled up by the clerk of the Court, at the request of the plaintiff, but no name was subscribed at the end of the complaint until the next day . . . It was then signed by the clerk, in this way, R.M. Adams, plaintiffs attorney. (Dixey, supra, 8 Cal. at p. 572.) Dixey argued that the complaint in Adams v. Pollock was void because it had not been subscribed and therefore the attachment could not issue. Our Supreme Court acknowledged that [u]nder our system of practice, an action is commenced by the filing of a complaint, and every pleading must be subscribed by the party or his attorney. (Ibid.) However, the court ruled that the complaint was not void because [t]he conduct of the clerk in filling the blank was not correct; but still it was a mere irregularity. And it is well settled that a stranger cannot interfere upon the ground of irregularity. (Id. at p. 573.)

In Pollock v. Pollock, the complaint was subscribed, R.H. Adams, plaintiffs attorney. (Dixey, supra, 8 Cal. at p. 573.) However, R.H. Adams was the plaintiffs attorney in fact, not his attorney at law. Our Supreme Court ruled that the complaint was drawn and filed by a party who had no authority to do so, and was not subscribed, either by the plaintiff or by his attorney, and the suit must be considered as having been instituted by an entire stranger to [the plaintiff], and wholly without authority, and, therefore, void. (Ibid.) The court in Dixey accordingly concluded that the attachment in Adams v. Pollock had first priority, that Dixeys attachment had second priority, and that the plaintiff in Pollock v. Pollock was left to his remedy, if any, against his agent. (Ibid.)

We believe that Dixey does not aid Stanford because the decision focuses solely on the validity and priority of the three competing attachments. Therefore, the question of the availability of amendment to cure the defective complaints was not before the court. It is axiomatic that cases are not authority for propositions not considered. [Citation.] (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.) Consequently, the decision in Dixey cannot be construed to support Stanfords contention that the signature defect at issue in the present case rendered the original complaint void and not subject to amendment.

Moreover, the complaint in Pollock v. Pollock was deemed void because it was signed by R.H. Adams, who was the attorney in fact of the plaintiff. In modern times, the federal courts have explained that where the document is tendered and signed by a nonlawyer on behalf of another, then there comes into play the underlying principle itself, namely that in federal court a party can represent himself or be represented by an attorney, but cannot be represented by a nonlawyer. (Gonzales v. Wyatt, supra, 157 F.3d at p. 1021.) The California Supreme Court in Dixey articulated a similar principle, stating that an attorney in fact had no authority to conduct the proceedings, as he was not an attorney at law. (Dixey, supra, 8 Cal. at p. 573.) This principle is not applicable to the case at bar, where Brians father signed the complaint in Brians name, not his own name as attorney in fact.

At most, the decision in Dixey tends to support Brians contention that the signature defect in his original complaint is a mere irregularity that may be cured by amendment. As we have noted, our Supreme Court deemed a clerks act of signing the name of the plaintiffs attorney at law, R.M. Adams, on the complaint in Adams v. Pollock to be a mere irregularity. (Dixey, supra, 8 Cal. at p. 572.) We find these facts analogous to the case at bar, where Brians father, John, signed Brians name to the original complaint. In both instances, the signature was in the name of a person authorized to conduct the proceedings.

For these reasons, we determine that the decision in Dixey cannot be read to support Stanfords contention that the complaint in the present case is void and not subject to amendment to cure the signature defect.

6. The Trial Court Did Not Err

We conclude that the trial court did not err in granting Brians motion for leave to file a first amended complaint signed by his attorney of record, for two reasons. First, as we have discussed, neither section 446 nor section 128.7 supports the proposition that a complaint signed in the name of the plaintiff by the hand of another is void due to the incurable signature defect. The decisions of the California and federal courts instead support a contrary interpretation that a signature defect is a mere technical irregularity. (Canadian Bank of Commerce v. Leale, supra, 14 Cal.App. at p. 309; Hellings v. Wright, supra, 29 Cal.App. at pp. 654-655; Vaccaro v. Kaiman, supra, 63 Cal.App.4th at pp. 768-769; Covington v. Cole, supra, 528 F.2d at pp. 1369-1370; Hadlock v. Baechler, supra, 136 F.R.D. at p. 159.)

Second, we reiterate that amendment of the complaint is available to cure a signature defect. We construe section 128.7, as Rule 11 has been construed, to allow correction of a signature defect in a complaint after the defect is called to the attention of the plaintiff, where the correction is promptly made and the court finds that the plaintiff actually assented to the filing of the action. (Covington v. Cole, supra, 528 F.2d at pp. 1369-1370; Hadlock v. Baechler, supra, 136 F.R.D. at p. 159; Gonzales v. Wyatt, supra, 157 F.3d at p. 1021.) This construction is also supported by section 473, subdivision (a)(1), which authorizes amendment of a pleading to correct a mistake in the name of a party, or a mistake in any other respect.

In California, the correction may be made by amending the complaint after the statute of limitations has run. (United Farm Workers of America v. Agricultural Labor Relations Bd., supra, 37 Cal.3d at p. 915 [authorizing amendment to cure a verification defect after expiration of the limitations period].) Allowing amendment of a complaint to cure a signature defect after expiration of the limitations period is consistent with Californias liberal policy of allowing amendment so that cases may be disposed of on the merits. (Douglas v. Superior Court, supra, 215 Cal.App.3d at p. 158.)

In the present case, the record reflects that Brian attempted to cure the signature defect in his original complaint by seeking leave to amend the complaint shortly after he testified in his deposition that his name had been signed by his father. The record also shows, and Stanford does not dispute, that Brian actually assented to the filing of the original complaint. The trial court therefore properly allowed amendment of the complaint to cure the signature defect after the expiration of the section 335.1 two-year statute of limitations.

Having reached this conclusion, we need not address the issue of whether the amanuensis rule applies to a signature required by section 446 and section 128.7 on a complaint. We also need not address Stanfords contention that John violated Penal Code section 115 by signing the complaint in Brians name.

C. The Order Denying the Motion for Summary Judgment

Stanfords summary judgment motion was based on the contention that Brian failed to file a validly signed complaint prior to the expiration of the section 335.1 two-year limitations period and therefore his action was time-barred. Because we have concluded that the trial court properly granted leave to file an amended complaint that corrected the signature defect and related back to the timely filed original complaint, we further conclude that the motion for summary judgment was properly denied.

IV. DISPOSITION

The petition for writ of mandate is denied. Costs in this original proceeding are awarded to real party in interest Brian J. Umana.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

MCADAMS, J.

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[1] The development of the Code of Civil Procedure in California is recounted in detail in Miller, History of the California Code of Civil Procedure (1955) formerly published at 23 Wests Annotated Codes 1, available now at [as of Apr. 12, 2007].)

[2] Rule 11 provides in pertinent part, Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.