Sulak v. Mortgage Electronic Registration Systems
Filed 3/14/07 Sulak v. Mortgage Electronic Registration Systems 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
JOSEPH SULAK, Plaintiff and Appellant, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., et al., Defendants and Respondents. | E039775 (Super.Ct.No. RIC398123) OPINION |
APPEAL from the Superior Court of Riverside County. Edward D. Webster, Judge. Affirmed.
Joseph Sulak, in pro. per., for Plaintiff and Appellant.
Pite Duncan & Melmet and Michelle A. Mierzwa for Defendants and Respondents.
1. Introduction
Plaintiff and appellant Joseph Sulak appeals from an order granting attorney fees to defendants and respondents Mortgage Electronic Registration Systems, Inc. (MERS), Aurora Loan Services, Inc. (Aurora), and the firms of Moss, Pite & Duncan, L.L.P., and Moss Codilis, L.L.P. (the Moss firms). The order granting attorney fees was entered after the trial court dismissed plaintiffs action. Plaintiffs sole contention on appeal is that the order was improperly granted because it was not timely filed. We affirm.
2. Factual and Procedural History
The trial court granted defendants motion to dismiss plaintiffs complaint as to them, because it had sustained a demurrer to the third amended complaint without leave to amend as to several causes of action and with leave to amend as to others, but plaintiff did not file a fourth amended complaint. Judgment of dismissal was entered May 17, 2005. Defendants served written notice of entry of judgment on May 27, 2005.
On July 26, 2005, the 60th day after the notice of entry of judgment had been served, defendants sent their attorney fee motion papers to the superior court by facsimile (fax) transmission. The filing department of the superior court clerks office began receiving the fax transmission at 4:41 p.m.
The Riverside County Superior Court clerks office accepts civil filings in person from 8:00 a.m. to 4:00 p.m., Monday through Friday. When a civil filing clerk begins processing a filing before closing time, the clerk will complete the filing with a date stamp on that day, even if the processing is not physically completed until after the closing hour.
The Riverside County Superior Court clerks office accepts civil filings after 4:00 p.m., until 5:00 p.m., Monday through Friday with a time stamp in a drop box. If a filing document in the drop box is time stamped after 5:00 p.m., the filing clerk will stamp the document with the next business days date.
The Riverside County Superior Court, by local rule, also permits the filing of civil documents by fax. The Riverside County local rule follows California Rules of Court, rule 2001 et seq.,[1]relating to filings by fax. As noted, on the date in question, defendants began their fax transmission of the motion documents at 4:41 p.m. The notice of motion and motion were transmitted at that time. The memorandum of points and authorities was received between 4:42 p.m. and 4:47 p.m. The declaration of defendants attorney was received between 4:47 p.m. and 4:50 p.m. Exhibits A and B to the declaration, as well as the first 13 pages of exhibit C were received between 4:50 and 5:00 p.m. The remaining pages of exhibit C and all of exhibit D were received after 5:00 p.m. The clerk nevertheless date stamped the motion as of July 26, 2005.
Plaintiff opposed the motion on procedural grounds: that the motion had not been timely filed because not all the pages were received in the clerks office before the official closing hour of 5:00 p.m.
The trial court rejected plaintiffs contention and found that the motion was timely filed, and awarded attorney fees and costs to defendants.
Plaintiff now appeals.
3. Analysis
I. Standard of Review
With respect to facsimile filings, [a]bsent statewide directions to the contrary, each court determines when it accepts documents for filing, and it may apply those deadlines created by its existing rules to filings made by fax. (Rosenberg v. Superior Court (1994) 25 Cal.App.4th 897, 900.) The clerks determination to accept the document for filing on the date it was faxed is pursuant to local court policy; the trial courts finding that the clerk properly accepted the motion as filed on that date was a determination within the courts discretion. We therefore review the matter for abuse of that discretion.
II. The Court Did Not Abuse Its Discretion in Finding the Motion Was Timely Filed
California Rules of Court, rule 870.2(b)(1),[2]provides that notice of a motion for attorney fees must be given within the same time limit as a notice of appeal; in this case, 60 days after notice of entry of judgment. Here, July 26, 2005, was the 60th day.
The evidence showed that, although in-person filings were not accepted in the clerks office after 4:00 p.m., if any filing clerk had begun to process a filing at the window before 4:00 p.m., the clerk would continue processing that paperwork until the filing was complete, even if the filing was not completed until after 4:00 p.m. Drop-box or fax filings were, however, accepted between 4:00 p.m. and 5:00 p.m. A drop-box filing time stamped before 5:00 p.m. would be file-stamped with that days date; a drop-box filing time stamped after 5:00 p.m. would be file-stamped with the date of the next court day.
The record unequivocally reflects that defendants began their fax transmission of the motion documents before 5:00 p.m. on July 26, 2005. Only one document and a portion of another supporting document were transmitted after 5:00 p.m. The filing clerk continued to process the paperwork until the filing was complete. The clerk date stamped the notice of motion and motion as of July 26, 2005. This was not an abuse of discretion. It accorded with the policies already in place for in-person filings begun before the close of the filing window at 4:00 p.m.to continue with processing until the filing was complete, with that days date.
When a court exercises its judicial discretionhere, whether to accept motion papers for filing on a certain dateit is subject to reversal only for arbitrary or capricious action. (See Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Plaintiffs demand that the motion papers be deemed not filed on the date submitted, simply because some pages of the supporting documents had not completed transmission until after the normal close of business at 5:00 p.m., is contrary to strong public policy favoring a just resolution of matters on their merits. (Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085.)
The trial courts determination that the filing was timely was not an abuse of discretion.
4. Disposition
The order awarding attorney fees to defendants is affirmed. Defendants and respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
HOLLENHORST
J.
MILLER
J.
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[1] Effective January 1, 2007, California Rules of Court, rule 2001 et seq. has been renumbered as rule 2.300 et seq. For the sake of clarity, we will refer to the rule under the former rule number.
[2]Effective January 1, 2007, California Rules of Court, rule 870.2 has been renumbered as rule 3.1702 without substantive change. For the sake of clarity, we will refer to the rule under the former rule number.
